The Democratic Paradox Revisited - how liberal constitutionalism supports democratic equality

Abstract

The purpose of this article is to attempt to answer the question whether the combination of liberal constitutionalism and democracy is accidental, or whether it is possible to observe an important connection between the two elements. In the first part I discuss the so-called democratic paradox resulting from the tension between the principle of democratic self-determination and liberal limitations connected with the rule of law and the guarantees of the rights of an individual. Indeed, modern democracy is a mixed system consisting of democratic procedures contained in the constitutional framework of the representative system. Part two of the article deals with the tension between radically understood democracy and constitutionalism. From the point of view of democracy as such, any – also constitutional – limitation of the democratic will is seen as undemocratic. Is constitutionalism therefore irreconcilable with democracy? In the third part I point to such an understanding of constitutional liberalism as emphasises the role of civil rights as constitutive elements of the democratic system. In this approach, liberal constitutionalism is a form of reinforcement of civic subjectivity. Liberal constitutional rights are to facilitate democratic participation and the protection of pluralism. Thus, an affirmation of pluralism leads to perceiving liberal constitutionalism as being closely related to democracy.