Tomasz Gizbert-Studnicki

The provisions contained in the constitution have different characteristics. Specific problems arise in connection with interpretation of those provisions which contain standards. Traditional canons of interpretation (linguistic, systematic and purposive interpretation) fail, since constitutional standards refer to essentially contested concepts. The understanding of such concepts as equality, human dignity or social market economy depends on the accepted political philosophy. A deficit of legitimacy of decisions arises, since decisions based on a particular political philosophy are challenged by adherents of competing political philosophies. Such a deficit may be reduced by reference to the conception of “incompletely theorized agreements”. It may be demonstrated that a dispute relating to an abstract principle or value does not preclude the possibility of reaching a consensus with respect to a particular decision. Such a decision may be differently justified on the basis of different political philosophies.

The purpose of this paper is to present a metaphysical analysis of one of the main theses of legal positivism, namely that legal facts are ultimately determined by social facts alone. A short analysis of the notions of social and legal facts is followed by a presentation of possible accounts of the relation of determination. Three alternative accounts are discussed: the reduction of legal facts to social facts, the supervenience of legal facts on social facts and the grounding of legal facts by social facts. The first and second accounts are dismissed as unsatisfactory. The account of determination as a relation of metaphysical grounding appears to be promising, but creates difficulties with explaining the normative nature of legal facts.