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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.
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.
International economic, financial, and social crises have shaken Europe, South East Asia, and other world regions. The international legal order is eroded by instances of disregard or open violation of its most fundamental principles, and states rising to power reclaim its adjustment to novel circumstances, needs, and values.
The introduction examines the relevance of the current setting and dynamics for global constitutionalism and argues that far from rendering this approach obsolete, the contemporary constellation, coupled with persistent interdependence underscores the need for cooperation guided by shared principles. The introduction then sketches out the editors’ understanding of constitutionalism and its projection to the global realm. Addressing the weaknesses of the approach of global constitutionalism, the chapter first identifies Eurocentrism as a major concern, and the need for a European-East Asian dialogue. It also offers some answers to other points of critique, and seeks to demonstrate the power and potential of global constitutionalism when it is discussed by more diverse audiences in more inclusive way. The chapter then gives an overview over the contributions in the book. It concludes with reflections about the prospects of global constitutionalism in South East Asia, based on adjustments needed to make it a truly global framework.