DENNINGER - Security, Diversity, Solidarity x Freedom, Equality, Fraternity

Prévia do material em texto

‘Security, Diversity, Solidarity’ Instead of
‘Freedom, Equality, Fraternity’
Erhard Denninger
The human rights creed found in Germany’s Basic Law [Grundgesetz] builds on
the tradition of the French Revolution, and specifically on a triad of ideals: free-
dom, equality, and fraternity.1 At the same time that the Basic Law’s founding
fathers and mothers were deliberating in the Parliamentary Council [Parlamen-
tarischer Rat], the General Assembly of the United Nations was ratifying (on
December 10, 1948) the Universal Declaration of Human Rights.2 Article 1 of
that Declaration states the following principle: “All human beings are born free
and equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.” It is often overlooked
that this Declaration (towards the conclusion, in Articles 22 to 28) also contains
the entire catalog of human rights “of the second generation,” namely, the “social
rights” to work (including the right to paid vacation!), basic sustenance, housing,
medical care, social welfare and security, training and education, and the right to
participate in cultural life (including the right to be protected by copyright laws).
Yet not until December 19, 1966 did the International Covenant on Economic,
Social, and Cultural Rights outfit this proclamation with an internationally bind-
ing character. One can view the Covenant – consisting of clauses that protect and
foster reciprocal obligations between nations for the sake of citizens (especially
in Article 2) – as the first great example of a constitution within the sphere of
international law committed to advancing certain positive governmental goals
[Staatsziele].
Germany’s Basic Law is something else altogether. Due to its renunciation
of the regulation of “life orders” (especially work relations, business, and
cultural life) effectively forced upon it by time pressures (both in the sense of
the pressures of the historical moment and the dictates of deadlines), the Basic
Law appears to present itself as a paradigmatic constitutionalization of the
revolutionary ideals of bourgeois freedom and equality. This constitutive
feature of the Basic Law was also fostered by its “provisional” nature – empha-
sized in particular by Carlo Schmid3 – that is, the Basic Law’s status as a mere
“organizational statute” or “emergency shelter” for only a part of Germany,4 as
well as by its hastily composed catalog of “classical” liberal basic rights (in the
form of immediately valid protective negative liberties). In contrast, “frater-
nity” found only a modest expression in the notions of the “compulsory
common good orientation” [Gemeinwohlpflichtigkeit] of property (Art. 14,
Constellations Volume 7, No 4, 2000. © Blackwell Publishers Ltd., 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA.
para. 2), and the little word “social” was mentioned only twice (in Art. 20,
para. 1: “social Federal state” and in Art. 28, para. 1: “social rule of
law”[sozialer Rechtsstaat])
The meaning of the nexus between freedom and equality in the Basic Law is
best revealed when understood against the background of the ideal presupposi-
tions of the Kantian construction of the law-based constitutional state in accor-
dance with the “pure principle of reason of external human rights.”5 Like
Rousseau, Kant writes “against Hobbes,”6 but he nonetheless stands in the tradi-
tion of the co-founders of modern contract theory. Common to them are three
basic ideas – partly based on philosophical experience and partly on moral and
political postulates – which can be briefly characterized as follows:7 1) the auton-
omy of the individual subject as the center of will and action, to whom rights and
duties can be ascribed; 2) the universalization of reason, including reason having
a practical intent, on the basis of which the categories of “universal law” in
respect to the generation of norms, their addressees, and the object of norms, as
well as the concept of the common good, are made conceptually possible in the
first place; and 3) the equalization of “subjects” (“Unterthanen”) (Kant, Hobbes)
and “citoyens” (Rousseau).
On this basis, “law” (“objective” law, but also enacted basic rights) consti-
tutes “the restriction of the freedom of each person on the condition of his
agreement with the freedom of everyone else insofar as this is possible accord-
ing to universal law; and public right is the essence of external laws which make
such general agreement possible.”8 So law consists of compulsory statutes in
accordance with reason which show no regard for “empirical purposes” (that is,
for representations of “happiness”) because no universal law can be derived
from such empirical representations. In this order of individual incompatibili-
ties (spheres of freedom) which have been rendered compatible by compulsory
law, there is no room for the concept of the development of freedom through the
freedom of others,9 or for the idea of expanding and increasing individual free-
dom by means of a solidaristic combination of several spheres of freedom.
Furthermore, the principle of equality is confined to the principle of the formal
equality of citizens under the law: it “coexists well with the greatest inequality
of the masses and according to the measure of their possessions”;10 only estate
privileges may not be bequeathed. And legislation (or the administration of
justice that follows it) which sets as its goal the establishment of a material
equality or the equalization of de facto group-determined disadvantages (for
example, between women and men) is conceptually impossible in this formula-
tion. To do so would concern the goal of “happiness,” and “in respect of the first
(happiness) absolutely no universally valid principle for the law can be
given.”11
According to this model, a society of free and equal people is thus constituted
as a union of abstract and equal legal subjects whose freedom is protected through
the subjective (in reference to those addressed by norms) and the objective (in
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508 Constellations Volume 7, Number 4, 2000
reference to the material of the norms) universality of external compulsory laws.
The “private character” of the citizens may be “wicked” and may “come into
conflict with one another”; decisive here is that laws compel peaceful and legal
public behavior. This explains why Kant thought that even “a people of devils (if
they only possessed understanding)”12 were able to establish a rule of law-based
constitution. For “morality” is not to be expected from the “good constitution,”
but more likely the reverse will take place: it is first and foremost a good consti-
tution “that provides a good moral education for a people.” Unfortunately, Kant
left unclear precisely how this educational function could work and how far it
might extend.
