The Concept of Liberal Democratic Law

This book rereads seven pivotal 20th century jurisprudential and political philosophical positions represented in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, John Rawls, Rudolf Smend, Hans Kelsen and Carl Schmitt from the perspective of a concept of liberal democracy that pivots on a stable distinction between the symbolic and real realms of politics envisaged by Claude Lefort. It also articulates this founding distinction of liberal democracy in terms of the instruction to stabilise the relation between potentiality and actuality that can be drawn from the work of Giorgio Agamben, and from Ernst-Wolfgang Böckenförde’s seminal dictum that liberal democracy lives from principles it cannot guarantee. The book assesses the seven jurisprudential and philosophical positions of Hart, Dworkin, Kennedy, Rawls, Smend, Kelsen and Schmitt with regard to their capacity to sustain Lefort’s and Agamben’s respective distinctions between the symbolic and the real, and between potentiality and actuality. It scrutinises the extent to which they heed the instruction that liberal democracy must refrain from realising its founding principles. For purpose of doing so, it also portrays these seven jurisprudential/philosophical endeavours as twentieth century responses to a long history of political theoretical and political institutional endeavours that commenced in fifth century Athens, marked the transition from the republican to imperial Rome, fuelled the conflicts between secular and clerical power during the Middle Ages, and persisted to burden the attempts of the French Revolutionaries to stabilize the unity of the “People” in the years after the revolution.