Abstract

HIMMA, Kenneth Einar. Understanding the relationship between the U.S. constitution and the conventional rule of recognition. Probl. anu. filos. teor. derecho [online]. 2015, n.9, pp.327-375. ISSN 2448-7937.

Legal theorists specializing in constitutional theory have tended to regard positivism and other conceptual theories as irrelevant; the idea is that a theory of the concept of law cannot tell us anything that helps to solve difficult normative and descriptive substantive issues of constitutional theory. While there is something to this complaint, there is at least one substantive non-normative issue worth pursuing and I attempt to pursue it here. In particular, I attempt to determine how the Constitution and rule of recognition are related by examining the practices of officials. This may not solve any interesting issues of constitutional theory, but it entails that judicial supremacy extends further than is commonly assumed, making the morally normative issues associated with this practice in a democratic system of governance even more difficult.

Keywords : Positivism; Constitution; Constitutionalism; Constitutional Interpretation; Judicial Supremacy; Rule of Recognition.

        · abstract in Spanish     · text in Spanish     · Spanish ( pdf )