Chapter

Can There Be a Written Constitution?

John Gardner

in Law as a Leap of Faith

Published in print September 2012 | ISBN: 9780199695553
Published online January 2013 | e-ISBN: 9780191741296 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199695553.003.0004
Can There Be a Written Constitution?

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The existence of unwritten constitutions, such as that of the UK, strikes some as puzzling. However the existence of unwritten constitutions turns out to be easier to explain than the existence of written constitutions, such as that of the US. This chapter explores, and attempts to answer, some tricky conceptual questions thrown up by written constitutions. Of these the deepest and most difficult is the one with which Hart and Kelsen struggle, namely: How are constitutions constituted? In tackling this question we also arrive at some deflationary conclusions concerning the vexed problem of the interpretation of written constitutions.

Keywords: constitution; convention; rule of recognition; duties; powers; sovereignty; interpretation

Chapter.  14945 words. 

Subjects: Jurisprudence and Philosophy of Law

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