• 1 Bello Hutt 2024: 2.

2Is the state necessary for the rule of law to emerge? This is the main question Donald Bello Hut poses in his contribution to this symposium entitled “The State and Legal Otherness”. The question is prompted by some of the arguments I develop about the emergence of the social practice we generally refer to as “law” in chapter 1 of TMCD. These include the fact that I explicitly reject the equivalence between “law” and “state-law” (one of the causes of the “parochialism” of much jurisprudential discourse) and the idea of the state as an unqualified “good”. Overall, according to Bello Hutt, my position would be that “the state is not necessary for the rule of law to emerge and be secured” and “it may even be counterproductive for achieving those goals”.1

• 2 I will claim below, however, that the rule of law can also be pursued by political organisations th (...)

3I must say from the outset that I disagree with Bello Hutt’s reconstruction of my argument in this respect. For, nowhere in TMCD do I say that the “state” is not necessary for the rule of law to emerge,2 let alone that it is counterproductive for achieving the ideal. I simply do not engage at all with that point. But, given that our disagreement appears broader than this specific point, we might be able to chart the source of this misunderstanding by attending at these other points first.

• 3 Bello Hutt 2024: 2.
• 4 Bobbio 1989: 125-27.
• 5 Bobbio 1989: 126.
• 6 Bobbio 1989: 126.
• 7 To be clear, nothing said in TMCD or here should be taken as denying that the state can also be use (...)

4To begin with, Bello Hutt finds my way of asking whether the state is an “unqualified” good after all “puzzling”, for he cannot “think of any contractarian who would argue in the affirmative”. Therefore, he agrees with me that “we should indeed qualify its acceptance”.3 Is our disagreement here merely terminological, spurred by my use of the expression “unqualified good”? It does not seem so, since the position I was referring to is very common in the history of political thought: Bobbio has famously called the “positive” conception of the state,4 and it “culminates” in the rational conception of it “that goes from Hobbes through Spinoza and Rousseau to Hegel”.5 Crucially, the positive conception of the state is necessarily juxtaposed against a negative conception of the “non-state”, from the “wild” or “savage” state of primitive people to the state of anarchy, “understood by Hobbes as the war of all against all”.6 And it is at this positive conception of the state — which is at the basis of the contractarian thought — that the argument developed in chapter 1 of TMCD takes aim.7

• 8 Bello Hutt 2024: 2.
• 9 Bello Hutt 2024: 4, 6-7. For reasons of space, I will simply grant Bello Hutt’s reconstruction of H (...)

5Bello Hutt retorts that the “qualification” I demand on the acceptance of the state is present in every contractarian argument for the state. Thus, according to him, for Hobbes the state is primarily geared towards predictability; for Locke, towards legitimacy and rights; and for Rousseau, towards equality.8 Bello Hutt then illustrates — necessarily in an expedited manner — the way in which, for each of these fundamental theorists, the institution of the state is normatively premised on the attainment of those values. Hobbes’ theory is particularly relevant, not just because he is the main target of the criticism in chapter 1 of TMCD but also because, crucially, Bello Hutt thinks that the value that the state must pursue for Hobbes is “the rule of law”.9

• 10 Bello Hutt 2024: 6.
• 11 Bello Hutt 2024: 6 (italics mine).
• 12 Bello Hutt 2024: 6.

6Up to this point, I took Bello Hutt’s reconstruction of the contractarian positive argument for the state as being normative, in the sense that the state ought to pursue certain values — which vary from contractarian to contractarian — to be deemed legitimate. But at some point in the second part of his contribution, Bello Hutt goes beyond normative arguments and appears to put forward a necessary — and not contingent — relationship between the state and the rule of law.10 More precisely, he says that predictability — a core tenet of the rule of law, irrespective of whether one holds a thinner or thicker conception of the ideal — “is a necessary feature of the state”.11 This implies that, according to Bello Hutt, what a political institution “cannot fail to do to be considered a state, is to create the conditions for a predictable life”.12

• 13 Bello Hutt 2024: 7.
• 14 Bello Hutt 2024: 7.

7Rather unexpectedly, this is then followed by a return to the language of desiderata indicating a merely contingent relationship between the state and predictability: Bello Hutt affirms that “[a state’s] power over others ought to be exerted non-arbitrarily”13 and that “predictability” is “precisely” “a demand — a normative background against which the holder of political power ought to exert it for it to count as discharging its function”.14 So, which one is it: a normative desideratum, or a necessary condition, so that a political organisation not predictably exercising public power is not a “state”?

• 15 And even after the emergence of this ideal, is it may only be with the affirmation of the rule of l (...)
• 16 Unless Bello Hutt understands “predictability” in such a minimal fashion that it ceases to be a rel (...)

9It is misguided because the predictability of the exercise of public power appears to be neither a necessary nor a sufficient condition for the identification of a form of political rule as “state”. First, this position would rule out being a “state” for every form of political organisation in which political power is not exercised in a predictable manner. That, in my view, would leave very few historical political organisations counting as “states”, given that — at least until the emergence of the idea of the rule of law in 14^th century England — there was no overarching principle clearly demanding the predictable exercise of public power.15 We would have of course to entertain a longer discussion here to fully make the point, but my contention is that a large number of “states” in human history have not exercised political power predictably, not even in a minimal sense.16 Second, it is also easy to point out that the rule of law can also be pursued (and contingently achieved) by political organisations that are not “states”, like the European Union, for instance.

• 17 See e.g., Barber 2018: 3-5.

