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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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Introduction

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Modern law requires democratic legitimation, but developing this in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds. In other words, the requirement of democratic legitimation associated with modern law is tailored for well-educated citizens. This presents one of the greatest challenges that democratic polities face in the twenty-first century, namely, how to guarantee equal opportunities to realise equal rights for democratic education and hence for participation in constructing self-reflexive societies1. Thus, the chief concern of this book is to discuss a democratic legitimation for modern law. I attempt to explore the problem following primarily Jürgen Habermas, in the sense that I understand this issue in terms of the co-originality of the rule of law and the principium of popular sovereignty. That directs my investigations towards current debates with regard to processes of European integration which raise issues concerning the self-constitutionalisation of a democratic polity and the concept of the self-reflexive polity2. The concept of self-constitutionalisation refers basically to processes and procedures of legitimating, enacting and applying fundamental principles, that is, basic rights (constitutional norms), and other provisions by those who are both the authors and addressees of these legal regulations. Self-reflexivity refers to a discursive learning which is a transformative and thus open-ended process of self-determination of the consonants of the democratic polity which therefore involves questions concerning the self-understanding of the consonants constituted by this process.

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My principal thesis, which I discuss in the...

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