Frankfurt: Suhrkamp. The basic normative ideas of all democratic constitutions today are expressing nothing else than the universal republican principle that all affected by the law all addressees must be the authors of the law. To enable this authorship, individual rights must be concretized already on the level of constitutional legal norms, which are prescribing the organization and competences of the different branches of power.
Democracy is not only for but also by and through the people. Dawson and F. As far as the people are not directly involved in legislative, executive and judicial power, the constitutional law that is derived from and exercised by the constituent power of the people alone performed through voice, election and vote , binds all legislative bodies. On the next level of concretization, the legislative bodies of the people bind their executive and judicial representatives, including those of the Constitutional Court.
Therefore, Art. It must include equally, all voices available, and not only those of the addresses of law. The inclusive as well as the exclusive discourses and decisions both must be public, contested and deliberative. As public processes, again normatively speaking they penetrate and conflict with one other within the same circle of democratic legitimization. As all modern law, rights may have a moral content, but within the legal system, they function exclusively as positive, hence valid and changeable law. Different from ancient and modern Platonism and platonic republicanism, modern republicanism does not as Berlin wrongly assumes relate truth claims and rationality to eternal ideas and natural laws truth as mirror of nature but to the formation of a contingent and timely will.
General ideas are not, as Marx rightly observed, the origin and measure but the product of the struggle of the orators and the other procedures of legislative will formation. Within the modern framework of republicanism ratio is voluntas that is contingent, and no longer, as in the ancient framework, nature that is eternal.
Kant The Philosophy of Law. Edinburgh: Clark, , To be not unjust, legislation must presuppose the identity of authors and addressees of the law, of rulers and ruled as a legal norm as in Art. Aulehner, A. Dengler and K. Munich: Boorberg at It needs public contestation of an existing and legally institutionalized consent hence, the reflexive potential of communicative negation to make the rational potential of an existing consent and its institutional embodiments manifest. Habermas Between Naturalism and Religion. Cambridge: Polity, p.
Only through contested public will formation and not just through an application of the principle volenti non fit injuria rationality that is communicative, can be embodied in legal norms and institutions. However, here the cognitive normative insight that people were full of bad resentment, prejudice, biased and wrong for hundreds of years to exclude, oppress and persecute homosexuals, had become irresistible and a rational motive to change a law that was founded in tons of extremely bad reasons.
Democracy finally must solve these and other problems of the public by ever better solutions of the recalcitrant problems of the society, its social structure, its subsystems, its value spheres and cultures, and its environment. There is no democracy without successfully solving social, societal, environmental and technical problems. Otherwise, people cannot find out which of the many possible solutions of social, economic, political and cultural problems are the best ones. The need of alternatives for the life of democracy is as urgent as that of alternative hypotheses for the life of science.
Otherwise, both dry out and die. Under the premise that all affected by the law should be its authors, the general will is the legislative will that has to be generated by socially, politically and culturally inclusive procedures of public opinion and will formation. It usually ends with majority decisions. However, these decisions are democratically legitimated only as far as they are due to procedures, which ensure equal and individual access of all addresses of the law to voice and vote and office. In this process voice if anything, and if we follow Habermas is the origin of the ratio that determines voluntas and through voluntas legislation.
All exceptions from inclusion of the affected e. An important implication of this argument is that rule of law and democracy both presuppose each other necessarily. Democracy without rule of law is immediate domination of the losers by the winners of arbitrary political selection that is beyond the law. Kant would have called it — with a concept that has become problematic today — state of nature.
Complementary, rule of law without democracy is an instrument of stabilizing — as Kant would have said — despotic government in Kant's terminology provisorisches Recht. The latter is what exemplary can be observed in Europe today. Under conditions of global capitalism rule of law and individual rights without sufficient democratic legitimation causes the establishment of an undemocratic and socially and politically increasingly unequal regime of political economy see below: III, IV.
However, this is not the whole story about Europe today, even if it is more than 90 per cent of the story. At least, since the Lisbon Treaty Treaty on the Functioning of the European Union TFEU introduced the ordinary legislative procedure , the European Union has a democratic constitution that is a whatever insufficient realization of the same modern republicanism that was introduced in the realm of public law by the famous declarations of the 18th century.
According to the text of the Treaty, there exists a normative order of transnational democracy in Europe. Already this transforms the Treaty whatever else it says from an international treaty into the Constitution of Europe. This is not nothing but these days becoming less and less. European and national law overlap and interpenetrate to an extend that affects every subject of law. Normatively , Europe is a single community of democratic legislation that could be described as a pouvoir constituent mixte.
Oxford: Polity; C. Most similar in the meaning of a family resemblance to this type of federal constituent power are the US, the Canadian, and the Constitution of Switzerland. All these organizations, institutions, mechanisms and procedures are deeply undemocratic. They are now at the center of the factual constitution. This factual constitution is a constitution of authoritarian liberalism. The system of authoritarian liberalism is embedded the Lisbon Treaty's constitutional law, and concretized by European ordinary law:. First, the already 50 years old ordoliberal economic constitution of Europe has its basis in European competition law Article 3 1 g EC, now: Protocol No 27 on the Internal Market and Competition, annexed to the Treaty of Lisbon.
Second, the budgetary regime of the EU is relying in the fiscal, debt and deficit criteria of Art. The European Council of prime ministers and presidents is democratically legitimated for national foreign policies but not for European transnational and national domestic politics , which it performs primarily. In many cases, the 28 member states decide the fate of one member state X but the decision is democratically legitimated only by member state X. Available from: www.
However, it is most powerful branch of power in Europe, but completely beyond the European constitutional law of check and balances. Its economic policy represents a generalisation of the conditionalities placed on debtor countries.
