Zum Begriff des Staatsoberhaupts - 10.1628/000389108786927327 - Mohr Siebeck

Marc André Wiegand

Zum Begriff des Staatsoberhaupts

Volume 133 () / Issue 4, pp. 475-522 (48)

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The concept of a »head of state« which is still commonly used in modern constitutional law has emerged from the analogy of the body politic. This analogy was already known in ancient Greek and Roman political theory but it only became a pivotal idea when it was adopted by Christian theology, and then applied not only to the Church as a »mystic body« but also to mediaeval societies where the princes or kings appeared as »heads« of their states. The concept of a »head of state« has since then been stupendously stable and unaffected by social or political developments whereas the idea of the »body politic« has undergone various transformations and does not play a decisive role in today's political or constitutional theory any more. By using the notion of a »head of state« one inevitably refers to implications which are necessarily connected to the concept of state as a mystic body, i.e. to the image of submissive subjects who, as mere »members«, are forced by the commands of their head and who are not entitled to make decisions on their own. However, since Hobbes ' Leviathan, modern constitutional theory has been founded on the concept of contractualism, i.e. the idea that a Commonwealth is constituted by agreement of its citizens, which is fundamentally different from the concept of a mystic »body« politic. The coexistence of these two different approaches – the analogy of the body politic on the one hand, the foundation of a state by means of free contract on the other hand – has led to the question by whom the state and the people should be represented. As a consequence, the idea of parliamentary representation began to compete with the concept of representation by the head of state. But as the governments of modern states are controlled by their respective parliaments and are legally bound by codified law there is no room for the assumption of competing representative institutions. The citizens who constitute the state are represented by the parliament, and therefore parliament is the actual representative institution. Furthermore, given the fact that today's constitutional law is based on the self-determination and freedom of the citizens, the notion of a »head of state« seems to be antiquated and should therefore be abandoned.

Marc André Wiegand Geboren 1973; Studium der Rechtswissenschaft sowie der Philosophie, Logik und Wissenschaftstheorie an der Universität Leipzig; 1998 Erstes Juristisches Staatsexamen; wissenschaftlicher Mitarbeiter an der Universität Leipzig; Referendariat; 2003 Promotion; 2004 Zweites Juristisches Staatsexamen; 2005 Assistenzprofessor an der Tohoku-Universität Sendai (Japan); seit 2005 Referent im Bundesministerium des Innern; seit 2015 wissenschaftlicher Mitarbeiter am Bundesverfassungsgericht, Habilitand an der Universität Leipzig.