Constitutional Exceptionalism and the Common Law

Posted: 13 Apr 2009

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: April 2009

Abstract

This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term “exceptional” is used in this context to indicate a measure that 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 on the “fit” between this discourse and the “common law constitution.” It turns first 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.” Turning next to the common law constitutionalists’ theory of emergency powers, articulated most skillfully by David Dyzenhaus, the essay argues that this theory rests on a mistaken understanding of the nature of common law. Finally, it addresses the issue of extraconstitutionality and common law more generally, taking as its focus the “extralegal measures model” of emergencies advocated by Oren Gross and Mark Tushnet.

Suggested Citation

Poole, Thomas M., Constitutional Exceptionalism and the Common Law (April 2009). International Journal of Constitutional Law, Vol. 7, Issue 2, pp. 247-274, 2009. Available at SSRN: https://ssrn.com/abstract=1372589 or http://dx.doi.org/10.1093/icon/mop006

Thomas M. Poole (Contact Author)

London School of Economics - Law Department ( email )

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

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/thomas-poole.htm

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