Making and re-making the theory of constitutional democracy: further observations

Abstract

In this reply I address many of the observations and criticisms raised by Donald Bello Hutt, Mathieu Carpentier, Maris Köpcke, and Graziella Romeo vis-à-vis in my book The Making of Constitutional Democracy: From Creation to Application of Law (Hart 2022). The discussion touches upon a host of different but interconnected issues: from the necessary connection (or lack thereof) between the state and the rule of law; to the feasibility and relevance of the distinction between law as lex and law as ius for modern constitutionalism; to the role and scope of a theory of normative powers for the concept of law-application; to the centrality of the idea of contingency in constitutional theory and its consequences for constitutional design. As a result, I clarify and further develop several aspects of the theory (and meta-theory) of constitutional democracy I originally presented in the book.

Keywords: lex, ius, power-conferring norm, rule of law, state, constitutionalism, normative powers, constitutional theory