Constitutional State in crisis: The Rule of Law in dispute

Dr. María Emilia Barreyro

Laufzeit des Forschungsprojekts 12/2017 – 10/2021

The constitutional state has experienced more than one crisis in the 20th Century and the political and social events of the last decade indicate it’s facing another one. In effect, one of its central pillars, the idea of the rule of law, has recently been challenged from different positions. Populist movements, for instance, dispute its value because it is seen as dismissive of the will of the people.  Positions that claim to rely on more realistic assumptions than normative theories, show that the permanent state of emergency has become one of the essential practices of contemporary states, including the so-called democratic ones, and thus, the rule of law is no more than ideology. From republican approaches, it’s pointed out that the standard notion of rule of law is consistent with new forms of arbitrariness, for instance, with respect to non-citizens persons, and therefore, a more robust concept of the rule of law is claimed.

Taking this debate into account, the main aim of my research project is to explore, within the framework of the discourse theory of democracy and law, a notion of rule of law that embraces the notion of human rights within its scope, including those rights that protects private as well as public autonomy. Thus, the reduction of non-arbitrary state-power as the main goal of the rule of law ideal will be coinceived as closely connected to the respect of both civil and political rights. The first part of my project will engage with the discussion about the independence of the rule of law from human rights protection, while the second part will show why the inclusion of the public dimension of autonomy within the scope of the rule of law is essential to illuminate the concept of arbitrary power, and with it, the concept of rule of law. 

Selected publications related to this project

Barreyro, María Emilia and Carlos Gálvez Bermúdez, translation into Spanish of the paper “Noumenal Power” of Rainer Forst, Madrid, Las Torres de Lucca, 2019, V. 8, N°14.

Barreyro, María Emilia, “Direct-democratic Institutions: direct and democratic?”, United Kingdom, Jurisprudence. An International Journal of Legal and Political Thought, 2019, Volume 10, Issue 3, pp. 313-333. *peer-reviewed

Barreyro, María Emilia, “Formas puras y corruptas de referéndums. Notas para una evaluación de su legitimidad democrática”, México, Isonomía. Revista de teoría y filosofía del derecho, 2019, N°49, pp. 71-102. *peer-reviewed

Barreyro, María Emilia, “The purest form of communicative power. A reinterpretation of the key to the legitimacy of norms in Habermas’s model of democracy”; U.S.A., Constellations. An International Journal of Critical and Democratic Theory, 2018, Vol. 25, Issue 3, pp. 459-473. *peer-reviewed