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Session C3
Constitutional Beginnings
Oran Doyle
Law School, Trinity College Dublin, Ireland

A significant strand within constitutional thought treats constitutions as foundational events, marking the point at which a new state and/or constitutional order comes into existence. Carl Schmitt provides the most prominent theorisation of this position. For Schmitt, a constitution is valid because it derives from the will of a constitution-making power or authority; the word ‘will’ denotes an actually existing power as the origin of a command. The constitution-making power is ‘the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence.’ In this paper, I challenge the dominance of this revolutionary account of constitutional creation. I argue that the existence of states and constitutional orders depends on acceptance. Specifically, they depend on an acceptance that a particular group has the right to create a state and/or constitutional order with a specific geographic extension. While such acceptance might follow a revolutionary act of constitution-making, it is also possible for the acceptance to predate the moment of constitution-making. I illustrate this possibility with reference to Canada and Ireland. In light of this discussion, I analyse the 2005 Amendments to the Constitution of the Republic of China to assess whether they indicate the acceptance of a state and/or constitutional order of Taiwan. In light of this, I suggest that we are better to view constitutions as diachronic mechanisms that facilitate self-government rather than as foundational events.