Guarantee based constitutionalism: Democracy and popular sovereignty without the people

Abstract

This work seeks to analyse the defence of constitutional review made by the Italian legal theorist Luigi Ferrajoli and how it is related with his conception of democracy (a conception marked by anti-popular elements). In order to do this, it takes four particularly relevant aspects in Ferrajoli's reconstruction of democracy (understood as substantive democracy) and its relationship with constitutional review, namely (i) the idea of separation between form and substance, (ii) the denial of conflict between rights and the absence of judicial discretion, (iii) the pessimistic view of politics (that contrast with Ferrajoli's optimist view about judicial work) and, finally, (iv) the paternalistic elements imbedded in his conception of democracy.