Can the Constitution of a Fruit Fly be Written?

20 Pages Posted: 22 Jun 2020 Last revised: 19 Dec 2023

See all articles by Grégoire Webber

Grégoire Webber

Queen's University - Faculty of Law; London School of Economics - Law School

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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

Suggested Citation

Webber, Grégoire, Can the Constitution of a Fruit Fly be Written? (December 16, 2023). Queen's University Legal Research Paper No. 2020-004, Available at SSRN: https://ssrn.com/abstract=3629501

Grégoire Webber (Contact Author)

Queen's University - Faculty of Law ( email )

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Canada

HOME PAGE: http://law.queensu.ca/directory/gregoire-webber

London School of Economics - Law School ( email )

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London, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/gregoire-webber.htm

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