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Article

Access_open Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    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.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Discussion

Access_open The Co-originality of Law and Democracy in the Moral Horizon of Modernity

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords co-originality, deliberative democracy, Habermas, Lefort, modernity
Authors Stefan Rummens
AbstractAuthor's information

    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.


Stefan Rummens
Stefan Rummens is Assistant Professor of Political Theory at the Institute for Management Research of the Radboud University Nijmegen, the Netherlands.
Article

Access_open Is de vrijheid van godsdienst in de moderne multiculturele samenleving nog een hanteerbaar recht?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords freedom of religion, human rights, human dignity, traditional religion, unequal treatment
Authors Koo van der Wal
AbstractAuthor's information

    There are two fundamental problems with regard to the freedom of religion. The first concerns the content and scope of the right; the second, a possible unequal treatment between population groups. The first problem can only be dealt with by a preliminary analysis of the religious phenomenon, which precedes a legal definition. It turns out that there is a range of different types of religion, with on the one hand traditional forms of religion which are narrowly interwoven with the culture in question (all kinds of ‘cultural’ practices possessing a religious dimension), and on the other forms of religion which loosen to a considerable extent the ties between culture and religion. Evidently, the former types of religion cause problems in modern society. An additional problem is that freedom of religion as a modern basic right rests on a view of human being – including the idea of the inherent dignity and autonomy of the human person – which is at odds with the symbolic universe of traditional religion. The conclusion of the article is that in the modern pluralist society freedom of religion is on its way to becoming, or already has become, an unmanageable right. So the problems arising around this right (including that of unequal treatment) can only be solved in a pragmatic, not really satisfactory way. In that context, modern humanitarian standards should be observed in the implementation of the right of freedom of religion because fundamental human rights are connected with a specific concept of humanity.


Koo van der Wal
Koo van der Wal is emeritus professor of Philosophy at the University of Amsterdam and the Erasmus University Rotterdam.
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