Natural Rights, Constituent Power and the Puzzle of Constitutionalism - Raffael Fasel

The Edinburgh Centre for Constitutional Law presents

Natural Rights, Constituent Power and the Puzzle of Constitutionalism

Dr Raffael Fasel, Affiliated Lecturer, Faculty of Law, University of Cambridge; Teaching Bye-Fellow and Director of Studies in Law (Jesus College)

 

About the seminar:

The power to make constitutions (the so-called constituent power) is predominantly understood today as a legally unlimited power belonging to the people. This understanding, which is often traced back to eighteenth-century thinkers such as Emmanuel Joseph Sieyès, has sat uncomfortably with constitutionalism: the idea that public powers are legally limited. For how can a constitutionalist system be dependent on an unconstitutionalist power? I call this the Puzzle of Constitutionalism. This article shows that this Puzzle is the product of a misapprehension of what constituent power was originally understood to be. Focusing on Sieyès, Thomas Paine, and Marquis de Condorcet, I demonstrate that, far from adopting it, these founding fathers of constituent power theory rejected the notion of unlimited constituent power. Instead, they defended a natural rights approach on which constituent power is legally limited. That approach holds valuable lessons for us today because it manages to avoid the Puzzle of Constitutionalism by reconciling human rights and popular sovereignty.

 

About the speaker:

Raffael researches and teaches in constitutional law, legal theory, and animal rights law. In 2021, he was awarded a £440,000 research grant by the Swiss National Science Foundation for his research on constituent power theory, for which he is also affiliated with the University of Zurich.

Before joining Jesus College, Raffael was a research fellow at LSE Law School. He completed his PhD in Law on the theory of human and animal rights at the University of Cambridge (Sidney Sussex College), with stints as a visiting researcher at Harvard Law School and the University of Oxford. He obtained an LLM from Yale Law School on a Fulbright scholarship, an MA in Philosophy from University College London, and holds a Bachelor of Law and a Master of Law degree from the University of Fribourg.

During his doctoral studies, Raffael co-founded the Cambridge Centre for Animal Rights Law and currently serves as its Executive Director. He also co-created Europe’s first Animal Rights Law course at the Cambridge Law Faculty, which he co-lectures. Raffael is also an Associate Fellow of the Oxford Centre for Animal Ethics.

 

If you are planning to attend in-person, please do email us at eccl@ed.ac.uk

You can also attend VIRTUALLY by registering on Zoom HERE