Chapter

The State and its Constitution

N. W. Barber

in The Constitutional State

Published in print December 2010 | ISBN: 9780199585014
Published online January 2011 | e-ISBN: 9780191595318 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199585014.003.0005

Series: Oxford Constitutional Theory

The State and its Constitution

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This chapter provides an outline of the types of rules which are found within state constitutions. It argues that state constitutions contain both legal and non-legal rules, and that constitutions may include laws drawn from a number of different legal systems. The chapter begins by reflecting on Hans Kelsen's account of the constitution and, by derivation, state. It introduces Kelsen's legalistic account of the constitution not only because of its inherent interest, but also because it has proved attractive to many British writers on the constitution. This attraction is curious, as it is in conflict with an established feature of British constitutional scholarship: the recognition of the plurality of sources of the constitution. The chapter argues that an appreciation of the strengths of this approach requires the rejection of the Kelsenian model. Legalistic accounts of state constitutions provide a distorted picture of the state.

Keywords: state constitutions; rules; constitution; Hans Kelsen; legalistic models

Chapter.  7444 words. 

Subjects: Jurisprudence and Philosophy of Law

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