A volume of original essays that discusses the applicability of H. L. A. Hart's rule of recognition model of a legal system to U. S. Constitutional law as discussed in his book "The concept of law".

This volume includes both jurisprudence, using the U.S. as a 'test case' that highlights the strengths and limitations of the rule of recognition model, and constitutional theory, by showing how the model can illuminate topics such as the role of the Supreme Court, the constitutional status of precedent, and much more.

The law of nations and the Constitution -- The law merchant and the Constitution -- The law of state-state relations and the Constitution -- The law of state-state relations in federal courts -- The law maritime and the Constitution -- Modern customary international law -- The inadequacy of existing theories of customary -- Judicial enforcement of customary international law against foreign nations -- Judicial enforcement of customary international law against the United States -- Judicial enforcement of customary international law against U.S. states

Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to quot;The Concept of Law,quot; clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means convention in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense - specifically, by figuring in a shared cooperative activity (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong way: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to mesh their conceptions of legal validity, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text). Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm.

Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

A starting point for the study of the English Constitution and comparative constitutional law, The Law of the Constitution elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions.