Library Header Image
LSE Research Online LSE Library Services

Constitutional exceptionalism and the common law

Poole, Thomas ORCID: 0000-0001-9721-7502 (2008) Constitutional exceptionalism and the common law. LSE law, society and economy working papers (14-2008). Department of Law, London School of Economics and Political Science, London, UK.

Download (282kB) | Preview


This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term ‘exceptionalist’ is used in this context to indicate a measure which 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 the ‘fit’ between this discourse and the ‘common law constitution’. Part I turns 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’. Part II raises concerns about the common law constitutionalists’ theory of emergency powers, articulated most skilfully by Dyzenhaus, and argues that this theory rests on a mistaken understanding of the nature of common law. Part III addresses the issue of extra-constitutionality and common law more generally, taking as its focus the ‘extra-legal measures model’ of emergencies advocated by Gross and Tushnet. On the back of this critical, the paper ends by raising questions about the ‘public role’ of constitutional scholars: have we been too ready, it asks, to deny the complexity of our discipline in order to make political points?

Item Type: Monograph (Working Paper)
Official URL:
Additional Information: © 2008 The Author
Divisions: Law
Subjects: K Law > K Law (General)
Date Deposited: 28 Jul 2009 10:34
Last Modified: 16 May 2024 11:46

Actions (login required)

View Item View Item


Downloads per month over past year

View more statistics