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42 results

Page 1 of 3

  • 6 - “We Hold These Truths to Be Self-Evident”: Constitutionalism, Public Reason, and Legitimate Authority

  • from Part I - Public Reason in Constitutional Courts
  • Edited by Silje A. Langvatn, Mattias Kumm, Wojciech Sadurski
  • Book:
    Public Reason and Courts
    Published online:
    22 May 2020
    Print publication:
    04 June 2020, pp 143-163

  • Summary

    Mattias Kumm puts forward the basic structure of an argument for a normative theory of public reason–based constitutionalism to determine what it would require if the law has the authority it claims to have but only if it is justifiable in terms of public reason and if constitutions seek to constitutionalize as a condition for legal validity this standard. Kumm contrasts public reason–based understandings of constitutionalism with conventionalist and democratic voluntarist conceptions of constitutionalism. He then discusses what a public reason–based understanding of constitutionalism implies for the foundations, structure, and interpretation of constitutions. Kumm concludes that even though the demands for establishing legitimate authority within a public reason–based framework are ambitious, public reason–based constitutionalism is the heir of the American and French revolutions, and dominant structures of prevailing constitutional practice in liberal democracies can be best explained and justified within such a framework.

Public Reason and Courts
  • Edited by Silje A. Langvatn, Mattias Kumm, Wojciech Sadurski
  • Published online:
    22 May 2020
    Print publication:
    04 June 2020
  • Public Reason and Courts is an interdisciplinary study of public reason and courts with contributions from leading scholars in legal theory, political philosophy and political science. The book's chapters demonstrate the breadth of ways in which public reason and public justification is currently seen as relevant for adjudicative reasoning and review practices, and includes critical assessments of different ways that the idea of public reason has been applied to courts. It shows that public reason is not just an abstract theoretical concept used by political philosophers, but an idea that spurs new perspectives and normative frameworks also for legal scholars and judges. In particular, the book demonstrates the potential, and the limitations, of the idea of public reason as a source of legitimacy for courts, in a context where many courts face political backlashes and crisis of trust.

  • Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law

  • Mattias Kumm
  • Journal:
    German Law Journal / Volume 7 / Issue 4 / 01 April 2006
    Published online by Cambridge University Press:
    06 March 2019, pp. 341-369
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  • In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”

  • The Idea of Thick Constitutional Patriotism and Its Implications for the Role and Structure of European Legal History

  • Mattias Kumm
  • Journal:
    German Law Journal / Volume 6 / Issue 2 / 01 February 2005
    Published online by Cambridge University Press:
    06 March 2019, pp. 319-354
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  • A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have significant distributive effects, then a sufficiently thick common identity is believed to be necessary both to legitimate and to ensure the functioning of the polity in the long term. There is little doubt that such an identity is currently missing. The question is what such an identity should be and whether the prepolitical pre-requisites for the development of such an identity exist. Are there historical experiences and accomplishments that enable European citizens to understand themselves as having suffered a common past and which animate them to see themselves engaged in the construction of a common political future? What are the appropriate narratives around which a European identity could, over time, develop? What should the focus of a self-conscious politics of memory be? What are the implications for the role and structure of European historiography, in particular for the European legal and political historiography?

  • Rebel Without a Good Cause: Karlsruhe's Misguided Attempt to Draw the CJEU into a Game of “Chicken” and What the CJEU Might do About It

  • Mattias Kumm
  • Journal:
    German Law Journal / Volume 15 / Issue 2 / 01 March 2014
    Published online by Cambridge University Press:
    06 March 2019, pp. 203-215
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  • When the Federal Constitutional Court (hereinafter FCC) decided to refer the question of whether the European Central Bank's (ECB) decision on the purchase of Outright Monetary Transactions (OMTs) is compatible with EU primary law, it effectively forced the Court of Justice of the European Union (CJEU) into a game of “chicken.”

  • 12 - On the Representativeness of Constitutional Courts

  • from Part III - Legitimacy, Effectiveness, and Judicial Methods of Decision-Making
  • Edited by Christine Landfried
  • Book:
    Judicial Power
    Published online:
    27 January 2019
    Print publication:
    07 February 2019, pp 281-291

  • Summary

    Constitutional courts, like legislatures, are representative institutions. But in virtue of what are they representative and what are the variables that might raise their level of representativeness, without unduly undermining the impartiality and independence that is required for courts to successfully play this role? The chapter distinguishes between four complementary dimensions of representativeness: volitional, identitarian, argumentative, and vicarious. I argue that it is not desirable to increase courts’ volitional representativeness (strengthening the electoral link between judges and the people). Even though identitarian representativeness is important in contexts of historical practices of exclusion, the focus of constitutional designers should not be limited to these factors. Other normatively salient variables that should be the focus of constitutional designers include argumentative representativeness, implicating questions of methodology, and style and structure of judicial opinions. Furthermore, vicarious representativeness, which concerns the constitutional embeddedness of judicial institutions in the political system and, more specifically, the mechanisms that allow political branches to challenge decisions of courts should be among the factors on which attention is focused.

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