Eigeninteresse und Gemeinwohl bei Wahlen und Abstimmungen - 10.1628/000389109788431711 - Mohr Siebeck
Law

Bernd J. Hartmann

Eigeninteresse und Gemeinwohl bei Wahlen und Abstimmungen

Volume 134 () / Issue 1, pp. 1-34 (34)

23,80 € including VAT
article PDF
This article, entitled »Self-Interest and the Common Good in Elections and Other Votes«, investigates the standard of decision-making that applies to voters. Are they free to follow their personal interests or are they bound to make decisions that are most beneficial to the common good? Elections (Wahlen) and other votes (Abstimmungen) are held in public and in parliament. The former are decisions on appointments to public office whereas the latter resolve factual matters on their merits. The people decide on appointments to public office when they vote at a general election in order to determine e.g. the composition of parliament. They decide on factual issues e.g. by voting for or against a law in a referendum. Typically, how ever, it is parliament that passes laws. Parliament decides appointments to public office as well e.g. by electing the head of government (in Germany, the Federal Chancellor). One important question that arises in relation to elections and other votes concerns the standard according to which the decision is to be made. This investigation proceeds on the assertion that the state is made for man, not man for the state. I argue that, in accordance with the Basic Law, voters may only follow their individual interests when they elect public officials. In all other cases, they must adopt the common good (also referred to as: bonum commune, the public weal) as the relevant standard: this standard applies to decisions on factual issues by way of referendum as well as to elections and other votes in parliament. The foregoing makes clear what is meant by self-interest as a standard that governs citizens' voting: in accordance with the concept of freedom, the holder of basic rights is in a position to set his own goals. He has the right to state what his interests are and to weigh-up the various interests as he sees fit. As far as the common good is concerned, I adopt a substantive-procedural concept and equate it with the public interest (which I infer from private interests). Accordingly, the common good is basically that which is in people's interest. In this sense, the term »people« primarily refers to members of the community which decides, including children and other citizens not yet or no longer entitled to vote. In addition, account must be taken of foreigners who live in the community and are thus affected by the decision in question. Future generations are considered only to the extent that their needs are already recognizable as individual interests today. The argument that decisions for the common good should take account of the interests of others could be challenged on grounds that it is impossible to do so, asks too much of voters or presents the courts with insurmountable problems in reviewing decisions. However, these objections should be rejected. It is difficult – if not unfeasible – to transfer Arrow's economic Impossibility Theorem to the subjects under investigation. In any event, there is nothing in the Basic Law to suggest that decisions in elections and other votes have to be completely isolated from the interests of others. Empirical studies prove that the requirement to separate one's own individual interests from the common good would not be asking too much of citizens or members of parliament. The objection relating to excessive demands appears untenable in a democracy anyway. Finally, the reason why, under the Basic Law, courts cannot annul elections and other votes on the grounds that the decision did not serve the common good is due to the greater democratic legitimacy that the people and parliament enjoy over the courts as well as to the fact that the standard provided by the common good is as vague as it is broad.
Authors/Editors

Bernd J. Hartmann Geboren 1973; Inhaber des Lehrstuhls für Öffentliches Recht, Wirtschaftsrecht und Verwaltungswissenschaften an der Universität Osnabrück; Mitglied der Wissenschaftlichen Leitung der Forschungsstelle Glücksspiel, Universität Hohenheim.
https://orcid.org/0000-0001-5380-4449