Constitutional Theory (LAWS0313)

This module provides an examination of theoretical issues and questions relating to constitutionalism and constitutional government, both normative and analytical.

The course will explore a range of foundational questions concerning the nature of constitutions and constitutionalism, consider various normative perspectives on the way key questions in constitutional government ought to be answered.  A range of topics is detailed further below.  The works of important political and legal philosophers will constitute the mainstay of the course’s readings, mostly those from the twentieth century (e.g. Kelsen, Schmitt, Hayek, Rawls, Habermas, IM Young, Raz, Ackerman, Nussbaum, Waldron, Ely, Dworkin, Bellamy, and others). 

The format of the seminars is highly participative. Students are invited to comment briefly on assigned questions each week. In past years, most students had read assigned readings and the discussion was conducted at a very high level. Guest speakers whose work has been assigned are invited from time to time. 

Module syllabus

This module is subject to change. 

In 2024-2025, the subjects will likely include: 

• the nature of constitutions and constitutionalism 

• democracy and the theory of constituent power  

• federalism 

• the role of legislatures 

• the legitimacy of constitutional judicial review 

• constitutional interpretation 

• the rule of law  

• regulation and the administrative state 

• States of emergency 

The content varies from time to time: other subjects have included group representation, constitutional design, religion and secularity, proportionality, and deliberative constitutionalism. 

Recommended materials

Module reading lists and other materials will be provided via online module pages, once students have selected the course on enrolment.  A complete reading list will be available to students on day one of the course and mandatory readings will be available online through the module page. 

Preliminary reading

A perusal of R. Bellamy and J. King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press, 2024 (expected publication in the summer and accessible online) is advisable, particularly the introductory chapter by the editors, which also available on SSRN.

Further background reading (optional): 

Theoretically grounded students could examine: 

• L. Alexander (ed), Constitutions: Philosophical Foundations (Cambridge University Press, 1998). 

For an introduction to or refresher in jurisprudence, read: 

• N. Simmonds, Central Issues in Jurisprudence (3rd Edn, Sweet & Maxwell, 2008) (esp. on Hart and Dworkin, about whom basic knowledge will be presumed). 

For the same in political philosophy, read either: 

• A. Swift, Political Philosophy: A Beginner’s Guide for Students and Politicians (3rd Edn, Polity Press, 2013); or 

• W. Kymlicka, Contemporary Political Philosophy (2nd Edn, OUP, 2002) chs. 2, 3, 7. 

Key information