ABSTRACT
In this chapter, the author discusses several aspects of the internal relationship between the rule of law and democracy, which is essential for any constitutional state. This relation results from the concept of modern law itself as well as from the fact that positive law can no longer draw its legitimacy from a higher law. Modern law is legitimated by the autonomy guaranteed equally to each citizen, and legitimated in such a way that private and public autonomy reciprocally presuppose each other. This conceptual interrelation also makes itself felt in the dialectic of legal and factual equality. It was this dialectic that first elicited the social welfare paradigm of law as a response to the liberal understanding of law, and today this same dialectic necessitates a proceduralist self-understanding of constitutional democracy. The author elucidates this proceduralist legal paradigm with the example provided by the feminist politics of equality.
