The Constitutive Paradox of Modern Law: A Comment on Tully

Abstract

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully’s sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully’s article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what lies in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may be connected to a paradox at the heart of modern law.

Keywords: Tully, power, taxonomy

JEL Classification: K00, K10, K33, K34