10What is constitutive of a “state” is not the predictable exercise of political power, but — following Weber — the monopoly of the use of force within a territory.17 The confirmation of this can be seen in civil war scenarios where two or more opposing factions might be claiming “control” of the same territory (or parts of it), thus throwing any single group’s claim to sovereignty into doubt. This very basic (and uncontroversial, I would say) definition of “state” does not deal with the question of the “legitimacy” of the use of said force within the territory; it is also in line with the analysis of the emergence of political authority provided in chapter 1 of TMCD, due to the centralisation of power in the hands of a sub-group of the population, from the preceding situation of normative equality in (pure) customary normative orders.

• 18 See e.g., Lefkowitz 2020: ch 5.

11It appears, therefore, that the disagreement between Bello Hutt and me is more fundamental than the nature of the relationship between the rule of law and the “state”. It is due to our seemingly incompatible conceptions of the latter. As I will discuss in a moment, I think we do agree on the fact that the conditions for the emergence of the ideal of the rule of law are necessarily linked with the centralisation of political power and the emergence of that artificial “power over”, which I discuss in TMCD. But despite its origin story, it is clear that law can prescind from the state, and thus questions about the rule of law can be meaningfully asked beyond the state context.18

• 19 Bello Hutt 2024: 4-5.
• 20 Bello Hutt 2024: 5.
• 21 Bello Hutt 2024: 5.

12With this in mind, let us turn to my rejection of Hobbes’ thesis that the Leviathan is necessary to overcome the state of nature, which Bello Hutt criticises. In fact, and contrary to what I think, he claims that for Hobbes life in the “civil” state is not necessarily better than life in the state of nature — except for predictability.19 True, in the state of nature one enjoys the freedom from having no master, but so does everyone else too. As such, “absent common enforceable rules determining what belongs to whom, there is little you can do with such freedom if everyone else enjoy it too”.20 What is needed is that (mere) possessions are turned into ‘properties backed by rights that may be enforced should dispute arise’ —21 and only the Leviathan can play such a role (making it necessary for creating the conditions for a prosperous life).

• 22 Sandro 2022: 32-35.
• 23 Sandro 2022: 32-35.

13The gist of my criticism in TMCD is that this is a false dichotomy, at least if we are dealing with communities up to a certain size. The historical occurrence of flourishing isonomic communities in specific contexts — new social groups formed by immigrants not bound by kinship moving to new and uninhabited lands, which can be distributed equally among them and of which there exists a surplus —22 disproves Bello Hutt’s claim that enforceable property rights, and the condition of normative inequality associated with such a power, are necessary for (some level of) stability and prosperity. As I underscored in TMCD, it is only in the regime of isonomia that equality and freedom can be truly reconciled.23

• 24 Carpentier 2024: 1.

15Mathieu Carpentier, in his comment “Legal Constitutionalism and the Ius/Lex Distinction”, addresses the heart of my dyadic theory of constitutionalism. Are ius and lex “treachearous friends”24 after all? And is this distinction necessary to conceive of the doctrine of modern constitutionalism?

• 25 Sandro 2022: 53.

16Carpentier begins by reconstructing the distinction between lex and ius put forward in TMCD, carefully differentiating it from the mysterious version provided by Adrian Vermeule and his acolytes as part of the trendy common good constitutionalism. He also correctly underscores that my understanding of ius is different from many Anglo-American legal philosophers, who have come to understand — arguably following Hart — ius as a moralised conception of law, a sub-type of the wider genus law. For me, instead, lex and ius are “two different independent types, or bodies, of law, whose constitutive difference lies in their distinct sources”.25

• 26 Carpentier 2024: 1.
• 27 Carpentier 2024: 1.

17According to Carpentier, I insist that we must distinguish between these two types of law for two reasons, a jurisprudential (theoretical) and a political (contingent) one. The first is my “Ferrajolist worry”26 about explaining and accounting for the phenomenon of “unlawful law”, particularly in the context of the modern constitutional state where primary legislation can also be invalid due to the violation of some norms contained in the (entrenched) constitution. This kind of internal — as opposed to external — limitation of law by law is only possible, I argue, if there is a different type of law than lex (ius). The second reason is instead “political” or “strategic” and involves my belief that “constitutional codification is but a stage of constitutionalism”27 in which ius is crystallised in an entrenched, hierarchically superior (to ordinary legislation) document. This allows me to argue that, contrary to what is indisputably held in the literature, the common law constitutional model is effectively contiguous to the documentary, entrenched one — their differences lying instead in the more or less formal manifestation of each country’s institutional settlement.

• 28 Carpentier 2024: 2.
• 29 Carpentier 2024: 2.
• 30 Schiavone 2012: 93.
• 31 Carpentier 2024: 2.1.

18Carpentier finds the lex/ius distinction “problematic”.28 I do not disagree. Looking at the historical usages of the two terms, the distinction can be arguably understood — diachronically — in a number of ways, which are related between each other but not always perfectly superimposable. At least in part because of this “messiness”,29 the distinction would not be able to serve the role I assign to it in my theory of constitutionalism. A first problem is with the roman “pedigree” of the distinction: Carpentier offers a more nuanced and complex reconstruction of the emergence of lex and ius (respectively) than I do in the book. He identifies its emergence well before the end of the Roman Republic in the first century BCE. In this respect, ius actually predates leges, and it is perhaps only with the written Law of the Twelve Tables (449 BC) that a paradigmatic juridical shift — “from a secret ius to an officially proclaimed lex”30 — begins to take place in Republican Rome. This does not mean that ius disappears, and indeed it keeps evolving into a progressively secularised normative ordering of society so that by the end of the Republic, “ius was a wholly systematized body of rules, regulating most aspects of the life of Roman Citizens”.31

• 32 Carpentier 2024: 2.1.
• 33 Carpentier 2024: 2.1.
• 34 Carpentier 2024: 2.1.

