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Constituent Power And The Law

Constituent Power and the Law PDF
Author: Joel Colón-Ríos
Publisher: Oxford University Press
Release: 2020-03-26
ISBN: 0191089087
Size: 76.15 MB
Format: PDF, ePub
Category : Law
Languages : en
Pages : 368
View: 7330

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Constituent Power And The Law

by Joel Colón-Ríos, Constituent Power And The Law Books available in PDF, EPUB, Mobi Format. Download Constituent Power And The Law books, Constituent power is the power to create new constitutions. Frequently exercised during political revolutions, it has been historically associated with extra-legality and violations of the established legal order. This book examines the relationship between constituent power and the law. It considers the place of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. Commentators and citizens have relied on the concept of constituent power to defend the idea that electors have the right to instruct representatives, to negate the doctrine of parliamentary sovereignty, and to argue that the creation of new constitutions must take place through extra-legislative processes, including primary assemblies open to all citizens. More recently, several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Constitutional courts have also at times employed constituent power to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have used it to defend the legality of attempts to transform the constitutional order through procedures not contemplated in the constitution's amendment rule, but considered participatory enough to be equivalent to 'the people in action', sometimes sanctioned by courts. Building on these findings, Constituent Power and the Law argues that constituent power, unlike sovereignty, should be understood as ultimately based on a legal mandate to produce a particular type of juridical content. In practice, this makes it possible for a constitution-making body to be understood as legally subject to popularly ratified substantive limits.



The Passivity Of Law

The Passivity of Law PDF
Author: Luigi Corrias
Publisher: Springer Science & Business Media
Release: 2011-04-14
ISBN: 9789400710344
Size: 19.21 MB
Format: PDF, Mobi
Category : Philosophy
Languages : en
Pages : 171
View: 5199

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The Passivity Of Law

by Luigi Corrias, The Passivity Of Law Books available in PDF, EPUB, Mobi Format. Download The Passivity Of Law books, At the heart of this book, a question: what to make of the creeping competences of the EU and of the role the European Court of Justice plays in this respect? Taking the implied powers doctrine as its starting point, the hypothesis is that it shows what is ultimately at stake in the concept of legal competence: the problem of creation in law, or the relationship between constituent and constituted power. By rethinking this relationship, a new conceptual framework to make sense of creeping competences is designed. For this, the work of Maurice Merleau-Ponty is used. Tracing back the philosophical roots of creation, legal constitution is understood as constitution in passivity. This leads to a whole new interpretation of the relationship between law and politics, rule following, authority, competences and European integration. From this perspective specific chapters in the case law of the European Court of Justice are reread and the logic behind the competence creep is unmasked. new back cover copy: Europe’s constitutional journey has not been a smooth one, and a better division and definition of competence in the European Union is a key issue that needs to be addressed. How can the division of competence be made more transparent? Does there need to be a reorganization of competence? How can it be ensured that the redefined division of competence will not lead to a creeping expansion of the competence of the Union or to encroachment upon the exclusive areas of competence of the Member States and, where there is provision, regions? And how can it be ensured that the European dynamic does not come to a halt? Indeed, has the creeping expansion of the competence of the Union already come to a halt? These are the questions this book explores. The Passivity of Law: Competence and Constitution in the European Court of Justice opens with a legal account of competence creep, including the role that the European Court of Justice plays in it and a sketch of the present division of competences and the main principles regulating it. It then discusses the relationship between constituent power and constituted or constitutional power from the viewpoint of the history of constitutional history before offering an alternative theory of their relationship, known as “chiastic theory,” which is based on the philosophical investigations of Merleau-Ponty. It details how chiastic theory can be used to make sense of the Court’s role in the competence creep in general and the doctrine of implied powers in particular, and it utilizes several case studies concerning competences to sustain this claim. Aimed at researchers and practitioners in Philosophy, Phenomenology, Political Science, the Social Sciences and numerous fields of law, this monograph is a seminal work in the evolving theory and practice of EU law.



