The Counterfactual Yardstick

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.