关键词: 政治宪法, 法律宪法, 法律性, 政治性, 《欧洲人权公约》

Abstract:

The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: the political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the "legal" to resist capture by the "political"; and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.

Key words: political constitution, legal constitution, legality, political, ECHR