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Against Constitutionalism

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A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today.

Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity.

Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts.

Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.

Συγγραφέας: Loughlin Martin
Εκδότης: HARVARD UNIVERSITY PRESS
Σελίδες: 240
ISBN: 9780674268029
Εξώφυλλο: Σκληρό Εξώφυλλο
Αριθμός Έκδοσης: 1
Έτος έκδοσης: 2022
  • Preface
  • Introduction: What Is Constitutionalism?
  • I. Origins of Constitutionalism
    • 1. Constitutions: Traditional and Modern
    • 2. The Ideology of Constitutionalism
    • 3. The Constitution of What?
    • 4. The Path to Ordo-constitutionalism
  • II. Elements of Constitutional Democracy
    • 5. Constituent Power
    • 6. Constitutional Rights
    • 7. Constitutional Democracy
  • III. The Age of Constitutionalism
    • 8. The Constitution as Civil Religion
    • 9. Toward a Juristocracy
    • 10. Integration through Interpretation
    • 11. A New Species of Law
    • 12. The Struggle for Recognition
    • 13. The Cosmopolitan Project
  • Conclusion: Overcoming Constitutionalism
  • Notes
  • Acknowledgments
  • Index

Martin Loughlin is Professor of Public Law at the London School of Economics & Political Science. He was educated at LSE, the University of Warwick, and Harvard Law School, and held chairs at the Universities of Glasgow and Manchester before returning to the LSE in 2000. Between 2000 and 2002, he held a Leverhulme Major Research Fellowship; in 2007-08 he was a Fellow of the Wissenschaftskolleg zu Berlin; in 20012-13 held a Law & Public Affairs Fellowship at Princeton University; and in 2016-17 is EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies. He is a Fellow of the British Academy. Martin has been a visiting professor at many law schools including Osgoode Hall, Paris II, Pennsylvania, Renmin University (Beijing), and Toronto.

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