Table Of ContentTHE MAKING OF CONSTITUTIONAL DEMOCRACY
This book addresses a palpable, yet widely neglected, tension in legal discourse.
In our everyday legal practices – whether taking place in a courtroom, class-
room, law firm or elsewhere – we routinely and unproblematically talk of the
activities of creating and applying law. However, when legal scholars have ana-
lysed this distinction in their theories (rather than simply assuming it), many
have undermined it, if not dismissed it as untenable.
The author shows that the relevance of distinguishing between law-creation
and law-application transcends the boundaries of jurisprudential enquiry and is
a crucial component of political theory. For if there is no possibility of apply-
ing a legal rule that was created by a different institution at a previous moment
in time, then our current constitutional-democratic frameworks are effectively
empty vessels which conceal a power relationship between public authorities
and citizens which is very different from the one on which constitutional democ-
racy is grounded.
After problematising the most relevant objections in the literature, the
book presents a comprehensive defence of the distinction between creation and
application of law within the structure of constitutional democracy. It does so
through an integrated jurisprudential methodology, which combines insights
from different disciplines (including history, anthropology, political science,
philosophy of language and philosophy of action) while also casting new light
on long-standing issues in public law, such as the role of legal discretion in the
law-making process and the scope of the separation of powers doctrine.
Volume 13 in the series Law and Practical Reason
Law and Practical Reason
The intention of this series is that it should encompass monographs and collections of
essays that address the fundamental issues in legal philosophy. The foci are conceptual
and normative in character, not empirical. Studies addressing the idea of law as a species
of practical reason are especially welcome. Recognising that there is no occasion sharply
to distinguish analytic and systematic work in the field from historico-critical research,
the editors also welcome studies in the history of legal philosophy. Contributions
to the series, inevitably crossing disciplinary lines, will be of interest to students and
professionals in moral, political, and legal philosophy.
General Editor
Prof George Pavlakos (Glasgow)
Advisory Board
Prof Robert Alexy (Kiel)
Prof Samantha Besson (Collége de France and Fribourg, CH)
Prof Emilios Christodoulidis (Glasgow)
Prof Sean Coyle (Birmingham)
Prof Mattias Kumm (New York and Berlin)
Prof Stanley Paulson (St Louis and Kiel)
Prof Joseph Raz (Columbia Law School and King’s College London)
Prof Arthur Ripstein (Toronto)
Prof Scott Shapiro (Yale Law School)
Prof Victor Tadros (Warwick)
Recent titles in the series
Volume 7: Shared Authority
Dimitrios Kyritsis
Volume 8: Private Law and the Value of Choice
Emmanuel Voyiakis
Volume 9: Freedom and Force: Essays on Kant’s Legal Philosophy
Edited by Sari Kisilevsky and Martin J Stone
Volume 10: The Nature and Value of Vagueness in the Law
Hrafn Asgeirsson
Volume 11: Law’s Humility: Enlarging the Scope of Jurisprudential Disagreement
Triantafyllos Gkouvas
Volume 12: Rightful Relations with Distant Strangers: Kant, the EU, and the Wider
World
Aravind Ganesh
Volume 13: The Making of Constitutional Democracy: From Creation to Application
of Law
Paolo Sandro
The Making of
Constitutional Democracy
From Creation to
Application of Law
Paolo Sandro
HART PUBLISHING
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Names: Sandro, Paolo, author.
Title: The making of constitutional democracy : from creation to application of law / Paolo Sandro.
Description: Oxford ; New York : Hart, 2021. | Series: Law and practical reason ; volume 13 |
Based on author’s thesis (doctoral – University of Edinburgh, 2014) issued under title: Creation and
application of law : a neglected distinction. | Includes bibliographical references and index.
Identifiers: LCCN 2021042195 (print) | LCCN 2021042196 (ebook) | ISBN 9781509905225
(hardback) | ISBN 9781509955213 (paperback) | ISBN 9781509905218 (pdf) |
ISBN 9781509905232 (Epub)
Subjects: LCSH: Effectiveness and validity of law. | Law—Methodology. | Law—Political
aspects. | Democracy.
Classification: LCC K260 .S26 2021 (print) | LCC K260 (ebook) | DDC 340/.11—dc23/eng/20211005
LC record available at https://lccn.loc.gov/2021042195
LC ebook record available at https://lccn.loc.gov/2021042196
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To my parents, Carolina Pandolfi and Mauro Sandro. Grazie
Acknowledgements
T
his book would not have been possible without the support, over the
years, of a number of good people. Therefore, the lines that follow are,
for me, the most important lines in the book. The usual disclaimer
applies, to wit: I am of course responsible for whatever mistakes and omissions
are there in the book.
Most of the arguments developed here originated as a part of my PhD project
at the University of Edinburgh under the supervision of Claudio Michelon and
Neil Walker. Their support, both during the work on the Ph.D. and thereaf-
ter, has lent to me an unwavering source of resilience in the face of the usual
rejections and setbacks that, I reckon, take place in most academic careers.
I also want to thank my examiners, Timothy Endicott and Euan MacDonald,
for their generous engagement with my PhD thesis, which prompted me to
reconsider and improve many of the underlying assumptions of the work in the
years following the viva.
George Pavlakos, the General Editor of the Law and Practical Reason Series,
believed in the potential of this work from very early on, prompting Hart to
offer me a contract already at the point of my PhD thesis. This was a dream
come true; I had met Richard Hart in Edinburgh in 2013 and was mesmerised by
his passion and pride in publishing work in legal theory.
