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This preface introduces the concept of public reason and explains how it is seen as a criterion of political legitimacy, but also as a strategy that some courts use to enhance their own legitimacy. The preface also incudes summaries of all the chapters of the book.
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 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.