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Constituent Power and the Law (Hardcover)
Loot Price: R3,617
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Constituent Power and the Law (Hardcover)
Series: Oxford Constitutional Theory
Expected to ship within 10 - 15 working days
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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.
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