Document Type

Article

Disciplines

International Law

Abstract

If by legal theory we mean considered reflection on the nature and sources of law, no field of law more insistently engages questions of legal theory than constitutional law. Constitutional law regularly involves the application of rules that are fundamental in the sense that they control and authorize other law but are, themselves, neither controlled nor authorized by any other law. The interpretation and elaboration of those rules necessarily requires attention to the very basis of a legal system, to the stuff that makes law law.

This aspect of a legal system is evident from the familiar regression which legal theorists make in seeking the ultimate validating source of any rule of law. We can trace a chain of validity only so far. In most systems once we get to the constitution we have run out of law. When we ask what makes the constitution law we have left the universe of positive law. Whatever makes law at this level must itself be something other than law. This pre-legal source consists of behavior and beliefs of human beings in the society in which the relevant legal system functions.

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