Ferrajoli's Argument for Structural Entrenchment

Res Publica 17 (4):377-383 (2011)
This paper engages with Ferrajoli’s contribution to the philosophical debate on constitutional democracy and in particular his conception of ‘structural entrenchment’, or the basis upon which one can defend the normativity of the Constitution as ‘higher law’, which can trump or limit legislation, without infringing democratic principles. Ferrajoli’s own understanding of ‘structural entrenchment’ is compared to Rawls’s and Dworkin’s arguments in support of it. Ferrajoli’s position is neither grounded on a philosophy of history, as in Rawls, nor on a version of moral realism, as for Dworkin, but on a formal understanding of the nature of fundamental rights, and in a conception of democratic sovereignty as ‘joint ownership.’
Keywords Constitutional democracy  Structural entrenchment  Illegittimate law  Constitutional amendments  Fundamental rights
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DOI 10.1007/s11158-011-9171-1
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John Rawls (1993). Political Liberalism. Columbia University Press.

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