Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-wzw2p Total loading time: 0 Render date: 2024-05-20T18:14:42.079Z Has data issue: false hasContentIssue false

16 - The Material Constitution and the Rule of Recognition

from Part II - Challenges

Published online by Cambridge University Press:  15 January 2023

Marco Goldoni
Affiliation:
University of Glasgow
Michael A. Wilkinson
Affiliation:
London School of Economics and Political Science
Get access

Summary

This chapter deals with the relationship between the rule of recognition of a legal system and the material constitution. While the former concerns the ultimate criteria to identify the law, the material constitution points to those of such criteria (rules) that are supreme within a legal order. We contend that the material constitutions can be conceptualised as the ’original constitution’. Instead, we propose understanding it as a facet of the rule of recognition. Thus intended, this notion can help illuminate the complex interplay between written and unwritten constitutional rules. Moreover, after casting doubts on the idea of the material constitution as a descriptive device to detect the ordering forces within society, we sketch the contours of a material constitution based on a normative political conception of the rule of recognition. The normative presupposition of such a conception is a strong linkage between the individuation/acceptance of the law by laypeople and the existence of a given constitutional order. In virtue of such a strong linkage, the material constitution, as a legal notion, enjoys a specific normative legitimacy within a legal order. In pluralistic contemporary societies, such legitimacy hinges fundamentally on democratic/procedural principles rather than substantive goals.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2023

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×