The Legitimacy Of The Juridical PDF Download

This dissertation is about the democratic legitimacy of constitutional regimes. It asks and provides an answer to the question of which conditions need to be met for a juridical system and the constitution that embodies it to be considered legitimate from a democratic perspective. In so doing, it explores the relationship between liberal constitutionalism, democracy, and constitutional change. It argues that there is an irreconcilable tension between democracy and liberal constitutionalism which is exemplified in the amendment procedures of most modern constitutions. These procedures are not only characterized by a lack of participatory mechanisms, but by the inclusion of a set of requirements that are more difficult to meet than those followed when the constitution was originally adopted. This, it is argued, signals that contemporary constitutional regimes suffer from an important deficit of democratic legitimacy. The dissertation approaches this problem from the theory of constituent power, until recentlyignored by Anglo-American constitutional theory. In virtue of its connections to democracy, constituent power provides two basic criteria to assess the democratic legitimacy of a constitutional regime: (1) ' A constitutional regime should have a democratic pedigree'; (2) ' a constitutional regime should be susceptible to democratic re-constitution '. Accordingly, a constitutional regime can only have a claim to democratic legitimacy if it is based on a conception of constitutionalism that does not approach constituent power as a threat. This conception of constitutionalism ('weak constitutionalism') mandates a permanently open fundamental law, one that is always susceptible to re-constitution through highly participatory procedures, such as constituent assemblies convened 'from below'. The dissertation also considers the practical implications of the two conditions of democratic legitimacy in the context of constitution-making and constitutional reform.