The Positivist Account and the Challenge of New Constitutionalism
The core of legal positivism is the separability thesis, which claims that the constitutional law can be explicated independently of morality. Positivism has been the target of myriad attacks. Within the non-positivist tradition, many authors invoke a moralization of constitutional theory. Legal orders seem to endorse objective principles that protect human rights. What‘s more, the notion of legitimacy and the integration of national states into supra-national institutional structures seem to endanger the idea of a hierarchical structure. New Constitutionalism fosters the adoption of non-positivistic forms of constitutional argumentation. If this is the state-of-the-art, we might legitimately ask ourselves: is this the end of legal positivism as a model for constitutional law?