Playing Fair in Modern Democracies
Chapter 3: Obsolescence: the foundational
This chapter opens the discussion of the different ways that constitutions have lost their relevance for modern conditions by looking at the foundational pillar of a constitution. It distinguishes between the functional foundation (who does what and where) and the principled foundation (what gives a constitution its legitimacy). It discusses, first, the reasons why the traditional functional pillar no longer captures the way authority is exercised in delayered and diffused forms of organization. It discusses, secondly, why the traditional principled pillar based on consent has been undermined. It attributes this erosion to the loss of a clear division between the private sphere and the public. It suggests there has been a fundamental shift from viewing legitimacy as based on consent to a view that it rests on identification with the content of a constitution. It points to assertions of ‘rights’ as playing a key role in this shift.
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