The Invisible Constitution in Comparative Perspective

The Centrality and Diversity of the Invisible Constitution 

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recognition with the constitution (or certain constitutional provisions or prin-

ciples) of that system.

10

 However, he makes the point that it cannot be the con-

stitutional text that renders the rule of recognition fundamental. Discussing 

the rule that what the Queen in Parliament enacts is law, Hart observes that:

Even if it were enacted by statute, this would not reduce it to the level of a 

statute; for the legal status of such an enactment necessarily would depend 

on the fact that the rule existed antecedently to and independently of the 

enactment. Moreover . . . its existence, unlike that of a statute, must consist 

in an actual practice.

11

The point about actual practice is a consequence of Hart’s general account of the 

existence of a legal system. Hart holds there to be two conditions necessary and 

10 

See e.g., 

ibid.

, 100–2, 106–7, 110–11, 113–16.

11 

Ibid.

, 111. Hart further says (293) that: 

If a constitution specifying the various sources of law is a living reality in the sense that 

the courts and officials of the system actually identify the law in accordance with the cri-

teria it provides, then the constitution is accepted and actually exists. It seems a needless 

reduplication to suggest that there is a further rule to the effect that the constitution (or 

those who ‘laid it down’) are to be obeyed. 

Gardner says of this second passage that: 

The picture that Hart seems to be trying to conjure up is of a constitution containing 

some law that is both written and unwritten – legislated and customary – at the same 

time. The only picture he succeeded in conjuring up for me, however, is of written law 

which was displaced, perhaps one step at a time, by unwritten law, so that the formerly 

legislated constitution lost its force in favour of customary rules with similar content. 

John Gardner, ‘Can There Be a Written Constitution’, in Leslie Green and Brian Leiter 

(eds.) Oxford Studies in Philosophy of Law (Oxford: Oxford University Press, 2011), 180. As far 

as the relationship between the rule of recognition and a written constitution is concerned, 

therefore, Gardner prefers to identify the rule of recognition as an unwritten rule that ‘imposes 

a legal duty upon law-applying officials’; the duty it imposes is to apply the constitution, which 

itself identifies and confers powers upon the fundamental political organs and institutions; and 

because the rule of recognition must be an actual social practice (‘custom’), it is ultimately ju-

dicial reception of the constitution that confers upon it its constitutional status: ‘Can There Be  

a Written Constitution’ 165–7, 175–80, 186–7. The idea that the rule of recognition is consti-

tuted simply by judicial practice is contentious, however: Jeffrey Goldsworthy, for instance, 

takes the view that the rule of recognition is constituted by the shared practice of all the senior 

officials within a legal system: The Sovereignty of Parliament: History and Philosophy (Oxford: 

Clarendon Press, 1999), 238–46. On such an understanding, the idea that the content of that 

shared practice might be written down by the lawmaking officials, so that the law-applying 

officials have a canonical statement of it to refer to when performing their adjudicative tasks, 

would seem to make sense. In such a case, the duty to conform to the rule of recognition 

would be overdetermined, but there would be no contradiction. 

In any event, as will be discussed below, an unwritten rule of recognition is not as such in-

visible, and so even if Gardner was correct that the rule of recognition must be unwritten, that 

would not in itself show that every constitution necessarily has an invisible aspect.

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