Constitutionalism in an Old Key: Legality and Constituent Power

Global Constitutionalism (2012), 1:2, 229-260

Posted: 12 Jun 2012

See all articles by David Dyzenhaus

David Dyzenhaus

University of Toronto - Faculty of Law/Department of Philosophy

Date Written: 2012

Abstract

I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of law’s authority as one entirely internal to legal order, thus making the question of constituent power superfluous.

For the complete publication please refer to the Global Constitutionalism website. Global Constitutionalism (2012), 1:2, 229-260 © Cambridge University Press, 2012.

Keywords: constitutional theory, legal theory

Suggested Citation

Dyzenhaus, David, Constitutionalism in an Old Key: Legality and Constituent Power (2012). Global Constitutionalism (2012), 1:2, 229-260. Available at SSRN: https://ssrn.com/abstract=2081874

David Dyzenhaus (Contact Author)

University of Toronto - Faculty of Law/Department of Philosophy ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-6935 (Phone)
416-978-2648 (Fax)

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