JSI Seminar Series: Strong Popular Sovereignty and Constitutional Legitimacy

8 March 2018



Speaker: Associate Professor George Duke, Deakin University

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper, Associate Professor George Duke argues that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, Duke contends, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt's theory of constitutional legitimacy - which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power - sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in section 3, Duke demonstrates why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint.


About the Speaker

Associate Professor George Duke completed a PhD at the University of Melbourne in 2011 and a JD at the Melbourne Law School in 2017. His research interests include the philosophy of law, the history of political thought and ancient philosophy. He has published on these themes in journals such as International Journal of Constitutional Law, Legal Theory, Law and Philosophy, American Journal of Jurisprudence, Political Studies and Federal Law Review.


CPD Points: 2


Time: 6-8pm

Location: Common Room, Level 4, New Law Building (F10), Eastern Avenue, Camperdown, University of Sydney

Cost: Complimentary, however registration is essential.

Contact: Professional Learning & Community Engagement

Phone: 02 9351 0429

Email: 3825136f0b1d1734323e181f3010290b09593457366a094d