CONSTITUTIONAL DEMOCRACY: A Paradoxical Union of Contradictory Principles?

Abstract

The modem conception of democracy differs from the classical conception in virtue of its relation to a type of law that displays three characteristics: modem law is positive, compulsory, and individualistic. The principle of the constitutional exercise of power, on the other hand, appears to set limits on the people’s sovereign self-determination. The rule of law requires that democratic will-formation not violate human rights that have been positively enacted as basic rights. If the normative justification of constitutional democracy is to be consistent, then it seems one must rank the two principles, human rights and popular sovereignty. To be legitimate, laws, including basic rights, must either agree with human rights or issue from democratic will-formation. Political systems such as the United States and the German Federal Republic have set up an independent institution charged with scrutinizing the constitutionality of parliamentary legislation.