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Constitutionalism in an old key: legality and constituent power

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Dyzenhaus, David

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Corporate Editor Wissenschaftszentrum Berlin für Sozialforschung gGmbH
Abstract I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of law's authority as one entirely internal to legal order, thus making the question of constituent power superfluous. (author's abstract)
Keywords legal theory; constitution; constitutional law; theory; constitutionalism; power; legal order
Classification Law
Document language English
Publication Year 2011
City Berlin
Page/Pages 33 p.
Series Discussion Papers / Wissenschaftszentrum Berlin für Sozialforschung, WZB Rule of Law Center, SP IV 2011-802
Status Published Version; reviewed
Licence Deposit Licence - No Redistribution, No Modifications