19Still, this does not mean that I would be right in thinking that ius, by the end of the Roman Republic, constituted a check on the legislative powers of the political authority. Carpentier underscores that ius and lex regulated different objects: ius regulated private law matters, while lex dealt with public law. So it is “inaccurate”, as I do, “to make ius the ancestor of constitutionalism” because ius “was not at all concerned with constitutional rules”.32 Any conflict between ius and lex would not result in the former limiting the latter, but in a “division of labour” between them, and even when leges were explicitly promulgated with clauses to make their interpretation “ius-compliant”, they were not “automatically” unlawful in case of inconsistency.33 Finally, during the Roman Empire the distinction “became more and more fluid”, so that by the time the Corpus iuris civilis was compiled, the idea that these were two distinct bodies of law “had long been abandoned”.34

• 35 Carpentier 2024: 2.2.
• 36 Carpentier 2024: 2.2. (italics original).

20Even leaving aside questions of Roman legal and intellectual history, Carpentier doubts the jurisprudential relevance of the distinction. In particular, he is unclear about why we should “lump together” all sources of law that are not legislation (including custom, precedent, and possibly legal scholarship) under “ius” “just because at some point during the late Roman Republic ius meant something such as a distinct body or source of law”.35 And even if one accepts this move, it is not clear why this body of law would “necessarily act as a limit” on the other, lex — unless we were to understand ius as a form of ius cogens. But doing so would require a long justification he cannot find in the book. So, for Carpentier, is it more natural to understand ius as “law in general” (and possibly legal system) and lex as a “specific source of law”,36 but this is hardly a useful conceptual distinction in the context of modern legal systems (and their overlapping hierarchical jurisdictions).

• 37 Carpentier 2024: 3.
• 38 Carpentier 2024: 2.3.
• 39 Carpentier 2024: 2.3.
• 40 Carpentier 2024: 2.3.

21Finally, for Carpentier the ius/lex distinction is “useless” for the explanation of legal constitutionalism,37 and it might even backfire against the core thesis defended in the book. First, “unlawful law happens all the time and across the normative board, not just at the constitutional level”.38 So, a statute would be relevant as lex vis-à-vis the constitution and as ius vis-à-vis secondary legislation or administrative decrees, which means that the ius/lex distinction “cannot be the key” to understanding the idea of unlawful law.39 Second, isn’t ius also grounded in the will of (arguably) the most relevant sovereign in modern constitutional states — constituent power? Am I conveniently “stipulating the problem away”, by identifying political authority with, and exclusively with, the legislator?40 Third, and possibly even more problematically, doesn’t the lex/ius distinction undermine the main distinction defended in the book, between law-creation and law-application?

• 41 Carpentier 2024: 3.
• 42 Carpentier 2024: 3.
• 43 Carpentier 2024: 3. (italics original)
• 44 Carpentier 2024: 3.

22All of this makes Carpentier conclude that I would be better off by dropping the ius/lex distinction altogether and simply adopt the known principle of lex superior derogat legi inferiori to account for the “unlawful law” issue in constitutional theory.41 Legal constitutionalism, in other words, did not “aim” to create a “legal otherness”, but rather to do the very opposite — “to homogenize constitutional rules with statutes”.42 In this way, if a conflict between the two emerges, all that is the left to do is simply apply the lex superior criterion — to treat it as a “ordinary conflict of norms”.43 He finds more or less explicit endorsements of this idea in a range of foundational constitutional thinkers, from Sieyes to Hamilton and Chief Justice Marshall in Marbury v Madison. In other words, the “acme” or “intellectual legacy” of legal constitutionalism does not reside in the distinction between lex and ius, but in the explicit recognition of the normative hierarchy (and potential conflicts) between two leges — the constitutional and the ordinary one.44

• 45 Sandro 2022: 51.
• 46 Sandro 2022: 53

24First things first, history. Carpentier’s magnificent excursus in Roman legal history shows the diachronic complexity of the emergence of the distinction between lex and ius. In the book, I did not do justice to such complexity. In one passage, I also incorrectly attributed the identification of the emergence of ius in Roman legal thought with the end of the Roman Republic to Aldo Schiavone.45 Ius, as Carpentier reminds us, emerges long before that. What I meant to write, as I do two pages later,46 was that the emergence of ius as a constitutionalist tool — in a sense comparable to the “modern” one — happened during the demise of the late Roman Republic. This is the crucial thesis for my account of constitutionalism, not the one about the emergence of ius per se.

• 47 Straumann 2016.
• 48 See e.g., Straumann 2016: 45.
• 49 Straumann 2016: ch 1-2.
• 50 Straumann 2016: 36ff; ch 4.
• 51 Straumann 2016: 54.
• 52 Straumann 2016: 57.
• 53 Straumann 2016: chs 7-8.

25As we saw, Carpentier disputes this too. However, I remain convinced by Benjamin Straumann’s ground-breaking argument to this end put forward in his beautiful book Crisis and Constitutionalism.47 While confusing terminological uses cannot be denied,48 to my mind Straumann presents a convincing case that the of use of ius and mos maiorum in political writings and speeches in the last century BCE indicates an innovative and distinct constitutionalist way of thinking.49 In particular, Straumann shows that these two sources of law began to be progressively understood (and deployed) as being entrenched and of superior political importance vis-à-vis statutory law.50 Ius, in this respect, “denotes the foundational institutions of public life” (ius publicum):51 it is, in other words, “a body of constitutional norms” over the interpretation of which the crises and civil wars of the late Republic were fought.52 And while this distinct meaning of ius might indeed have slowly merged with others and become less distinguishable by the time of the compilation of the Corpus Iuris Civilis, Straumann does an excellent job bringing the influence of this innovative way of constitutional thinking into the subsequent republican tradition of political thought to the surface.53

• 54 The recently identified category of “constitutional statutes” has prompted several commentators to (...)
• 55 Sandro 2021.

