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Constitutionalism in an old key: legality and constituent power
[working paper]
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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 w... view more
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)... view less
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
Handle
https://hdl.handle.net/10419/60408
Status
Published Version; reviewed
Licence
Deposit Licence - No Redistribution, No Modifications