Investigating authority in constitutional systems

This paper considers the question in the call for papers as to whether public law has the resources to adapt and respond to the challenges posed by authoritarian threats and rising public distrust? The paper argues that public law’s current difficulties are in part related to its tendency in recent decades to rely on narrowly law-oriented conceptions of institutional power. This neglects other potential pathologies of power in a way that inhibits the capacity of public law to deliver on its promise. The lesson from this, it is argued, is that there is a need to adjust our constitutional models to take better account of the sociological and political dimensions of power. In particular, there is a need to move beyond legal-rational notions of authority and investigate the socio-political dynamics through which authority is established – and lost. The paper concludes with a discussion of potential investigative strategies for a forthcoming European Research Council project.