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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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Constitutional Legitimacy Unbound

Constitutional Legitimacy Unbound

(p.119) 6 Constitutional Legitimacy Unbound
Philosophical Foundations of Constitutional Law

Evan Fox-Decent

Oxford University Press

The author argues that for a constitution to be legitimate, it must include a cosmopolitan aspect capable of supplying a legal framework to relations between states and foreign nationals. The legitimacy of a constitution’s cosmopolitan aspect, in turn, rests on the operation of supranational legal standards and institutions within a cognizable legal relationship that obtains between the state and foreign nationals. An important implication concerns citizenship and immigration: if the state uses force or the threat of force against peaceful outsiders who seek to enter its territory or to take up citizenship in its polity, it owes them a weighty duty of justification. Once we have in view the structure and content of the cosmopolitan relationship between the state and non-citizens, we shall see that the same kind of relationship and a generalized duty of justification are necessarily part of the legitimacy of a constitution as in the ordinary state–citizen case.

Keywords:   constitutionalism, cosmopolitanism, citizenship, immigration, foreigners, duty of justification

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