INTRODUCTION

If we begin our reflections on constitutional jurisprudence from the legal positivist's notion of law – law as whatever is commanded by those who wield established authority – we face great difficulties in accounting for much of our legal experience. Can the familiar associations between law and liberty, or between law and justice, as daily exhibited in the practice of liberal democracy, really be only contingent connections, wholly dependent on the specific wording of a particular constitutional text? And is it true that, in the absence of such a text, all the liberties of the citizen are necessarily at the mercy of the current legislative majority? Are the unwritten principles of liberal constitutionalism, frequently acknowledged by courts as well as jurists, only optimistic presumptions – entirely subservient to the clear instructions of the text, which may or may not sustain them? Why should we try so hard to marry such a notion of “law,” having echoes of a brigade commander's instructions to his troops, with the complex content of a jurisprudence apparently devoted to securing the legitimacy of official coercion?