SOCIO-CULTURAL FACTORS AND CONSTITUTIONAL LEGITIMACY
Panel formed with individual proposals.
The rule of recognition, as coined and defined by HLA Hart, is increasingly used as an organising principle in UK constitutional discourse. Student textbooks and leading judgments have in the past 20 years begun to explain and analyse parliamentary sovereignty as the UK's rule of recognition. Yet this usage is mistaken. The issues Hart was interested in are rarely - if ever - at stake in public law discourse or adjudication. The rule of recognition analysis neither coheres with nor explains developments in the UK constitution in recent decades. The explicitly political nature of key aspects of the UK constitution makes a strict positivist approach to constitutional doctrine all the more peculiar. At a time of significant constitutional uncertainty, a broader legal realist account of doctrinal change and adaptation by judges and politicians is required.
First, our research project surveys all the constitution-making processes that took place in Latin America from 1917 to 2019, in order to determine their levels of both participation (understood as the direct involvement of individual citizens in the process) and inclusiveness (understood not as a mere aggregation of individual participation, but as the inclusion of interest group advocates). Secondly, we aim to measure the effect that these various levels of participation and inclusion had on the content of civil, political, social, and indigenous rights of the constitutions produced, both from a quantitative perspective (number of rights) and qualitative one (depth of constitutional commitment).
This paper asks why a constitutional order based on the ideals of popular sovereignty and representation is such a difficult system to operate. It will show that both ideals are fraught with conceptual paradoxes. The doctrine of popular sovereignty demands that the constitution be conceptualized as the embodiment of the people‘s sovereign will, and yet, without the constitution, the people cannot be presumed to have a coherent will. The idea of representation demands that representatives accurately reflect the interests of their constituencies, and yet, prior to the process of representation, the constituencies and their interests cannot be ascertained with any degree of clarity. Taking its cue from Edmund Morgan‘s claim that popular sovereignty is a ‘fiction‘ and Claude Lefort‘s idea of the ‘empty place‘ of power, this paper will suggest that popular sovereignty and representation should be understood as a metaphor or allegory. Otherwise, tyranny will not be far down the line.
What makes constitutions legitimate in the eyes of citizens? The standard answer is consent or the will of the people or when it reflects the distinctive identity of the people it governs. The key to constitutional legitimacy is therefore representation. But there is a gap between this and constitutional practice - many stable constitutions simply do not satisfy this requirement. This paper identifies the existence of a new paradigm of non-representational constitutions, which are legitimated because they are believed to be grounded in reason. Thus the legitimacy of a constitution need not rest on the fact that it represents the people whom it governs - it may simply rest on the belief that it is a good or a just constitution. We further suggest that in some cases of reason-based constitutions, instead of drafting a constitution that represents the people, the constitution is designed to transform the people such that in the future they will be represented in the constitution.