Legal constitutionalism and the Ius/Lex distinction

This paper takes a critical look at Paolo Sandro's distinction between ius and lex, which, according to him, is essential to modern constitutionalism. After explaining why he thinks this distinction is important, I will explain why I think it is problematic in its own right, and furthermore, wh...

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Udgivet i:URI:https://journals.openedition.org/revus,
Hovedforfatter: Carpentier, Mathieu
Format: Article ou chapitre numérique
Udgivet: Revus 2024
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Online adgang:Accès Université d'Orléans et IFPM
Accès Université d'Orléans et IFPM
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Summary:This paper takes a critical look at Paolo Sandro's distinction between ius and lex, which, according to him, is essential to modern constitutionalism. After explaining why he thinks this distinction is important, I will explain why I think it is problematic in its own right, and furthermore, why it undermines several parts of Paolo’s main tenets. I will show that his main worry, namely, the question of “how are we to explain the existence of illegal/unlawful law?”, can be addressed and answered without having recourse to the ius/lex distinction. The somewhat banal adage "lex superior derogat inferiori" is much better suited to that task.