Author Interview: The Making of Constitutional Democracy: From Creation to Application of Law

We talk with Paolo Sandro about his new book ‘The Making of Constitutional Democracy: From Creation to Application of Law’

Tell us a little bit about the book

Thank you for having me! In a nutshell, the book investigates the distinction between the activities of law-creation and law-application and underscores its relevance for legal, constitutional, and political theory. The fascinating thing is that, while the distinction is routinely assumed – without much afterthought – in everyday legal discourse (in the courtroom, in the university classroom, in the law firm, etc), when legal theorists have looked at it more closely they have almost always ended up undermining it, if not saying explicitly that it is untenable. But if this were to be the case, as I show in the book, the very idea of constitutional democracy would be untenable! Therefore, through an interdisciplinary approach which combines history, anthropology, political theory, philosophy, and law, I offer the first (to my knowledge) comprehensive defence of the distinction, and show its relevance not just for the theory and practice of constitutional democracy, but also for several discrete issues in public law, including the role of discretion in the legal process, the ongoing relevance of the separation of powers doctrine, and more.

What inspired you to take up this project?

The book is based on my research for my PhD in Public Law at the University of Roma Tre and for my PhD in Legal Theory at the University of Edinburgh. In this respect, I have always worked at the intersection of public law and legal theory – and one of the key drivers of the project was precisely to show that the two cannot be considered (as they unfortunately often are) as separate and ‘independent’ disciplines. More specifically, my initial research interest at Edinburgh was to look at judicial review of administrative action from the perspective of the separation of powers doctrine, with the aim of putting forward a philosophically-informed framework to evaluate the scope of intervention for courts in adjudicating administrative law decisions. However, about two years into the PhD, I realised that there was a much more foundational issue at stake – that of the feasibility of the distinction between creation and application of law – and so I had to ‘pivot’ the research focus. My supervisors weren’t exactly pleased, as you can imagine, but luckily they trusted me and in the end it worked out for the best, I reckon!

Whose work was influential on you throughout the project?

Meeting Luigi Ferrajoli whilst an undergraduate law student in Rome was one of the luckiest breaks I have had in my student/professional career. I started working with him while he was finishing his monumental Principia Iuris (Laterza, 2007), and learned quickly enough that in order to do ‘philosophy of law’ (or jurisprudence, as often called in the Anglo-American world), one needs first to study law properly and understand how it works in practice. Ferrajoli’s work also elicited my interest in the theory and practice of constitutional democracy, and this is clearly reflected in the book. Besides him, there are too many other thinkers whose work has been influential and who are discussed at length in the book, but I want to mention at least Neil Walker, who was my co-supervisor at Edinburgh and whose thinking on the relationship between democracy and constitutionalism has helped me refine my own approach, and Emma Borg, whose theory of semantic minimalism I have adopted (with modifications) in order to develop what I call the ‘text-act’ theory of legal meaning.

What challenges did you face in writing the book?

Where do I start? In terms of method, the first and foremost challenge has been to write a book which was going to employ the methods of analytical jurisprudence (in particular conceptual analysis, albeit in a revised form) but that could still be accessible – and interesting, hopefully – to a much wider audience than professional legal philosophers. If I have succeeded, this is the genuinely the biggest compliment a reader might pay me.

From a personal point of view, the biggest challenge has certainly been to find the time to work on the book manuscript whilst being employed in teaching-intensive institutions for about seven years after the completion of my PhD in Edinburgh. I won’t lie, it was dreadful at times, and it pushed me to physical and mental burnout. If I managed to survive it and succeed, eventually, it’s only because of my support network, in which my parents and my wife (who is also an academic and has faced a lot herself) played the most crucial role.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

The two meta-theoretical objectives of the book are to contribute to bridging the existing gap between legal theory, public law and other disciplines (including political theory, philosophy of language, legal history, and legal anthropology), and that between legal and constitutional theory in Anglo-American literature and in Romance languages (Italian, Spanish, French, and Portuguese) scholarship. This explains, among other things, the extensive citation apparatus of the book, which will hopefully constitute a useful roadmap for English-only speaking readers who might not be familiar with some of the authors discussed therein.

An apt illustration of both gaps is given by the concept of legal discretion, whose theoretical elaboration in analytical jurisprudence and administrative law scholarship (especially in the Continental European tradition) has proceeded on parallel lines for more than a century, without ever intersecting before. As I show in chapter four of the book, instead, only an ‘integrated’ approach can yield a fuller – and explanatory helpful – understanding of the role that discretion plays in the processes of law-creation and law-application within constitutional democracies.

What’s next?

You mean besides presenting the book to different audiences and fighting imposter syndrome every time an incredibly perceptive critical question is asked? I’m currently working on two main projects. First, I’m writing a paper that applies the theory of constitutionalism as ‘legal otherness’ which I develop in chapter two of the book to the ongoing debate in the UK between so-called legal and political constitutionalists. In a nutshell, in the paper I argue that the common law has historically provided a limitation (albeit not comprehensive) to what the monarch first and Parliament later could do via legislation. In this sense, I argue for the rejection of the unlimited theory of parliamentary sovereignty that has become orthodoxy in UK public law discourse. The second, and larger project, is once again at the crossroads of public law and analytical jurisprudence and looks at the use (and misuse) of soft law during the Covid-19 pandemic by national governments, and at what this might tell us for the persisting questions about the nature of law. Wish me luck!

Paolo Sandro is a Lecturer in Law at the University of Leeds. He holds a PhD in Legal Theory from the University of Edinburgh and a PhD in Public Law from the University of Roma Tre.

The Making of Constitutional Democracy: From Creation to Application of Law is available from Hart Publishing. For a 20% discount enter code GLRT5TUK.

You can already read a short review of the book by Barbara Levenbook (here) and two longer ones by Felipe Jiménez (here) and by Sebastian Lewis (here).

Author Interviews