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The Constitutional Level of Analysis: A Challenge

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Type: Working Paper
Author: Ostrom, Vincent
Date: 1986
Agency: Workshop in Political Theory and Policy Analysis, Indiana University, Bloomington, IN
Series: W85-41
URI: https://hdl.handle.net/10535/4203
Sector: Theory
Subject(s): Workshop
constitutional analysis
Abstract: From page 2: "There are others whose work is acclaimed in other contexts, but is seriously deficient at the constitutional level of analysis. Jeremy Bentham, in moving to a summary concept of utility, made important contributions to modern economic analysis; but the concept of utility has greatly impoverished constitutional inquiry. Summarizing all values on a single scale called 'utility' sweeps aside considerations of mutual respect, justice, and liberty which are basic to constitutional analysis. John Austin's analysis of the place of constitutional law as positive morality rather than positive law enables one to appreciate the intellectual achievement attained in The Federalist and Austin's failure to understand that achievement. Hegel and Marx offered alternative explanations for human social and cultural evolution which render constitutional choice largely irrelevant. Lenin, on the other hand, develops a theory of revolution in What Is To Be Done? that brings one back to the equivalent of Hobbes's theory of sovereignty for fashioning the leadership for a revolutionary movement. In State and Revolution. Lenin follows Marx in anticipating the withering away of the state; but his revolutionary party becomes the new sovereign in the Soviet state, as Hobbes would have anticipated. We have as much to learn from failures as from successes in addressing the constitutional level of analysis; but we do need to know how to address that level of analysis."

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