The principle of popular sovereignty determines the people to be the sovereign bearer of state power . According to this, the constitution as the political and legal basis of a state rests on the constituent power of the people. Not an absolute monarch , but the people in their entirety stands solely above the constitution.
The demand for actual sovereignty of the people was found early on in the text Defensor pacis (German: "Defender of Peace", completed 1324) by Marsilius of Padua, which was based on Aristotelianism and was primarily directed against the Pope . The enlightener Jean-Jacques Rousseau then systematically developed the idea of popular sovereignty in his state-theoretical work On the Social Contract or Principles of State Law (in the French original: Du contrat social ou Principes du droit politique ). His concept of popular sovereignty differs from that of Hugo Grotius : According to Grotius, the people can transfer their sovereignty to a person to any extent. According to Rousseau, the people have indivisible and inalienable sovereignty and can only leave this to a ruler for exercise in the social contract . This view provided the theoretical basis for revolutions against sovereign rulers. The concept of popular sovereignty was taken up in Germany by the cameralist and state theorist Johann Heinrich Gottlob von Justi . For a long time the scholars did not agree on whom among the people should be given the task of enacting the constitution. Only after completion of the transition from the corporate society to a civil society could a constitution based on the principle of popular sovereignty be enacted for the first time in Germany in 1919 with the Weimar Imperial Constitution; in Switzerland, on the other hand, this was clear as early as 1848 with the vote on the new federal constitution . Initially, the term popular sovereignty had more of a meaning under international law . In the 19th and 20th centuries, popular sovereignty became the name for the constitutional, constituent power ( pouvoir constituant ) and for the democratic legitimation of the state. The dispute thus shifted to the domestic political sphere. This gave rise to the dispute over whether the ruled people or some other ruling institution was the true sovereign. With formulations such as “All power comes from the people”, popular sovereignty has now also found its expression in the latest constitutions of the Eastern European area and is thus seen as a fundamental principle of the legitimation of democratic political rule.
Legal situation in Germany
Popular sovereignty in the sense of German constitutional law is part of the principle of democracy and as such is one of the constitutional characteristics of the state of the Federal Republic of Germany . The principle of popular sovereignty is regulated in Paragraph 2 of the Basic Law (GG). The provision is as follows:
In detail, this stipulates:
All state power in Germany emanates - directly or indirectly - from the people . The people in this sense is the sovereign in the state, as it is master of himself. It is solely by the "people" in this context, a citizen within the meaning of the three-element theory to understand. This includes everyone who i. S. v. Art. 116 GG has German citizenship . Foreigners (non-Germans) are therefore not entitled to participate in the exercise of state authority, in particular in elections and votes (at the federal level ). They must also not be granted the right to vote for foreigners because only Germans are entitled to state power ( Paragraph 2 of the Basic Law). Only in the case of elections in districts and municipalities are foreigners, as long as they are Union citizens , i.e. citizens of a member state of the European Union (EU), eligible to vote actively and passively , in accordance with (1) sentence 3 of the Basic Law . It also follows from this provision that the right to vote for foreigners is inadmissible at both federal and state level.
The people of the state exercise their authority directly through elections and votes . The exercise of state authority through voting is finally regulated in the Basic Law. Votes only take place in the case of restructuring of the federal territory ( and GG) or for the resolution of a new constitution ( GG). The introduction of further constitutive referendums or decisions would only be possible through a constitutional amendment, not through a simple law .
Outside of elections and votes, the people exercise state power only indirectly, through the organs of legislation ( legislative ), administration ( executive ) and judiciary ( judiciary ). The direct exercise of state authority is therefore essentially limited to participation in elections. In this sense, German democracy is a purely representative democracy .
Legal philosophical perspective
From a right positivist point of view, using the example of the current German constitutional law , there is no German law that is beyond the reach of the German sovereign - the people. For the people exercise their state authority by setting and executing justice. Law ( meant in the jurisprudential sense) is therefore not the prerequisite and limit of the people's sovereignty, but the expression and consequence of their sovereignty and the medium in which sovereignty unfolds. In principle, the people are therefore not even prevented - if necessary through the creation of a new constitution - from allowing forced labor, abolishing property or abolishing the inviolability of the home. There are no superordinate “legal propositions” to which the sovereign would also be absolutely bound in the legal sense. Should the sovereign feel bound by certain values for moral , ethical or other reasons (such as the inviolability of human dignity or freedom of expression), he will take them into account. But he is not legally obliged to do so.
In contrast, a legal philosophy based on natural law takes the view that “legal sovereignty” should precede popular sovereignty even in democratic states. This means that certain legal principles (such as human rights ) as the basis of political life in a democracy should not be violated. The democratic application of the principle of popular sovereignty does not consist in enforcing the will of the majority, but in respect for the rights of individuals and social minorities and groups by the democratically qualified majority .
Critical considerations for understanding popular sovereignty in general
Various initiatives understand the principle of popular sovereignty as a further requirement: They reject representative democracy as fundamentally "undemocratic" and only accept direct democracies as "democratic". According to their understanding, there should be no state or state-like level higher than the people such as B. State level or EU level, which is authorized to give instructions to the people of the respective state. Even within the state, higher-ranking bodies with authority to issue instructions such as parliaments , constitutional courts , governments , administrations, aristocrats , dictators, etc. are rejected.
According to Otfried Höffe , the participation of citizens in a democracy has limits: “A democracy that allows majorities even for basic human rights violates its legitimacy .” Höffe justifies it with the fact that “legitimate rule [...] comes from people: principle popular sovereignty, and they benefit [must]: principle human rights "At least the change of a. Constitution must come directly from the people. Is a representative body, z. If, for example, a government is entitled to make changes to basic human rights itself, which are regulated in the constitution, without a referendum, the legitimacy of democracy is seriously violated, which means that the existence of popular sovereignty cannot be given.
- Philipp Erbentraut: popular sovereignty. An obsolete concept? Tectum, Marburg 2009, ISBN 978-3-8288-9903-2 .
- Peter Graf Kielmansegg : popular sovereignty. An examination of the conditions of democratic legitimacy. Klett-Cotta, Stuttgart 1977/1994, ISBN 3-608-95962-9 (also Habil.-Schr. , TU Darmstadt , 1991 under the title: Popular sovereignty as a legitimacy problem ).
- Ingeborg Maus : On popular sovereignty. Elements of a democracy theory. Suhrkamp, Frankfurt am Main 2011, ISBN 978-3-518-29607-3 .
- Winfried Veil: Popular sovereignty and sovereignty of the people in the EU - With direct democracy against the democratic deficit? Nomos-Verlag, Baden-Baden 2007, ISBN 978-3-8329-2510-9 .
- Georg Vobruba : The post-national space. The transformation of sovereignty and borders in Europe. Beltz-Juventa, Weinheim / Basel 2012, ISBN 978-3-7799-2722-8 .
- De Jure Belli ac Pacis [On the law of war and peace] , Paris 1625, 1st book, chapter 3, section 8 f.
- Jean-Jacques Rousseau: From the social contract or principles of constitutional law , transl. U. ed. by Hans Brockard u. Employee by Eva Pietzcker. Reclam, Stuttgart 1977, section II 1 and 2 (first edition 1762).
- Otfried Höffe: Is democracy sustainable? About modern politics. Beck, Munich 2009, ISBN 978-3-406-58717-7 , p. 80.