The Paradox of Constitutionalism: Constituent Power and Constitutional Form

Paperback | August 20, 2008

EditorMartin Loughlin, Neil Walker

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The book sets out to examine some of the key features of what we describe as the paradox of constitutionalism: whether those who have the authority to make a constitution - the 'constituent power' - can do so without effectively surrendering that authority to the institutional sites of power'constituted' by the constitutional form they enact. In particular, is the constituent power exhausted in the single constitutive act or does it retain a presence, acting as critical check on the constitutional operating system and/or an alternative source of authority to be invoked in moments ofcrisis? These questions have been debated both in different national contexts and at the level of constitutional theory, and these debates are acknowledged and developed in the first two sections of the book. Part I includes chapters on how the question of constituent power has been treated in the constitutional histories of USA, France, UK and Germany, while Part II examines at the question of constituent power from the perspective of both liberal and non-liberal theories of the state and legal order.The essays in Part III consider the operation of constitutionalism with respect to a series of contemporary challenges to the state, including those from popular movements below the level of the state and challenges from the supranational and international levels, and they analyse how the puzzlesassociated with the question of constituent power are played out in these increasingly important settings.

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The book sets out to examine some of the key features of what we describe as the paradox of constitutionalism: whether those who have the authority to make a constitution - the 'constituent power' - can do so without effectively surrendering that authority to the institutional sites of power'constituted' by the constitutional form they...

Martin Loughlin is Professor of Public Law, London School of Economics and Political Science Neil Walker is Professor of European Law, European University Institute

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Format:PaperbackDimensions:392 pages, 9.21 × 6.14 × 0.87 inPublished:August 20, 2008Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199552207

ISBN - 13:9780199552207

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Table of Contents

Introduction1. Hans Lindahl: Constituent Power and Reflexive Identity: Towards an Ontology of Collective SelfhoodA Conceptual History of Constituent Power2. Martin Loughlin: Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice3. Stephen M. Griffin: Constituent Power and Constitutional Change in American Constitutionalism4. Lucien Jaume: Constituent Power in France: The Revolution and its Consequences5. Christoph Mollers: 'We are (afraid of) the people': Constituent Power in German Constitutionalism6. John P. McCormick: People and Elites in Republican Constitutions, Traditional and ModernThe Articulation of Constituent Power: Rival Conceptions7. David Dyzenhaus: The Politics of the Question of Constituent Power8. Rainer Nickel: Private and Public Autonomy Revisited: Co-originality in Times of Globalization and the Militant Security State9. Paolo Carrozza: Constitutionalism's Post-Modern Opening10. Emilios Christodoulidis: Against Substitution: The Constitutional Thinking of DissensusExtension and Diversification of Constituent Power11. Ulrich Preuss: The Exercise of Constituent Power in Central and Eastern Europe12. Stephen Tierney: 'We the Peoples': Constituent Power and Constitutionalism in Plurinational States13. Neil Walker: Post-Constituent Constitutionalism? The Case of the European Union14. Bardo Fassbender: 'We the Peoples of the United Nations': Constituent Power and Constitutional Form in International law15. Damien Chalmers: Constituent Power and the Pluralist Ethic16. James Tully: The Imperialism of Modern Constitutional Democracy