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. |
Search result: 42 articles
Year 2010 xArticle |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2010 |
Keywords | constitutionalism, globalization, democracy, modernity, postnational |
Authors | Neil Walker |
AbstractAuthor's information |
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The 2010 U.S. National Space Policy and its Potential for Upholding the Principles of the Outer Space Treaty RegimeThe 5th Eilene M. Galloway Symposium on Critical Issues in Space Law in Washington D.C., United States, December 2010: "Art. IX of the Outer Space Treaty and Peaceful Purposes: Issues and Implementation" |
Journal | International Institute of Space Law, Issue 11 2010 |
Authors | M.S. Smith |
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Article IX of the Outer Space Treaty and the Concept of Planetary Protection: Toward a Space Environment Law?The 5th Eilene M. Galloway Symposium on Critical Issues in Space Law in Washington D.C., United States, December 2010: "Art. IX of the Outer Space Treaty and Peaceful Purposes: Issues and Implementation" |
Journal | International Institute of Space Law, Issue 11 2010 |
Authors | J.F. Mayence |
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Report of the SymposiumThe 5th Eilene M. Galloway Symposium on Critical Issues in Space Law in Washington D.C., United States, December 2010: "Art. IX of the Outer Space Treaty and Peaceful Purposes: Issues and Implementation" |
Journal | International Institute of Space Law, Issue 11 2010 |
Authors | J. Sandalinas |
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Common Heritage of Mankind: The Rise of Balancing Interests between the Developed and the Developing Countries and the Need to Revisit the Moon AgreementGlobal Lunar Conference in Beijing, China: IISL Session |
Journal | International Institute of Space Law, Issue 10 2010 |
Authors | Zhuoyan Lu |
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Possibility of Establishing a New International Space Exploitation AgencyGlobal Lunar Conference in Beijing, China: IISL Session |
Journal | International Institute of Space Law, Issue 10 2010 |
Authors | D.H. Kim |
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The Need to Implement the Outer Space Treaty through National Law in the Light of the Current and Foreseeable Space Activity2010 IISL-ECSL Space Law Symposium Held on the Occasion of the 49th Session of the Legal Subcommittee of UNCOPUOS in Vienna, Austria: "National Space Legislation: Crafting Legal Engines for the Growth of Space Activities" |
Journal | International Institute of Space Law, Issue 9 2010 |
Authors | A. Kerrest |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2010 |
Keywords | Kelsen, Democracy, Legitimacy, European Union, European Court of Justice |
Authors | Quoc Loc Hong |
AbstractAuthor's information |
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. |
Miscellaneous |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2010 |
Keywords | Schauer, rule priority, legal principles, legal positivism, generality |
Authors | Bo Zhao |
AbstractAuthor's information |
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. |
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From National Sectorial Space Strategy to International Cooperation to Race into Outer SpaceRecent Developments in Space Law |
Journal | International Institute of Space Law, Issue 5 2010 |
Authors | M. Bahrami and A. Golroo |
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Safety and Liability Aspects of Solar Power SatellitesRecent Developments in Space Law |
Journal | International Institute of Space Law, Issue 5 2010 |
Authors | R.S. Jakhu and D. Howard |
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International Satellite Organizations: Their Evolution From "ISOS" to "GSCS" and the Further Privatization/Commercialization of Space ActivitiesRecent Developments in Space Law |
Journal | International Institute of Space Law, Issue 5 2010 |
Authors | S. Ospina |
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Journal | Erasmus Law Review, Issue 2 2010 |
Authors | Oren Bar-Gill and Franco Ferrari |
Author's information |
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Preliminary Considerations on the European Preparatory Programme on Space Situational AwarenessLegal Aspects of Space Security |
Journal | International Institute of Space Law, Issue 3 2010 |
Authors | M. Ferrazzani |
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The Moon Agreement in the Current Scenarios30 Years of the Moon Agreement: Perspectives |
Journal | International Institute of Space Law, Issue 2 2010 |
Authors | M. Williams |
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Establishing a Natural Resources Regime on the Moon30 Years of the Moon Agreement: Perspectives |
Journal | International Institute of Space Law, Issue 2 2010 |
Authors | J.F. Galloway |