This paper presents an alternative to the constituent power theory (CPT), which it terms as a theory of elite democratic bargaining (TEDB). According to TEDB, constitution-making and reform must be based on a bargain between different elite groups in society – controversially not excluding discredited, displaced, or authoritarian elite groups. Using TEDB instead of CPT as a baseline to assess the legitimacy and legality of constitution-making and reform can serve as a better framework for all seasons and aligns with the practical realities of modern constitution-making and reform, which depend predominantly on elite negotiations. Though TEDB can make constitutional changes arduous and moderated, and by its heightened focus on elites, poses tough philosophical questions, this paper will argue how the net benefits of TEDB in building a stable democratic society might warrant its consideration as a viable alternative to CPT.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand. We will be announcing more details about the conference soon, including financial support to early career and global south scholars!