In The Crisis of the European Union Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term ‘rational reconstruction’ stands for. This article critically discusses the (...) current state of research on rational reconstruction, develops a new reading of Habermas’ method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte. (shrink)

Focusing on the case of Colombia, this article sets out a sociological examination of constitutions marked by strong, activist judiciaries, by entrenched systems of human rights protection, and by emphatic implementation of global human rights law. Contra standard critiques of this constitutional model, it argues that such constitutions need to be seen as creating a new pattern of democracy, which is often distinctively adapted to structures in societies in which the typical patterns of legitimation and subject formation required for democratic (...) government were obstructed. In polities with such constitutions, legal institutions and norm setters have at times assumed the status offunctional equivalentsfor more typical democratically mandated actors and institutions. In such polities, further, global law assumes essential importance as it creates new sources of normative authorization for legislation and stimulates new lines of articulation between government and society. The article concludes that analysis of such polities, exemplified by Colombia, shows that the common categories of democratic-constitutional analysis are no longer always adequate for understanding current tendencies in democratic formation, and they can easily undermine democracy itself. (shrink)