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Why the Illegitimate Constitution Should Be Obeyed: The Relationship Between Constitutional Legitimacy and History in Bruce A. Ackerman's Dualist Democracy Theory

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Other Title
  • 違法な憲法が従うに値する理由 : Bruce. A. Ackerman のdualist democracy theoryにおける憲法の正当性と歴史との関係をめぐって
  • イホウ ナ ケンポウ ガ シタガウニアタイ スル リユウ : Bruce. A. Ackerman ノ dualist democracy theory ニ オケル ケンポウ ノ セイトウセイ ト レキシ ト ノ カンケイ オ メグッテ

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Abstract

While the great series of constitutional theory, We the People, written by Professor Bruce A. Ackerman, vividly describes what We the People in the U. S. has achieved in the constitutional canon without the form of the amendment, his historiography does not succeed in justifying why the existing We the People has to obey such an illegitimate Constitution. This article, firstly, clarifies his theory's failure with both the methodology of ‘history of law' and ‘history and law.' The evidence shows his methodology of ‘historicism' cannot define what the constitutional canon should be or should have been although it can define what the constitutional canon is or was. Secondly, comparing Ackerman's recent fundamental idea, ‘living Constitution,' with Professor D. Strauss's one, this article refers to the common expectation regarding court's activities creating the constitutional canon and promoting democracy. However, in conclusion, this article asserts the thought of ‘living Constitution' still fails to justify the illegitimacy of the U. S. Constitution even though modern constitutional studies conceived the constitutional illegitimacy as a significant topic through his contribution.

Journal

  • 一橋法学

    一橋法学 15 (2), 289-343, 2016-07-10

    一橋大学大学院法学研究科

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