‘We the People’, ‘Oui, the People’ and the Collective Body: Perceptions of Constituent Power

Comparative Constitutional Theory (Gary J. Jacobsohn and Miguel Schor eds., Edward Elgar, 2017, Forthcoming)

26 Pages Posted: 3 May 2017 Last revised: 5 Jun 2017

See all articles by Yaniv Roznai

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Date Written: April 30, 2017

Abstract

Constituent power is generally recognized as the power of ‘the people’ to establish a constitutional order. Regarded as external and prior to the constitutional order, it is often distinguished from constituted powers. The circularity of constituent power is that ‘the people’, the constitutional author, is itself constituted by the constitution. Thus, notwithstanding its immense importance, constituent power remains one of the most intangible concepts in constitutional theory. This Chapter presents and contrasts various theoretical conceptions of constituent power, mainly of its legal or illegal nature; of its holders; and of its direct or representational manifestation. It demonstrates how comparative constitutional design aims to bridge between a mythical conception of ‘the people’ and the real population by providing popular mechanisms for exercising constitutive functions. Due to its importance and complexities, it is argued that the concept of constituent power must not be abandoned but further studied and conceptualized.

Keywords: constituent power, constituted power, constitution-making, amendment power, popular sovereignty, revolution, representation, direct democracy

Suggested Citation

Roznai, Yaniv, ‘We the People’, ‘Oui, the People’ and the Collective Body: Perceptions of Constituent Power (April 30, 2017). Comparative Constitutional Theory (Gary J. Jacobsohn and Miguel Schor eds., Edward Elgar, 2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2960880

Yaniv Roznai (Contact Author)

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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