26Still, what is the jurisprudential relevance of the distinction today? And do we really need it to understand constitutionalism? Let me start from the latter challenge. To put it succinctly, Carpentier’s preferred explanation for understanding the doctrine of modern constitutionalism and the issue of “unlawful legislation” — lex superior derogat legi inferior — would not allow us to make sense of systems like the United Kingdom’s qua constitutional ones. That is, in systems where a hierarchically entrenched constitution is missing, an explanation based exclusively on the lex superior normative criterion appears to miss the mark by a large margin. In fact, following A.V. Dicey, it is routinely said that the UK’s political constitution is “flat” —54 there is no hierarchy (and there cannot be) between different statutes. Under these premises the UK constitutionalism paradox, which I have already illustrated elsewhere,55 emerges: the motherland of the doctrine of modern constitutionalism lacks a hierarchical constitution and, therefore, it is not clear how it can be its motherland in the first place.

• 56 Sandro 2021.

27What the common law model of constitutionalism indicates instead is that this limitation of law by law can happen chiefly pragmatically: that is, without an explicit — formalised — normative hierarchy between statutory and constitutional norms. What is necessary, at a minimum, is a dyadic institutional settlement where the part of the law which governs the relationship between the state and individuals is developed independently by courts and which must be buttressed (even more than in the other model) by political conventions of collaboration and mutual respect between the branches of the state.56

• 57 Sandro 2022: 64-71.
• 58 Or, alternatively, it seems to equate those demands with the presence of a codified, entrenched con (...)
• 59 Carpentier seems to explicitly acknowledge this point in his comment, causing me to wonder whether (...)

28Therefore, it is only by decoupling constitutionalism with the presence — or lack thereof — of a formally hierarchical constitution that we can fully understand how the common law model sits on a continuum with the entrenched model of constitutionalism.57 In this respect, an understanding of modern constitutionalism centred around the vertical extension of the ordinary model of conflict of norms is an impoverished one in my view, given that it overlooks the institutional dimension of the doctrine.58 That is, it only provides us with part of the picture. This institutional dimension requires, as I explain in TMCD, that the law which is the product of the exercise of political authority is limited by a different type of law whose source and main tenets are outwith the disposal of the ordinary lawmaker. A “mere” normative hierarchy between ordinary statutes and constitution, without an underlying institutional settlement in which that hierarchy is effectively enforced by an autonomous decision-making body other than the one with legislative powers, can be completely moot and easily circumvented.59

• 60 This does not mean that what I am referring to as the common law model is as normatively attractive (...)
• 61 In other words, such a system can bear the presence of meaningful indeterminacies as to who wields (...)

29This means that while constitutionalism is generally (in most cases) realised through both a normative hierarchy and a particular type of institutional settlement, this latter element must be given theoretical priority in an elucidation of the doctrine.60 For a settled historical institutional settlement between legislatures and courts, adequately sustained by mutual respect between the institutions of government, can provide such limitation of law by law even in the absence of an explicitly — formal — normative hierarchy between statutory and constitutional rules.61

• 62 Lewis 2023: 819-20.

30Still, what is the basis for limitation of lex by ius? Is ius a type of natural law? These questions, particularly in the context of a UK model of constitutionalism, have also been raised by Lewis in the most comprehensive review of TMCD published to date.62 To be sure, contending (pace Carpentier) that this is precisely the sense in which ius (publicum) was being deployed during the demise of the Roman Republic, can only get me so far. For I do not identify, as Carpentier correctly underscores in his comment, ius with natural law. This does not mean, however, that there is no connection altogether between ius and (a secularised type of) natural law.

• 63 See eg Fasel 2024.
• 64 Gearty 2016.

31It would be fanciful to deny in this respect that — especially at its inception — the development of ius has drawn its legitimacy mostly from the natural law theory of rights.63 This holds true for both the progressive inclusion of charters of fundamental rights in constitutional documents since the revolutions of the 18^th century and the protection that the common law of the land has recognised over time to a (extremely limited) number of rights in Britain.64 But ius is, from a formal point of view, positive (human-made) law through and through: it is a system of rules (and principles) that is developed by a specific sub-group of society with technical knowledge, which includes judges, lawyers, and academics, and that has progressively also come to be “crystallised” in a formal document by a constitutional convention or assembly (or through a constituent “moment” anyway).

• 65 Ferrajoli 2007.
• 66 Sandro (forthcoming).

32What gives ius its “limitation” function over lex? In the case of ius as codified in a constitutional document, it is the protection of the fundamental rights of everyone against their encroachment by public and private powers alike.65 But what about the common law model? Here, my contention is that it is the rule of recognition itself which establishes that there are limits to the law-making power of the sovereign. As I argue elsewhere,66 it is a matter of recognised practice, in England and Wales, that certain — very few, admittedly — things were beyond the legislative power of monarchs first and parliament after. That is, I argue that the doctrine of the unlimited sovereignty of the British Parliament is a myth, one that has taken hold from Dicey onwards (though a more careful reading of Dicey already leads to questions regarding what has become the “orthodox” account) but which does not find unequivocal correspondence in the historical and currently accepted official practice in Britain. This is also the sense in which Great Britain is and should be identified as the motherland of modern constitutionalism: for it is there that, for the first time in the history of Western civilisation, an institutional settlement developed as a matter of practice which sees the unlimited power of the sovereign subject to legal — and not just political — limits.

• 67 Alexy 2010: 168-69.

