Democratic Constitutional State
Translated by Shierry Weber Nicholsen
MODERN constitutions owe their existence to a conception found in modern natural law according to which citizens come together voluntarily to form a legal community of free and equal consociates. The constitution puts into effect precisely those rights that those individuals must grant one another if they want to order their life together legitimately by means of positive law. This conception presupposes the notion of individual [subjektive] rights and individual legal persons as the bearers of rights. While modern law establishes a basis for state-sanctioned relations of intersubjective recognition, the rights derived from them protect the vulnerable integrity of legal subjects who are in every case individuals. In the final analysis it is a question of protecting these individual legal persons, even if the integrity of the individual— in law no less than in morality—depends on relations of mutual recognition remaining intact. Can a theory of rights that is so individualistically constructed deal adequately with struggles for recognition in which it is the articulation and assertion of collective identities that seems to be at stake?
A constitution can be thought of as an historical project that each generation of citizens continues to pursue. In the democratic constitutional state the exercise of political power is coded in a dual manner: the institutionalized handling of problems and the procedurally regulated mediation of interests must simultaneously be understandable as actualizing a