On constitution-making authority, with a special reference to the role of courts

Thesis

This thesis proposes an account of constitution-making authority by examining the reasons that render exercises of constitution-making authority legitimate. To this end, I examine why communities need political authority in the first place, and why a constitution is a reasonable response to that predicament. The argument builds on a critique of a widespread account of constitution-making authority, namely, the theory of constituent power, which conceives of the people as enjoying an inherent power to set the constitution aside. To introduce this approach, I survey judgements across various jurisdictions— France, Colombia and India amongst the most prominent—where constitutional courts have relied on the theory of constituent power both to uphold ostensibly unlawful constitutional changes and to denounce otherwise lawful exercises of constitution-making authority, per a doctrine of implied constitutional unamendability. I shall argue that the theory of constituent power is seriously mistaken; that it is premised on an incoherent distinction between constituent and constituted power and that it distorts the normative significance of democratic self-government.

Turning to reconstruction work, I argue that the function of political authority is to secure coordination for the common good, and that the primary purpose of a constitution is to authoritatively settle the location of political authority and to frame its exercise for the common good. Constitution-making authority is a species of political authority and is therefore presumptively located pursuant to the terms of the constitution. It is paradigmatically exercised through the enactment of constitutional law, in fulfilment of the desiderata of the rule of law. There are good reasons for democracy in constitution-making, but the people have no inherent power to set the constitution aside. Further democracy in constitution-making is better achieved by gradual change than by constitutional replacement. The circumstances in which constitutional replacement is warranted are standardly inapt for full democratic participation, a point that is confirmed by the historical experience in constitution-making across multiple jurisdictions.

Finally, I examine the role of courts in securing constitutional government. The argument discusses, first, the role of courts in adjudicating on the location of constitution-making authority. With this aim, I revisit judicial invocations of constituent power and survey judicial rulings dealing with revolutionary change in the United Kingdom, Argentina, South Rhodesia, and Fiji. Second, I examine the role of courts in interpreting the constitution, specifically I argue against theories of interpretive choice and offer a justification for the rightful but limited role that the judiciary should play in constitutionmaking, per a legal doctrine of precedent.

Authors: Recabarren Vial, CJ

• DOI: 10.5287/ora-dao4ombqg
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: revolution; constituent power; interpretation; judicial power; democracy; rule of law; constitution-making; authority
• Subjects: Law; Democracy; Constitution; Judicial power; Legal ethics; Constituent power