33Finally, I would like to double-down on the jurisprudential relevance of the distinction, even though I will not have space to develop the point here. My intuition in this respect is that the relevance of the theoretical distinction between lex and ius goes beyond capturing the essence of the doctrine of modern constitutionalism. For it appears to also explain — and possibly dissolve — one of the core debates in general jurisprudence: that is, whether law is necessarily or only contingently connected to morality. What if those on both sides of the dispute were actually each referring to a different type of “law”? What if positivists were referring to lex when they say that law is not necessarily (but only contingently) connected to morality, and non-positivists were referring to ius when they argue the opposite? Let me illustrate this, in a snapshot, through Alexy’s argument for law’s dual nature and his contention that it would be performatively contradictory for a state constitution to have manifestly unjust provisions.67 Alexy has a point here, but I submit that his choice of example — a constitution rather than ordinary legislation — is significant because modern constitutions belong to the ius type and as such have a different relationship with morality than law that belongs to the lex type. If law indeed has a dual nature, it is not in the sense Alexy thinks.

• 68 Köpcke 2024: 1
• 69 Köpcke 2024: 1. In the introduction of TMCD, the reader can find a discussion of the authors (who i (...)
• 70 Köpcke 2024: fn 5.

34Maris Köpcke begins her incisive commentary “Normative Power and The Making of Constitutional Democracy” by arguing that I might have overstated the need to “defend” the distinction between law-creation and law-application. This is not to say that an “explanation” of this distinction is “worthless” for her68 but, rather, that it is such a fundamental assumption of legal thinking since time immemorial that no one can really question its theoretical feasibility. At most, sceptical scholars can exhibit “a critical hue”69 towards the idea of law-application, but not more. I would also not have demonstrated, according to Köpcke, that Raz and most post-Hartian positivists presuppose the distinction in their theories without substantiating it.70

• 71 Bacherizo-Minuche 2023: 10-11.
• 72 Sandro 2023: 59-60.
• 73 Chiassoni 2021; see also Martí 2002.
• 74 Poggi 2013.

35As to the first issue, it is true that even some hardcore legal realists can and do employ the language of law-creation and law-application. This objection — that I might be proposing a false dichotomy between moderate cognitivism and legal realism after all, given that there are certainly different ways to conceive of the distinction and that some of those might be compatible with a realist approach to law — has already been raised by Jorge Baquerizo-Minuche in an already published symposium on TMCD.71 Without repeating my full answer from there here, the gist of it is that not any conception of the distinction between law-creation and law-application will meet the two requirements — the action-guiding and the collective autonomy requirements — of a theory of law that purports to be compatible with our constitutional democratic practices.72 So, the fact that some legal realists use “law-application” to describe the activity of ascribing meaning to a legal provision does not make their theories compatible with constitutional democracy. Pierluigi Chiassoni, for one, is explicit about this.73 And so is Francesca Poggi.74 Legal realism and a robust conception of law-application in which the text of a legal provision is determinative (at least in part) of the norm-meaning being ascribed to it, seem mutually exclusive.

• 75 Raz 1979.

37This is indispensable and it implies, among other things, dealing with significant objections to the idea of law-application, such as: a) the idea that discretion is pervasive in the legal process, and that as a result there is always a degree of fresh choice, which makes it doubtful if we can ever talk of “applying” a standard to a factual situation; b) the thesis according to which norms in general do not exert any causal influence on human behaviour (how could they, if they don’t belong to our reality and cannot be experienced through our senses); and c) the application of pragmatics — in particular Neo-Gricean ones — to legal theory and the ensuing contention that there cannot be fully-formed legal norms before the interpretation by courts. To my knowledge, no one has ever attempted a comprehensive defence of the distinction of the kind put forward in TMCD, which deals extensively with all the objections above. Even Raz, who (to his credit) more than any other Hartian positivist discusses the centrality of the idea of law-application to general jurisprudence, effectively assumes that there is such a thing as the activity of “applying the law” without really explaining in what it actually consist in the first place.75

• 76 Köpcke 2024: 2.
• 77 Köpcke 2024: 3.

38Be that as it may, the main criticism Köpcke levels against TMCD is in relation to the account of normative power developed therein, which she finds incomplete (“at best”).76 The issue for her lies in the “less than fully articulated” notion of power developed in chapter 1 of the book. She begins by criticising the main dichotomy I sketch between “power to” and “power over”, arguing that it is not fit for the purposes I assign to it. For one thing, “power to” does not seem to stand in opposition to “power over”: rather, the latter is a species of the former, given that it identifies always a “power to” with a specific object — the ability to influence the behaviour of others (rather than the sensorial world). But even this criterion is “shaky”:77 for one can affect the sensorial world by persuading someone else, and so it would not be what is affected, but how that would matter.

• 78 Köpcke 2024: 3.

39This could be purely definitional, but for Köpcke instead it bites as a substantive point when it comes to one of the most important ‘moves’ in chapter 1 of TMCD: the contrast I draw between two types of “power over”: normative and non-normative. This contrast is, in her view, significantly under-theorised, as I would simply rely on existing accounts in the political theory literature, which are themselves the product of a “fluctuating treatment” of the notion.78 She holds that this, in turn, generates three shortcomings that compromise the development of the argument in the rest of the book: first, is the “other-regarding” focus of the account of normative power in TMCD, which sits uneasily with the consideration in later chapters of other kinds of normative powers (including the power to bind oneself); second, the fact that I do not consider the possibility that a change in normative (and particularly legal) relations might also derive from something other than the exercise of normative powers (like an assault); third, that I did not work the idea that normative power must be generated by something (in particular social rules) back into the original distinction between normative and non-normative “power over”.

• 79 Köpcke 2024: 5.
• 80 Köpcke 2024: 7.
• 81 Köpcke 2024: 7.
• 82 Köpcke 2024: 8.
• 83 Köpcke 2024: 8.
• 84 Köpcke 2024: 10.
• 85 Köpcke 2024: 10.

