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The Rule of Law and the Challenges to Jurisprudence

Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012

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Edited By Péter Cserne, Miklós Könczöl and Marta Soniewicka

Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
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Between Reflexivity and Effectiveness: Dilemmas of the Democratic Legitimacy of Constitutional Justice

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Krzysztof J. Kaleta

Introduction

Research on the legitimacy of the contemporary public sphere poses many problems. These problems are related to the evolution of our understanding of the concept of power as such and the connected erosion of the current search for new formulas of its legitimacy. Although today power is no longer understood in terms of Weber’s categories of domination (Herrschaft), and attention rather focuses on a communicative approach, the question of legitimacy is still an object of lively debate in contemporary legal and political philosophy. The issue of the legitimacy of power is even more important today because of the processes of globalisation and European integration which have remodelled its institutional form.

Being amorphous and dispersed, modern political power is difficult to control. However, without any criteria for assessment it is extremely difficult to verify its legitimacy in a reasonable way. We should remember that imposing normative constraints on power has always been the primary objective of constitutionalism. For this reason the theory of democratic legitimacy and the theory of constitutionalism are today inextricably linked.

In this paper I analyse the impact of institutional changes in the new constitutional order on the normative requirements (formulated in contemporary philosophical discourse) concerning legitimacy of constitutional judges. From a social science perspective legitimacy is perceived in terms of ‘effectiveness’ in human rights protection. It seems that such an approach needs to be complemented by the normative requirement of the ‘reflexivity’ of...

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