(Political) constitutions and (Political) constitutionalism
(Political) constitutions and (Political) constitutionalism
This paper responds to the conceptual inflation of constitutionalism in recent years by considering the relationship between constitutions and the specific concept of constitutionalism, seeking to establish the limits to the identification of the latter outside its traditional province. It considers both constitutions and constitutionalism in general terms, but seeks in particular to elucidate the relationship between the political constitution and political constitutionalism. This task requires an explanation of the law/politics divide and the paper argues for an institutional distinction between the two concepts, as opposed to one based upon the supposedly distinctive rationalities associated with law and politics. It grafts these categories onto a concept of constitutionalism characterized by a specific functional logic, whereby the same mechanisms that constitute power also limit that power. As such, it argues that to identify constitutionalism in contexts in which constitution and limitation occur separately—as in different layers of a multi-layered constitutional order—is mistaken. Constitutionalism is defined by this distinctive dualism, which in turn grants it its legitimating potential.
2157-2184
Scott, Paul
d83e2317-35ca-4db4-9788-5752834c3b4b
2013
Scott, Paul
d83e2317-35ca-4db4-9788-5752834c3b4b
Scott, Paul
(2013)
(Political) constitutions and (Political) constitutionalism.
German Law Journal, 14 (12), .
Abstract
This paper responds to the conceptual inflation of constitutionalism in recent years by considering the relationship between constitutions and the specific concept of constitutionalism, seeking to establish the limits to the identification of the latter outside its traditional province. It considers both constitutions and constitutionalism in general terms, but seeks in particular to elucidate the relationship between the political constitution and political constitutionalism. This task requires an explanation of the law/politics divide and the paper argues for an institutional distinction between the two concepts, as opposed to one based upon the supposedly distinctive rationalities associated with law and politics. It grafts these categories onto a concept of constitutionalism characterized by a specific functional logic, whereby the same mechanisms that constitute power also limit that power. As such, it argues that to identify constitutionalism in contexts in which constitution and limitation occur separately—as in different layers of a multi-layered constitutional order—is mistaken. Constitutionalism is defined by this distinctive dualism, which in turn grants it its legitimating potential.
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Published date: 2013
Organisations:
Faculty of Business, Law and Art
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Local EPrints ID: 361879
URI: http://eprints.soton.ac.uk/id/eprint/361879
ISSN: 2071-8322
PURE UUID: 744c5904-b294-41b1-a709-9e6207780318
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Date deposited: 06 Feb 2014 12:01
Last modified: 11 Dec 2021 03:35
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Author:
Paul Scott
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