EconStor: Demokratische Politik in der internationalisierten Ökonomie
Now all member states of the monetary union must avoid current account deficits and maintain fiscal austerity at all times. But if this strategy should succeed in reducing imports and generating exports, as did for Germany after , then it will generate external surpluses, which then must be matched by external deficits elsewhere. Moreover, the rescue programs are designed to rescue capitalism from democracy. In this context, it is highly significant that the Commission took infringement action against Hungary, not because of the countries massive human rights violations but on grounds of interference with the independence of its Central Bank.
Finally, the Trilogue that is at the center of European constitutional law of check and balances Staatsorganisationsrecht relies on a tricky dialectical use of the autonomy of constitutional agencies Organautonomie. It endows the European institutions with an elegant legal method to bypass and neutralize the public sphere of the ordinary legislative procedure that is located in Parliament — by use of the same ordinary legislative procedure. Every law is already negotiated before any public conflict about it can occur.
Therefore, nearly all European laws are passing Parliament without discussion, and after the first reading. Most of these legal and illegal innovations are factually amending European constitutional law, bypassing the formal amendment procedure.
The end of the European Dream
Facticity trumps normativity. In case of doubt, the European leaders do not send the marines, because in case of doubt competition law trumps democracy and human rights. The German government already deliberated about taking serious state debts as a major human rights violation taken seriously, this would allow measures of Chapter VII UN.
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However, they do not need Chapter IV UN, and they do not need the marines because showing all the other nice instruments of fiscal torture to the victims still works, as we have seen the last nights and days in Brussels. One must keep in mind, that the present Greek government from the beginning was much less leftist than the Swedish government was in the s.
The most disastrous effect of the rule of the technocratic system over Europe is that democratic decisions meaningful campaigns and parliamentary legislation over macroeconomic alternatives like that of Keynesianism vs. This desiccation of the public sphere of public opinion and public law that is its new structural transformation causes the end of democratic solidarity in Europe.
Only microeconomic alternatives between different strategies of cutting social welfare and education, of introducing flexible work places, of privatising public property are still available, and that means, there is no alternative, and no alternative means, as we have seen, that there is no democracy possible any longer. Authoritarian liberalism destroys the basic idea of freedom as unity of ratio and voluntas that distinguishes modern from ancient republicanism.
From the point of view of modern republicanism, the bypassing of public opinion and public law , and the repression of any serious public debate on macroeconomic alternatives means that politics is losing democratic legitimation because public truth claims have no chance any longer: voluntas is decoupled from ratio. Das Referendum in Griechenland hat gezeigt: Es gibt ein paar Dinge auf der Welt, wo die Demokratie nichts zu suchen hat.
Authoritarian liberalism is a regime where economists and judges are the philosopher kings. However, an example such as the Trilogue also shows that this dream is not that stable constitutionalized that it cannot be changed democratically, already from within the present system of European public law. These political decisions of the hegemonial powers, taken behind closed doors, have assimilated the normative constitution of European democracy to the factual constitution of the hegemonial budget regime from within the normative constitution, in particular caused by the specific European and German combination of strong rule of law Rechtsstaat with weak democracy.
Yet, this at least can be changed again from within the normative constitution through public contestation, and then changing parliamentary majorities. This way assimilation of political democracy to economic dictatorship can turn into democratic accommodation of the dictatorial budget regime to the imperatives of the normative constitution of Europe, even if that becomes ever harder to reach with growing European and global social inequality. The global process of increasing social differentiation between the rich and the poor strongly enhances the technocratic system.
It can be observed since forty years in all normatively effective that is really, and not only nominally democratic regimes from Berlin to Tokyo. There is overwhelming empirical evidence that social inequality causes political inequality. Wilkinson and K. Pickett : The Spirit Level. New York: Bloomsbury; see: T.
Judt : Ill Fares the Land. New York: Penguin; A. Warum die sinkende Wahlbeteiligung der Demokratie schadet. Frankfurt: Campus Verlag; A. Streeck eds Politics in the age of austerity. Cambridge: Polity Press, pp —;T. The poor are discouraged ever more from election to election. Their turnout shrinks to 30 per cent and less.
The rich are encouraged, and their turnout comes close to per cent. The democratically disastrous effect is that the parties on the left are going right, further and further, and from electoral campaign to electoral campaign — just because otherwise they would run out of power. New York Times, 21 March, p. This again stabilizes and enhances the technocratic system of no alternatives on both levels , the national and the transnational. A spectacular case marks the shift of political and constituent power from the public sphere of the people to the economic system.
Post festum Draghi's breach of the constitution legally has been healed by ECJ on 6 June , such as in the King healed the breach of the constitution two months after the revolutionary act of the Third Estate. Herausgeberschaften Demokratie in Aufruhr. Kallinich, J. Kiegelland, R. Lorenz, R.
Hoeft, J. Ballenthien, M. Walter, S.
Info Rechtspopulismus in Europa. Europawahlen — der rechte Rand im Aufwind? Kallinich und R. Hiemann, D. Kallinich, R. Mueller-Stahl, K. Lorenz und K. Kallinich, K. Finkbeiner, P. Dudek, J. Freckmann, P. Geiges, R. Pausch, J. Havarie eines politischen Projekts? OBS-Arbeitsheft 74, Frankfurt a.
Klecha [download] Artikel Mit Laptop und Lederhose? Die Landtagswahl in der Analyse. Protest, Bewegung und digitale Kultur. Editorial, in: Forschungsjournal Soziale Bewegungen, 27 3 , S. Ballenthin, C. Hoeft, M.
Ulbrich, M. Rhode, J. Rohwerder, K. Irrungen oder Zeitgeist? Neef und R. Andere Perspektiven, neue Fronten.
Related Moderne Demokratietheorie: Demokratie und Staatsbürger (German Edition)
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