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Article . 2024 . Peer-reviewed
License: CC BY SA
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Article . 2024
License: CC BY SA
Data sources: OpenEdition
SSRN Electronic Journal
Article . 2024 . Peer-reviewed
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Rethinking constitutional ontology

A critical analysis of Karl Loewenstein’s “ontological classification of constitutions”
Authors: Costa, Renato Saeger Magalhães;

Rethinking constitutional ontology

Abstract

Karl Loewenstein devised an ontological classification of constitutions based on his study of constitutional enactment and operation. His typology, which became particularly known in Europe and Latin America, offers valuable insights into the complex interplay between political power and constitutional norms. However, it falls short in establishing a comprehensive ontology of the nature and purposes of constitutions. Loewenstein’s factually-based or sociological approach inadequately defines constitutions ontologically. His typology lacks recognition of constitutions’ normative objectives. While Loewenstein acknowledged the need for refinement of his classification, there has not been a rigorous critique and reconstruction of his classification in terms of the normative presuppositions that it entails. In the current paper, I spotlight some fundamental shortcomings and propose necessary corrections to Loewenstein’s ontological classification of constitutions. I argue that Loewenstein overlooks the intrinsic relationship between constitutional normativity and factuality. A robust ontological classification must acknowledge that constitutions are both inherently factual and normative.

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Keywords

constitutions, Loewenstein (Karl), ontological classification of constitutions, legal positivism, ontology

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
1
Average
Average
Average
hybrid