The theory of juridical garantism and popular sovereignty: The apparent paradox of counter-majoritarian decisions
DOI:
https://doi.org/10.4013/rechtd.2012.41.05Abstract
The concept of sovereignty is essential to understand contemporary political thinking. This perception is due not only to the discussions on the secularization of the State, but secularialso on the subject of political power and its consequences. If the initial idea of sovereignty as proposed by Bodin, among others, is based on a juridical-political facet, rather than on a religious one, it would have, as attributes, the character of being perpetual and absolute, not allowing, thus, any power superior to itself. However, the existence of counter-majoritarian decisions threatens this sovereign concept. The theory of juridical garantism attempts to explain this relation as an apparent paradox, since, because of its respect for the foundations of the Democratic Rule of Law, such as human dignity, liberty and equality, a limitation to the sovereign power of the State would be possible, making it thus possible that decisions not corroborated by a democratic majority be considered as having the character of legitimacy.
Key words: sovereignty, juridical garantism, counter-majoritarian decisions.
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