Constituent Power And The Law

Constituent Power and the Law PDF
Author: Joel Colón-Ríos
Publisher:
Release: 2020
ISBN: 9780191827693
Size: 20.36 MB
Format: PDF, ePub
Category : Constituent power
Languages : en
Pages : 353
View: 862

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Constituent Power And The Law

by Joel Colón-Ríos, Constituent Power And The Law Books available in PDF, EPUB, Mobi Format. Download Constituent Power And The Law books, This book examines the relationship between constituent power and the law, and the place of the former in constitutional history, drawing from constitutional theory beyond the Anglo-American sphere, with new material made available for the first time to English readers.



Law Violence And Constituent Power

Law  Violence and Constituent Power PDF
Author: Héctor López Bofill
Publisher: Routledge
Release: 2021-05-31
ISBN: 1000393844
Size: 79.97 MB
Format: PDF, ePub, Docs
Category : History
Languages : en
Pages : 270
View: 3892

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Law Violence And Constituent Power

by Héctor López Bofill, Law Violence And Constituent Power Books available in PDF, EPUB, Mobi Format. Download Law Violence And Constituent Power books, This book challenges traditional theories of constitution-making to advance an alternative view of constitutions as being founded on power which rests on violence. The work argues that rather than the idea of a constitution being the result of political participation and deliberation, all power instead is based on violence. Hence the creation of a constitution is actually an act of coercion, where, through violence, one social group is able to impose itself over others. The book advocates that the presence of violence be used as an assessment of whether genuine constitutional transformation has taken place, and that the legitimacy of a constitutional order should be dependent upon the absence of killing. The book will be essential reading for academics and researchers working in the areas of constitutional law and politics, legal and political theory, and constitutional history.



The Adventures Of The Constituent Power

The Adventures of the Constituent Power PDF
Author: Andrew Arato
Publisher: Cambridge University Press
Release: 2017-11-30
ISBN: 1107126797
Size: 48.79 MB
Format: PDF
Category : Law
Languages : en
Pages : 250
View: 2524

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The Adventures Of The Constituent Power

by Andrew Arato, The Adventures Of The Constituent Power Books available in PDF, EPUB, Mobi Format. Download The Adventures Of The Constituent Power books, This book explores the democratic methods by which political communities make their basic law, and the dangers associated with constitution-making.



The Law And Legitimacy Of Imposed Constitutions

The Law and Legitimacy of Imposed Constitutions PDF
Author: Richard Albert
Publisher: Routledge
Release: 2018-11-01
ISBN: 1351038966
Size: 20.43 MB
Format: PDF, Mobi
Category : Law
Languages : en
Pages : 266
View: 6090

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The Law And Legitimacy Of Imposed Constitutions

by Richard Albert, The Law And Legitimacy Of Imposed Constitutions Books available in PDF, EPUB, Mobi Format. Download The Law And Legitimacy Of Imposed Constitutions books, Constitutions are often seen as the product of the free will of a people exercising their constituent power. This, however, is not always the case, particularly when it comes to ‘imposed constitutions’. In recent years there has been renewed interest in the idea of imposition in constitutional design, but the literature does not yet provide a comprehensive resource to understand the meanings, causes and consequences of an imposed constitution. This volume examines the theoretical and practical questions emerging from what scholars have described as an imposed constitution. A diverse group of contributors interrogates the theory, forms and applications of imposed constitutions with the aim of refining our understanding of this variation on constitution-making. Divided into three parts, this book first considers the conceptualization of imposed constitutions, suggesting definitions, or corrections to the definition, of what exactly an imposed constitution is. The contributors then go on to explore the various ways in which constitutions are, and can be, imposed. The collection concludes by considering imposed constitutions that are currently in place in a number of polities worldwide, problematizing the consequences their imposition has caused. Cases are drawn from a broad range of countries with examples at both the national and supranational level. This book addresses some of the most important issues discussed in contemporary constitutional law: the relationship between constituent and constituted power, the source of constitutional legitimacy, the challenge of foreign and expert intervention and the role of comparative constitutional studies in constitution-making. The volume will be a valuable resource for those interested in the phenomenon of imposed constitutionalism as well as anyone interested in the current trends in the study of comparative constitutional law.



