International Journal of Constitutional Law Advance Access originally published online on March 18, 2009
International Journal of Constitutional Law 2009 7(2):247-274; doi:10.1093/icon/mop006
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Constitutional exceptionalism and the common law
* Senior lecturer, London School of Economics and Political Science. I would like to thank Mark Aronson, David Dyzenhaus, Carol Harlow, David Kershaw, Martin Loughlin, and Adrian Vermeule for their comments on an earlier draft. The paper was first given, in abbreviated form, at a seminar at the European University Institute in March 2008, and I am grateful to Wojciech Sadurski for the invitation. Email: T.M.Poole{at}lse.ac.uk
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Abstract |
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This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term "exceptional" is used in this context to indicate a measure that deviates from normal constitutional standards and is, by virtue of that deviation, seen as inappropriate or regrettable. The paper avoids a direct focus on the debate about terrorism, concentrating instead on more conceptual matters—and particularly on the "fit" between this discourse and the "common law constitution." It turns first to John Locke and uses his theory of the prerogative as a means of highlighting the difficulty of determining what counts as "exceptional" in this, our "age of statutes." Turning next to the common law constitutionalists’ theory of emergency powers, articulated most skillfully by David Dyzenhaus, the essay argues that this theory rests on a mistaken understanding of the nature of common law. Finally, it addresses the issue of extraconstitutionality and common law more generally, taking as its focus the "extralegal measures model" of emergencies advocated by Oren Gross and Mark Tushnet.