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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 III The Ethical Fibre of Constitutional Patriotism and Horizontal Constitutionalisation

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CHAPTER III The Ethical Fibre of Constitutional Patriotism and Horizontal Constitutionalisation

1. Questioning Values in Habermas

The previous chapter advocated a deontological approach to constitutional interpretations. Crucially, the latter were captured in terms of learning, generating transformative processes which raise claims to capture a polity as a reflexive entity which ‘is not only open to deliberative challenge’, but is ‘also a forum for critical self-examination on who we are, who we should be, who we are thought to be, and who we think we are’1. In other words, it is the self-constitutionalisation of a polity comprehended in legal terms as the processes that entail constitution-making (in the sense of evolutionary constitution-making); on the normative approach, it is a deontological—and, interestingly, that is the reason why it is a processual and even transformative—approach to constitutional interpretations. The latter was evinced to be inextricably linked to the processes of reflective identity-building of a polity that filter the concept of self-understanding by the prism of the concept of self-determination. Tentatively, if the presumption that the addressees of the law must always be able to understand themselves also as the authors of the law stands, then the said filtering should be boosted and proceed most of all in an informal public, wherein the citizens’ opinions are thematically organised, confronted, debated and so forth, and, due to the procedural paradigm of law in question, they promote institutionalised forms of communication, deliberatively elaborated and transformed in order...

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