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I am Not Your (Founding) Father

Barczentewicz, Mikolaj (2019) I am Not Your (Founding) Father In: Founding Moments in Constitutionalism. Hart Publishing. ISBN 978-1-5099-3097-5

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Abstract

In this chapter, my focus is on an aspect of original constitutional founding moments (events that bring about a new constitutional order): the question of who made the constitution as law. Or, in other words, who was the legally authoritative agent (or author) in the making of a constitution? This question, for better or worse, plays a significant role in legal arguments about the legal content of some codified constitutions. I take no position on how significant, if at all, founding moments should be in constitutional law. I only offer a jurisprudential account of who, among the potentially many participants of a founding moment, counts as the legal authority who made the constitution (the constitution-maker).

Lawyers across the globe routinely talk about what the 'founding fathers' or the 'framers' of their constitution (or a founding treaty) meant, expected, intended and so on. The point of this chapter is that some of the founding fathers talk is confused, because it refers to people who did not make the constitution. I dispel the confusion through analysis of what it means to be an agent behind making a constitution as law: what does it mean to be a constitution-maker?

Item Type: Book Section
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
NameEmailORCID
Barczentewicz, Mikolajm.barczentewicz@surrey.ac.uk
Editors :
NameEmailORCID
Albert, Richard
Guruswamy, Menaka
Basnyat, Nishchal
Date : 17 October 2019
Copyright Disclaimer : © Hart Publishing 2019
Related URLs :
Additional Information :

Founding moments are landmark events that break ties with the ancien régime and lay the foundation for the establishment of a new constitutional order. They are often radically disruptive episodes in the life of a state. They reshape national law, reset political relationships, establish future power structures, and influence happenings in neighbouring countries.

This edited collection brings together leading and emerging scholars to theorise the phenomenon of a founding moment. What is a founding moment? When does the 'founding' process begin and when does it end? Is a founding moment possible without yielding a new constitution? Can a founding moment lead to a partial or incomplete transformation? And should the state be guided by the intentions of those who orchestrated these momentous breaks from the past? Drawing from constitutions around the world, the authors ask these and other fundamental questions about making and remaking constitutions.

Depositing User : Clive Harris
Date Deposited : 13 Aug 2019 12:51
Last Modified : 13 Aug 2019 12:51
URI: http://epubs.surrey.ac.uk/id/eprint/852401

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