A republican defence of the constitutional referendum

Legal Studies ◽  
2015 ◽  
Vol 35 (1) ◽  
pp. 30-54 ◽  
Author(s):  
Eoin Daly
Keyword(s):  
Direct Democracy ◽  
Popular Sovereignty ◽  
Executive Power ◽  
The Political ◽  
Constitutional Change ◽  
Parliamentary Democracy ◽  
Constituent Power ◽  
Parliamentary Supremacy ◽  
Political Value ◽  
Republican Theory

The constitutional referendum is often conceptualised as the ultimate institutional expression of popular sovereignty. However, ‘direct democracy’ is viewed apprehensively by many political and legal theorists, particularly republican scholars. They argue that referendums risk engendering a dangerous ‘populism’ while detracting from the deliberative and moderating virtues of parliamentary democracy. In this paper, I defend the political value of the constitutional referendum from within republican theory, arguing that there is a misplaced focus on parliamentary supremacy within much of the literature on ‘political constitutionalism’. However, I argue it should be valued neither as a mechanism for giving expression to popular will, nor as an intervention by the mythologised ‘constituent power’ – or indeed, contra Tierney, as a ‘sovereign’ exercise in any sense. Rather, it has two main, overlapping virtues: first, its role in facilitating the contestation and checking of executive power in the area of constitutional change, and secondly, its instrumental role in fostering a wider culture of civic participation.

Destituent Power

2020 ◽  
pp. 123-138
Author(s):  
Markus Patberg
Keyword(s):  
Civil Disobedience ◽  
Popular Sovereignty ◽  
The Political ◽  
Constitutional Change ◽  
Constituent Power ◽  
Public Authorities ◽  
Protest Movements ◽  
The Public ◽  
The Right ◽  
The Eu

This chapter takes up the public narrative of ‘We, the multitude of Europe’, which suggests that the only hope for progressive change in the EU lies in a politics of disruption, and asks whether this idea can be defended based on a systematic model. To that end, it resorts to the political theory of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. Distinguishing between anti-juridical and juridical conceptions of destituent power, the chapter discusses to what extent the disruptive political strategies put forward by protest movements in the EU can be regarded as justifiable. Focusing on the juridical strand as the more plausible one, it argues that ideas of destituent power as ‘state civil disobedience’ run into a problem of authorization. By contrast, popular sovereignty-based approaches illuminate a neglected dimension of constituent power: the right to dismantle public authorities without the intention to create new ones. While such a model of destituent power in part captures the actions and demands of EU protest movements, it can only complement, not replace, the constructive side of constituent power.

scholarly journals Referendums in the UK Constitution: Authority, Sovereignty and Democracy after Brexit

2020 ◽  
Vol 16 (2) ◽  
pp. 213-248
Author(s):  
Michael Gordon
Keyword(s):  
Direct Democracy ◽  
Popular Sovereignty ◽  
The Political ◽  
Legal Nature ◽  
The Uk

UK constitution after Brexit – Status of referendums – Use and reception of referendums in the UK – Absence of definitive constitutional framework – Complex legal nature of ‘advisory’ and ‘binding’ referendums – Deeper constitutional impact on concepts in the political constitution – Regular and irregular authority – Parliamentary and popular sovereignty – Representative and direct democracy – Possibility of reform – A potential UK Referendums Act – Difficulties with an overarching statutory framework – Limitations of continued constitutional accommodation of referendums

scholarly journals Rousseau, theorist of constituent power

2020 ◽  
Author(s):  
Joel Colon-Rios
Keyword(s):  
Direct Democracy ◽  
Political Representation ◽  
Contemporary Literature ◽  
Legal Order ◽  
Popular Sovereignty ◽  
The Other ◽  
Constituent Power ◽  
The People ◽  
Careful Exploration ◽  
The One

© 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.

Part II Institutions and Constitutional Change, A The Crown and the Executive, Ch.7 The Executive, the Royal Prerogative, and the Constitution

2017 ◽  
Author(s):  
Forcese Craig
Keyword(s):  
Judicial Review ◽  
Foreign Relations ◽  
Executive Power ◽  
Constitutional Change ◽  
Considerable Uncertainty ◽  
Executive Authority ◽  
Canadian Law ◽  
Subject Areas ◽  
Constitutional Conventions ◽  
Parliamentary Supremacy

The royal prerogative is the residue of power once exercised by the Crown. In modern Canadian law, some historic prerogative powers have been codified as part of Canada’s written constitutional law. Others persist in a form governed by constitutional conventions. Most others have been displaced by legislation, through the exercise of parliamentary supremacy. Exactly what is required before this displacement by statute arises is, however, an area of considerable uncertainty in Canadian law. What is clear is that the royal prerogative remains a source of executive authority in several special subject areas, especially defence and foreign relations. Some exercises of the remaining prerogatives constitute matters of high policy, whereas others may affect the interests and rights of individuals. Where exercises of the prerogative do affect interests and rights, the prerogative has been treated no differently than any other exercise of executive power. Specifically, it has been subject to judicial review.

