Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 15: “We the people”, “oui, the people” and the collective body: perceptions of constituent power

Yaniv Roznai

Abstract

Abstract: Constituent power is generally recognized as the power of “the people” to establish a constitutional order. Regarded as external and prior to the constitutional order, it is often distinguished from constituted powers. The circularity of constituent power is that “the people”, the constitutional author, is itself constituted by the constitution. Thus, notwithstanding its immense importance, constituent power remains one of the most intangible concepts in constitutional theory. This chapter presents and contrasts various theoretical conceptions of constituent power, mainly of its legal or illegal nature; of its holders; and of its direct or representational manifestation. It demonstrates how comparative constitutional design aims to bridge between a mythical conception of “the people” and the real population by providing popular mechanisms for exercising constitutive functions. Due to its importance and complexities, it is argued that the concept of constituent power must not be abandoned but further studied and conceptualized.

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