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Demokratie als öffentliches Gut?

Advertisement Hide. Authors Authors and affiliations Oliver W. Chapter First Online: 22 October This is a preview of subscription content, log in to check access. Cambridge: CUP. Google Scholar. Andeweg, Rudy B. In: Legislative Studies Quarterly 30 4 , — CrossRef Google Scholar. Ankersmit, Frank R. In: Rediscriptions 11, 21— In: American Political Science Review 44 3 , supplement. Barber, Benjamin : Strong Democracy. Los Angeles: University of California Press. Bernstein, Robert A. Englewood Cliffs: Prentice Hall. In: ders. Studien zur Verfassungstheorie und zum Verfassungsrecht.

Zur Kritik der heutigen Demokratiediskussion.

JOURNAL ON EUROPEAN HISTORY OF LAW

Frankfurt a. Buchstein, Hubertus : Demokratie und Lotterie. In: Elofson, Warren M. Oxford, 63— Princeton: Princeton University Press. In: British Journal for Political Science 40 1 , — In: Parliamentary Affairs 61 3 , — Cohen, Joshua : Deliberation and Democratic Legitimacy. Oxford: Blackwell, 17— Dahl, Robert A. Dalton, Russel J. Oxford: OUP. In: American Political Science Review 1 , — Dovi, Suzanne : The Good Representative.

In: Rausch, Heinz Hrsg. Darmstadt: WBG, — Dryzek, John S. In: American Political Science Review 4 , — In: Journal of Agricultural and Environmental Ethics 18 5 , — Eulau, Heinz : Changing Views of Representation Beverly Hills, London: Sage, 31— Beverly Hills, London: Sage, 55— Eulau, Heinz et al. Beverly Hills, London: Sage, — In: Shapiro, Ian et al.

Emlékezés a nemzetiszocialista bűntettekre a Német Szövetségi Köztársaságban és Nyugat-Európában

Cambridge: CUP, — Fishkin, James S. New Haven: Yale University Press. Erweiterte Neuausgabe. In: British Journal of Political Science 34 2 , — Boston: Ginn. New York: McGrow-Hill. Oxford: OUP, 1— In: Politische Vierteljahresschrift 43 1 , — In: American Political Science Review 99 1 , 29— Hardin, Russell : Representing Ignorance. In: Social Philosophy and Policy 21 1 , 76— Held, David : Democracy and the Global Order. Cambridge: Polity Press. Gesammelte Abhandlungen zur Allgemeinen Verfassungsgeschichte. Studien zur Wort- und Begriffsgeschichte von der Antike bis ins Berlin: Duncker und Humblot.

London: Simon and Schuster.

Kielmansegg, Peter : Die Quadratur des Zirkels. In: Matz, Ulrich Hrsg. Kirkpatrick, Evron M. In: American Political Science Review 65, — Entwicklungen und Lehren aus unterschiedlichen Forschungsstrategien. Jekyll Wolfgang Friedmann, the last hero of the gentle civilizers, and the many Mr.

Hydes who were the embedded jurists from the American State Department. They then justified the invasion and replacement of a democratically elected government at Dominican Republic spring Jekyll and Mr. Law shall enable government of and by the people, and that means the emancipation from any law to which we have not given our assent.


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At the center of the Kantian mindset is the internal relation of law and democracy. By contrast, the managerial mindset is more about law and economics. The managerial mindset is performed by incremental decision making, gradual change, muddling through a jungle of hegemonic opinions, managing a complex mix of ideal and material class-interests, of unexpected evolutionary hazards and coincidences. Managerial government — from Lenin to Angela Merkel — is government for or against the people. If you want paradigms then the European South today is full of it. The Troika-enforced replacement of elected governments by technocrats and bankers such as Mario Monti or Lucas Papademos is a paradigm case of the functioning of the managerial mindset.

By contrast, the Italian elections February which ended technocratic government, are a paradigm case of the functioning of the Kantian mindset. In both cases the results can be catastrophic. Hyde who wants the bad can cause the good — but without any Mandevillean metaphysical guarantees; and Dr.

Jekyll who is the bearer of the Kantian Good Will can cause bad — but must not. Both mindsets have not only different meanings but also different socio-linguistic extensions. Whereas the Kantian mindset speaks the universal language of everybody, the extension of the managerial language is the exclusive medium of understanding between professional experts, and the political and economic class.

The specialization of their language allows them to draw a sharp distinction between the internal systemic discourse, and the human beings out there in the environment of the system. From the point of view of his own Kantian mindset, Kant himself would have called the members of the managerial class sorry comforters.

However, from the point of view of the managerial mindset the opposite is true. As Mr. Legal and constitutional advances are good examples. A functionally differentiated, hence self-referentially closed legal system produces itself autopoiesis through the combination of normative closure with cognitive openness.

As far as constitutions fulfil the functional requirements of structural coupling they contribute to the enhancement of the adaptive capacities of modern society through cognitive learning alone.

Theorie demokratischer Repräsentation

This, however, requires the Kantian mind-set no longer. All that has to be done, must be performed by managerial incrementalism, legal experts, career politicians and bureaucrats.

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I agree, and I disagree with this argument of Luhmann. First my disagreement. The social evolution is not only characterized by cognitive learning that enhances adaptive capacities, but also by normative learning that is not adaptive but channelling and constraining systemic adaptation. Because legal norms cannot get rid of their internal connection with the colloquial language and the moral self-understanding of their addresses, normative closure does not only enable cognitive and systemic adaptation but also the continuation of normative learning.