40Each of these “loose ends” generates a problem for the account developed in TMCD, according to Köpcke. Starting in reverse order, she finds that it is unclear in the book whether the emergence of ius in a legal system as a limitation on lex (my account of constitutionalism as “legal otherness”) “is inherent to law, or rather is a feature of certain political cultures that legal systems may approximate to more or less”.79 Second, the initial imprecisions about the definitional scope of normative powers affect my account of law-application, which is premised on the presence of power-conferring rules in every complex legal system. This is because, Köpcke notes, I do not provide any explanation of what is distinctive about power-conferring rules vis-à-vis duty-imposing ones. She then goes on to reconstruct my account of law-application, which she finds “over-inclusive” because it is “coextensive” with what we routinely call “obedience”.80 She does observe that my account seeks to make explicit some form of closer connection between law-application and the exercise of legal powers, but for her “it is not even clear what it means to comply with power-conferring rules because the law says so”.81 Is the relevant mental status awareness, or full-blown intentionality? Should we not say, more precisely, that legal powers are constituted by an “intention to change legal relations”?82 She ultimately suggests that what might characterise legal powers is the “very manifestation” of the intention to comply with them (rather than the kind of intention itself),83 and that this would require revising the account of law-application put forward in TMCD (because it would be, from this angle, underinclusive). Finally, Köpcke laments that the book “does not connect its discussion of political power with its discussion of powers in the law”.84 This is a massive oversight in her view, given that legal powers are primary ways to shape the normative landscape in a complex society — “privileged tools to realise democratic ideals” as she puts it —85 and thus highly relevant to the realisation of constitutional democracy, the core issue of the book.

• 86 Köpcke 2024: 5.

41I will tackle each problem in turn. The first is perhaps easier to deal with, because it should be clear from reading chapter two of TMCD that the emergence of ius and its use in a “constitutionalist” sense is not something inherent to modern legal systems. Köpcke appears to acknowledge this,86 only to immediately cast doubt on this reconstruction. But the fact that I sketch a theoretical genealogy of the concept of ius which goes all the way back to its inception in ancient Rome — as discussed above in the reply to Carpentier — should not lead anyone to think that the use of ius as a limiting device vis-à-vis the power of the political sovereign has become inherent to legal systems. One thing is the emergence of ius as a distinct body of judge-made norms and principles, and another its deployment — more or less explicit — as a tool for constitutional thinking and practice: that “legal otherness”, which I roughly chart in chapter two of TMCD, from the end of the Roman Republic to consolidation as the core principles of English common law as outside the reach of the sovereign. The final stage of this trajectory can be seen in the crystallisation and formal entrenchment of ius in codified constitutions around the world since the end of the 18^th century. But, again, it should be apparent that I am not suggesting that the “mere” emergence of a distinct body of judge-made law (which is not, strictly speaking, customary) is enough for that body of law to play the constitutionalist role I assign it within my theory of constitutionalism.

• 87 Sandro 2022: 234-240.

42The second problem goes to the core of the account of the distinction between law-creation and law-application I develop in TMCD: the exercise of power-conferring norms. Is my account of law-application both over- and under-inclusive? I do not think so. Here there seems to be a misunderstanding, because Köpcke writes that my account of law-application is “co-extensive” with what is normally called “obedience”, whereas I spend several pages of TMCD distinguishing between obedience (or “compliance”, as I call it) and what I define as law-application.87

• 88 Köpcke 2024: 7.
• 89 Sandro 2022: 234.

43More precisely, I distinguish the normativity of duty-imposing rules — that only require, as such, unthinking compliance from their addressees — with that of power-conferring ones, which instead require a relevant intentional state from the power-holder. So Köpcke is incorrect when she affirms that, under my account, stopping at a red light is an instance of law-application if the driver acts because of the relevant duty-imposing norm. My theory is based on the different normativity of power-conferring vis-à-vis duty-imposing norms: that is, on what the norms require in terms of the relevant intentionality or lack thereof — as Köpcke acknowledges but then disregards.88 What power-conferring norms require, to be exact, is that the norm itself figures — as a reason for action — in the process of the practical reasoning of the power-holder because the power-holder wants to achieve the effects predisposed by the norm itself (that is, the change in legal relations).89

• 90 Köpcke 2024: 8.
• 91 Köpcke 2024: 8.
• 92 Sandro 2022: 234-37.
• 93 Halpin 1996: 144.

44Köpcke appears to suggest as much in an attempt to “rescue” my account of law-application,90 but I respectfully suggest that it does not need such rescuing. For I explicitly illustrate in the book that it is the need to ensure, on part of the legal system, that the intention to change legal relations is present, which makes the normativity of power-conferring norms different from duty-imposing ones.91 I also show how this necessarily implies the need for the expression of the relevant intention to be somehow manifested in the external world, given the epistemic impossibility of directly accessing mental states. It is crucial, though, that such external manifestation is always understood as an objective proxy whose relationship with the relevant mental state can be more or less immediate — and sometimes be missing entirely (as in the case of objective contracts).92 As I argue in TMCD, this is unavoidable and should not lead us to find the understanding of these cases as the unintentional exercise of a power-conferring norm as a “conceptual contortion”.93

• 94 Köpcke 2024: 9.
• 95 Köpcke 2024: 9.

45Now, what about the second (and opposite) charge of under-inclusivity? Have I drawn too close a link between law-application and the exercise of legal powers and left out, along the way, an important sense in which people “apply” the law? Do people not also apply the law when they use a legal rule as part of an instance of legal reasoning to reach a normative conclusion?94 Again, I cannot say I agree with Köpcke’s reconstruction of what I say in TMCD. Far from “ruling [it] out from the outset”,95 I explicitly affirm that

• 97 Sandro 2022: 228.

46Before that, I also clearly distinguish between process-application and product-application, as the concept of law-application suffers from the same process/product ambiguity as interpretation.97 So you effectively end up with four different things, which are routinely bundled up together under the term “law-application”:

• 98 Sandro 2022: 230 fn 116.
• 99 Sandro 2022: 230. Among these reasons, the need to account more precisely for what judges do when t (...)
• 100 Köpcke 2024: 9.
• 101 Sandro 2022: 228.

