ABSTRACT

The argument in this book is that legal constitutionalism risks being a counterproductive project: while the primary objective of legal constitutionalism is to induce political stability and the rule of law, in reality its strong emphasis on a separation between constitutional law, on the one hand, and political and civil society, on the other, potentially limits the diffusion of constitutionalism as a primary political language in political and civic interaction. In the terms of Richard Albert, legalistic forms of constitutionalism (Albert speaks of ‘counterconstitutionalism’), while consistent with the purpose of constitutionalism of creating the structures of the state and setting the boundaries between the state and the citizen, risk ‘[r]ather than breathing life into participatory democracy, [to smother] the possibility of creating the possibility of participatory democracy because counterconstitutional constitutions do not create a constitutional culture that is conducive to participatory democracy’ (2008: 4). In other words, if constitutionalism is about both order creation and participation and autonomy (cf. Cohen and Arato 1992), legal constitutionalism falls short in terms of the second dimension. One could go further by arguing that without a satisfactory ful¼lment of the second meta-dimension of constitutionalism – democratic participation – the ¼rst meta-dimension is at risk. A too wide gap between a formal constitution and a constitutional culture, which embeds the constitution, entails the risk of reducing the constitution to an elite instrument. It might have little to no relevance in political and civic matters and/or is largely perceived in instrumental-strategic terms, not least by political actors.