Abstract

One of the problems faced by neoconstitutionalism is how to answer the charge that constitutional courts lack democratic legitimacy. There no single way to solve this problem. Alexy does so proceeding from his constitutionalism of principles, arguing that the problem can be addressed by an "argumentative representation" model on which the legitimacy of these courts should not be measured by a standard of popular representation but is rather grounded in the agreement that judges reach in their arguments. Ferrajoli, by contrast, proceeding from his constitutionalism of guarantees, rests the democratic legitimacy of constitutional review, not on a notion of argumentative agreement, but on the judges' complete subjection to democratically enacted law. This difference between the two approaches explains the two authors' different ideas of basic rights. According to Alexy, the concept of basic rights to be balanced as optimization requirements could lead to a situation where judicial activity escapes the binding force of law. According to Ferrajoli, on the contrary, the concept of basic rights as regulative principles applied as rules warrants an application of basic rights by subsumption, and this means that judges are fully subject to the law.