Constitutional change and the rule of recognition

Thesis

This thesis has two objectives. The first is to reflect on the social foundations of legal change, and of change in constitutional law in particular, by developing HLA Hart’s account of ultimate rules of recognition. It argues that any change in accordance with pre-existing ultimate rules of recognition should be viewed as meaningfully coming from within a legal system. This is so even if the change in question is not a result of an exercise of a legal power to make law. Thus, rules of recognition provide an independent ground of lawfulness of legal change. However, as customary social rules, they also open the law to change that does not obey any pre-existing legal conditions of change. Such change cannot happen through an exercise of a legal power to make law, but it is here argued that an alternative notion of a ‘legal ability’ to influence change should be used. The thesis also argues that such change of ultimate rules ought to be seen as revolutionary in some, but not all, instances.

Second, the thesis applies the jurisprudential framework of rules of recognition to the debates about constitutionality of constitutional change (but only in respect to change in constitutional law). It argues that some kinds change in constitutional law, perceived as normal by participants of legal practices, cannot be understood as ‘constitutional’ on a prominent view which identifies constitutionality of change with it being a result of an exercise of a legal power to effect the change. This ‘powers view’ is deficient because it does not appreciate the role of ultimate rules of recognition in grounding lawfulness of legal change. The thesis analyses the complex nexus of amendment powers, pretended powers (‘pious fictions’), and rules of recognition, thus giving a jurisprudentially sophisticated picture of constitutional change.

Authors: Barczentewicz, M

• DOI: 10.5287/ora-bprnjo76x
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: unconstitutional change; constitutional change; constitutional theory; HLA Hart; jurisprudence; philosophy of law; rule of recognition
• Subjects: Philosophy; Constitutional law; Law