ABSTRACT
In a recent summary of pertinent debates on democratic legitimacy, Benhabib (1994) lists three tasks that modern democratic societies have to face, namely securing legitimacy, economic welfare and £a viable sense of collective identity’. Any resolution of these tasks, so the proponents of the theory claim, depends upon the institutionalization of a public sphere of opinion formation and the recognition of basic rights - in short, on the institutional achievements of constitutional states. This is at least the common understanding of those legal theorists and constitutionalists who have transposed the deliberative model of democracy into legal discourse, thereby equating the legitimacy of modern law with its backing by democratic political institutions, and vice versa: no valid law outside democracy, no democracy without law (Gerstenberg 1997).1
