Bertrand Mathieu, Law versus Democracy?
Mathieu Bertrand
2023/ EPLS Vol. CXXVII
Print edition
23.00 €

Bertrand Mathieu, Law versus Democracy?, (transl.), European Public Law Series / Bibliothèque de Droit Public Européen, vol. CXXVII, European Public Law Organization (EPLO), Athens, 204 pp., 2023, ISSN: 2308-8648, ISBN: 978-618-5417-14-7

While law is inseparable from the construction of democracy, to such an extent that democracy and the rule of law are confused, the main idea of this book is to show that law can also stand against democracy. The figure of a people inscribed within borders and sharing a common destiny has been inseparable from the construction of a democratic system. These constitutive elements of the State crumble. The existence of non-state legal systems obeying other legitimacies, the development of individualism and communitarianism, the degradation of fundamental rights into moralism, the weakening of the political power, challenged, in particular, by the power of judges, the loss of the effectiveness of the concept of general interest, the challenges of radical and political Islamism, are threats of disaggregation. If liberal democracy, which has been a Western model of government, is worthy of being saved, it is necessary to clarify the competences of the States and to empower the People again with the tools that allow them to express themselves. The French edition of this book has also been translated into Hungarian, Russian and Spanish.

Bertrand Mathieu is Professor at the Sorbonne Law School - Paris 1 University, President Emeritus of the French Association of Constitutional Law, and a member of the Venice Commission (Council of Europe). He is former senior member of the French Council of State and former member of the French High Council of the Judiciary and of various commissions responsible for preparing the reform of the French Constitution. Bertrand Mathieu is member of the Board of Directors of the European Public Law Organization. He is Doctor honoris causa of the University of Szeged (Hungary). He is the author of numerous books and articles on constitutional law and on fundamental rights, among which: Constitution: Rien ne bouge et tout change, Lextenso, 2013; Justice et politique: La déchirure?, Lextenso 2015; Droit constitutionnel et Institutions politiques, LGDJ, 2022.


Introduction: The Crisis of the European Model of Liberal Democracy

Part I

Law as a Condition of Democracy

Chapter 1: State Law as a Framework for Democracy

Chapter 2: Values, the Ideological Support of Democracy

Chapter 3: The Determination of the General Interest as a Purpose of Democracy

Chapter 4: Representative and Majority Mechanisms as Tools of Democracy

Chapter 5: Legal and Political Requirements as Conditions for Democracy

Part II

Law as a Factor to Weaken Democracy

Chapter 1: The Development of Non-democratic Legal Orders

Chapter 2: Human Rights: An Ideological Framework Prevailing over Democratic Expression A. The Excesses of the Conception of Fundamental Rights

B. Law as an Instrument of Ideological Framework

C. The Strengthening of Counter-powers to the Democratic Political Power

Part III

Overcoming or Rebuilding Democracy: By What Law?

Chapter 1: The Possible Developments of Democracy

A. The Mirages of Participatory Democracy

B. Populism as a “Foil”

C. The Experience of Illiberal Democracy

Chapter 2: Law to the Rescue of Democracy

A. Restoring and Clarifying the Competence of States

B. Re-establishing the Instruments of People’s Intervention in Political Decision-making

C. The Referendum, an Instrument of Direct Expression of the People

Conclusion: Saving Liberal Democracy?

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