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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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The Politics of the Question of Constituent Power

The Politics of the Question of Constituent Power

Chapter:
(p.129) 7 The Politics of the Question of Constituent Power
Source:
The Paradox of Constitutionalism
Author(s):

David Dyzenhaus

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199552207.003.0008

This chapter mounts a defence of a liberal constitutionalism in which constitutional architecture is treated as eclipsing constituent power, not on the basis of the empirical inevitability of the legal taming of the political, but on account of the impossibility of developing normative accounts of how we might live together except on the basis of such a working assumption. Against Schmitt's claim that constitutional authority cannot escape its origins in constituent power, the chapter defends a liberal account of the rule of law.

Keywords:   liberal constitutionalism, constituent power, Schmitt, rule of law

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