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Making a 21st Century Constitution

Playing Fair in Modern Democracies

Frank Vibert

Democratic constitutions are increasingly unfit for purpose with governments facing increased pressures from populists and distrust from citizens. The only way to truly solve these problems is through reform. Within this important book, Frank Vibert sets out the key challenges to reform, the ways in which constitutions should be revitalised and provides the standards against which reform should be measured.
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Chapter 3: Obsolescence: the foundational

Frank Vibert


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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