To be sure, it cannot be maintained that Kant’s rigorous anthropological
pessimism (which, by the way, is oddly supplemented by a strong optimism in
relation to the development of the “human species”13) provides binding instruc-
tions concerning the “Basic Law’s picture of humanity.” However, a conservative-
liberal understanding of basic rights as negative liberties, as well as a reduction of
the problematic of equality (as an “exercise in justice”) to an abstract-formal
universal law (with a “prohibition of arbitrariness” directed at the legislator),
accord well with this model.
The thesis to be advanced here contrasts a new triad of (political, and especially
constitutional) ideals – namely: security, diversity, and solidarity – with the ideas
of freedom, equality, and fraternity. It sees this second triad as constituting the
core idea and driving force behind many recent debates about constitutional
reform and in a multiplicity of reform movements, especially in constitutional
politics in the new German Länder. I pose the question of what characteristics and
consequences this alteredconception underlying the new constitutions might
have.
A look at both the work of the Joint Commission on the Constitution14 and the
accompanying commentary shows that constitutional debate in Germany at base
is implicitly dominated by the conflict between the two triads of ideas; they lead
to different conceptions of the constitution and to fundamentally different views
about reform. Thus far, no analytically sufficient discussion of the two models
has taken place; the Commission was essentially pre-programmed to preserve
the status quo, and thus the possible compatibility of the two basic models was
not even formulated at the level of a discussion about constitutional norms, to
say nothing of it being sounded out properly. Instead, unexamined biases
concerning the nature of “constitutional questions” were typically articulated:
“What moves people are worries about job security, the question of what mater-
ial and immaterial status work may have in the future, what burdens people can
be expected to carry in order to equalize living conditions between eastern and
western Germany in light of the present economic situation, society’s loss of
spiritual orientation, decreasing faith in politics and the operations of the state,
environmental decay, and anxiety about rising crime. These questions are not
constitutional questions.”15
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Security, Diversity, Solidarity: Erhard Denninger 509
Diversity, Solidarity, and Security in the Constitutions of the New German
Länder
I
The French Revolution’s ideal of equality was hostile towards inherited privilege
and corporate bodies. Defined as the common good, the volonté générale could
take on its unadulterated form as the “universal law” only when everyone legis-
lated in reference to everyone else, and everyone was equally affected in essen-
tially the same manner as an equal.16 Equal participation in a shared universal
reason was, in principle, supposed to guarantee the “right” content and the
“justice” of law. Yet the idea that everyone can be equally affected by law has
proven itself to be fictional. Men are affected by the same law differently than
women, citizens than foreigners, senior citizens and handicapped people differ-
ently than young people and the non-handicapped. A new consciousness of
deeply rooted differences in human life and in the conditions of human existence
is gaining validation and now seeks appropriate expression in constitutional texts.
This is evident to the extent that the constitution is viewed as a programmatic
registry for group goals and demands. First of all, it is a matter of constitutional
protections against “discrimination,” focusing on compensation for disadvantages
already suffered or likely to occur. In legal terms, this entails a movement from
formal legal equality to the “establishment of a factual equal footing” – in regard
to men and women, for example, it means establishing equal conditions in real
terms in order to make use of a basic right.17 Constitutional founders (in Sachsen,
Sachsen-Anhalt, and Brandenburg) dare to take even a further – theoretically as
well as politically difficult – step when they advocate moving from (abstract)
equality and (factical) equalization to the establishment of an equality in the value
of living conditions [Gleichwertigkeit der Lebensbedingungen]. Roughly stated in
an old-fashioned Aristotelian manner: this means the step from “iustitia commu-
tativa” to “iustitia distributiva,” that is, to the “Suum cuique” of distributive
justice. For the recognition and consideration of the “special needs” of each
respective group is now to be promoted; it is taken as a given that these groups
should effectively define their own needs. From its constitutionally-based
“support for sports” to its emphasis on the special qualities of students, seniors,
and the handicapped, Brandenburg’s constitution exemplifies this trend (Art. 35).
The gap between this and the French Revolution’s ideals of freedom and equality
could hardly be more clear. One is tempted to speak of a new desire for diversity
operating under the motto: “Equal rights to inequality!”
This seemingly paradoxical formula suggests the inadequacy of an abstract-
conceptual understanding of the equality/inequality dialectic as a device for
solving real-world problems. By now the objection that the love of diversity and
difference in truth represents nothing other than the struggle to establish mater-
ial equality – in order to get rid of discrimination – should seem overdue.18
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510 Constellations Volume 7, Number 4, 2000
According to this objection, the true opposites here are not equality and diversity,
but rather, in the last analysis, injustice (which can walk around disguised in
formal legal equality) and justice, which calls for unequal treatment of different
people. It can be conceded to this criticism that formal legal equality – for exam-
ple, in gender relations – can lead de facto to intolerable discrimination, or at least
can help buttress such discrimination. We would do well to recall that even the
“classical” formulation of the principle of legal equality not only demands equal
treatment of the equal, but also inequality in treatment of the effectively unequal,
even though the burden of justification on the legislator in such cases is greater.19
Nonetheless, there still are additional differences in living conditions which in no
way are felt to be deficient situations that need to be overcome and equalized.
Instead, they are positively assessed in their peculiarity, and are seen as possess-
ing “special needs” which constitute the basis for an accepted group identity. In
these cases of diversity, the legal treatment of inequality implies something more
than the mere removal of discriminatory injustice; it entails the realization of a
more subtle – because it is attributive and distributive – form of differentiated
justice.
