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Rousseau, theorist of constituent power

journal contribution
posted on 20.07.2020 by Joel Colon-Rios
© The Author 2016. Rousseau has always had an uncertain relationship with the theory of constituent power. On the one hand, his distrust of political representation and support for popular sovereignty seem consistent with the idea of the people as a legally unlimited constitution-maker. On the other hand, if, from those views about representation and sovereignty, it follows that Rousseau is a proponent of direct democracy, then there seems to be no place in his thought for a theory that presupposes, above all, a separation between those who exercise a delegated authority (eg legislators) and those who possess an original constitution-making power (the people). In a legal order in which all laws must be directly made by the people, such a separation is absent: the constituent and the legislative body are one and the same. It is therefore not surprising that Rousseau's name is largely absent from contemporary literature on constituent power. In this article, however, I will show that once Rousseau's particular conception of law, as well as his distinction between sovereignty and government, are properly understood, one finds in his work not only the first major formulation of the theory of constituent power, but also a careful exploration of its implications for actual constitutional practice.

History

Preferred citation

Colón-Ríos, J.I. (2016). Rousseau, theorist of constituent power. Oxford Journal of Legal Studies, 36(4), 885-908. https://doi.org/10.1093/ojls/gqw012

Journal title

Oxford Journal of Legal Studies

Volume

36

Issue

4

Publication date

01/12/2016

Pagination

885-908

Publisher

Oxford University Press (OUP)

Publication status

Published

Contribution type

Article

Online publication date

12/06/2016

ISSN

0143-6503

eISSN

1464-3820

Language

en

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