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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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Chapter I Taking Citizens Seriously. Questioning the Time Modes of Legal Enterprise

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CHAPTER I Taking Citizens Seriously. Questioning the Time Modes of Legal Enterprise

1. Introduction to the Problematics

At the turn of the twentieth century, vital questions arose in the arenas of philosophical and legal investigations concerning the relations between the domains of law and morality. The impulses behind this animated research were of different sorts. On one hand, the industrial revolution caused significant changes in the market economy as well as in societal relations, launching the expansion, diversification and complication of social and political structures; furthermore, all of these changes visibly contributed to launching various emancipatory movements of social and even national provenance. These phenomena bore fruit in the need for new or revised questioning of the sources, foundations, breadth and scope of social control that would sustain the coordination of social processes on fair and just terms. On the other hand, these phenomena themselves became part of processes discerned and depicted by Max Weber as processes of occidental rationalisation at the levels of the society, culture and subjective structures1. In this context, and particularly important for the social sphere, these processes may be regarded as ‘forming and singling out a capitalistic market and a modern state’2. Further, the latter became governed in a new bureaucratic manner; in other words, a shift occurred towards a government driven by objective criteria, rather than forcing subjective decisions made by office-holders. In addition to the capitalistic market and the modern state administrative government, the third important...

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