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A Regulatory Approach to Global Constitutional Analysis

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Chapter Summary

This chapter builds on discourse-centered and actor-centered approaches in global constitutional analysis and suggests a complementary approach that is effect-centered and relies on the idea that constitutional law, too, can be usefully viewed as 'regulation'. A regulatory approach to constitutional analysis may be one useful strategy to cast the net wider so as to include de facto exercises of public power. In general it emphasizes the objective of shaping socially valued behaviour through standard setting and monitoring and the analytical separation of 'problem definitions', 'objectives' and 'instruments'. The regulatory approach replaces the famous paradox that constitutional law is deemed inadequate yet vital with a new one. Although constitutionalism is primarily a commitment to restrain the exercise of public power, one must be prepared to abandon the archetypical form of restraint, namely hierarchical mechanisms, in favor of heterarchical mechanisms.

Keywords: actor-centered approaches; constitutional law; constitutionalism; global constitutional analysis; public power; regulatory approach



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