This is the case for many “minorities,” for homosexuals and transsexuals,20 for
the tall and the short, for expressions of social diversity (“single parents,” “long
term shared living arrangements”21), regional forms of cultural diversity,22 as well
as “ethnic, cultural and linguistic minorities.” The “Sorbian people” in Branden-
burg, Sachsen-Anhalt, and Sachsen are thought of in the same manner as the
Danes and Friesians in Schleswig-Holstein, and even the blue/red/white of the
Sorbian flag is protected from fading by means of constitutional proclamation.23
One always expresses oneself carefully, if at all, when speaking about foreign
minorities in Germany, yet Sachsen promises to uphold their “interests” as long
as foreigners “behave legally” (Art. 5, para. 3). 
The tension-ridden relationship between the “old” ideal of an equality of all
citizens based on the nation-state and the “new” ideal of the coexistence of a
plurality of ethnic, cultural, and linguistic identities became immediately clear in
the debate about modifying the Basic Law to include minority protections and
clauses supporting minority interests. Whereas a majority in the Reform
Commission voted to “respect” the identity of such minorities both in the case of
German citizens and foreigners (clearly with an eye towards improving the status
of German-speaking minorities in eastern Europe), opinions diverge as soon as
the matter of “protecting” and “promoting” national groups and minorities is
raised. Preservation and respect for their identity requires a right to use their own
language and cultivate their own culture and religion; the Federal Republic of
Germany has been obligated to do so since it ratified the International Covenant
on Civil and Political Rights on December 19, 1966 (Art. 27). In the last analy-
sis, the decision to actively “promote” the interests even of immigrants presup-
poses not merely the avoidance of all “pressure to assimilate,” but also
abandoning expectations about integration directed at immigrants. This would
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Security, Diversity, Solidarity: Erhard Denninger 511
indeed entail jettisoning the constitutional state grounded on a common national
citizenry for a multicultural and multinational polity. The categories of majority
will, volonté générale, and minority protection would lose their previous mean-
ings, and new forms of group coordination would have to be developed.
Immigration policy and the practical task of protecting minorities should not
be – and fortunately is not – taking its guidance exclusively from one or the other
of the two options brought into sharp theoretical contrast here. It is sensible to
conceive of meaningful combinations of rules and measures promoting integra-
tion and those promoting ethnic, cultural, and linguistic group identity.
Just as the recognition of group diversity via advances in the acknowledgment
of their “special needs” does not occur in a single act but rather by means of a
gradual process, so too does the consciousness of the meaning of political
concepts such as pluralism and tolerance change gradually. Pluralism in opinions,
organizations, parties, the media, in the composition of various bodies exercising
oversight functions – including those having decision-making functions (in public
radio and television, or in administrative bodies) as well as those exercising advi-
sory functions – long seemed to constitute both a necessary and sufficient condi-
tion for generating normative results whose realization could be accepted as the
“common good.” In particular, in exercising jurisdiction over the organization of
the broadcast media, the German Federal Constitutional Court has always under-
scored the significance of the “protection of an equilibrium of diversity” in
programming as a presupposition for a successful process of opinion formation
conducive to the realization of the common good.24 The idea at work behind this
view is that a consistent concept of the common good is generated to a certain
degree automatically so long as it remains possible for all “relevant societal
powers” to have an opportunity to express their perspectives and preferences in
the process of discussion. It is based on the additional idea that each of the partic-
ipating groups and forces accentuates (only) one or more aspects of an essentially
identical understanding of the common good; the synthesis of each of these
perspectives necessarily produces a complete and accurate conception of the
common good. This builds on the bourgeois-liberal belief in the rationality of
“public opinion” – grounded in one common faculty of reason – under the condi-
tions of modern organized pluralism.25 But in the context of new demands for
diversity no longer directed at the synthesis of a universal (whole) but instead at
the possibility of coexistence of a multiplicity of often incompatible particulari-
ties, these presuppositions no longer obtain, or at the very least their effectiveness
is profoundly undermined. Of course, what this means for the organization of
decision-making processes which remain pluralistic today – as in the past –
remains to be seen. It is certain, however, that the meaning of the category of
tolerance must be transformed in the direction of accentuating the necessity of
active cooperation with “the Other,” with strangers.26 “Toleration” in the sense of
the generosity of the strong towards the weak, by allowing the weaker, the others,
the minorities to exist with (or under) them, no longer suffices as a solution to the
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512 Constellations Volume 7, Number 4, 2000
problem of coexistence. Perhaps the constitutional founders of Sachsen-Anhalt
had this in mind when they described the aim of education in terms of the devel-
opment of a free personality “which is, in the spirit of tolerance, prepared to bear
the responsibility for the community with other persons and peoples and with an
eye towards future generations” (Art. 27, para. 1).
Thirty years ago, Ernst Fraenkel provided an important impetus to the German
understanding of pluralism in political science and legal theory with his decisive
rejection of the “ideal type” of the “heteronomous-homogenous-totalitarian dicta-
tor,” along with his equally powerful suggestions concerning another “ideal type,”
namely “an autonomous-heterogeneous-pluralistic constitutional state.”27 It is not
appropriate today to regress to a position inferior to Fraenkel’s by appealing to
something along the lines of an unclear concept of the “nation.” Instead,
Fraenkel’s starting point should be further developed in light of the new pluralism
which has gained expression in the “new social movements” and in new trends
towards “multiculturalism.” Indeed, Fraenkel’s position should be radicalized by
posing the question of whether the concepts of the “will of the community” and
“common good” might not be reconceptualized beyond the shadows of both
Rousseauian and Schmittian postulates of homogeneity.28
In any event, it is essential to take leave of the naive view – in accordance with
which the “good weather Federal Republic” successfully lived for decades – that
it suffices to organize institutions and procedures in an (organized-group) plural-
istic manner in order to get an output-optimizing common good-oriented process
into motion. In contrast to this view, the democratic process of “deliberative poli-
tics” in an open civil society will be much more complicated, difficult, and
susceptible to disturbances.29 From this perspective, the intensive constitutional
attempt to anchor “material” goals for government policy [Staatszielbestim-
mungen], on the one hand, and rights of political participation [Mitgestal-
tungsrechte],30 on the other, can be interpreted as an attempt to take the burden
off the political process in an anticipatory thematic manner.
