The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.

This paper argues that Neil Walker’s analysis of the complementary relationship between democracy and constitutionalism remains one-sided. It focuses only on the incompleteness of democracy and the democracy-realizing function of constitutionalism rather than also taking into account the reverse complementary and constitution-realizing function of democracy. In this paper, I defend a fuller account that takes into account this mutual complementarity between democracy and constitutionalism. Such an alternative approach is consequential for Walker’s argument in two respects. In terms of the general analysis of the relationship between democracy and constitutionalism, my adjusted approach leads to a defence of the Habermasian thesis of the co-originality of constitutionalism and democracy which is too quickly dismissed by Walker himself. A fuller appreciation of this co-originality suggests that the relationship between constitutionalism and democracy is perhaps, after all, more singularly complementary (as opposed to being both complementary and oppositional) than Walker recognizes. In terms of the more specific analysis of the impact of globalization, this adjusted approach tilts the argument in favour of the critics of current practices of postnational constitutionalism. Without complementary postnational democratic structures, this constitutionalism remains problematic and potentially oppressive.

This article draws on Hans Kelsen’s theory of democracy to argue that, contrary to conventional wisdom, there is nothing fundamentally wrong with the democratic legitimacy of either the European Union (EU) or the European Court of Justice (ECJ). The legitimacy problems from which the EU in general and the ECJ in particular are alleged to suffer seem to result mainly from our rigid adherence to the outdated conception of democracy as popular self-legislation. Because we tend to approach the Union’s political and judicial practice from the perspective of this democracy conception, we are not able to observe what is blindingly obvious, that is, the viability and persistence of both this mega-leviathan and the highest court thereof. It is, therefore, imperative that we modernize and adjust our conception of democracy in order to comprehend the new reality to which these bodies have given rise, rather than to call for ‘reforms’ in a futile attempt to bring this reality into accordance with our ancient preconceptions about what democratic governance ought to be. Kelsen is the democratic theorist whose work has enabled us to venture into that direction.

Professor Schauer covers many topics in this interview. On a general note, the interview covers themes pertaining to his experience in engaging with legal philosophy as a trained lawyer; his views on the present and the future of legal philosophy and how we shall cope with its development; his new book Thinking like a Lawyer; the role of legal philosophers in law and society; and some sincere suggestions to young legal philosophers. It also covers more specific topics, including discussions about his insistence on rule priority; differences between legal principles and rules; his opinion of legal positivism; and the pros and cons of analytical tools like spectrum, continuum and generality.

Huls has argued that the idea that judges are truth-finders is misleading. In the first part of the paper I put his claim to the test. Against Huls I argue that the aim of procedures in criminal lawsuits is not only to guarantee binding decisions but also to help to find the truth. In the second part of the paper I investigate the role expert-witnesses play in truth-finding. Cleiren and Loth have argued that experts fail to understand the differences between legal and scientific ways of truth-finding. It turns out that Cleiren does not offer an argument for her claim and that Loth’s claim fails too, since it confuses coherence as truth and coherence as epistemic justification. I conclude that legal scholars, rather than experts, fail to understand the nature of legal and scientific truth-finding.

In their book De slapende rechter (The sleeping judge) Dutch legal psychologists W.A. Wagenaar, H. Israëls and P.J. van Koppen claim that Dutch judges wrongfully convict suspects in certain cases because these judges generally fail to understand the way hypothetical reasoning works in relation to empirical evidence. This article argues that Wagenaar, Israëls and Van Koppen are basically right in their claim that reasoning on evidence in criminal cases should have the form of hypothetical reasoning. However, they fail to apply this form of reasoning to their own analysis of Dutch criminal cases and the causes of wrongful convictions. Therefore, their conclusion that a form of revision of convictions outside of the criminal law system should be introduced does not meet their own methodological standards.