The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro

Abstract

The distinction between the creation and application of law, as Paolo Sandro writes at the beginning of The Making of Constitutional Democracy, is a central part of everyday legal discourse (1).1 Yet this distinction is something that many legal theorists have either undermined or dismissed, by arguing that law-application is not really possible (in other words, that law-application is just a form of law-creation). This attitude is problematic—according to Sandro—on at least two levels (1-2). First, without the distinction, it is unclear how law can provide normative guidance to its addressees, given that laws would not be able to tell agents what to do unless and until they are the subject of adjudicative decisions. Second, without the distinction, it seems, we are forced to reject a central legitimating ideal behind representative democracy—namely, the idea that elected representatives make (most of) the law in the name of the people. If law-application is not possible, the idea that legislators make law that judges are bound to apply lacks any foundations (2). Sandro’s main goal, then, is to propose and justify the distinction, and to show how law’s action-guiding capacity and constitutional democracy are premised on it (17).