II
The “desire for diversity” contains a centrifugal moment for a polity held together
by means of valid general rules. Normative compensation is found in the princi-
ple of solidarity – which is not only used to decorate preambles31 but has gained
expression in supplementary and protective constitutional clauses, as well as an
educational aim.32 Its legal and ethical substance necessarily remain undeter-
mined. Attempts to paraphrase it do no better than sentences along the lines of “no
one should remain alone and helpless in his or her time of need.” When “solidar-
ity” is mentioned alongside “right,” “social justice,” “tolerance,” and “peaceful-
ness,”33 then a type of individual conviction as well as a corresponding form of
behavior are postulated which demand more active respect towards “the other”
than is possible in a Kantian legal order (in a “people of devils”!). Solidarity
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Security, Diversity, Solidarity: Erhard Denninger 513
means a permanent injunction to show “decency towards others” and respect the
“common spirit,”34 and thereby the permanent transcendence of the “merely
legal” into the spheres of the ethical and moral. The legal order thus loses its qual-
ity as a definable and closed order concerned with human behavior. A lawful
“legal” relation no longer suffices in itself; appeals to solidarity suggest the reten-
tion of an open flank of unfinished morality.
This is made evident by every attempt to concretize the basic principle of soli-
darity in the constitutional text. Either the task of specifying it is transferred (in a
wholly traditional way) to the legislator, or the attempt to determine a relevant
legally definable violation fails because of the requirement that the principle take
the form of a norm possessing legal determinacy. An example of the former is the
constitutional duty “of each person” to share the burden of providing aid in case
of accidents and catastrophes;35 it obtains “in accordance with the terms of a
statute.” An example of the latter is provided by the following open-ended general
clause: “Whosoever suffers psychic or physical violence in marriage, family, or in
othercommunal living arrangements has the right to aid and protection from the
community.”36 The presuppositions of such a claim, as well as its target, content,
and the procedure by which it is to be rendered valid, remain completely indeter-
minate. One interpretation might refer to criminal statutes on the books to provide
a sufficient clarification of constitutional intent, whereas another might just as
well want to establish marriage and family supervisors having a right to “home
visits.” Solidarity knows neither substantive nor personal boundaries; it encom-
passes the globe and refers to humanity. It recognizes another not merely as a
“comrade” or as a member of a particular “We-group,” but rather as an “Other,”
even as a “Stranger.” This distinguishes solidarity from “fraternity,” which places
a stronger emphasis on feeling. Solidarity stands for a rationally-guided, limited,
and self-determined bond of feeling which compels us to provide aid, while rest-
ing on a similarity of certain interests and goals so as nonetheless to maintain
difference among partners in solidarity.37 It means “also in legal terms a rejection
of the binding character of universal systems of value, and the renunciation of the
requirement to make oneself common with others in possession as well as in
conscience. The general binding character of a posture of solidarity lies in the
knowledge of the relative subjectivity of all experience of value and in the renun-
ciation of the desire to force others to be happy.”38
First and foremost, solidarity also calls for a constant transcendence of one’s
own petty prejudices born of a primitive ethnocentrism. “It is to be conceived as
the capacity increasingly to see that traditional differences (between countries of
origin, religions, races, and customs) are negligible in comparison to similarities
with regard to our experiences of pain and humiliation – it is the capacity to count
people who are vastly different from us as one of ‘us.’”39
This combination of constitutionalized goals for government policy with
constitutionalized expectations addressed to the citizenry, and the concomitant
attempt to link promises concerning performance to a concrete social function or
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514 Constellations Volume 7, Number 4, 2000
situation, brings about at the level of the constitutional system a transition: from a
“limiting” system of rules – resting for the most part on a separation of morality
from legality – to a permanently dynamic, teleologically-oriented, and morally-
demanding system of norms. Security no longer means first and foremost the
certainty of the individual citizen’s liberty, but rather the prospect of unlimited and
unending state-sponsored activity for the sake of protecting citizens from social,
technical, and environmental dangers, as well as from the dangers of criminality.
This direct aim of assuring legal goods [Rechtsgueterschutz] entails its own dangers
for legal security as a guarantee of liberty. Although the “basic right to security” has
been invoked in this context,40 a closer investigation reveals instead a blanket
authorization to engage in any conceivable intervention into the sphere of individ-
ual liberty, and hardly a “genuine” basic right. The ongoing discussion about the
most suitable forms and instruments for combating “organized crime” illuminates
the general process within the sphere of internal security: the time-honored system
of criminal procedure, originally conceived as a protection for citizens and as an
assurance of their right to fair, rule of law-based treatment, as well as a way of
buttressing the “search for truth” in order to clear up crimes, is presently being
converted into as efficient as possible a weapon in the “fight against criminality.”
