Law and Society in the Constitutional State: An introduction from J. Elster, L. Kramer and P. Haberle

Abstract

Within the philosophy of contemporary democracy it is common to find
positions that understand the dawn of modern constitutionalism as the
twilight of democracy and the return to an elitist and aristocratic model of
in which the last word will always be held by
a select group of lawyers, even
though their decision is openly against the majority and, therefore, in his
view, anti-democratic. In that sense, this paper will aim to expose some of
the contemporary readings in relation to the tensions between democracy ()
(people) and Constitution (Constitutional Court), taking into consideration
what today are perhaps the most influential theories in the global academy.

Here will be discussed the theory of constitutional limits Elster, Popular
Constitutionalism Kramer, Waldron, and Tushnet, and the theory of the
Open Society Interpreters Peter Häberle.