Abstract (eng)
In this dissertation, the diametrically opposed views of Habermas and Schmitt on the constitutional state are discussed.
According to Habermas, the democratic constitutional state represents the most adequate response to the integration problem of modern societies, as it manifests a mode of legitimating legal norms that is compatible with the pluralistic structure of complex societies. Habermas shows how discourses of justification in secularized societies replace religious and metaphysical prerogatives, and how the burden of the legitimation of norms is shifted further and further to discursive examination.
For Habermas, the democratic constitutional state could be evolutionarily successful because the implicit assumptions of normative validity that impregnate its formal mode of legitimation correspond exactly to the collective structures of consciousness that have developed during the course of modernity.
The modern mentality that Habermas sees as the legacy of the French Revolution establishes a norm-consciousness that breaks with the traditional acceptance of norms.
The democratic constitutional state embodies the postconventional justification of legal norms.
Because national sovereignty is not exhausted by participation in elections, Habermas describes the legislative process as a deliberative interplay of an autonomous public with the institutionalized procedures of the parliamentary system.
For Habermas, the point of deliberative politics lies precisely in the fact that the forms and procedures of the constitutional state, with the democratic mode of legitimation, also create a new level of social integration.
According to Schmitt, the independence of the political is removed with the emergence of parliamentary democracy and the rise of the rationalist legal concept. The law becomes a fetter of political action and the state is forced into a system of legal regulations, which intend to prevent the immediate sovereignty of a ruler.
The will of the people, and this is the core of Schmitt's conception of political democracy, is characterized by a vitalist immediacy the expression of which cannot be inhibit by legal norms.
For Schmitt, the people are only a reference point of a democratically euphemized dictatorship. The sovereign must only connect himself identically with the people in order to classify his decisions as democratic.
The decisions of the politically relevant groupings are regarded as an existential reservation, which plays the source and fundamental power of the political, the existential unity of the people as a comprehensive legitimation ground, against the legal order. Thus, the legal order is preceded by a level of legitimacy, from which the whole legal system can be eliminated.
In the assumption that the will of the people is more secure and effective through dictatorial and caesarist methods than through the "artificial machinery" of the parliamentary system, Schmitt's anti-institutional affect also manifests itself.
In all the populist movements a piece of Schmitt's way of thinking the political can be found.
Habermas's work on legal and social sciences is, however, more widely discussed and accepted.