45 Pages Posted: 26 Apr 2015 Last revised: 2 May 2015
Date Written: April 24, 2015
Just as it led the philosophy of science to gravitate around scientific practice, the abandonment of all foundationalist aspirations has already begun making political philosophy into an attentive observer of the new ways in which constitutional law is practiced. Yet paradoxically, lawyers and legal scholars are not those who understand this the most clearly. Beyond analyzing the jurisprudence that has emerged from the expansion of constitutional justice, and taking into account the development of international and regional law, the ongoing globalization of constitutional law requires comparing the constitutional laws of individual nations. Following Waldron, the product of this new legal science can be considered as ius gentium. This legal science is not as well established as one might like to think. But it can be developed on the grounds of the practice that consists in ascertaining standards. As abstract types of best “practices” (and especially norms) of constitutional law from around the world, these are only a source of law in a substantive, not a formal, sense. They thus belong to what I should like to call a “second order legal positivity.” In this article I will undertake, both at a methodological and an epistemological level, the development of a model for ascertaining global standards of constitutional law.
Keywords: Constitutional Law, Legal Science, Sources of Law (formal and substantive), Legal Standards, Ius Gentium, Legal Principles, Comparative Law, Venice Commission, Rule of Law, Rule of Law Indicators and Factors, Reflective Equilibrium, Interpretive Equilibrium, Rawls, Dworkin, Waldron
Suggested Citation: Suggested Citation
St-Hilaire, Maxime, Global Standards of Constitutional Law: Epistemology and Methodology (April 24, 2015). Available at SSRN: https://ssrn.com/abstract=2598489 or http://dx.doi.org/10.2139/ssrn.2598489