There are now criminal searches, undercover agents (government officials, outfit-
ted with fake names and IDs, who infiltrate criminal organizations), both minor and
major wiretapping, as well as the break-up of proto-criminal structures in “antici-
pation” of the “beginnings of suspicion” of a crime, to name just a few of the key
trends pointing to the end of the “classical” liberal system of legal security.41 This
has to be acknowledged as the face of the “preventive state” if one wants to provide
a reasonable account of the situation at hand.42
A harsh and exclusionary contrast between a universalist conception of moral-
ity oriented to the perspective of the “generalized other” (Benhabib) and a plural-
ity of particularist ethical conceptions applying to the “concrete other” cannot be
justified from the perspective of constitutional theory. Nor does it permit a dual-
ism in which the “right” is given priority over the “good,” or vice versa. The
“constitution” is a process whose continued normative effectiveness always
relates to a concrete, historically-situated community, whose traditions, values,
ideas, and needs necessarily co-determine the concrete content of the legal
system. The (“ethical”) criteria of the “good life” can only be satisfied in the long
run if foreign relations with other communities and individuals are shaped in
terms of “tolerance,” “legal recognition,” “international solidarity” – in short, in
terms of international trends toward a “universal” “capacity to establish connec-
tions.”43
According to the convictions of the majority of its participants, a consensus
reached by means of a democratic process of constitutional founding under-
taken by a discursive and (ultimately) decision-making community can hardly
be characterized merely as a practically useful agreement, or as a program for the
“pursuit of happiness” for specific groups. Instead, it represents an expression of
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Security, Diversity, Solidarity: Erhard Denninger 515
what is seen as “just” and corresponds to the “principles of justice.” Its certifica-
tion by means of a democratically-generated referendum achieves the legal maxi-
mum of that which can be realized by means of the criteria of a universalist
conception of morality as far as the determination of norms is concerned. Other-
wise, one would have to demand that all human beings, and thus always the
entirety of humanity, must deliberate and discursively determine the constitution
for every polity – manifestly an absurd thought.
The picture (“representation”) of an ideal universal community based on
discourse in a real, temporal (generationally-mediated), and spatially-limited
effective decision-making organization (the “state”) is probably an intractable
problem from the perspective of social philosophy. This need not lead the consti-
tutional theorist to despair as long as he frees himself from the idea of an irrecon-
cilable opposition between the universalist perspective of the generalized other and
the particularist perspective of the concrete other (group solidarity) by acknowl-
edging the necessary complementarity of the two orientations. “Only then can we
say that justice without solidarity is blind, and liberty incompatible with happiness
is empty.”44 A moral universalism which takes its own demands seriously will do
so with the clear consequence that both perspectives – the universalistic moral and
the group-particular ethical – hold sway over the postulate of solidarity. Jürgen
Habermas should be read in this vein when he suggests that there has always been
a necessity for “social movements and political battles in order to learn the lesson
from the painful experiences and the irreparable sufferings of the degraded and the
offended, the wounded and the beaten, that in the name of moral universalism no
one can be allowed to be excluded – not the underprivileged classes, exploited
nations, housewives, or marginalized minorities. Whosoever excludes the other –
who always has a right to remain a stranger – in the name of the universal, betrays
his own ideals. The universalism of equal respect and solidarity with everything
human only proves itself by a radical liberation ofindividual narratives and partic-
ular forms of life.”45 This “radical liberation” of particular forms of life is norma-
tively only possible, however, by means of the recognition of group needs and
concerns. The ongoing discussion about constitutionally-based goals of govern-
ment policy will need to remain mindful of this.
Protection of the “Concrete” Dignity of Human Beings as a
Constitutionally-Based Goal for Government Policy
“The state is there for the sake of man, not man for the sake of the state.” Thus, in
August 1948 at Herrenchiemsee, the authors of the draft of a constitution for post-
war Germany formulated the first sentence of the Basic Law.46 Forty-five years later
this “well-chosen” sentence finds itself partially echoed in the Constitution of
Mecklenburg-Vorpommern: “The Land of Mecklenburg-Vorpommern exists for the
sake of man; it has the honor of protecting and respecting all people living or
sojourning in this Land.”47 If our reflections about the complementarity of “justice”
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516 Constellations Volume 7, Number 4, 2000
and “solidarity” and between “freedom” and “happiness” are correct, this and simi-
lar “fundamental expressions”48 can no longer be interpreted within the framework
of a “philosophy of the singular collective subject,”49 nor within the framework of
a particular group ethic. Both perspectives overlap with each other in the category
of a concrete conception of a “human dignity” requiring protection. The decision of
the European Parliament in Strasbourg suggests what this means for the interna-
tional development of human rights and their acceptance beyond national borders.50
After the Parliament determined that fewer than 10% of the almost 200 members of
the United Nations are ethnically homogeneous states, and that therefore active
protection of minorities was of particular importance, it affirmed the positive func-
tion of regionalized systems of human rights. At the same time it also confirmed that
these regional systems “must respect all internationally recognized theses and deter-
minations of the international regulations on human rights” and “that there may be
no weakening of international norms on religious or any other grounds; to be
mentioned in this context is the danger that a code of ethics in the near east could
reflect the expansion of fundamentalist teaching.”51
In short, the theoretical debate between moral universalism and a group-
specific “community” ethics has political and international-legal correlates in the
ongoing conflict concerning the universal and/or regional character of human
