INTRODUCTION

The term constitutional positivism refers to a family of positions in legal and political theory, many of which are influential in contemporary debates. Members of this family include critics of judicial activism and academics who advocate an enhanced role for legislatures in constitutional interpretation and a diminished role for judges. They tend to see originalism, the idea that there is some original, factually determinable meaning of the constitution that it is the judicial duty to transmit to legal subjects, as a way of disciplining judges in order to confine their activism and diminish their role in legal order.

It is important at the outset to appreciate that constitutional positivism, although a member of the positivist tradition, has a rather complex relationship with it. Traditionally, positivism is hostile to judicial review for political reasons to do with ensuring that the law is made by the legislature, because it is in the legislature that collective judgments about the common good are most appropriately made.