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Vol 21 No 11 Nov/Dec 2016

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Philosophical Foundations of Constitutional Law

Edited by: David Dyzenhaus, Malcolm Thorburn

ISBN13: 9780198754527
Published: February 2016
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £60.00



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Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime.

Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law.

The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy.

Subjects:
Constitutional and Administrative Law, Jurisprudence
Contents:
Introduction

PART I: WHAT IS A CONSTITUTION?
1. The Idea of a Constitution: A Plea for Staatsrechtslehre
2. On Constitutional Implications and Constitutional Structure
3. The Unwritten Constitution as a Legal Concept
4. Reflections on What Constitutes 'a Constitution': The Importance of 'Constitutions of Settlement' and the Potential Irrelevance of Herculean Lawyering
5. Constitutional Amendment and Political Constitutionalism: A Philosophical and Comparative Reflection

PART II: CONSTITUTIONAL AUTHORITY
6. Constitutional Legitimacy Unbound
7. Constituent Power and the Constitution
8. Constitutional Reason of State
9. Popular Sovereignty and Revolutionary Constitution-Making

PART III: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS
10. Equality Rights and Stereotypes
11. Proportionality

PART IV: CONSTITUTIONAL FUNDAMENTALS
12. The Rule of Law
13. The Constitutional Separation of Powers
14. Interpretation and Change
15. Philosophical Foundations of Judicial Review