rights.52 Just as Habermas, Benhabib, and others are attempting to overcome a
crude juxtaposition between these social-philosophical positions, so too should
the global consensus about generally (“universally”) recognized standard of
human rights move in the direction of patiently acknowledging our world’s
diverse religious-cultural traditions and customs (that is, various types of “group
ethics”). “Whosoever wants to strengthen the universal validity of ethical insights
and standards of human rights must accept the particularities of these traditions
and convictions.”53
The constitutional reformer seeking to satisfy the conditions of the comple-
mentarity described here on the national level needs to show fidelity to tradition
less than he needs to exhibit the power of normative synopsis. The focal point
of these efforts should be a material concept of human dignity capable of rest-
ing on a consensus. In the literary realm, support for the attempt to concretize
the concept of human dignity can be taken from the efforts of Adalbert Podlech,
whose reflections on this topic maintain “le juste milieu” between hyper-
abstractions potentially plagued by a conceptual arbitrariness and an overly
detailed concretism.54 The five basic conditions for the maintenance of human
dignity developed by Podlech are: (1) freedom from basic existential anxieties,
(2) the maintenance of equality, (3) the security of identity and integrity, includ-
ing the “freedom to endow one’s life with meaning” and the prohibition of
“breaking” the identity of a person,55 (4) rule of law-based limitations on the
state and its proportionate use of force, and (5) respect for the physical contin-
gency of human beings, including the prohibition of torture and corporal
punishment, as well as the right to a dignified death.56 These conditions describe
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Security, Diversity, Solidarity: Erhard Denninger 517
a program made up of issues that will not only continue to trigger an abundance
of statutory regulations, but can also serve as a guide for constitutional reform,
partly in respect to subjective rights, and partly in respect to constitutional goals
for government policy and legislative activity. In light of the tasks of democracy,
this articulation of the principle of human dignity nonetheless also needs to be
supplemented with the notion of the active participation in the process of politi-
cal will-formation. This should not only be recognized as a human right,57 but
even more fundamentally as an expression of human dignity.58
If it is the case that since Aristotle59 we know that “to speak with an one
another” – that is, linguistic communication – is peculiar to human beings, then
at least since the French Revolution we should know that this also requires
“speaking with others” about public matters. Constitutional reformers presently
considering the role of political rights and the introduction of direct-democratic
elements in the Basic Law would do well to keep this in mind.
Constitutional Ideals and Democratic Politics
Diversity, security, and solidarity ought not be misunderstood as “basic values”
for a new generation of constitutional texts in the sense that they are thought to
represent directly applicable practical standards for action, either in the form of
constitutionally-based policy goals or as instructions for individual ethical deci-
sions. Rather, they display a twofold countenance: as constitutional ideals and as
guiding models for an international politics of human rights, they bear the char-
acter of a more or less concrete Utopia. In social reality, they capture “the real
basic situations” [Grundbefindlichkeiten] (“existentials”)60 of modern men and
women. Both aspects generate sources of action. Only with great caution might
we associate “diversity” and “solidarity” chiefly with active human beings and
citizens, whereas “security,” as an expectation directed at the state, tends to affect
citizens as passive beings.61
Both the practical activities of solidarity and the realization of cultural, reli-
gious, ethical, and ideological diversity are not conceivable today other than in the
public realm. The state will (need to) limit itself to shaping the framework
[Rahmenbedingungen] of this realm if it hopes to remain a “liberal” state. One
feature of this framework is making financial means (!) available. But decisive
here is the maintenance of an open institutional political process which alone
makes active democratic politics possible in the first place. If we fail to achieve
this, constitutional ideals will take the form of a bad utopia.
(Translated by Christopher Long and William E. Scheuerman)
NOTES
1. Erhard Denninger, AlternativKommentar zum Grundgesetz [AK-GG], 2e (Neuwied, 1989),
Art. 1, para. 2 , note 7ff.
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518 Constellations Volume 7, Number 4, 2000
2. Resolution 217 (III) of the General Assembly, GAOR 3rd Session, Resolutions Part I, 71.
3. Trans. Note: Carlo Schmid was a prominent Social Democratic politician and jurist and
contributor to the Basic Law. He should not be confused with Carl Schmitt!
4. Denninger, AK-GG, see Introduction, note 15ff. R. Mußgnug, “Zustandekommen des
Grundgesetzes und Entstehen der Bundesrepublik Deutschland,” in Handbuch des Staatsrechts Vol.
I (1987), para. 6, notes 28ff., 55ff.
5. Kant, “Über den Gemeinspruch:Das mag in der Theorie richtig sein. . .,” Gesammelte
Werke, Vol. III (Berlin: Akademie Verlag, 1968), 273ff., 290.
6. Ibid., 289.
7. See Denninger, “Technologische Rationalität, ethische Verantwortung und postmodernes
Recht,” Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft (1992), 123ff., 125ff.
8. Kant, “Über den Gemeinspruch,” 289f. The emphasis is not Kant’s.
9. See D. Suhr, Entfaltung der Menschen durch die Menschen (1976); Suhr, “Freiheit durch
Geselligkeit,” Europäische Grundrechtsrechte-Zeitung (1984), 529ff.
10. Kant, “Über den Gemeinspruch,” 291.
11. Ibid., 298. The necessity for the conceptual universality of the Kantian concept of the law
is critically treated in: Georg Simmel, “Das individuelle Gesetz,” in Philosophische Exkurse, ed. M.
Landmann (Frankfurt, 1968), 178.
12. Kant, “Zum ewigen Frieden,” in Gesammelte Werke, Vol. VIII (Berlin, 1968), 366.
13. Cf. Kant, “Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht.”
14. Bericht der Gemeinsamen Verfassungskommission, BT-Drcks. 12/6000 from November 1,
1993.
15. That indeed is the question. But not according to Steffan Heitmann, “Etwas hat sich geän-
dert, vieles wird sich ändern,” in Frankfurter Allgemeine Zeitung (November 22, 1993), 12 Heit-
mann was not only a candidate for the office of the Federal President of Germany, but as Attorney
General for the state of Sachsen was an active member of the Joint Commission on the Constitu-
tion.
