Private and Public Autonomy Revisited: Jürgen Habermas’ Concept of Co-Originality in Times of Globalisation and the Militant Security State
Title: Private and Public Autonomy Revisited: Jürgen Habermas’ Concept of Co-Originality in Times of Globalisation and the Militant Security State
Author: NICKEL, Rainer
Publisher: European University Institute
Series/Number: EUI LAW; 2006/27
This paper examines the concept of constituent power and constitutional form in Jürgen Habermas’ legal philosophy. It argues that a concept of constituent power needs to be embedded in a constitutional theory that can explain the difference between legitimate law and a mere wielding of power. Theories operating with assumptions of a pre-legal and unbound constituent power are either pre-modern or a-historical. While Habermas’ theory can convincingly spell out general terms for a legitimate constitutionalisation and legitimate law-making, however, it appears to be at the same time too thin and too thick with regard to two recent transformations of the democratic nation-state: Firstly, it cannot grasp the shift from enabling ‘freedom’ to upholding ‘security’ as the central description of the function of the nation-state. This shift has severe implications for the discourse on human rights and their a priori status as constraints on the popular sovereign: the security paradigm seems to trump the notion of inalienable individual rights and replace them with the rule that the end justifies the means. Secondly, the idea of a necessary internal link between public and private autonomy in Habermas’ system of rights appears to be unable to explain the emergence of supranational and transnational law outside of a national legal community. In a different reading, however, it can serve as a normative yardstick for existing regulatory structures, and as an orientation for the elaboration of new forms and institutions that may reduce the obvious democratic deficits of supranational and transnational regulation.
Subject: Constitution building; constitutional change; constituent power; constitutional form; democracy; governance; human rights; law; legitimacy; security
Type of Access: openAccess