Since then, I am afraid that I have tested George Pavlakos’ patience with
me, for what were supposed to have been minor revisions of the thesis became
a part of a substantial rewriting and expansion of the manuscript. All of this
took a good bit longer than I had expected. I hope that the final product repays,
at least in part, George’s trust in me. I also wish to thank the team at Hart/
Bloomsbury: in particular Bill Asquith for initial support, and Kate Whetter
and Rosemarie Mearns who have accompanied me in bringing the manuscript
to completion.
At the University of Salford, I want to thank Nicolas Kang-Riou and David
Rossati for providing vital intellectual stimulation and camaraderie during
what I can only describe as challenging professional years, and Phil Scarf for
substantive research support, particularly in the form of a trimester of research
leave in the fall of 2018, which made possible the concentration I needed for the
rewriting of the first part of the manuscript.
Martin Kelly, Alex Latham, and Felipe Oliveira de Sousa (who make up my
own Fellowship of the Ring) not only have each read and commented on various
parts of the work, but also continued to provide me with the support to n avigate
the Misty Mountains of academic life. Many more friends and colleagues have
generously read and commented on drafts, encouraging me to clarify my ideas
viii Acknowledgements
and, at the same time, saving me from many mistakes: Zenon Bankowski,
Donald Bello Hutt, Stefano Bertea, Eoin Carolan, Mathieu Carpentier, Pablo
Castillo-Ortiz, Pierluigi Chiassoni, Robert Craig, David Duarte, Marco Goldoni,
Riccardo Guastini, Andrew Halpin, Bernard Jackson, Marcin Matczak, Thomas
McSweeney, José Juan Moreso, Georgios Papanicolaou, Giorgio Pino, Francesca
Poggi, Torben Spaak, Vito Velluzzi, and Peter Verovšek. I could not be more
grateful for their contributions. I also want to thank an anonymous reviewer for
Hart, whose comments prompted me to add what is now the last chapter of the
book (on the separation of powers), and George Dick, who agreed to proofread
the entire manuscript and help me prepare it for publication. His help has been
invaluable.
I presented earlier drafts of chapter three in Girona and Belgrade: my thanks
go to Andrej Kristan, Miodrag Jovanović, and Bojan Spaic for inviting me, and
to members of the audiences there for fruitful debate. The ideas in chapter seven
were refined through discussion on two separate occasions: first at a special
workshop on the separation of powers during the 2018 IACL Inaugural Younger
Scholars Forum in Comparative Law, held in Fukuoka and organised by Daniel
Wunder Hachem and Ren Yatsunami. The second occasion, in 2019, was the
Inaugural Constitutional works-in-progress Workshop at the University College
Dublin Centre for Constitutional Studies, organised by Eoin Carolan. To all of
these good people as well as the participants at these events, go my heartfelt
thanks.
I also benefitted immensely from the discussion of some of the themes
underlying this book at the special workshop that I organised as part of the IVR
2019 World Congress in Lucerne. My gratitude go to all the participants on that
occasion for their generous engagement: Mathieu Carpentier, Sebastián Figueroa
Rubio, Paula Gaido, Mathias Klatt, Andrej Kristan, Marcin Matczak, Lorena
Ramírez-Ludeña, Francesca Poggi, Brian Slocum, and Pauline Westerman.
I would not be writing this – or anything else, for that matter – without the
love and support of my family and friends scattered around the world. I hope
they are proud of me. Last but not least, the fact that Anastasia Shesterinina still
plans on marrying me – notwithstanding how long it took to finish this book –
is a testament to her patience and endurance as well as to my good fortune
when our paths crossed. Since then, she has been partner, friend, driving force,
discussant, editor, and so much more. Only Dante’s words (‘L’amor che move il
sole e l’altre stelle’) can capture what she is to me.
PS
Salford
05/05/2021
Contents
Acknowledgements ......................................................................................vii
Introduction ..................................................................................................1
I. Aims and Structure of the Work .......................................................9
1. Law, Power, and Political Authority. On the Scope and
Limitations of the Work ........................................................................17
I. Introduction ..................................................................................17
II. Brief Methodological Remarks ......................................................19
III. The Province of the Problem Determined: What is Law? .................23
IV. Politics, Political Power, Political Authority .....................................26
V. From Powers to Power. The Familiar Tale of the Ineluctability
of the State ....................................................................................30
A. And its Two-pronged Critique: Isonomia and ‘Early’ States .....32
VI. The Conditions of Existence of Political Authority: Insights
from the Theory of Normative Orders ...........................................36
2. The Dependence of Constitutional Democracy on the Distinction
between Creation and Application of Law .............................................43
I. Introduction ..................................................................................43
II. The Contested Relationship between Law and Politics ....................47
III. Law as lex and as ius: The Duality that Makes
Constitutionalism Possible .............................................................50
IV. From Constitutions to Constitutionalism: Narrowing
the Focus of Constitutional Theory................................................55
V. The (Proverbial) Tension between Democracy and
Constitutionalism ..........................................................................60
VI. Modern Constitutionalism as ‘Legal Otherness’ .............................64
VII. The Two-fold Justificatory Dependence of Constitutional
Democracy on the Idea of Application of Law ...............................71
3. A Critical Evaluation of Moderate Legal Realism ...................................80
I. Introduction ..................................................................................80
II. Realism vs Formalism ....................................................................82