16. Compare, J.-J. Rousseau, Du Contrat Social, Book II, Chapter. 6; Kant, “Über den Gemein-
spruch,” II..3.
17. The decision of the German Federal Constitutional Court to forbid night work is a pleasant
development in this regard. See the relevant documentation in: BVerfGE 85, 191, 207 . See also the
recommendation of the GVK [Joint Constitutional Commission] concerning Art. 3, para. 2 of the
Basic Law: “The state promotes the factical success of the legal equality between men and women
and works toward setting aside existing disadvantages” (BT-Drcks. 12/6000), 49ff. Also, see Art.
34 of the Sachsen-Anhalt Constitution.
18. In this context I am indebted to the helpful critique of Catherine A. MacKinnon, “Reflec-
tions on Sex Equality Under Law,” Yale Law Journal 100 (1991): 1281ff., 1298ff., as well as that
of Antonio E. Pérez-Luño, El desbordiamento des las fuentes del derecho (Sevilla, 1993).
19. The problem discussed here is clearly represented under the notion of “law and particular-
ity” in U.K. Preuß, Revolution, Fortschritt und Verfassung (Frankfurt, 1994), 162ff.
20. See Art. 12, para. 2 on the Constitution of Brandenburg and its reference to “sexual identity.”
21. For example, Art. 26, para. 1, 2 of the Brandenburg Constitution.
22. See Art. 26, para 2 of the Constitution of Sachsen-Anhalt: “institutions and peculiarities
relating to the native land of the individual regions”; Art. 5, para. 1 of the Constitution of Sachsen:
“the right to the native land.”
23. See Art. 25 of the Brandenburg Constitution, Art. 6 of the Constitution of Sachsen; Art. 37
of the Constitution of Sachsen-Anhalt; Art. 5 of the Constitution of Schleswig-Holstein.
24. Compare above all the Constitutional Court’s third, fourth, and sixth judgments concerning
broadcasting: BVerfGE 57, 295; 73, 118; and 83, 238.
25. Denninger, Staatsrecht I (Reinbek, 1973), 31: “Pluralism is the continuation of liberalism
by other means, namely, with the help of the organization and representation of societal interests.”
26. On the concept of tolerance, compare J. Hellesnes, “Toleranz und Dissens. Diskurstheo-
retische Bemerkungen über Mill und Rorty” in Apel and Kettner, eds., Zur Anwendung der
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Security, Diversity, Solidarity: Erhard Denninger 519
Dikursethik in Politik, Recht und Wissenschaft (Frankfurt, 1992), 187ff.; M. Löw-Beer, “Der
normative Kitt zwischen Lebensformen: Überlegungen zur politischen Toleranz,” in Brumlik and
Brunkhorst, eds., Gemeinschaft und Gerechtigkeit (Frankfurt, 1993), 199ff.
27. E. Fraenkel, “Der Pluralismus als Strukturelement der freiheitlich-rechtsstaatlichen
Demokratie,” in Deutschland und die westlichen Demokratien (1964), updated edition (Frankfurt,
1991), 297ff., 325. There he also notes: “Only if we overcome the deeply rooted antipathy towards
the view that the state in a modern industrial society cannot be homogeneous and that it must be
pluralistic do we open the way for a deepened understanding of western democracy. Pluralism is
characterized in a twofold manner. On the one hand, it rests on a faith that it is possible to shape the
common will by taking into consideration the wills of different groups; on the other hand, it rests
on the realization that it is not possible to preserve freedom if the wills of these groups are
enslaved.”
28. For Schmitt, see Die Verfasssungslehre (Berlin, 1928), 227 ff.
29. See Habermas, Faktizität und Geltung ( Frankfurt, 1992), esp. 367ff., 387ff.. Also, Seyla
Benhabib, “Autonomy, Modernity, and Community,” in A. Honneth, ed., Zwischenbetrachtungen
(Frankfurt, 1989), 373ff.; Benhabib, “Demokratie und Differenz,” in Brumlik and Brunkhorst, eds.,
Gemeinschaft und Gerechtigkeit (Frankfurt, 1993), 97ff.
30. See 2. Hauptteil, 3. Abschnitt of the Brandenburg Constitution: “Politische Gestal-
tungsrechte.”
31. See the preamble of the Constitution of Brandenburg and the Antrag der SPD zur Neufas-
sung der Präambel des Grundgesetzes, Kommissionsdrucksache Nr. 68, in BT-Drcks. 12/6000, 155.
32. For example, Art. 28 of the Brandenburg Constitution.
33. See the preamble of the Brandenburg Constitution and Art. 28.
34. BT-Drcks. 12/6000, S. 159. Kommissionsdrucksache Nr. 93.
35. Art. 46 of the Brandenberg Constitution.
36. Art. 26. para. 3 of the Brandenburg Constitution.
37. See the excellent phenomenological description of modern solidarity by K.O. Hondrich and
C. Koch-Arzberger, Solidarität in der modernen Gesellschaft ( Frankfurt, 1992), esp. 12ff. I have
already remarked on the characteristic bond of a socializing component with a distancing and indi-
vidualizing component in the concept of personal solidarity in Denninger, Rechtsperson und Soli-
darität ( Frankfurt, 1967), 217ff. Also, G. Frankenberg, “Solidarität in einer ‘Gesellschaft der
Individuen’?,” in: Frankenberg, ed., Auf der Suche nach der gerechten Gesellschaft (Frankfurt,
1994), 210ff., esp. 222.