All law that is public, is not only opened cognitively to its environment but also normatively to the general and diffuse public sphere. Normative learning or unlearning is at stake for instance in parliamentary or legal landmark debates and decisions which are affecting the general public.

Revolutionary declarations such as the declarations of , or are seldom significant for professional jurists but they are often very significant for philosophers, and for the people, especially when it comes to social conflicts that are structural. Hegel has called a historical sequence of these ideas with the corresponding public discourses: progress in the consciousness or understanding of freedom.

The latter is due to the fact that constitutions are not only evolutionary but also revolutionary advances. Revolutionary advances such as human rights and democracy are neither designed as improvements of adaptation nor can they be explained as improvements of adaptation.

Constraints that are normative, do not only close a legal system for the purpose of adaptive improvements, they disclose new evolutionary paths for cognitive and normative learning. As results of successful normative learning, the normative constraints of systemic adaptation contain the whole emancipatory potential of a respective society. But it cannot be eliminated. The violation of a legal norm is the proof of its existence. So far I am more or less in agreement with Koskenniemi. But now comes my disagreement with Koskenniemi and my partial agreement with Luhmann and the managerial mindset.

Therefore not only cognitive and systemic adaptation never stops, also normative learning never stops. During the long Katzenjammer not only Mr. Hydes evil genius was needed to stabilize Dr.

Zusammenfassung

Jekyll was forced to defend himself against his other self that was Mr. Even if the long lasting fight between Dr. In the technical language of systems theory one can say, that during the process of managerial adaptation and stabilization of revolutionary advances, the difference between Mr. Jekyll again had to be copied into the character of Mr. Jekyll, from within a shared holistic frame of inferential, normative and discursive relations ,[35] Mr. Hyde cannot just get rid of the revolutionary established normative constraints of the Kantian constitutional mindset.

He has to cope with them, if he wants it or not. This, in fact, is the reason why normative learning — different from Luhmann — does not end with the hangover after the revolutionary job has been done. A good example is the global popular protest against the Iraq War of In my second part I will try to combine the Kantian mindset of the Finish jurist Martti Koskenniemi with the managerial mindset of another Finish jurist, Kaarlo Tuori, and apply the combination to the evolution of European constitutional law.

Tuori has suggested to try a highly plausible schema of a general and incremental development of a plurality of European constitutions. Complementary, Tuori neglects and represses the action of the Kantian mindset within the managerial praxis, and in particular he ignores that the Kantian constitutional and cosmopolitan mindset that was at the outset of the European unification process.

I will try to combine both in a way that avoids their complementary blind spots. The battles and struggles were fought in the name of comprehensive democratic and social self-determination. Liberating violence was transformed into the constituent power of a new foundation and the unification of Europe. European unification did not begin with the Treaties of Paris and Rome in and , and it did not begin with the Method Monet but with the new constitutions that all the founding members France, Belgium, Italy, Luxemburg, the Netherlands, and West-Germany had given themselves between and Even the programmes of conservative parties advocated ideas of democratic socialism.

Already in Spinelli, Rossi and Colorni all three communists or socialist resistance fighters in the Manifest of Ventotene [43] had outlined the project of a European federal social welfare state that preceded the later foundation of the national welfare states. Finally, and most crucial for the foundation of the European Union, all founding members of the European Communities bound themselves by the constituent powers of their peoples to the project of European Unification. Only Luxemburg had no explicit commitment to Europe in its constitution but their constitutional court decided that it was implicit.

Fossum and Menendez appropriately are speaking of a synthetic constitutional moment of Europe. In consequence, it can be concluded that, from the very outset, the European Union was not founded as an international association of states. On the contrary, it was — speaking in legal terms — founded as a community of peoples who legitimated the project of European unification directly and democratically through their combined, but still national, constituent powers.

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At the same time and with the same founding act, these peoples, acting in plural, constituted a single European citizenship. Therefore, from the very beginning, the Treaties were not just intergovernmental, but legal documents with a constitutional quality. However, what followed was the long Katzenjammer of gradual incrementalism and the Method Monet. Following Tuori, the evolutionary narrative is structured by a sequence of evolutionary stages. Stage I: The Kantian mindset of emancipation from fascism was repressed by the rhetoric of peace, reconciliation and anti-communism.

The first stage of the constitutional evolution was triggered by the invention of the economic constitution of Europe that consisted in the structural coupling of law and economics. If we look back from today, the beheading of the legislative power that once produced the French Revolution, exactly represented the overlapping consensus between otherwise very different German-Austrian Ordoliberals from the Freiburg-school and the later Neoliberals from the Chicago-school of economics.

Retrospectively the program of economic constitutionalization appears as an immunization of free market capitalism against democratic control in two great steps: First, Ordoliberals took Europe, then Neoliberals took the rest of the world. First the transnational constitution of Europe, then the transnational constitution of the WTO should be detached from national political constitutions. The basic constitutional idea that finally unites Ordo- and Neoliberalism is the idea to change law from functioning as the immunity system of society into law that functions as the immunity system of transnational capitalism , triggering an autoimmune disease by declaring civil war against the rest of the societal body and its legislative organs.

In Mr. Hyde had won his first round against Dr.