47On this basis, I argue in TMCD that the application of legal provisions is to be properly considered part and parcel of the process of legal interpretation,98 and that there are good theoretical reasons to reserve the expression “law-application” for the application of (power-conferring) norms — and not, strictly speaking, of provisions.99 But an act of law-application, under my account, requires both the process- and product-application of norms, and I of course also recognise the possibility of mental processes of law-application — like those of the academic lawyer in the classroom or by the lawyer before her client — which never culminate in an external act of law-application (product). Köpcke argues that, in these kinds of scenarios, “one applies a law without thereby complying with a power-conferring rule, and thus without changing normative relations”,100 but I find that the objection proves too much because what both the professor and the lawyer precisely seem to be doing is applying a given norm (as part of a reasoning) as if they were entrusted with the relevant official power to apply it and to effect a change in legal relations. So, while Köpcke is right in saying that under my account all legal power-conferring rules demand application, I do not deny ­— and actually explicitly recognise —101 that there can be mental processes of law-application which never culminate in an authoritative decision. They are simply not the focus of my analysis in chapter six of TMCD.

• 102 Köpcke 2024: 10. On this, more generally, see Ferrajoli 2007: chs 13-14.

48Third, and finally: Köpcke is right that I should have done a better job in connecting the discussion of political power in chapter one with the discussion of powers in law in chapter six. As she aptly puts it, the discussion from [natural] powers to [political] power in chapter one should have been followed by a further one “from power to powers” within the realm of law, illustrating the way in which the conferral of many power-conferring norms can realise individual and collective autonomy.102 This is an important insight for which I am very grateful to her and that I hope to address in future work.

• 103 Romeo 2024: 5.

51Exploring the social foundations of any constitutional order, however, points to a more basic issue faced by contemporary constitutional theory. Rather than a dichotomous choice between two competing accounts of modern constitutionalism — the rationalistic and the historical/contextual — there is a further and arguably harder to capture variable that shapes the genesis and life of constitutional orders: contingency. This latter concept, Romeo explains, goes beyond being “merely” forgotten by history, and seeks to capture instead the social dynamics that determine which alternatives (among many potential ones) are ultimately selected in each polity when it comes to constitutional design. Following Parsons, she then argues that constitutions can (and should) be understood as “devices for coordination or strategic coping in highly differentiated polities”103 and concludes that the constitutional theory methodology exhibited by TMCD takes this dimension seriously — as it rejects the supposed mutual exclusivity between normative and sociological accounts of constitutionalism and demands instead an “integrated” approach to constitutional theory.

• 104 This is perfectly captured in Cartabia and Lupo 2022: 8-11.

52I am very grateful to Romeo for the way in which she connected the account of constitutional democracy in TMCD with the sociological scholarship on constitutions and constitutionalism (which I know less well). In particular, I agree with her that constitutions — particularly of the revolutionary type — are to be understood as strategic devices in light of diversity and fragmentation of the underlying polity (or polities). Two examples of constitutions as strategic devices — one successful and one unsuccessful— come to mind. The first one lies in the way in which the elected Italian constituent assembly managed to produce a new constitution for post-war Italy that could be acceptable to a highly fragmented (still across previous political fault lines) Italian society.104

• 105 Cartabia 2023.

53Illuminating, in this respect, is Marta Cartabia’s remark that such fragmentation meant that none of the major post-war political parties knew if they were going to be voted into office after the first republican elections and that, as such, they had to make constitutional design choices in the constituent assembly as if from behind the Rawlsian “veil of ignorance”.105 This, together with the shared aim to prevent any future decay into authoritarianism, arguably shaped the strongly counter-majoritarian design of the Italian Republican Constitution — as no one knew if they were going to be in government or in the opposition after the election and thus settled for a constitutional system that substantially curbed the power of the upcoming parliamentary majority.

• 106 This after almost 80% of the Chilean population voted to replace the Pinochet Constitution with a n (...)
• 107 Gargarella 2022.
• 108 See eg Carrasco 2022.

54Much more recently, we witnessed a new draft constitution fail to gain popular support in Chile, when the new constitutional text was voted down by a majority of the public.106 While the causes of the popular rejection of the draft are arguably multifaceted,107 it has been widely suggested that the draft constitution was rejected in part precisely because it failed from the outset to fulfil its role as a “strategic device” for coordination (and compromise) between the highly fragmented Chilean civil society and political landscape — especially in light of its ambitious contents vis-à-vis indigenous and social rights.108 Overall, I think the acknowledgement of contingency as an important driver of constitutional design outcomes yields two important metatheoretical insights for constitutional theorists.

• 109 Searle & Vanderveken 1985.
• 110 Ferrajoli 2007.

55On the one hand, the role of contingency in shaping constitutional trajectories reminds us that there is no universal formula for striking the balance between description and prescription in constitutional texts. Constitutions should be, in this respect, devices that aim to create a bridge between the world as it is and the world as it should be — between reality and utopia. Borrowing from speech-act theory, they must have both word-to-world and world-to-word directions of fit.109 But how to strike the balance between capturing and transforming the existing reality of a polity? Identifying what makes them a demos in the first place and providing the aspirational ought to be which can constitute the lodestar of the political community going forward,110 are highly context-sensitive and mightily difficult tasks. Yet, they are, arguably, the most crucial tasks of constitutional design.

• 111 De Gregorio 2022.

