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The Counterfactual Yardstick

Normativity, Self-Constitutionalisation and the Public Sphere

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Karolina Cern

The chief concern of this book is to discuss a democratic legitimation for modern law. Investigation is therefore steered towards current debates on processes of Europeanisation and the issue of self-constitutionalisation of a democratic polity. This turns out to be a complex concept referring to the threefold constitutionalisation: legal, institutional and horizontal, and hence to processes of evolutionary constitution making as well as institutional and societal constitutionalisation. Developing democratic legitimation in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds and unveils the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public spheres.
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Edited by Bartosz Wojciechowski, Piotr W. Juchacz and Karolina Cern

The book tackles significant problems that each historian of law faces in the light of present decline of philosophical, ethical and ideological canons in the overall context of western civilization. The issues discussed in the book manifest themselves in the question whether the «democratic turn» is a real or just a virtue one. Democracy generally means governance by the people – but who are the people? What kind of governance by the people can be claimed as democratic – all of the various types that exist or only a single, chosen one? What – if any – is the normative issue of such a governance? Democracy, after all, is not a simple descriptive model of governance; it is deeply rooted in our preferences and hence normative patterns of conduct, which are not yet to be understood as the norm but rather as founding principles. Democracy is a thoroughly normative model. It is always as constructed and uttered in the picture of life at the same time.