Can the Constitution of a Fruit Fly be Written?
20 Pages Posted: 22 Jun 2020 Last revised: 19 Dec 2023
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Can the Constitution of a Fruit Fly Be Written?
Date Written: December 16, 2023
Abstract
This essay, written for From morality to law and back again: Liber amicorum for John Gardner (Michelle Dempsey and François Tanguay-Renaud, eds., Oxford University Press), is in conversation with the late John Gardner's essay "Can there be a written constitution?". It interrogates Gardner's strategy of answering his title question by reference to HLA Hart's secondary rules and suggests that, by doing so, certain aspects of a constitution are closed off from consideration or obscured from view. Among those is whether a constitution constitutes a legal system or, more broadly, a state or government; whether Hart's secondary rules can account for the executive function of government; and whether rights requiring legislative action can be explained in the frame of secondary rules. The essay concludes by suggesting that, without holding in view a more complete picture of a constitution, Gardner's title question may ask the wrong question in a manner analogous to one who asks if the constitution of a fruit fly can be written.
Keywords: John Gardner, HLA Hart, secondary rules, constitutional theory, witten consitution
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