The Paradox Of Constitutionalism

The Paradox of Constitutionalism PDF
Author: Martin Loughlin
Publisher: Oxford University Press, USA
Release: 2007
ISBN:
Size: 51.63 MB
Format: PDF, Kindle
Category : Law
Languages : en
Pages : 375
View: 4303

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The Paradox Of Constitutionalism

by Martin Loughlin, The Paradox Of Constitutionalism Books available in PDF, EPUB, Mobi Format. Download The Paradox Of Constitutionalism books, In modern political communities ultimate authority is often thought to reside with 'the people'. This book examines how constitutions act as a delegation of power from 'the people' to expert institutions, and looks at the attendant problems of maintaining the legitimacy of these constitutional arrangements.



Weak Constitutionalism

Weak Constitutionalism PDF
Author: Joel Colón-Ríos
Publisher: Routledge
Release: 2012-06-14
ISBN: 1136319263
Size: 80.33 MB
Format: PDF, ePub, Mobi
Category : Law
Languages : en
Pages : 224
View: 6058

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Weak Constitutionalism

by Joel Colón-Ríos, Weak Constitutionalism Books available in PDF, EPUB, Mobi Format. Download Weak Constitutionalism books, It has been frequently argued that democracy is protected and realized under constitutions that protect certain rights and establish the conditions for a functioning representative democracy. However, some democrats still find something profoundly unsettling about contemporary constitutional regimes. The participation of ordinary citizens in constitutional change in the world's most "advanced" democracies (such as the United States, Canada, and the United Kingdom) is weak at best: the power of constitutional reform usually lies in the exclusive hands of legislatures. How can constitutions that can only be altered by those occupying positions of power be considered democratically legitimate? This book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, it advances a democratic constitutional theory, one that combines a strong or participatory conception of democracy with a weak form of constitutionalism. The author engages with Anglo-American constitutional theory as well as examining the theory and practise of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left’s legal and political discourse. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power will be of particular interest to legal/political theorists and comparative constitutional lawyers. It also provides an introduction to the theory of constituent power and its relationship to constitutionalism and democracy.



Constituent Power

Constituent Power PDF
Author: Arvidsson Matilda Arvidsson
Publisher: Edinburgh University Press
Release: 2020-08-18
ISBN: 147445500X
Size: 50.67 MB
Format: PDF, Docs
Category :
Languages : en
Pages : 232
View: 6772

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Constituent Power

by Arvidsson Matilda Arvidsson, Constituent Power Books available in PDF, EPUB, Mobi Format. Download Constituent Power books, With a strong focus on constitutional law, this book examines the legal as well as the political power of 'the people' in constitutional democracies. Bringing together an international range of contributors from the USA, Latin America, the UK and continental Europe, it explores the complex relationship between constitutional democracy and 'the people' from the angles of constitutional law, legal theory, political theory, and history. Contributors explore this relationship through the lens of radical democracy, engaging with the work of key figures such as Hannah Arendt, Carl Schmitt, Claude Lefort, and Jacques Ranciere.



Constitutionalism In An Old Key

Constitutionalism in an Old Key PDF
Author: David Dyzenhaus
Publisher:
Release: 2011
ISBN:
Size: 58.83 MB
Format: PDF
Category :
Languages : en
Pages : 33
View: 4538

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Constitutionalism In An Old Key

by David Dyzenhaus, Constitutionalism In An Old Key Books available in PDF, EPUB, Mobi Format. Download Constitutionalism In An Old Key books, I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of law's authority as one entirely internal to legal order, thus making the question of constituent power superfluous. -- legal theory ; constitutional theory ; constituent power ; positivist legal theory.