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The Counterfactual Yardstick

Normativity, Self-Constitutionalisation and the Public Sphere


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 II The Idea of Self-Constitutionalisation and Constitutional Patriotism


1. The Background of Reading the Idea of Constitutional Patriotism

Integration by law is seen as a key feature of Europeanization1. Taking the thesis for granted, the following statements are of special significance for understanding the intellectual context of the idea of constitutional patriotism.

A) Neil MacCormick proclaims post-sovereign constellation as the conclusion of his analysis on the mutual crossing or overlapping of the rule of recognition and rules of change in the EU. In Questioning Sovereignty. Law, State, and Nation in the European Commonwealth, MacCormick takes into consideration the doctrine of parliamentary sovereignty in the context of European integration by the ratification of the European Treatises and investigates whether the interrelations between the Hartian rule of recognition and rules of change have been modified in this sense, so that they are meshed, or whether the rule of ← 91 | 92 → recognition has changed itself in the case of each Member State of the European Community (now the EU)2. His conclusion is that these were ‘changes that involved the use of the “power of change” to add a new “criterion of recognition” to the rule of recognition’3 (the second abovementioned possibility), namely, the changes adding the new player-interpreter which is—the former European Court of Justice and today—the Court of Justice of the European Union. This statement implies the thesis about the ‘pluralism under international law’4, from which, on the grounds of the MacCormick’s theory of law, it follows that one can discuss...

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