The Rule of the Courts

Francisco Balaguer Callejón

its nature of absolute power but only its holder, since it was an instrument used to promote revolution 27 . It was necessary, therefore, to evolve towards a democratic system in which the absolute power of the majority did not exist and its decisions could be controlled through arbitration bodies and jurisdictional instruments. Recognising pluralism means that it will no longer be possible to establish unlimited power within the constitutional order. A pluralist democracy requires common rules to which everyone must adhere to guarantee peaceful coexistence among the various sectors of society. Pluralism cannot maintain the fiction of essential homogeneity that conceals the political conflict inherent in a pluralistic society. On the contrary, it is necessary to establish a constitutional framework for this conflict, transforming constitutional texts into ‘constitutional law’ and legal norms. It could be argued that in the Constitutional State of normative constitutions (modelled on the German Grundgesetz and the 1948 Italian Constitution), the greater the popular sovereignty, the less the democracy. While the question of democracy was implicit in the concept of popular sovereignty in the Legal State that emerged from early constitutionalism (although this was negated in practice by census suffrage), in the Constitutional State that emerged in Europe after the Second World War, democracy is incompatible with the exercise of sovereignty within the constitutional order 28 . Acts of sovereignty are impossible because all state powers are subject to the law 29 . 27 As Barthélemy and Duez point out, the revolutionaries, who were accustomed to the idea of sovereignty being embodied by a person, namely the prince, now attributed it to a moral entity: the Nation. This meant that the king was opposed by a superior entity, thus facilitating the struggle against absolutism. Ibidem, cf . p. 74. 28 Cf. F. Balaguer Callejón, “Democracy. The People” en Wolfgang Babeck and Albrecht Weber Editors, Writing Constitutions, Volume 3 : Constitutional Principles, Springer Nature , Switzerland, 2025. 29 Friedrich will warn of the dangers of considering the principle of sovereignty compatible with the constitutional order. For Friedrich, if we go back to the great thinkers who created the modern definition of the State, we will find that the definition of the sovereignty of the people is a contradictio in adjecto , a contradiction in itself, because when Bodin and Hobbes thought about the need for a sovereign, it meant that there had to be another person, someone who was on the margins, not subject to the law, and who, as far as possible, made the final decision in isolation. However, in a constitutional democracy

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