Are Constitutional Norms Legal Norms

Abstract

Modern legal positivism prides itself on the clear distinction it draws between legal and nonlegal norms. But how are we supposed to tell whether a given norm practiced and prevalent among the powerful in a society governed by law is actually one of its laws, part of its legal system, as opposed to a moral principle that powerful people happen to accept? The familiar answer refers us to the rule of recognition—the fundamental secondary rule, present in every system of law, whose function it is to pick and choose among positive norms and identify those that are accorded legal status. But this will not help if the norm we are asking about is arguably a part of the rule of recognition itself or part of some other fundamental secondary rule. Then we have a problem, for modern positivism provides no clear basis for distinguishing legal from nonlegal norms in this area. The rule of recognition helps us distinguish legal primary rules from nonlegal primary rules, but it is not clear how it can operate at the secondary level. Evidently, this is going to be a problem for constitutional norms, as many of the most important constitutional norms make up the secondary rules of the legal system to which they pertain. So we have to ask, Is there a way of distinguishing those constitutional norms that merely pertain to the foundations of the legal system from those that should be counted among the legal rules—the secondary legal rules—of the legal system itself?