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Constitutional Exceptionalism and the Common Law


Thomas M. Poole


London School of Economics & Political Science (LSE)

September 17, 2008

LSE Legal Studies Working Paper No. 14/2008

Abstract:     
This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term 'exceptionalist' is used in this context to indicate a measure which deviates from normal constitutional standards and is, by virtue of that deviation, seen as inappropriate or regrettable. The paper avoids a direct focus on the debate about terrorism, concentrating instead on more conceptual matters - and particularly the 'fit' between this discourse and the 'common law constitution'. Part I turns to John Locke and uses his theory of the prerogative as a means of highlighting the difficulty of determining what counts as 'exceptional' in this, our 'age of statutes'. Part II raises concerns about the common law constitutionalists' theory of emergency powers, articulated most skilfully by Dyzenhaus, and argues that this theory rests on a mistaken understanding of the nature of common law. Part III addresses the issue of extra-constitutionality and common law more generally, taking as its focus the 'extra-legal measures model' of emergencies advocated by Gross and Tushnet. On the back of this critical analysis, the paper ends by raising questions about the 'public role' of constitutional scholars: have we been too ready, it asks, to deny the complexity of our discipline in order to make political points?

Number of Pages in PDF File: 21

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Date posted: October 6, 2008 ; Last revised: October 15, 2008

Suggested Citation

Poole, Thomas M., Constitutional Exceptionalism and the Common Law (September 17, 2008). LSE Legal Studies Working Paper No. 14/2008. Available at SSRN: http://ssrn.com/abstract=1269271 or http://dx.doi.org/10.2139/ssrn.1269271

Contact Information

Thomas M. Poole (Contact Author)
London School of Economics & Political Science (LSE) ( email )
Houghton Street
London, WC2A 2AE
United Kingdom
HOME PAGE: http://www.lse.ac.uk/collections/law/staff/thomas-poole.htm
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