Democracy as Legitimacy: The German Understanding of the Democratic Principle

This paper is divided into two parts. The first part claims that the democratic principle, a core element in modern constitutionalism, has a complex structure. It suggests that one way of describing such structure is by differentiating two sets of conceptual dynamics within the democratic principle. These conceptual dynamics refer to, on the one hand, legitimizing the exercise of political power, and on the other hand generating decisions that ground the exercise of political power. The second part draws on the understanding of the democratic principle presented in the first part to analyze its reconstruction by the German Constitutional Court. The core claim is that the main categories by which the democratic principle is legally operationalized are constructed as legitimatory, obscuring the second dimension inherent to it: the production of political power.