The Making of Constitutional Democracy

I. Aims and Structure of the Work 1. Law, Power, and Political Authority. On the Scope and Limitations of the Work I. Introduction II. Brief Methodological Remarks III. The Province of the Problem Determined: What is Law? IV. Politics, Political Power, Political Authority V. From Powers to Power. The Familiar Tale of the Ineluctability of the State A. And its Two-pronged Critique: Isonomia and ‘Early’ States VI. The Conditions of Existence of Political Authority: Insights from the Theory of Normative Orders 2. The Dependence of Constitutional Democracy on the Distinction between Creation and Application of Law I. Introduction II. The Contested Relationship between Law and Politics III. Law as lex and as ius: The Duality that Makes Constitutionalism Possible IV. From Constitutions to Constitutionalism: Narrowing the Focus of Constitutional Theory V. The (Proverbial) Tension between Democracy and Constitutionalism VI. Modern Constitutionalism as ‘Legal Otherness’ VII. The Two-fold Justificatory Dependence of Constitutional Democracy on the Idea of Application of Law 3. A Critical Evaluation of Moderate Legal Realism I. Introduction II. Realism vs Formalism III. Let Us be Realist about Adjudication. What do Judges Eat for Breakfast? IV. Realism and Realisms in Law: Meta-theory V. The Lowest Common Denominator of Legal Realism VI. The Two Axes of Rule-scepticism A. Radical-immanent Indeterminacy Thesis B. Radical-transcendental Indeterminacy Thesis C. Moderate-immanent Indeterminacy Thesis D. Moderate-transcendental Indeterminacy Thesis VII. The Unbearable Lightness of Moderate Scepticism 0 VIII. On the Normativity of Law, and On the Digestion of Judges 4. Towards a Unified Account of Discretion in Law I. Introduction II. HLA Hart and the Concept of Discretion. Back to the Future? III. Dworkin and the (Normative) No-Strong-Discretion Thesis IV. Discretion as a Pervasive Feature of Kelsen’s Stufenbaulehre V. Discretion as Balancing in Klatt (and Alexy) VI. The History of Discretion in the Administrative Domain VII. Administrative Discretion in Germany VIII. Discretion in the French-Italian Administrative Tradition IX. The Concept of Discretion in English Administrative Law X. Towards a Unifi ed Account of Discretion in Law A. Normative Discretion B. Interpretive Discretion XI. Conclusion 5. Law and Language and as Language. An Alternative Picture of a Multifaceted Relationship I. Introduction II. The Communicative Model of Law. A Two-way Affair? III. Beyond ‘What is Said’. Speech-act Theory and the Rise of Pragmatics in Legal Interpretation IV. First Objection: Law as Language, Law and Language(s) V. Second Objection: Speech-act vs Text-act Theory VI. Legal Texts as ‘Autonomous’ Text-acts VII. An Alternative Theory of Legal Meaning: Semantic Minimalism VIII. Prolegomena to a Theory of Legal Interpretation IX. Conclusion 6. Creation and Application of Law. An Analytical Distinction I. Introduction II. The Two Extremes: Rejecting vs Assuming the Distinction III. Kelsen on the Relativity of the Distinction between Creation and Application of Law IV. Creation of Law: Of the Typicality of Legal Rules V. The Principle of Legality as a (Semantic) Meta-norm on Law-creation and Law-application VI. Unpacking the Idea of ‘Application of Law’ VII. The Potential Asymmetry between Norm-following and Norm-application VIII. On the (Different) Normativity of Power-conferring Norms IX. Can only Officials Apply the Law? X. Form and Substance. Towards an Analytical Account of Law-application XI. Conclusion XII. PS One Final Objection: Interpretation, Interpretation, Interpretation! 7. The Separation of Powers. A Meta-theoretical Reassessment I. Introduction II. Genealogical Issues. When was the Separation of Powers ‘Invented’? III. A Twofold Meta-theoretical Ambiguity Plaguing the Discussion IV. The Justificatory Debate. Monism vs Pluralism V. Critical Approaches VI. The Separation of Powers as a Formal Theory and as a Normative Doctrine. On the Advantages of Maintaining a Strict Distinction A. The Formal Theory of the Separation or Division of Powers B. A Normative Doctrine of the Organisation of Political Power Based on the Distinction between Law-creation and Law-application VII. Conclusion