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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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Constituent Power and the Constitution

Constituent Power and the Constitution

(p.141) 7 Constituent Power and the Constitution
Philosophical Foundations of Constitutional Law

Hans Lindahl

Oxford University Press

This chapter first outlines a model of legal order that grants pride of place to the first-person plural perspective of the ‘we’ invoked in acts of constituent power: the authoritative collective action model of law. This model of law shows, in a second step, that constitutions are, first and foremost, the master rule by which legal collectives deal recursively with the practical question they confront at every turn: what ought our joint action to be about? The pervasiveness of this question leads back, or so it is subsequently argued, to the paradox deployed by constituent power: the foundation of a legal order only succeeds if it appears, retrospectively, as the legal re-foundation of an extant collective. Finally, the chapter explores the normative implications of this account of the relation between constituent power and a constitution, with special attention to the concept and the problem of legal authority.

Keywords:   constituent power, collective action, authority, legal order, inclusion/exclusion

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