58There are, in this respect, two relevant issues which are not captured by existing constitutional design and that represent potent causal forces of political and societal change. The first is traditional and social media ownership concentration in a handful of all-powerful private actors, which effectively get to play a decisive but significantly unregulated role in constitutional dynamics. The second is the way in which social media now allows political actors to reach the wider public directly and at a very low cost, thus bypassing the institutional gatekeepers — such as traditional print newspapers — which were in charge of verifying information before communicating it to the public. How constitutionalism should evolve to tackle these and other issues related to the algorithmicisation of our democracies is at the centre of the emerging paradigm of so-called “digital constitutionalism”.111

• 112 Gearty 2016.

62This is to say that, although I do believe that the common law model of constitutionalism is in one genus with the “legal” or “codified” one, the two are not the same in terms of their capacity to protect fundamental rights. And while the birthplace of modern constitutionalism should be identified with Great Britain and with the evolution of the common law, we should always keep in mind that the constitutionalist function played by courts was historically extremely limited and incomparable — at least before the HRA 1998 — to the one offered by domestic courts in most continental European countries.112 But is not Romeo’s point instead that it is precisely the system of rights protection envisaged post HRA 1998 in the UK — and the related Commonwealth model of constitutionalism as developed for instance in Canada and New Zealand — that strikes the right balance? Does the solution to the counter-majoritarian issue lie in decoupling constitutional review from judicial supremacy?

• 113 Kavanagh 2015.
• 114 The inclusion of Canada in the new “Commonwealth” model of constitutionalism is doubtful in the fir (...)

63Here, my argument that we must give prominence to institutional settlements and dynamics and not just to formal normative hierarchy in constitutional thinking bites again. For, as Kavanagh113 has perceptively argued, the reality is that the “weak” form of constitutional review in Canada or the UK post-HRA might not be so weak after all, and may achieve similar substantive results to countries with full-blown judicial supremacy like Germany or Italy.114 The difference lays in how rights’ protection is achieved — whether through the formal striking down of statutes (without the possibility of legislative override) or through a combination of expansive interpretive tools (the HRA section 3 powers) and non-binding declarations of incompatibility — and the inherent resilience to internal and external shocks of each rights’ protection framework. In a similar vein, the relationship between legislation and constitutional norms and principles does not appear to be fundamentally different under the HRA regime, given that the HRA includes both ex ante and ex post political and judicial mechanisms to ensure that all norms of the legal system — at all levels — comply with the rights in the ECHR.

• 115 This does not imply the denial of the positive functions of constitutionalism, which I discuss in S (...)

64So, how unambitious can constitutionalism really be? In my view, not very. For while I indeed argue that it can be pursued without establishing formal judicial supremacy in constitutional interpretation, the reality that I tried to illustrate in TMCD is that constitutionalism does require the democratic legislator to be limited, at least pragmatically, by a different type of law administered by a separate and independent body.115 Of course, the number and scope of such limits will differ from jurisdiction to jurisdiction, shaped by, among other things, the political and social history of that country and by the wider context at the time of constitutional revolution (or evolution). But the point is that constitutional norms and principles, to be recognised as such, must achieve a form of supremacy vis-à-vis ordinary legislation, at least from a practical point of view.

• 116 Sandro 2023.

65Finally, is all-powerful constitutionalism at odds with the possibility of distinguishing between law-creation and law-application? The worry, to be sure, is not just Romeo’s. The objection of the compatibility between the “constitutionally conforming interpretation” interpretive criterion and my account of the distinction has been raised in conversation by one of my Genoese legal realist friends, Giovanni Battista Ratti. For reasons of space, I will have to address the objection in full on another occasion. For now, building on the further considerations on the moderate cognitivist theory of interpretation put forward in TMCD that I have offered in an already published symposium on the book in Diritto & Questioni Pubbliche,116 I will limit myself the following brief observations.

• 117 Sandro 2022: 195-200.
• 118 In listing these four levels I am slightly amending the list and discussion offered in Sandro (2022 (...)

66I do not think that the all-powerful model of constitutionalism and the distinction between creation and application of law are mutually incompatible. The crucial insight, which I discuss in chapter 5 of TMCD,117 lies in the acknowledgment that statutory legal norms are unlike ordinary oral communicative exchanges, and are instead the product of complex text-acts the provisions of which must be read in light of their co-text. At least four levels of co-text can be identified:118

• 119 It should be noted that this possibility is significantly increased by the fragmentation of the leg (...)
• 120 See the further considerations on this point in Sandro 2023.

67Insofar as a given norm-sentence might have to be read in light of another norm-sentence in another statute that bears on its meaning (or operation, anyway), so it might also have to be read in light of a constitutional norm or principle to make it fully valid within the system. Under normal circumstances, one should expect most norms in the system to be created by legislative acts, which have been drafted abiding by both procedural as well substantive norms contained in the constitution of the system, so that the issue of “constitutionally conforming interpretation” ought not to rise often. But, clearly, not every applicative scenario can be foreseen in advance, and there will be cases where the constitutionality of a legal norm is called into question during legal proceedings.119 In these cases, nonetheless, it is still possible to talk of law-application under the theory I developed in TMCD.120

• 121 Sandro 2022: 199.
• 122 Sandro 2022: 199.
• 123 But the same can be said, mutatis mutandis, of the sec. 3 interpretive obligation established by th (...)
• 124 Sandro 2018.

68Of course, the more the constitutional text contains vague clauses not further specified through a stable line of case-law from a supreme or constitutional court, the more chances that the literal meaning of a statutory provision (or set of provisions) might at some point be modified or set aside to make it constitution-conforming.121 This, using the terminology developed in chapters 3 and 6 of TMCD, certainly constitutes a significant source of systemic discretion,122 although an unavoidable one in constitutional systems with a rigid constitution and related constitutional review.123 It is, in other words, a price to pay — vis-à-vis legal certainty — to the “altar” of constitutionalism. But this should not startle us, given that it is line with the very tension (and the associated costs in terms of certainty) between the static and dynamic normative dimensions of our complex, modern legal systems.124