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The Paradox of ConstitutionalismConstituent Power and Constitutional Form$
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Martin Loughlin and Neil Walker

Print publication date: 2008

Print ISBN-13: 9780199552207

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199552207.001.0001

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Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood

Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood

Chapter:
(p.9) 1 Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood
Source:
The Paradox of Constitutionalism
Author(s):

Hans Lindahl

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199552207.003.0002

This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of the legal-normative and the political as exemplary of influential and opposing positions in constitutional theory, it argues (against both) that collective identity is reflexive identity, that self-constitution is constitution both by (political) and of (legal-normative) a collective self, and that the paradoxical relation of constituent power and constitutional form — of democracy and legality — is in a certain sense specious. The chapter sets a frame for addressing the arguments of the papers that follow.

Keywords:   collective identity, reflexivity, self-constitution, Kelsen, Schmitt

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