This chapter is a plaidoyer against dualism in constitutional law. Dualism stands for the idea that constitutional law cannot be fully apprehended neither within the categories of ordinary law nor within the understanding of the constitution as a law. Moreover, according to dualism, “the political” can always irrupt in the normal legal order and conform it to its fundamental designs. Schmitt is the greatest herald of dualism in constitutional law, and Kelsen its foremost critic. Notwithstanding Kelsen’s importance as a critic of dualism and the persistent relevance of his points of view on this issue, his pragmatic view of representation needs additional theoretical foundations regarding the concept of representation in a legal order. These additional foundations are provided by Hans Lindahl’s legal work following the “Copernican turn of representation”.

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No Democracy Without Representation: Against a Certain Dualism in Constitutional Law

  • Miguel Nogueira de Brito

摘要

This chapter is a plaidoyer against dualism in constitutional law. Dualism stands for the idea that constitutional law cannot be fully apprehended neither within the categories of ordinary law nor within the understanding of the constitution as a law. Moreover, according to dualism, “the political” can always irrupt in the normal legal order and conform it to its fundamental designs. Schmitt is the greatest herald of dualism in constitutional law, and Kelsen its foremost critic. Notwithstanding Kelsen’s importance as a critic of dualism and the persistent relevance of his points of view on this issue, his pragmatic view of representation needs additional theoretical foundations regarding the concept of representation in a legal order. These additional foundations are provided by Hans Lindahl’s legal work following the “Copernican turn of representation”.