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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 V What is the Prescription for the European Union?

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CHAPTER V What is the Prescription for the EU?

1. Kantian Ius Cosmopoliticum or European Self-Constitutionalisation?

As those who are connected with the Oslo ‘factory’1 advocate, ‘theory matters’2. Moreover, ‘theory matters to politics’ and to citizens3, for whom it may spur discussions and debates, possibly making them better informed on the issues on which they should make decisions, either on their own or collectively. If it is so, and we have taken it for granted, then we have arrived at the point where the question about the significance of Jürgen Habermas’s contractarian theory of politics and citizens should be addressed directly. Therefore, the aim of this chapter is to scrutinise the extent to which any prescriptions for citizens and decision-makers of diverse kinds follow from the above analyses.

Taking citizens seriously does not mean, however, that in each theory, they come to the fore of theoretical investigations all alone. In recent debates taking into account the legal and political situations of the EU, where the polity strongly influences Europeans’ everyday lives4, the most prominent issue at stake seems to be whether it makes sense—in philosophical terms—to hang onto the monist view of law which leads to claims on one constitutional law (that may be of diverse breadth and scope), or perhaps it is more reasonable to claim the paramount advantages stemming from a pluralist functioning of diverse autonomous legal systems. Moreover, according to Tanja Hitzel-Cassagnes, not just legal...

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