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Vol 23 No 5 May/June 2018

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Paradox of Constitutionalism: Constituent Power and Constitutional Form

ISBN13: 9780199552207
Published: August 2008
Publisher: Oxford University Press
Country of Publication: UK
Format: Paperback (Hardback in 2007)
Price: £39.49
Hardback edition out of print, ISBN13 9780199204960

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This 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 of crisis? 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 puzzles associated with the question of constituent power are played out in these increasingly important settings.

  • Promotes the subject of constitutional theory as a distinct mode of inquiry, developing a neglected subject that is rapidly growing in importance
  • Draws together the expertise of scholars from a range of jurisdictions and disciplinary backgrounds
  • Examines the practices of constitutionalism and the issue of constituent power in a variety of sites beyond the nation state, including the United Nations, the European Union and sub-state territories
  • An exhaustive bibliography gives extensive reading list of literature in a range of European languages on constitutionalism

Constitutional and Administrative Law
1. Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood

2. Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice
3. Constituent Power and Constitutional Change in American Constitutionalism
4. Constituent Power in France: The Revolution and its Consequences
5. 'We are (afraid of) the people': Constituent Power in German Constitutionalism
6. People and Elites in Republican Constitutions, Traditional and Modern

7. The Politics of the Question of Constituent Power
8. Private and Public Autonomy Revisited: Co-originality in Times of Globalization and the Militant Security State
9. Constitutionalism's Post-Modern Opening
10. Against Substitution: The Constitutional Thinking of Dissensus

11. The Exercise of Constituent Power in Central and Eastern Europe
12. 'We the Peoples': Constituent Power and Constitutionalism in Plurinational States
13. Post-Constituent Constitutionalism? The Case of the European Union
14. 'We the Peoples of the United Nations': Constituent Power and Constitutional Form in International law
15. Constituent Power and the Pluralist Ethic
16. The Imperialism of Modern Constitutional Democracy