It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a (...) legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation. (shrink)

In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of (...) the basis of constitutional democracy. This article will examine the debate between the Kelsenian and the natural law view of constitutional democracy. The debate raises questions of foundational importance, and a number of issues are of particular concern in the present global context. These issues concern the role of moral pluralism and its relevance to the structure of constitutional democracy, and the relationship between universal values and the common good of particular communities. (shrink)

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two (...) main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy. (shrink)

To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three (...) major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part IIsIu rveys ways in which the persisting imperial dimensions can be de-imperialized by being brought under the shared democratic authority of the people and peoples who are subject to them. (shrink)

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two (...) main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy. (shrink)

This is the text of The Lindley Lecture for 1989, given by David Gauthier, a Canadian philosopher.

This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical (...) and programmatic role vis - à - vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution. (shrink)

In this article I explore some ancient issues of political theory in the light of some contemporary social and cultural issues. After developing a check list of the virtues and vulnerabilities of constitutional democracy (Section I), I go on to discuss some types and symptoms of difference, conflict, fragmentation and heterogeneity (Section II). I then proceed to a critical review of a particular set of strategies and institutional solutions—political group rights—that are often thought promising devices for strengthening the (...) virtues and overcoming the vulnerabilities of the constitutional democratic form of regime (Section III). Much of the contemporary philosophical and political discussion of these issues is enchanted by the post‐modern spirit of “multiculturalism,”“diversity” and “identity.” It tends to neglect issues of citizenship and social justice. It also tends to fixate on North American examples, neglecting some of the less benign West European and, in particular, Central East European varieties of identity politics. The discussion here, while mostly raising questions rather than claiming to provide definitive answers, nevertheless tries to overcome some of these biases. (shrink)

Awareness of, and respect for differences of gender, race, religion, language, and culture have liberated many oppressed groups from the hegemony of white, Western males. However, respect for previously denigrated collective identities should not be allowed to confine individuals to identities constructed around one main component used for political mobilisation, or to identities that depend on a priority of properties that are not optional, like race, gender, and language. In this article I want to sketch an approach for accommodating different (...) kinds of identity within a multicultural constitutional democracy. From a vantage point provided by a definition and explanation of personal identity, I want to show how people define, construct and change their personal identities to make themselves into unique individuals. Next I show how democratic political institutions and the personal identities of individuals reciprocally influence one another. In the final section I sketch ways in which diverse personal identities ought to be accommodated in multicultural constitutional democracies. The conclusion is that a society which gives its members the liberty, space, and opportunity to freely construct their own identities might avoid the formation of closed groups committed exclusively to their own sectional interests. (shrink)

A constitutional democracy is characterized by "governing pluralism": there is no single source of sovereignty and no single consensus on what political life should look like. Starting from this premise, and using the United States as the example of such a democracy, the work treats the ethics of three kinds of political leaders in American politics. The work examines the offices of senator, moral activist, and community organizer, in each case trying to identify the distinctive purpose of (...) the office or the contribution it makes to the democratic regime; a distinctive mode of action or set of habits conducive to fulfilling that purpose, and a set of dispositions or regime-relative virtues that people must have in order to engage in such actions consistently. ;The work concludes that a senator should focus on accommodating but restraining public opinions with a view of making possible his own consistent pursuit of public-spirited projects; that a moral activist should aim to extend the democratic principles of equality, liberty, and majority rule more widely, and towards this end must be able to mobilize a moral or religious association around a cause while speaking about that cause to a larger public in more widely accepted democratic terms; and that an organizer should promote civic self-assertion and the enlightened pursuit of interest by bringing together, and developing the capacities of, ordinary citizens through face-to-face contact. ;This plurality of ethics goes along with a single, consistent theory of democratic politics and democratic character rooted in the work of Aristotle, Tocqueville, and the authors of the Federalist. The work takes from these authors a theory of "democratic continence" under which the proper political aim for both leaders and ordinary citizens is not the good life, rational justified standards of right, or the highest virtues of human beings, but qualities of perseverance, self-restraint, individual and collective discipline, dogged self-assertion, and the enlightened pursuit of interest. Democratic politics does and must reject high moral aspirations for the sake of realism, toleration, and sympathy for the lives of ordinary people. (shrink)

