That Obscure Object of Desiring Literal Meaning: A critique to 'moderate' legal cognitivism

Abstract

The main idea of The Making of Constitutional Democracy: From Creation to Application of Law (2021) is that democracy and constitutionalism rely on the distinction between 'law-creation' and 'law-application'. This distinction - according to Paolo Sandro - would be not only crucial for the legitimacy of constitutional democracy but also a necessary condition within its conceptual structure. This brief article is organized in two parts. In the first part I show that, whilst the aforementioned distinction can be understood and assumed in diverse forms, Sandro adopts one of its diverse possibilities of understanding, which corresponds to a cognitivist perspective of legal communication. And in the second part I seek to show that, in order to maintain the connection between constitutional democracy and the aforementioned distinction, there are two important reasons why it is unnecessary to adopt the 'moderate cognitivism' assumed by Sandro: a) because it can be criticized for some important flaws; b) because there are other theories - even within the moderate positions about determinacy in law - capable of achieving the same objectives without those defects