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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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The Unwritten Constitution as a Legal Concept

The Unwritten Constitution as a Legal Concept

(p.33) 2 The Unwritten Constitution as a Legal Concept
Philosophical Foundations of Constitutional Law

Mark D. Walters

Oxford University Press

In this chapter, the author argues for the idea of the unwritten constitution as a legal concept that conditions or explains constitutions generally—an idea essential for the ideal of constitutionalism. He distinguishes between linear and circular theories of law, explaining the circular account by invoking a classical common law understanding of what ‘unwritten’ law is. He argues that not just individual constitutional norms but entire constitutions may be understood as a form of ‘unwritten law’ from this perspective. Examining the work of H. L. A. Hart and Hans Kelsen, he shows that linear theories of law produce a paradox that makes the basic ideal of constitutionalism, the goal of non-arbitrary government, problematic. He concludes by offering an alternative account of the constitution as unwritten—a circular jurisprudential account, based upon two principles, the pervasiveness of law and the ordinariness of law, as foundational to a compelling vision of constitutionalism.

Keywords:   unwritten constitution, constitutionalism, constituent law, linear and circular theories of law, common law constitution

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