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Dyzenhaus argues that Hart’s defence of legal positivism fails because Hart cannot without contradiction espouse both the claim that there is no necessary connection between law and morality and the claim that law has authority, that is, Herrschaft, not mere Macht. Moreover, in combination, the two claims result in what Spanish-speaking legal scholars have referred to as ideological positivism. Dyzenhaus argues, more specifically, that although Hart argued that legal positivism in the shape of the separation thesis is conducive to clear thinking and facilitates critical assessment of the law, his failure to follow through on his insights about the authority of law leads to a theory of law that is not free from the undesirable political (theoretical) consequences associated with totalitarianism, alleged by several critics of positivism.
David Dyzenhaus develops the theoretical basis for a ‘permeable’ conception of the constitution. This conception is developed by way of what Dyzenhaus calls ‘a rather deep dive into an arcane debate between the two great legal positivists of the last century, Hans Kelsen and H. L. A. Hart’. The purpose of that detailed analysis is to contrast the respective ‘functional equivalents they propose to Hobbes’s claim that a social contract explains the unity of political and legal order’. These alternatives are Hart’s rule of recognition and Kelsen’s basic norm. Favouring Kelsen’s dynamic, monist conception of the relation between international and domestic law, and his commitment to the ‘gaplessness’ of legal order, Dyzenhaus ultimately turns to exploring the promise of this conception for an understanding of, both the outward projection of public law norms of a domestic legal order beyond its borders, and the reception, within that order, of norms originating elsewhere.
This collection explores some of the many ways in which constitutional orders engage with the outside world – the world of other states, of foreign norms, and of individuals who are in some sense ‘strangers to the constitution’ These various forms of foreignness we refer to as constitutional and legal exteriority.
This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.
I argue that process and substance are two aspects of the public law form and that the form conditions the content of the law. The reduction of a political programme to the explicit terms of a statute involves a conversion of policy into public standards, which produces a kind of legal surplus value. It brings into being a particular type of public standard – one that permits the operation of the principles identified by Lon L. Fuller as the desiderata of the inner morality of law, and which enables individual claims of right based on legal principle to be adjudicated.
Oakeshott, Hayek and Schmitt are associated with a conservative reaction to the 'progressive' forces of the twentieth century. Each was an acute analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. Hayek had the highest regard for Schmitt's understanding of the rule of law state despite Schmitt's hostility to it, and he owed the distinction he drew in his own work between a purpose-governed form of state and a law-governed form to Oakeshott. However, the three have until now rarely been considered together, something which will be ever more apparent as political theorists, lawyers and theorists of international relations turn to the foundational texts of twentieth-century thought at a time when debate about liberal democratic theory might appear to have run out of steam.