38. Denninger, ibid., 218.
39. Richard Rorty, Kontingenz, Ironie und Solidarität (Frankfurt/M, 1989), 310, cf. also 316.
Solidarity expresses itself not only in relation to the “universalized other,” but also directly over
against the “concrete other.” Seyla Benhabib, Kritik, Norm und Utopie (Frankfurt, 1992), 232:
“Insofar as I meet you according to the norms of solidarity, friendship, love and solicitude, I vali-
date not only the humanity in you, but also your human individuality.”
40. J. Isensee, Das Grundrecht auf Sicherheit (Heidelberg, 1983).
41. Denninger, “Verfassungsschutz, Polizei und die Bekämpfung der organisierten Kriminal-
ität,” Krit. Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft (1994), 232ff. H.F.
Lisken, Vorfeldeingriffe im Bereich der “Organisierten Kriminalität” – Gemeinsame Aufgabe von
Verfassungsschutz und Polizei, in Lisken, Rechtsstaat – was sonst? (1996), 135ff. Also, B. Raum
and F. Palm, “Zur verfassungsrechtlichen Problematik des ‘Großen Lauschangriffs,’” Juristen-
zeitung (1994), 447ff.
42. Translator’s Note: for a discussion of the ongoing German debate about the notion of a
“preventive state,” see Dieter Grimm, Die Zukunft der Verfassung (Frankfurt, 1991), 197–210.
43. In these terms see also K.O. Apel, “Das Anliegen des anglo-amerikanischen ‘Kommuni-
tarismus’ in der Sicht der Diskursethik,” in Brumlik and Brunkhorst, eds., Gemeinschaft und
Gerechtigkeit, 149ff., 165.
44. Seyla Benhabib, Kritik, Norm und Utopie, note 75, 233.
45. J. Habermas, Erläuterung zur Diskursethik (Frankfurt, 1991), 116. This conception of
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520 ConstellationsVolume 7, Number 4, 2000
universalism has distanced itself quite far from the dualistic-antagonistic schema of interpretation
which is approximately still the object of Benhabib’s critique: “If the perspective of the universal-
ized other contains the promise of justice, the ephemeral moments of happiness and solidarity will
be discovered in the relation to the concrete other.” (Kritik, Norm, Utopie, 233)
46. Regarding the history of the development of the Basic Law, see Denninger, in AK-GG, note
29, Introduction I, note 8ff.
47. Art. 5, para. 2 , Constitution of Mecklenburg-Vorpommern. of May 23, 1993. Hopefully this
failed version of the text will at least still protect us from the danger of seeing mere “sojourning” in
Mecklenburg-Vorpommern as an alternative to “living” there, as the text suggests!
48. See Denninger, “Vielfalt, Sicherheit und Solidarität,” in Menschenrechte und Grundgesetz,
Zwei Essays (Weinheim: Beltz Athenäum, 1994), sect. 2.
49. Benhabib, Kritik, Norm, und Utopie, 235.
50. The Resolution of March 12, 1993 – A3-0056/93, text in Europäische Grundrechtezeitung
(1993), 304ff., esp. nos. 109ff..
51. Ibid, esp. nos. 104f, 110, 112. The critique by Bassam Tibi (“Im Banne des Multikultural-
ismus,” in Frankfurter Allgemeine Zeitung [Jan. 11, 1994], 10) of the suggestion of the Joint
Commission on the Constitution to introduce the rights to protect minorities suffers from an abstract
opposition between the “western” principle of individualism and “premodern” collectivism. The
project exists precisely in order to develop a new structure in which individuals and groups can live
together with gradations of group loyalties. One should not leave things at the level of a reified alter-
native between “integration” and “ghettoization.”
52. See Denninger, “Menschenrechte zwischen Universalitätsanspruch und staatlicher
Souveränität” in Menschenrechte und Grundgesetz, Zwei Essays.
53. Wolfgang Huber, “Menschenwürde und Menschenrechte als Grundelemente einer zukünf-
tigen internationalen Ordnung,” Leviathan (1994): 47ff. Also, Huber, Die tägliche Gewalt
(Freiburg/Br., 1993), 150ff.
54. A. Podlech, in AK-GG, Neuwied 1989, Art. 1, para. 1, note 17ff. On this theme see also,
Häberle, “Die Menschenwürde als Grundlage der staatlichen Gemeinschaft,” in Handbuch des
Staatsrechts, Vol. 1 (Heidelberg, 1987) and H. Hofmann, “Die versprochene Menschenwürde,”
Oeffentliche Vorlesungen, No. 2 (Berlin: Humboldt University, 1993), 13ff.. Häberle finds
Podlech’s “five component theory” of the concept of human dignity “in its justifiable concretiza-
tion” convincing.
55. Podlech, AK-GG, Art. 1 para. 1, note 34ff.
56. Ibid., note 44ff.
57. Cf. Art. 25 of the International Covenant on Civil and Political Rights from Dec. 19, 1966.
On this theme see Denninger, Der gebändigte Leviathan (Baden-Baden, 1990), 257ff.
58. Häberle also speaks of human dignity as entailing a “right to political participation.” See his
contribution to the Handbuch des Staatsrechts, Vol. I (Heidelberg, 1987), para. 20, note 68.
60. Aristotle, Politics, I, 2. Cap., no. 1253a.
61. Cf. M. Heidegger, Sein und Zeit, 9e (Tübingen, 1960), 54ff.
62. A determination of the goal of the state such as the “social welfare state” cuts across the
triad of ideals discussed here. It concerns all three, but especially solidarity and security.
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