The paper is a critical survey of the last ten years of research on the principles of legitimacy of constitutional democracy and their application in practice in Europe and North America. A constitutional democracy is legitimate if it meets the test of two principles: the principles of democracy or popular sovereignty and of constitutionalism or the rule of law. There are three contemporary trends which tend to conflict with the principle of democracy and thus (...) diminish democratic freedom. There are three responses to the lack of legitimacy of these three trends. The first is to downplay the principle of democracy in order to endorse the three trends. The second is to uphold the principle of democracy, in the form of deliberative constitutional democracy, in order to criticise aspects of the three trends and to call for further democratisation. The third trend deepens this critical response by tying the test of democratic legitimacy more closely to case studies of attempts by citizens to exercise their democratic freedom. (shrink)

My text offers an attempt to justify theoretically the existence of an important pillar of contemporary constitutional democracy: judicial review. Why do Supreme and Constitutional Courts that are not electorally accountable organs have the power to modify and occasionally cancel from the books statutory legislation passed by elected and accountable representatives? The argument presented discusses and questions the standard doctrine of the separation of powers and is based on the foundations of modern political authority as the agency (...) the function of which is to protect and guarantee citizens’ rights. (shrink)

Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of (...) the logic of normative standards—the determinate threshold conception—that the critic attributes to the putatively undermined account of legitimacy. The paper further claims that when we abandon threshold conceptions of the logic of legitimacy in favor of regulative-ideal conceptions, then the objections, from bootstrapping paradoxes to the very idea of constitutional democracy, disappear. It concludes with considerations in favor of adopting a more demanding conception of the regulative ideal of constitutional democracy, advanced by Habermas, focusing on potentials for developmental learning. (shrink)

Madhav Khosla’s brilliant book, India’s Founding Moment, is self-consciously a work on the history of ideas. Nonetheless, the subtitle of India’s Founding Moment—The Constitution of a Most Surprising Democracy—implies that Khosla draws a connection between the ideas that shaped the creation of constitutional democracy in India and its endurance. In this review, I pose the question of whether the design of the Constitution can be a source of constitutional resilience against the rising threat of authoritarianism and (...) Hindu majoritarianism. (shrink)

Paolo Sandro’s book is the latest volume in Hart Publishing’s excellent ‘Law and Practical Reason’ series. The book’s theoretical scope is wide, engaging with analytical legal philosophy (of both A...

Constitutional (liberal) democracy pursues an ambitious project. It weaves together majority rule and minority rights and encapsulates a political and institutional organization of public life deliberately orchestrated to guarantee and safeguard rights and freedoms, the peaceful resolution of social and political conflict, and the widest-possible participation of citizens in democratic self-rule. Critical for these goals are procedural mechanisms that enhance the responsiveness and accountability of elected officeholders, contain the power of the governing majority, enable the mutual checks and (...) balances involved with institutional prerogatives, and allow citizens to periodically assess their representatives and, should they want to, select new ones. This vision crystallized in the second half of the twentieth century, in the aftermath of totalitarian monopartyism and the two world wars; it seemed destined for global hegemony after the end of the Cold War and—supposedly—of history. However, the present and future of constitutional, liberal democracies around the world looks less idyllic than the optimism seen at the turn of the century might have suggested. Even before the outbreak of the COVID-19 pandemic, debates about the wellbeing of liberal democratic regimes around the globe had been at the core of academic and public debates for at least a full decade. (shrink)

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has (...) emerged between constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. (shrink)

