Constitutional Exceptionalism and the Common Law

21 Pages Posted: 6 Oct 2008 Last revised: 15 Oct 2008

See all articles by Thomas M. Poole

Thomas M. Poole

London School of Economics - Law Department

Multiple version iconThere are 2 versions of this paper

Date Written: September 17, 2008


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?

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: or

Thomas M. Poole (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom


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