Paradox of Constitutionalism Constituent Power and Constitutional Form

Author: Martin Loughlin; Neil Walker
Publisher: Oxford University Press
ISBN: 9780199552207
Published In: August 2008
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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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

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 a 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 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.

Readership: Academics and advanced students in fields on constitutional law, political theory, and history.

Introduction
1: Hans Lindahl: Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood
A Conceptual History of Constituent Power
2: Martin Loughlin: Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice
3: Stephen M. Griffin: Constituent Power and Constitutional Change in American Constitutionalism
4: Lucien Jaume: Constituent Power in France: The Revolution and its Consequences
5: Christoph Möllers: 'We are (afraid of) the people': Constituent Power in German Constitutionalism
6: John P. McCormick: People and Elites in Republican Constitutions, Traditional and Modern
The Articulation of Constituent Power: Rival Conceptions
7: David Dyzenhaus: The Politics of the Question of Constituent Power
8: Rainer Nickel: Private and Public Autonomy Revisited: Co-originality in Times of Globalization and the Militant Security State
9: Paolo Carrozza: Constitutionalism's Post-Modern Opening
10: Emilios Christodoulidis: Against Substitution: The Constitutional Thinking of Dissensus
Extension and Diversification of Constituent Power
11: Ulrich Preuss: The Exercise of Constituent Power in Central and Eastern Europe
12: Stephen Tierney: 'We the Peoples': Constituent Power and Constitutionalism in Plurinational States
13: Neil Walker: Post-Constituent Constitutionalism? The Case of the European Union
14: Bardo Fassbender: 'We the Peoples of the United Nations': Constituent Power and Constitutional Form in International law
15: Damien Chalmers: Constituent Power and the Pluralist Ethic
16: James Tully: The Imperialism of Modern Constitutional Democracy

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

Contributors:

Paolo Carrozza, Professor of Comparative Constitutional Law, University of Pisa
Damian Chalmers, Professor of European Union Law, London School of Economics and Political Science
Emilios Christodoulidis, Professor of Law, University of Glasgow
David Dyzenhaus, Professor of Law and Philosophy, University of Toronto
Bardo Fassbender, Associate Professor of Law, Humboldt University, Berlin
Stephen M. Griffin, Rutledge C Clement, Jr Professor in Constitutional Law, Tulane Law School, New Orleans
Lucien Jaume, Director of Research at CNRS; Professor, Centre de Recherches Politiques de Sciences Po (CEVIPOF), Paris
Hans Lindahl, Professor of Legal Philosophy, Department of Philosophy, Tilburg University
Martin Loughlin, Professor of Public Law, London School of Economics and Political Science
John P. McCormick, Associate Professor of Political Science, University of Chicago
Christoph Möllers, Professor of Public Law, University of Göttingen
Rainer Nickel, Associate Professor of Law, Johann Wolfgang Goethe University, Frankfurt am Main
Ulrich Preuss, Professor of Theories of the State, Hertie School of Governance, Berlin
Stephen Tierney, Reader in Law, University of Edinburgh
James Tully, Distinguished Professor of Political Science, Law, Indigenous Governance and Philosophy at the University of Victoria, British Columbia
Neil Walker, Professor of Law, European University Institute, Florence