JOURNAL OF BEIJING UNIVERSITY OF AERONAUTICS AND A ›› 2015, Vol. 28 ›› Issue (2): 55-67.DOI: 10.13766/j.bhsk.1008-2204.2014.0619

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In Defence of Staatslehre

Martin Loughlin   

  1. Law School, London School of Economics and Political Science, London WC2A 2AE, UK
  • Received:2014-11-28 Online:2015-03-25 Published:2015-04-23

Abstract:

Modern constitution confronts a lot of new challenges. These challenges include: governments today have felt obliged both to enter into intricate arrangements with other governments through international networks (which can lead to a blurring of the inside-outside distinction) and increasingly to involve private actors in joint arrangements to meet public objectives (which can lead to a blurring of the public-private distinction). To overcome these questions, some scholars suggest either promote global constitutionalism to compensate for a perceived de-constitutionalization at the national level, or conceive constitutionalism as a free-standing and overarching concept which shapes the practices of governance from local to global levels. But these suggestions lack the background of Staatslehre and ignore the nature of sovereignty, state and constitution. Different from organizational law about government, constitution is the constituting rule about sovereignty and state. The most basic element of constitution is the generally accepted belief that political power ultimately rests with an entity called the people. So, modern constitutional discourse will be unduly strained at the international level if it continues to be founded on the idea of popular anthorization. This realization has led to the emergence of constitutinalization as a free-standing process of rationalist constitutional design. Without the people as a long-stop, the process threatens to transform itself into a new phenomenon, which might be called authoritarian constitutionalism.

Key words: sovereignty, State, Constitution, Political Law, Staatslehre

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