14 Pages Posted: 11 Dec 2018
Date Written: December 5, 2018
The concept of fundamental law occupies an ambivalent status in the history of legal thought. In early modern constitutional debate it was the pivot around which contrasting views about juristic foundations of medieval and modern constitutionalism revolved. But with the transition to modernity the concept has been converted into a particular category of positive law. Fundamental law is now generally regarded simply as an expression of the higher status of entrenched constitutional law as distinct from the ‘ordinary’ law enacted by legislatures. This paper examines the continuing relevance of a broader sense of the concept that persists in modern constitutional thought. It argues that the concept of fundamental law still has significance as a juristic expression of the intrinsic political dynamics of modern constitutional practice.
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