Democracy in Ireland

2021 ◽  
pp. 88-104
Author(s):  
Peter Stone
Keyword(s):  
Political Institutions ◽  
Direct Democracy ◽  
Political System ◽  
Popular Sovereignty ◽  
The Political ◽  
Democratic Ideal ◽  
Individual Level ◽  
Electoral Democracy ◽  
The Republic

How democratic is the political system of the Republic of Ireland? Answering this question requires recognizing that the term ‘democracy’ denotes both a normative ideal and a set of political practices aimed at advancing that ideal. In this chapter, I argue that the democratic ideal has both an individual and a collective component. At an individual level, a democracy must embody a conception of democratic equality. At a collective level, a democracy must embody popular sovereignty. I then relate this two-part ideal to Ireland’s political institutions. This task, I will argue, is complicated by the fact that Ireland, like most real-world democracies, employs several different democratic decision-making methods—what I will call direct democracy, electoral democracy, and aleatory democracy. It is difficult, I conclude, to specify how all three methods can be reconciled within a single story about the democratic ideal.

The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?

2020 ◽  
Author(s):  
Stuart G White
Keyword(s):  
Popular Sovereignty ◽  
Future Research ◽  
The Political ◽  
Constitutional Change ◽  
Constitutional Convention ◽  
The People ◽  
Parliamentary Sovereignty ◽  
The Status ◽  
The Uk ◽  
The Eu

The 2016 referendum on the UK’s membership of the EU has led to much questioning of the place of the referendum in the UK’s constitution with a particular emphasis on the status of Parliamentary and popular sovereignty. Some commentary suggests that the UK has shifted from a constitution of Parliamentary sovereignty to one of the popular sovereignty. Drawing on A.V. Dicey’s discussion of the UK constitution in his Introduction to the Law of the Constitution, this article sets out the case that the referendum is the site of a change in the UK’s constitution. However, according to this case, the change is not accurately described as a shift from Parliamentary to popular sovereignty. It is better understood in terms of the emergence of a new constitutional convention which has altered the manner by which Parliament, as the legal sovereign, is kept subordinate to the ‘people’ as the political sovereign. The article offers some preliminary empirical assessment of this case for constitutional change and indicates areas for future research. These include considering the possible influence of democratic constitutionalist thinking in the UK’s use of referendums and the desirability and implications of a full transition to democratic constitutionalism.

scholarly journals Rousseau, theorist of constituent power

2020 ◽  
Author(s):  
Joel Colon-Rios
Keyword(s):  
Direct Democracy ◽  
Political Representation ◽  
Contemporary Literature ◽  
Legal Order ◽  
Popular Sovereignty ◽  
The Other ◽  
Constituent Power ◽  
The People ◽  
Careful Exploration ◽  
The One

© 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.

scholarly journals How to think beyond sovereignty: On Sieyes and constituent power

2016 ◽  
Vol 18 (1) ◽  
pp. 47-67 ◽  
Author(s):  
Lucia Rubinelli
Keyword(s):  
Political Theory ◽  
French Revolution ◽  
Political Thought ◽  
Popular Sovereignty ◽  
The Other ◽  
The Political ◽  
Constituent Power ◽  
Theories Of Sovereignty ◽  
The French Revolution

Historians and political theorists have long been interested in how the principle of people’s power was conceptualised during the French Revolution. Traditionally, two diverging accounts emerge, one of national and the other of popular sovereignty, the former associated with moderate monarchist deputies, including the Abbé Sieyes, and the latter with the Jacobins. This paper argues against this binary interpretation of the political thought of the French Revolution, in favour of a third account of people’s power, Sieyes’ idea of pouvoir constituant. Traditionally, constituent power has been viewed as a variation of sovereignty, but I show it to be an independent conceptualisation of people’s power. Sieyes’ political theory led him to criticise and refuse contemporary theories of sovereignty in favour of what he understood as a fully modern account of people’s power. Based on extensive research in the archives, I show how Sieyes opposed the deployment of sovereignty by the revolutionary Assemblies and recommended replacing it with the idea of constituent power.

scholarly journals Poder político fiduciario y soberanía popular. Libertad política, confianza y revolución en la filosofía política de Locke

Daímon ◽  
2020 ◽  
pp. 33-48
Author(s):  
Jordi Mundó
Keyword(s):  
Political Philosophy ◽  
Public Good ◽  
John Locke ◽  
Political Power ◽  
Political Authority ◽  
Popular Sovereignty ◽  
Political Freedom ◽  
The Political ◽  
Free People ◽  
Republican Theory

La teoría republicana moderna de la concepción revolucionaria de la soberanía popular tuvo un eslabón fundamental en la filosofía política de John Locke, quien elaboró un argumento en favor de la libertad natural y de la autonomía de juicio de los individuos, y en contra de la sujeción natural y la alienación de la libertad política. Concibe la autoridad política como un poder político fiduciario instituido para el fin del bien público. Cuando los gobernantes actúan para fines distintos de los encomendados, arbitrariamente o por su interés propio, la confianza se pierde y el ejercicio del poder político regresa a las manos del pueblo libre. Modern republican theory of the revolutionary conception of popular sovereignty had a fundamental link in the political philosophy of John Locke, who elaborated an argument in favour of the natural freedom and autonomy of judgment of individuals, and against the natural subjection and alienation of political freedom. He conceives of political authority as a fiduciary political power instituted for the end of public good. When the trustees act for ends other than those entrusted, arbitrarily or for his own interest, trust is forfeited and the exercise of political power returns to the hands of the free people.

scholarly journals Rousseau, theorist of constituent power

2020 ◽  
Author(s):  
JI Colón-Ríos
Keyword(s):  
Direct Democracy ◽  
Political Representation ◽  
Contemporary Literature ◽  
Legal Order ◽  
Popular Sovereignty ◽  
The Other ◽  
Constituent Power ◽  
The People ◽  
Careful Exploration ◽  
The One

© 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.

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