Popular sovereignty
The principle of popular sovereignty determined the people to the sovereign bearer of state power. The Constitution as a political and legal basis of a state based then on the constituent power of the people. Not an absolute monarch, but the nation as a whole is only about the Constitution.
It is the antonym for the monarchical principle. Popular sovereignty is derived from the French word souveraineté ( = highest state authority ) and from the Latin superioritas ( " sovereignty ").
- 3.1 Legal sovereignty
- 3.2 Critical reflections on the concept of popular sovereignty in general
Formation
Early on there is a demand for an actual sovereignty of the people in the building on the Aristotelianism and directed mainly against the Pope Defensor Pacis font ( "Defenders of Peace", completed 1324 ) of Marsilius of Padua. Systematically then developed the Enlightenment, Jean -Jacques Rousseau in his political theory font Contrat social ( social contract ) in 1762, the idea of popular sovereignty. It was taken up in Germany by the camera lists, and political theorist Justi. The scholars were for a long time not agree who should get the job in the nation to adopt the Constitution. Only after the completion of the transition from feudal society into a bourgeois society was the first time in Germany in 1919 with the Weimar Constitution, a Constitution be adopted on the basis of the principle of popular sovereignty; in Switzerland, however, it was clear as early as 1848 with the vote on the new Federal Constitution. First, the concept of popular sovereignty had more of an international legal significance. In the 19th and 20th century popular sovereignty became the name for the constituent, constituent power ( pouvoir constituant ) and for the democratic legitimacy of the state. The dispute shifted so that in the domestic arena. Result, the dispute arose as to whether the dominated people, or another authority institution was the true sovereign. By words such as " All power comes from the people ," the people's sovereignty has been replicated in the latest constitutions of the Eastern European space for expression and therefore is considered as a fundamental principle of democratic legitimacy of political rule.
Governing Law
Legal situation in Germany
Popular sovereignty in the sense of German constitutional law is part of the principle of democracy and, as such, to the constitutional form of government of the Federal Republic of Germany features. The principle of popular sovereignty is regulated in Article 20, paragraph 2 of the Basic Law (GG). The provision reads as follows:
Specifically, results from this provision:
All state authority is in Germany - directly or indirectly - from the people. The people in this sense is the sovereign in the state, rulers, as it is about yourself It is the " people" in this context, only the state population in terms of the three- element theory to understand. This includes anyone who i.S.v. Article 116 of the Basic Law, the German nationality. Foreigners (non- German ) therefore have no claim to the exercise of state power, especially in elections and referendums participate ( at the federal level ). You must not be given to a foreigner suffrage, because only Germans are entitled to state power (Article 20 paragraph 2 of the Basic Law ). Only in elections in counties and municipalities are in accordance with article 28, paragraph 1, sentence 3 GG nationals, provided they are citizens of the Union, ie nationals of the European Union ( EU) Member State, active and passive voting right. This provision also follows that a foreigner suffrage is inadmissible both the federal and provincial levels.
The state people exercise state power directly from its by elections and referendums. The exercise of state power by voting is regulated by the Basic Law concludes. Voting takes place exclusively in reclassifications within the federal territory (Article 29 and Article 118 of the Basic Law) instead of, or the decision of a new constitution ( Article 146 of the Basic Law ). The introduction of additional fundamental referendums or decide would be possible only by constitutional amendment, but not simply by law.
Outside of elections and voting exercise the people's state power only indirectly, through the branches of the legislature (legislative ), the government ( executive) and the case law ( judicial) from. The immediate exercise of public authority is therefore essentially limited to participation in elections. The German democracy is a purely representative democracy in this sense.
Legal, Philosophical perspective
Legal sovereignty
From a legal positivist perspective, there is the example of the current German constitutional law no German law, the reach of the German sovereign - would be withdrawn - the people. For the people from practicing his state power, in which it set right and full draw. Law ( meant in the jurisprudential sense) is therefore not a requirement and limit the sovereignty of the people, but the expression and consequence of its sovereignty and medium in which the sovereignty is unfolding. The nation is, therefore, not even prevented in principle - if necessary by re-creation of the Constitution - to allow forced labor to abolish private property or waive the immunity of the apartment. Parent " rules of law ", to which also the sovereign would be absolutely bound in the legal sense, does not exist. Should the sovereign feel bound to specific values from moral, ethical or other reasons (such as the inviolability of human dignity or freedom of expression ), he would consider them. But he was not legally obliged to do so.
On the other hand represents an oriented on natural law philosophy of law felt even in democratic states the " right of sovereignty " of popular sovereignty should be prefixed. That is, certain principles of law (such as human rights ) are likely as the basis of political life are not violated in a democracy. The application of the democratic principle of popular sovereignty does not consist in enforcing the arbitrary will of the majority, but in the respect of individual rights and social minorities and groups through the democratically qualified majority.
Critical reflections on the concept of popular sovereignty in general
Various initiatives meant by the popular sovereignty principle, a further requirement: They reject representative democracy as fundamentally " undemocratic" and accept only from direct democracies as " democratic." According to their understanding of the people there should be no overriding state or state-like level, such as state level or EU level, which is authorized to issue instructions to the people of that State. Even within the state of the people parent, authorizing officer instances such as parliaments, constitutional courts, governments, administration, aristocrats, dictators, etc. will be rejected.
After Otfried Hoffe has the involvement of citizens in a democracy limits: "A democracy that allows majorities for the fundamental human rights, in breach of its legitimacy. " Höffe it on the grounds that " legitimate rule [ ... ] of people [ proceeds ]: Principle popular sovereignty and them come, benefit [ must ]: . principle of human rights, " at least the change to a constitution must come directly from the people. Is a representation of the people, such as a government entitled to make without referendum changes itself to fundamental human rights which are regulated by the Constitution, according to this view, the legitimacy of democracy is seriously injured, so the existence of popular sovereignty can not be given.