DOI: 10.1111/1467-8675.12310 ORIGINAL ARTICLE Democratic legitimacy and forms of constitutional change Andrew Arato The New School, Lower Manhattan, New York, NY, USA Correspondence Andrew Arato, The New School, Lower Manhattan, New York, NY, USA. Email:arato@newschool.edu I was interested in Chile even before the Coup of 1973. Like so many others abroad, I was deeply disturbed by the story of the dictatorship and very much encouraged by the way it ended. Even as I recognize the value of all the critiques of the transition and its less than full completion, as well as of the reform policies of post transition governments, I am very impressed by the achievements of the epoch of the Concertación. Given my own professional interests, my work in theory and comparative politics, in this lecture I will address two questions. First, does Chile need a new constitution? And if yes, secondly, what would be the best way to achieve such outcome. The highly political subject area of constitution-making should be studied, in my opinion, from a double point of law and politics. A purely empirical approach that today persuades even many lawyers, tends to lose sight of the object domain and often winds up discovering regularities that the best lawyers and political actors already knew too well. A purely legal approach, however, tends to mistake formal process for the real thing, to disregard the actually operative constitution and come up with artificial distinctions like replacement vs. amendment, which do not represent mutually exclusive possibilities. The founders of social and political science knew better. I do not have the space to illustrate the methodological dualism of the Young Marx, Durkheim, and Weber or Georg Jellinek, Herman Heller, Ernst Fraenkel and C.J. Friedrich, which always involved looking at the same phenomena from both normative and empirical points of view. Today the sociology of law and the so-called public law field of political science are, unfortunately, moribund. They most certainly should be revived. In any case, I see myself in this dualistic tradition, and you will excuse me if I begin with a legal set of distinctions often misunderstood by Latin American commentators. I will then go on to considerations more familiar to political scientists. 1 FORMS OF CONSTITUTION MAKING The term constitution denotes three levels, of which the first two are of interest to lawyers. These are formal, material and empirical. As Kelsen best explained, constitution in the formal sense is the document called the constitution, that famously exists in almost all countries today except for the United Kingdom. In the material sense, the constitution is the set of “secondary” rules which determine and constrain rule making and it exists in all regimes, except perhaps the most extreme autocracies that have one rule only, the Fuehrerprinzip: “Whatever the Dictator says is law.” Generally some but not all of the material constitution is in the formal one, but not all of the formal constitution is “materially” constitutional. The most important institutions that create and preserve the formal constitution are the documentary Constellations. 2017;24:447–455. wileyonlinelibrary.com/journal/cons c  2017 John Wiley & Sons Ltd. 447