According to Hart’s concept of law one of the distinctive characteristics of a legal order is that it is sustainable on the basis of official acceptance alone. Can we go further and say that law is morally risky in the sense that it is endemically liable to become alienated from its subjects? On the basis of Hart’s weak formulation of acceptance there is nothing to suppose that acceptance and (an absence of) alienation are connected. However, on closer inspection, this weak (...) formulation is defective, failing to account for the normative and collective aspect of the law qua social norm. Pursuing a stronger notion of acceptance as a critical reflective attitude does establish a link between acceptance and (an absence of) alienation, but it fails to establish that the legal regime is, by its nature, endemically alienating in a way that a pre-legal regime is not. It does, however, help to explain why any official-centred picture of the legal regime is problematic in terms of accounting for law’s normativity. Whether alienation materializes, it is concluded, depends on the social and political factors that condition our attitude towards the law rather than on the nature of law as such. (shrink)

Despite a long and venerable tradition, the material constitution almost disappeared from constitutional scholarship after the Second World War. Its marginalisation saw the rise of a normative and legalistic style in constitutional law that neglected the role of social reality and political economy. This collection not only retrieves the history and development of the concept of the material constitution, but it tests its theoretical and practical relevance in the contemporary world. With essays from a diverse range of contributors, the collection (...) demonstrates that the material constitution speaks to several pressing issues, from the significance of economic development in constitutional orders to questions of constitutional identity. Offering original analyses supported by international case studies, this book develops a new model of constitutional reality, one that informs our understanding of the world in profound ways. (shrink)