This paper argues that the strong conception of popular sovereignty employed in the German Federal Constitutional Court's recent decision on the Treaty of Lisbon is incoherent and should not be used as the centerpiece of a democratic constitutional theory. Strong conceptions of popular sovereignty are usually defended on the basis of the claim that an appeal to strong popular sovereignty is necessary to ground the legitimacy of constitutional law. In fact, strong conceptions of popular sovereignty eliminate the conceptual space for the idea of legitimate law. This thesis is developed through a critical discussion of Carl Schmitt's constitutional theory-which appears to be the main inspiration behind contemporary arguments for strong popular sovereignty-as well as through an analysis of the Lisbon decision of the Bundesverfassungsgericht.
The normative attractiveness of democracy is often taken to consist in the fact that democratic methods of collective will formation offer a plausible answer to the problem of how to deal with pluralism or disagreement in politics. 1,2 Where there is competition between different conceptions of how societies ought to be governed, the democratic method seems to be the fairest way to arrive at a collective decision as to how to go forward. Even those who disagree with the wisdom of a democratic decision that adopts a certain policy can be reminded, if democracy functions adequately, that they had an equal chance to participate in the process of decision-making and thus to influence the outcome. What is more, they can be reminded that the process of democratic politics allows for the future revision of the policy now adopted; on the condition that the outvoted minority manages to convince enough fellow citizens-in free and fair political competition-that the criticized policy ought to be changed. Of course, we will be able to defend the legitimacy of a disfavored outcome, to some outvoted minority, only if the democratic process is in principle open to that minority's favored outcomes. It must be the case that the minority's view would have become official policy if it had been supported by a majority, and it must also be the case that that view will still become official policy if it manages to garner the support of a majority in the future. The view that the democratic process must remain open to the realization of the political goals of all social groups or parties, or lose its power to legitimate legislative outcomes, comes under pressure, however, once we consider the example of political movements that pursue anti-democratic goals, and that do so by way of the democratic process. If the democratic process is to be open to the realization of the political goals of all social groups, then it must be open, it seems, to a group or party that aims to use that process to abolish democracy through a democratic decision. This anti-democratic strategy has at times been successful in the past. Joseph Goebbels famously remarked that it "will always remain one of the best jokes of democracy that it gave its deadly enemies the means by which it was destroyed." 3 Many democracies-in Europe and elsewhere-have responded to the political movements that use democratic means to achieve anti-democratic goals by employing measures of militant democracy. 4 Militant democracy-the term was coined by the German emigré-scholar Karl Loewenstein in a series of articles published in the late 1930s in the American Political Science Review 5-aims to stop anti-democratic parties from abusing the democratic process to gain the political power to realize anti-democratic goals. The most common measures of militant democracy that are in use today are provisions for the closure of anti-democratic parties, limitations of the freedom of political speech as well as of the right of assembly of anti-democratic groups, and, in some cases, the exclusion...
According to Carl Schmitt, constitutional law and international law are analogous in that they are both forms of political law. Schmitt concludes that neither is open to legitimate judicial enforcement. This paper critically explores Schmitt's analogy between constitutional and international law. It argues that the analogy can be turned against Schmitt and contemporary sceptics about international law: Since we no longer have any reason to deny the judicial enforceability of domestic constitutional law, the analogy now suggests that there is no reason to think that legitimate judicial enforcement of international law is impossible.
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