Constitution – the ‘ordering’ of political reality?

Abstract

Liberal culture and practices draw on, and are shaped by, different strands of legal positivism. Within the framework of legal positivism, the emphasis on legal institutions has been displaced by a focus on the institutions which apply the law, such as courts. Legal positivism unambiguously declares that both the very existence of the law and its content depend on social facts rather than on its value. The law is therefore a social construct and the most ‘social’ of all is the state. In this way, the philosophy of law has been dominated by the dispute between those who, following St Augustine, think that ‘an unjust law is not a law at all’ and those who, like John Austin, retort that ‘the existence of the law is one thing, its right character or the lack of it, is another’. The point of departure for liberal practice is the paucity of ethical norms, but most of all, however, the paucity of the practice of law making. Ethical dimension may be applied, at most, to the content of social conventions. Legal positivists long ago gave up on the thesis that moral norms are important only if they are rooted in God’s commandments. Such an attitude toward the law, even if ‘the voice of the people’ is not aware of these implications, leads to relativism, which may be overcome in two ways. The first finds its expression in the need to follow societal changes. Each new state of society means that a new constitution is needed, cut appropriately to that society’s needs and interests. The second reaction to relativism is the effectiveness which is related to the power held by the authorities, in this case the power to make the law. The higher the legal norm, the greater the will of the might. The drafting of a constitution is an expression of the élan vital unbound. In the taxonomy of law, everything is triangular, resembling a triangle upside down, and making for an appearance of order, with the basic law at the top and below it an ocean of acts. Law making becomes a yardstick for political activity. In the world of politics, where the very fact of existence is contingent on being noted and being seen, to act means nothing else than submitting initiatives for new legal acts. To act spectacularly means to change the basic law.