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Legitimacy Gap - Secularism, Religion, and Culture in Comparative Constitutional Law by Depaigne, Vincent (13th July 2017)

Part I The Secular State Between Procedural and Substantive Legitimacy, 2 Constitution and Legitimacy: Procedural or Substantive?

From: Legitimacy Gap: Secularism, Religion, and Culture in Comparative Constitutional Law

Vincent Depaigne

Chapter 2 looks at the contemporary forms of legitimacy in the secular state, underlining the dominance of a procedural form of legitimacy which leaves a ‘legitimacy gap’ that calls for substantive—cultural and religious—forms of justification of political authority. It is suggested that contemporary forms of legitimacy are marked by a move from ‘substantive’ towards ‘procedural’ legitimacy based on democratic rule and by a decline of the legitimacy of human rights. The classical republican model based on natural rights and rationality is being displaced by a procedural view of democracy. As a result, ‘substantive’ forms of legitimacy are required to sustain the legitimacy of the contemporary secular state, and this means ‘locating culture’ in the state. The central problem of constitutional law—defining ‘the people’—cannot be solved by a purely procedural approach, but needs to refer to a substantive dimension.

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