Fundamental Works of Constitutional Law
In his contribution, Ernst-Wolfgang Böckenförde1, deals with the relation between democracy, popular sovereignty, the – mostly pre-constitutional – conditions of democracy and the principle of representation. Article 20 paragraph 2 (1) GG explicitly constitutes popular sovereignty as the source of all state authority. Accordingly, the exercise of public authority always requires the legitimation by the people. It is not sufficient that public authority is merely exercised in the interest of the people. The idea of popular sovereignty rather defines the people as the bearers of all state power.
Article 20 paragraph 2 (2) GG determines how democracy in the Federal Republic of Germany is to be structured and who exercises state power: “It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.” At the core of democratic thought are organisational questions. If democracy is defined as the people's ownership of state authority, how can this state authority be exercised by a government and still be traced back to its sovereign, the people? Böckenförde introduces the theory of an uninterrupted legitimation chain (“Legitimationskette”) from the people to the public body, for all acts and decisions of the state (including those under private law or fiscal action). This necessarily implies the representative character of the parliament and the government. Whereas decisions in a democracy are made by majority vote. This is essential for the functioning of democracy as a form of state and government.
Two forms of democratic legitimation can be distinguished, the organisational-personal legitimation of the institution or respective body and the objective-substantively legitimation of its actions. Especially with regard to official bodies, a concrete – not purely abstract – legitimation is required. It is sufficient, however, that this legitimation is indirectly and uninterruptedly attributable to the people by a traceable chain of legitimation. Accordingly, several – in each case legitimate – levels in the state structure can intervene.
On the other hand, the objective-substantively legitimation requires that the decision of an official body can be traced back to the will of the people. It is possible to leave the legislative right with the “Parliament as the […] representative organ”, otherwise, when state tasks are transferred, legitimation can be ensured by a remaining state responsibility with existing control (supervision) powers. This is particularly important regarding the privatisation of state tasks.
The different forms of democratic legitimation are not mutually exclusive but can be combined. The aim is to provide a decision with the best possible level of legitimation. The point of reference is always the “people of the state as a political community of destiny” (Böckenförde). In this context, the people are the totality of all people who are united in a state as a political unit. However, individual groups or social associations cannot refer to democratic legitimation. A comparable legitimation cannot be assumed without further ado with regard to local and functional self-administration. The personal reference point in these cases is not the people as a whole, but in other generalities. Therefore, the question of democratic legitimation in cases of self-government cannot be answered uniformly. With regard to local self-administration, legitimation is provided in a comparable way by the citizens of the municipality, but not by the national population.
The basic idea of democracy takes account of the “idea of political freedom” (Böckenförde). It stands for a self-determination of the people. At the same time, in a democracy the freedom of the individual is transformed into the (democratic) freedom of participation, which in turn leads to a collective freedom of the people. The individual freedom of participation is reflected in the right to vote and in fundamental communication rights, which enable political participation and are “absolutely constitutive” for a democracy (as described by the Federal Constitutional Court). This also means, however, that democracy presupposes the equality of all people affected by it. Freedom of participation and the right to be involved must apply equally to all.
The translation comprises sections A. and B. of the original text (p. 291 -343).
1Ernst-Wolfgang Böckenförde was a German law professor and a judge on Germany's Federal Constitutional Court. He taught at the University of Freiburg. In his publications, he has particularly dealt with constitutional and political theory and is considered one of the most influential legal scholars of his time.
About this series
Supporting Comparative Constitutional Law
In the last twenty years, especially as a consequence of the popular uprisings in the region in 2011, the institutions charged with constitutional review in the countries of the Middle East and North Africa – be it Constitutional Courts, Constitutional Councils, Supreme Courts or High Tribunals - are being reformed (e.g. Tunisia, Morocco, Jordan). Some, already earlier too, have been established for the first time (e.g. Bahrain in 2002, Iraq in 2004 or Saudi Arabia in 2009), some have been attributed new competences, and new procedures have been introduced, thus indicating a rising awareness for the importance of constitutional review as an instrument for judicial oversight. With constitution-building processes and reform of constitutional courts ongoing, comparative constitutional law has become a topic on the rise.
Over the past half century, the German post-war constitutional state has gained respect internationally. At the basis of its economic, political and social development lies its constitutional system. The German Federal Constitutional Court has played a fundamental role since in the country’s efforts to establish a stable, balanced system of government, and in upholding the constitution, its principles and the individual rights vested in it. Within more than 70 years of jurisdiction it has continuously done so by applying, interpreting and developing the constitutional framework of Germany.
This - in 2019 - initiated series of the Rule of Law Programme Middle East & North Africa strives to present constitutional concepts that have been of fundamental relevance to the (positive) development of the German constitutional state. In order to meet a growing interest of young Arab speaking scholars from the region in comparative constitutional law, the Rule of Law Programme Middle East & North Africa has decided to complement this endeavour by publishing a series of selected works on German constitutional law in Arabic translation. The works translated into Arabic and published in this series invite to explore, compare and debate existing concepts and solutions that were developed to address certain questions.
Beirut, 2019; by Anja Schoeller-Schletter (edited in 2023)
Philipp Bremer
Head of the Rule of Law Program Middle East and North Africa