Two concepts of constitutional legitimacy (original) (raw)
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Law in the Age of Pluralism, 2007
Liberalism may not have won the global victory that some commentators predicted, but constitutionalism certainly has. The vast majority of countries in the world, democratic and non-democratic alike, have written constitutions that are designed to entrench the basic legal structure of their regime. Most constitutions also enumerate a list of rights and general principles that purport to have a higher legal standing than ordinary law, and most countries entrust the interpretation of their constitution to a court of law. I will not try to speculate here about why this is the case. My aim is to scrutinize the idea of constitutionalism from a moral point of view, arguing that constitutionalism does not quite deserve the celebration that it has occasioned. The argument proceeds as follows: after a preliminary outline of the main features of constitutionalism, I will present what I take to be the main moral concerns about its legitimacy. I will then consider a number of arguments that have been offered to answer those concerns, arguing that the arguments fail to meet the challenge. I will conclude with a few words about the moral implications of this failure and some suggestions for reform.
Whose Reason or Reasons Speak Through the Constitution? Introduction to the Problematics
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2011
In the following paper sources of a constitution are put in question in general, and more specifically, the constitutional culture of the European Union Law is being investigated in-depth with regard to principles of deliberative democracy and rulings of the Court of Justice of the European Union. The change of a law application paradigm as well as the change of a legal systems' nature are taken into account.
Uncodified Constitutions and the Question of Political Legitimacy. Introduction
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Unwritten or uncodifiable aspects of constitutionalism are examined in the theoretical and empirical frameworks. The common ground for all research presented in this book is the question of political legitimacy. As we believe, by asking about legitimacy (not merely about legality), one can reach a full spectrum of the constitutional order
Legality, Legitimacy, and Democratic Constitution Making
Jus Cogens, 2019
What makes a constitution democratically legitimate? What kind of constitution making process is more likely to yield democratic and constitutionalist outcomes? These are two of the central questions guiding the work of Andrew Arato. With the recent publication of Post Sovereign Constitution Making and The Adventures of the Constituent Power, Arato significantly advances his decades long project of a normatively informed sociology of constitutional change. His main argument is historical in character: a post sovereign model of constitution making has emerged "out of the adventures of the revolutionary and populist idea of the sovereign constituent power" 1 . However, this is also an argument with normative implications: the fundamental weakness of sovereign constitution making is its elective affinity to dictatorship 2 , a political danger made evident by the history of modern revolutions. To the contrary, the post sovereign paradigm's transcendence of the revolutionary and populist logics of political action offers an alternative conception of the constituent power that is "more faithful to the values of both democracy and constitutionalism" 3 . For Arato, the study of these two models of constitution making is highly relevant: "constitution making and remaking pertains to the highest level of law making, the political design and allocation of power within a polity.
SSRN Electronic Journal, 2000
ABSTRACT This chapter of the Oxford Handbook of Political Institutions provides an overview of the social and political functions of constitutions and the range of debates concerning those processes of interpretation by which constitutions achieve operative force. It shows how debates over judicial review relate to theories of legitimate government and anticipates future research directions for constitutional theorists.
Columbia Law Review, 2003
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes lawmaking procedures that adequately assure the justice of enacted laws, it is legitimate even f it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity.
A Political Theory of Constitutional Democracy
This text offers the draft of the third section of a book devoted mostly to the Constitutional Courts in three European countries: Germany, France and Italy. After a section on the new separation of powers and the legislative role of the judiciary, I present a theory of the legitimacy of the constitutional adjudication by agencies, which are non-electorally accountable and have the explicit function of corrective of the majoritarian democracy, based on the principle that " there is no right without remedy " .