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Private and Public Autonomy Revisited: Jürgen Habermas’ Concept of Co-Originality in Times of Globalisation and the Militant Security State
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EUI LAW; 2006/27
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NICKEL, Rainer, Private and Public Autonomy Revisited: Jürgen Habermas’ Concept of Co-Originality in Times of Globalisation and the Militant Security State, EUI LAW, 2006/27 - https://hdl.handle.net/1814/6309
Abstract
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.