Populist era under the rule of law: sovereignty (without limits) or (intangible) democracy?

Abstract

Democracy seems to be very sick, but it has to resolve its original paradox. The institutional crisis and the “populist era” require a new definition of what is democracy and which are the limits of popular power. However, the historical conflict between liberalism (constitutionalism) and democracy (popular sovereignty), as Chantal Mouffe declared, ought to be turned down. Democracy does not have two different and antinomian traditions: on the one hand, the legal face and its individual freedom as control of power, guarantees of fundamental rights, and subjection of constituted powers under one juridical order; and, on the other hand, the political side as identity between ruler and ruled, democratic paradox, and people-building and its vox populi vox dei. Moreover, if we want to defend our Democratic and Social State, we need to reject the mistaken doctrine of Spanish Constitutional Court about the relationship between rule of law and legitimacy. Thus, the definition of democracy must fight against the return of the people as unlimited will. Democratic system is also constitutional values and state integration under the international order and its limits of sovereignty (ius cogens). In short, the democracy ought to be also understood as intangible meaning, or —as mere majoritarian and electoral power— the totalitarianism will win this final fight.