Valerio Fabbrizi

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State?

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy.

The renewed interest on political realism can offer a new reading of the traditional dichotomy between normative and realist conception of constitutionalism. The purpose of this article is to analyse this renewed discussion, especially by focusing on the relationship between “political realism” and “political constitutionalism,” in the light of some theorists and authors—such as Richard Bellamy and Jeremy Waldron. After a brief introduction in which political realism will be discussed, especially through Bernard Williams’ reinterpretation, the article proposes a rereading of democratic constitutionalism from the classical dichotomy between normativism and realism in political theory. The focus will be set on three key issues: 1. Richard Bellamy’s constitutional theory in a realist perspective; 2. An insight of legal constitutionalism under a normative banner; 3. A brief conclusion in which the risks of a majoritarian and populist constitutionalism will be discussed.

The purpose of this article is to investigate one of the most interesting and debated issues within the philosophical dis-cussion about politics: the metaphor of the body politic and its relation with the theory of sovereignty in contemporary political theory. After an opening section, which proposes a brief sketch about the origin of the body politic within phi-losophy (especially in Plato’s and Aristotle’s contributions), the article provides a theoretical insight of such a theory, by dealing with three of its definitions: Kantorowicz’s “king’s two bodies”; Hobbes’ Leviathan and Schmitt’s theory of sovereignty. The article aims at presenting some arguments to de-fine these three perspectives, by examining – in the last sec-tion – how this paradigm has evolved into the more complex and articulated theory of the rule of law in contemporary democratic societies.

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy.

This article wants to propose some reflections on law, power and violence in contemporary political philosophy. My attention will be devoted to a critical analysis of some relevant contribution on these matters by prominent scholars and authors such as Alessandro Ferrara, Christoph Menke, Walter Benjamin, Hannah Arendt. The first part is dedicated to a brief introduction in which the Alessandro Ferrara’s reading of Menke’s Law and Violence will be presented. The second part focuses its attention on the philosophical backgrounds of violence, especially in its relation to liberty, power and government. In this case, the main focus is devoted to some of the classics in political philosophy: Niccolò Machiavelli; Thomas Hobbes; Hannah Arendt. The last two paragraphs are finally dedicated to further reflections on law and violence. On the one hand, giving a deeper description of Ferrara’s remarks on Menke’s work, especially in its connection to Rawlsian political liberalism. The last paragraph, on the other hand, proposes few brief and final reflections on law and violence.

This article deals with democratic constitutionalism in order to investigate the proper nature of constitutionalism, by wondering about its peculiarities and specific objects. Against this background, this essay aims at providing a paradigmatic definition of constitutional theory, for more specifically exploring its different undertones. For this reason, the first section of the article offers an analysis of the most relevant theoretical contributions within modern and contemporary constitutionalism. Thus, the first section explores Carl Schmitt’s, Hans Kelsen’s and Robert Dahl’s definition of constitutional democracy. The second section then focuses with more attention on contemporary liberal-democratic constitutionalism, manly on one of the most debated issues: the dichotomy between legal and political models of constitutionalism, which goes hand in hand with a distinction between dualist and monistic accounts of democratic theory. The last section proposes an insight into the Italian constitutional system, by comparing it with the U.S. model, by especially focusing on the functioning and structure of the Constitutional Court compared to the U.S. Supreme Court.

Il libro intende fornire una ricostruzione dettagliata del dibattito, oggi centrale all’interno della teoria politica e democratica, tra due modelli costituzionali speculari: da un lato il cosiddetto “modello Washington”, che ricalca il sistema istituzionale degli Stati Uniti, dall’altro il “modello Westminster”, che invece descrive l’ordinamento britannico. Il libro ricostruisce il panorama liberal-democratico, discutendo i temi chiave di alcuni tra i maggiori teorici del costituzionalismo contemporaneo, a cominciare da John Rawls, Bruce Ackerman e Richard Bellamy. Attraverso il confronto tra modello dualista e modello monista della democrazia costituzionale, il libro mira a gettare uno sguardo sulle interpretazioni, ma soprattutto sulle prospettive del costituzionalismo democratico contemporaneo, che si trova oggi a fronteggiare le sfide e i pericoli derivanti dal populismo.

Over the last 30 years, scholarship has produced countless books, essays, and articles on populism by investigating it from various perspectives and angles. This article seeks to contribute to this ongoing debate by offering a political-philosophical reconstruction of populism to define such a phenomenon from a multilateral perspective. The essay will proceed as follows: The first section will investigate populism from a purely political-philosophical position, while the second will discuss the constitutional effects of such a phenomenon, to define it mainly as a form of anti-liberal and anti-judicial redefinition of democracy. Moreover, the first section will expose the dichotomy between the so-called left- and right-forms of the populist model and the populist threat to democracy, where the second will address populist constitutionalism and its antithetic relation to liberal constitutionalism.Footnote11 This article is the result of a period of research spent at the CAS-SEE UNIRI – Center for Advanced Studies of the University of Rijeka, Croatia. I wish to thank the Institute and its members for the opportunity to develop this research. Part of this research has been presented at the doctoral seminar of the Doctoral School of History and Philosophical-Social Sciences, University of Rome Tor Vergata. I wish to thank my colleagues Alessandro Ferrara, Matteo Bianchin, Tonino Griffero, Claudia Gina Hassan as well as the doctoral students of our programme, for comments and suggestions.

Reasonable disagreement is one of the most critical issues in contemporary political philosophy, especially within liberal-democratic constitutionalism. In emphasising the role of disagreement in the relationship between discourse and politics, many scholars such as Jeremy Waldron and Richard Bellamy – against the background of the Rawlsian idea of “reasonable pluralism” – defend the thesis of moral disagreement as the core of political deliberation. By refusing the idea of neutrality, these authors maintain that political discourse cannot be established by simply removing our moral disagree- ment on political values. This essay engages the issue of “discourse and politics” by focusing on some relevant topics: the deliberative conception of democracy; the Rawlsian idea of public reason as a forum for deliberation and discourse; the fact of disagreement and its inuence on the deliberative process. In order to investigate such issues, the paper follows three ways. First, it aims at examining John Rawls’ idea of public reason, by presenting it as a tool to resolve reasonable disagreement in the context of constitutional essentials. The second section deals with reasonable disagreement from a liberal point of view, by trying to focus on some critical remarks which Bellamy raises against Rawlsian political lib- eralism. The third section briefly analyses Waldron’s arguments in defence of reasonable disagreement, as a critique of the deliberative model of democracy. From this perspective, Waldron presents deliberative democracy’s failure in considering political dissent and moral disagreement as two problematic aspects of democracy.