In this article the author aims to assess Wilfrid J. Waluchow’s more recent book, by depicting its main aim, namely to provide a better understanding of judicial review in a constitutional democracy via the “living tree” metaphor; by disapproving an unwarranted claim, purposely to reduce the metaphor to the common law (bottom-up) methodology; and by re-developing his alternative, specifically to identify the community’s constitutional political morality, with a friendly amendment, which is already explicit —or at least somehow (...) implicit— on it, i.e. not only by judges but also by legislators, including framers, amenders or reformers, and other legal officials, including lawyers and citizens, which at the end will grant him the point.Resumen:En este artículo el autor intenta evaluar el libro más reciente de Wilfrid J. Waluchow, al caracterizar su objetivo principal, a saber: proporcionar una mejor explicación del control judicial de la constitucionalidad en una democracia constitucional mediante la metáfora del “árbol viviente”; al cuestionar un argumento, precisamente el que reduce dicha metáfora a la metodología (de abajo hacia arriba) del common law; y, al re-desarrollar una alternativa, específicamente al identificar la moralidad política constitucional de la comunidad, a partir de una enmienda amigable, misma que ya está explícita —o hasta cierto punto implícita— en ella, i. e. no sólo por los juzgadores sino también por los legisladores, incluidos los constituyentes originarios y revisores o reformadores, y otros operadores jurídicos, incluidos abogados y ciudadanos, lo cual al final de cuentas le dará el punto. (shrink)

I will critically explore Arato and Cohen’s work on populism acknowledging areas of agreement while noting gaps in their reasoning particularly regarding the complex relations between capitalism and democracy and the recent erosion of democracy replacing it with authoritarian regimes that are better suited for neoliberal policies.

In this essay I address the difficult question of how citizens with conflicting religious and secular views can fulfill the democratic obligation of justifying the imposition of coercive policies to others with reasons that they can also accept. After discussing the difficulties of proposals that either exclude religious beliefs from public deliberation or include them without any restrictions, I argue instead for a policy of mutual accountability that imposes the same deliberative rights and obligations on all democratic citizens. The main (...) advantage of this proposal is that it recognizes the right of all democratic citizens to adopt their own cognitive stance in political deliberation in the public sphere without giving up on the democratic obligation to provide reasons acceptable to everyone to justify coercive policies with which all citizens must comply. (shrink)

The article will argue that neither what may be called ‘multiple legitimacies’ nor what Leigh Jenco refers to as the hybrid view of legitimacy provides substantial guidance in reconceiving legitima...

La meta del presente artículo es defender la tesis de que la aceptación de las ideas fundamentales del liberalismo político no conducen necesariamente a una concepción de la justicia global minimalista como la que desarrolló John Rawls en The Law of Peoples. Sostendré, contra lo que el filósofo explícitamente afirma, que las democracias liberales contemporáneas pueden apelar públicamente, en la esfera política global, a los ideales igualitarios y a una concepción robusta de los derechos humanos como justificación de ciertos aspectos (...) de su política exterior. Intentaré demostrar que ello no resulta incompatible con el requisito de asumir una posición de tolerancia y de respeto con las naciones que suscriben mayoritariamente formas de vida y sistemas de creencias incompatibles con algunos de los valores liberales más significativos. (shrink)

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of (...) natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5. (shrink)

In this contribution I address the type of emergency that threatens a state’s monopoly of violence, meaning that the state’s competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such (...) measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second—if criminal jurisdiction is not in contradiction with the state of emergency—the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state. (shrink)

Constitutional reform has been an important means to push populist authoritarian agendas in Hungary, Poland, Turkey and Venezuela. The embrace of constitutional means and rhetoric in pursuit of these agendas has led to the growing recognition of ‘populist constitutionalism’ as a contemporary political phenomenon. In all four examples mentioned above, democracy, popular sovereignty and direct plebiscitary appeal to the people is the rhetorical and justificatory framework for constitutional reform. This, I worry, gives democracy a bad (...) name and reinforces the widespread suspicion that citizens should not be directly involved in constitutional reform as popular participation can lead to dangerous majoritarianism and is easily manipulated by elite actors seeking to weaken constitutional checks and balances. But the problem, I argue, is not inherent in citizen’s participation in constitutional reform. In contrast to populist constitutionalism, I develop an idea of deliberative constitutionalism in which citizens can participate in constitution-making and reform without hijacking constitutionalism for majoritarian, nationalist or anti-pluralist ends. Deliberative constitutionalism as I understand it has four features: a Habermasian co-originality thesis that articulates the interdependence of democracy and liberalism mediated by a conception of discourse; a proceduralized idea of popular sovereignty that reduces the tension between appeal to the people and respect for pluralism; the centrality of the public sphere over the voting booth as the cradle of democracy; institutional innovations intended to include citizens in constitutional reform but avoid majoritarian and populist pathologies. (shrink)