THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM. Ed by Martin Loughlin and Neil Walker Oxford: Oxford University Press (www.oup.co.uk), 2007. ix and 375 pp. ISBN 9780199204960. £50.
| Pages | 333-334 |
| Published date | 01 May 2008 |
| DOI | 10.3366/E1364980908230489 |
| Date | 01 May 2008 |
| Author | Heather Lardy |
The focus of this collection is on the tension between two dimensions of modern constitutionalism: constitutionalism as a constraint upon governmental power, and constitutionalism as a vehicle for managing the expression of the people's power to choose how they are governed. The paradox of constitutionalism, explored in these essays, arises because the constituent power of the “sovereign” people is necessarily constrained by institutional structures which shape and regulate the expression of that power. The sixteen chapters in this volume address this paradox from conceptual, historical, national, international and supranational perspectives. The papers are arranged in three parts, preceded by an introduction by the editors and a chapter by Hans Lindahl examining the idea of constituent authority.
Part I provides “a conceptual history of constituent power”. Martin Loughlin discusses the history of the concept of constituent authority within British constitutional practice, arguing persuasively that this power has been subverted by political responses to questions about the power's nature and identity stretching back to the constitutional discourse of the seventeenth century. In his contribution on American constitutionalism, Stephen Griffin emphasises the opportunities which political and other non-formal mechanisms of constitutional dialogue and development may offer as means for permitting the continuing participation of the constituent authority within a long-settled constitutional scheme. Part I also contains contributions by Lucien Jaume, on the influence of revolutionary ideas in the construction of constituent authority in French constitutional thought, and by Christopher Möllers, who considers the problematic status of the idea of “the people” in German constitutional history and practice. Questions about the constituent power have, he argues, been largely subsumed by a strategy which substitutes textual interpretation of the constitution for reflection on the wider questions about the relation between “the people” and political legitimacy. John McCormick concludes Part I with a critique of the implications of the general preference of modern constitutionalism for “class-anonymous” descriptions of “the people”. He argues convincingly for a reassessment of the potential contribution to constitutionalism of the type of class-specific structures found in ancient and early republican constitutional models.
The contributions in Part II (“The...
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