Ernst-Wolfgang Böckenförde on Constitution - Dictionary of Arguments
Brocker I 775
Constitution/Böckenförde: Böckenförde operates methodically with two constitutional concepts: a) a normative-systematic and b) a historical one. The latter is to be understood in its change of meaning along the historical development. This change in meaning depends on the form and source of legitimacy of political order. (1)
In the pre-revolutionary order not yet characterised by sovereign state authority, the constitution is a treaty of power that regulates the essentially linear relations of power between king or sovereign and subordinate rulers. The entirety of such treaties in a territory then constitutes the constitution of a country. (2)
With the emergence of sovereign state authority, "i.e. the ultimate binding power of decision and legal power superior to the traditional legal status, in which highly self-assertive power and law are interlinked" (3) the meaning of the constitution changes: Its object is now the organization, exercise and limitation of state authority. Example: Constitutional Monarch: here the monarch as carrier of the state power is limited by the constitution in
Brocker I 776
his/her claim to power, if necessary also by requiring the consent of the parliamentary representation of the bourgeoisie.
Democracy: here, another function of the constitution is added: it forms the legal basis of the political rule it creates, which constitutes and composes it in the first place. (4)
Sovereignty: since the Constitution takes precedence over other legal norms, the question is what space remains for the sovereignty of the people. "The reference to popular sovereignty is made to legitimize the Constitution, but it does not occur within and on the ground of the Constitution." (5) Even if the people want to change the Constitution, this appears to be a power under the Constitution and is only permitted within its framework.
Constituent power of the people/Böckenförde: is a border concept of constitutional law ((s) for the philosophical problem: see "exterior/interior"). It is neither a merely hypothetical construction nor merely a fundamental norm under natural law, but a real political quantity that comes to light in certain historical situations. Through them, the ideas of order and justice found in the people articulate themselves, which then shape the constitution. (6)
In exercising constitutional power, the people or the power acting on their behalf shall not be subject to any legal restrictions. Here, however, the question arises of the pre-legal ties, of the ethos that commits the pouvoir constituant to moral principles. See Politics/Böckenförde.
Brocker I 781
Constitution/Böckenförde: should be seen as a framework for the state and for the relationship between state and citizen, but not as a comprehensive basic order of the community. Background: Böckenförde sees the danger of abusing the jurisdiction of the Constitutional Court as a legislative authority with fundamental rights in terms of content (see Fundamental Rights/Böckenförde). Solution: Fundamental rights should be understood as subjective rights of defence and not as objective norms in the sense of a community order.
1. Ernst-Wolfgang Böckenförde, Staat – Verfassung – Demokratie. Studien zur Verfassungstheorie und zum Verfassungsrecht, Frankfurt/M. 1992 (zuerst 1991), p. 29-32.
2. Ibid. p. 31.
3. Ibid. p. 33.
4. Ibid. p. 43
5. Ibid. p. 44
6. Cf. ibid. p. 94.
Tine Stein, „Ernst-Wolfgang Böckenförde, Staat – Verfassung- Demokratie“, in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
State, Society and Liberty: Studies in Political Theory and Constitutional Law, London 1991
Staat, Gesellschaft, Freiheit. Studien zur Staatstheorie und zum Verfassungsrecht Frankfurt 1976
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018