Die Rationalität des Staates und die Irrationalität des Menschen. Prämissen der Demokratie - 10.1628/000389115X14412827917638 - Mohr Siebeck
Law

Josef Isensee

Die Rationalität des Staates und die Irrationalität des Menschen. Prämissen der Demokratie

Volume 140 () / Issue 2, pp. 169-197 (29)

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The rule of reason is an intellectualist ideal of the state which is unilaterally based on the rationality of man, or rather on the rationality of those who rule. The ideal relies on ethical or technical expertise and banishes chance and caprice, passion and ideology. The state presents itself as a purpose rational construct: an institution intended to ensure the conditions of the good life of its citizens. It acts rationally by carrying out its duties in accordance with its conditions and limitations and by using its scarce resources as efficiently and as economically as possible. Rationale legitimacy does not accept the appeal to emotions, to custom and tradition. Rational faith tends to be cosmopolitan. Rationality is a regulative concept which can hardly be described in legal terms. The idea precedes any legal regulation, and any legal interpretation is derived from it. It is part of the state's constitutional design and draws practical conclusions from it: first, the need for justification of the encroachment upon fundamental rights and second, the efficient use of scarce resources. The concept of pure rationality does not leave room for the unpredictable forces of politics. In contrast, democracy does, thereby facilitating the competition of political stakeholders for power and influence. It is based in the sovereign will of the people, which is unquestionable. In elections and votes, rational and irrational moments merge undividedly and in an unfiltered way into the governmental decision-making process. Thus, the question is whether rational exercise of public authority under the conditions of democracy is possible at all. After all, liberal democracy does not even try to, unlike socialist educational dictatorships, take away the quality of obstinacy from the bourgeois, which would result in his transformation into the community-friendly citoyen. Rather, it takes every person as they are, with their animal traits, their greed, and aggression. Democracy assumes human discord and directs it towards the competition of opinions and interests, the competition of associations and political parties, abiding by the rituals of political struggle. Through the differentiated system of liberties and offices, responsibilities and requirements, democracy turns aggression into political energy. This provides democracy with a degree of vitality and stability that autocratic systems do not possess, because it leaves open the possibility of a change of government, which autocratic systems need to forego due to their inherent self-preservation will. What nature withholds to man, an unerring instinct, must be compensated by institutions, especially by the institution of all institutions, the state. Due to its rules, the rawness of the popular will is honed and refined in the parliamentary process which is marked by the separation of powers in a constitutional democracy. Those who exercise state power have to abide by the law of the common good. They have to justify their actions that need to meet the standards of practical reason. Democratic legitimacy does not guarantee an administration that furthers public welfare. This requires the mediation through multiple legal and ethical standards. The constitutional state is based on the principle that the rule of the people eventually leads to the rule of law. However, the irrational moments of popular will never apply without the appearance of their opposite: they accord to state law its own particular profile. The people being the source of democratic legitimacy are indeed legally defined by nationality. But it attains viability, consistency and solidarity ethos only when it blends into the real unity of the nation. The nation is not a purpose rational construct, but a unity of will, which emerges from the feeling of cultural, historical or other non-rationally justifiable commonalities.
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