Playing Fair in Modern Democracies
Chapter 16: Legitimacy: identification and consent
This chapter examines the role of rights in providing legitimacy to a constitution. It looks first at the pragmatic case based on compensating for the many compromises involved in drawing up constitutions. It looks secondly at the case for a more principled link between rights and ideas about the rule of law. For this purpose, it draws on Kelsen’s theory about the basic norm as a transcendental concept or ‘presupposition’ that gives ‘validity’ to lawmaking. In Kelsen’s view, only mainly procedural rights should be included to support the rule of law. The chapter turns thirdly to examine the case for rights to go beyond procedure and to provide an extensive normative foundation for constitutions including many varieties of substantive rights. It discusses the relationship between political values and moral judgments and concludes on the importance of recognizing that some moral judgments are formed outside constitutional frameworks.
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