Academic

Colon-Rios on Legitimacy & Democratic Reconstitution

By Lawrence Solum

Joel I. Colon-Rios (Victoria University of Wellington) has posted The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform on SSRN. Here is the abstract:

What conditions must be met for a constitutional regime to be considered legitimate from a democratic perspective? This article argues that the democratic legitimacy of a constitutional regime depends on its susceptibility to (democratic) re-constitution. Under this view, a constitution must provide an opening, a means of egress for constituent power to manifest from time to time. In developing this argument, the article advances a distinction between ordinary constitutional reform - understood as subject to certain limits- and the exercise of constituent power through which a society produces novel juridical forms without being subject to positive law. The article concludes by providing examples of mechanisms that may be used as means for the exercise of constituent power and that, if available, would provide a constitutional regime with a strong claim to democratic legitimacy.

Full post as published by Legal Theory Blog on November 09, 2010 (boomark / email).