The Ill-Fated Union: Constitutional Entrenchment of Rights and the Will Theory from Rousseau to Waldron

This chapter revisits the key theses of Georg’s Jellinek’s Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History [1895]. The objective of this chapter is to expose the ‘umbilical cord’ that linked the notion of ‘constitutional’ rights and the will theory, on one side, and the internal incompatibility of notion of ‘inalienable rights’ with the will theory – reflecting an unabated conflict of the doctrines of parliamentary supremacy and constitutional rights, on another side. These doctrines are part of both ‘continental’ and ‘common law’ traditions. Our intent is also to reflect on the shared groundwork of the doctrine of sovereignty of Hobbes, Austin (and Dicey), on one side, and Rousseau, on another side. Our more particular thesis is that ‘neo-Benthamite’ positivists, as Waldron, assailing adjudication as being ‘undemocratic’, seem to return to the Rousseauan position, with all its flaws.