2. Critical theory and radical democratic theory in the work of Ingeborg Maus

Ingeborg Maus (*1937–2024) was a Professor of Political Theory and History of Ideas at Goethe University Frankfurt from 1992–2003. Her work moves between critical theory, legal theory, and normative democratic theory (Lundestad Reference Lundestad2024), with a focus on whether democracy as radical self-determination of society is possible in today’s late capitalist societies. Maus draws on various theories and assumptions: legal positivism as a doctrine that makes the validity of laws dependent on the procedures of their creation; the assumption within critical theory that society is characterised by a false consciousness and must be subjected to a critique of ideology; and social theory in which actors in systemic structures endeavour to free themselves from legal regulations, permanently endangering the entire logic of the rule of law (see Niesen/Eberl Reference Niesen, Eberl, Buckel, Christensen and Fischer-Lescano2020). Law binds executive authorities as well as social actors, but, according to Maus, both want to free themselves from a clear legal definition and corresponding control. She identifies politically systemic actors as law-applying authorities in institutions and corporate economic companies. The aim of a desired democratisation of society is a ‘comprehensive juridification’ of state authority, extended to international relations (Maus Reference Maus2015). To describe this new democratic order and its radical impact on the law, Maus uses the term ‘Republic’ as a reference point to formulate a democratic theory of the Enlightenment (Maus Reference Maus1994: 15; Brunkhorst/Niesen Reference Brunkhorst and Niesen1998).

At the centre of the Republic is the concept of ‘popular sovereignty’, which Maus reconstructs as the central rationale for modern democracy. The radical nature of her approach consists in characterising popular sovereignty as an extra-legal source and resource of democracy, on the basis of which the ‘people’ as the only authority can legitimately be given the power to make constitutions and laws. In her reconstruction of the democratic-theoretical concept of popular sovereignty, Maus argues, following Kant, that the ‘people’ have always had the right to create and amend constitutions, but that the (absolutist) monarch has usurped this right. For Maus, therefore, recourse to a right of resistance is superfluous, outdated, and, as I will discuss below, highly problematic in terms of democratic theory.

Only the government, not the ‘people’, is bound by the constitution, because the constitution ‘establishes’ the principles of state rule (Maus Reference Maus2015: 188). This is the difference between the constituted power (pouvoir constitué) and the constituent power (pouvoir constituant), whereby the sovereignty of the people is based on the latter. The constitution determines the future procedures for legislation, which then apply – until they are amended – to institutionalised democratic legislature.

3. Kant and the anti-canon of Cold War liberalism

For a long time, all these assumptions were proof of being a totalitarian thinker. Samuel Moyn has recently pointed out how Cold War liberalism, which, in order to compete with communist ideologies, embraced a form of ‘liberalism against itself’ (Moyn Reference Moyn2023). This approach to liberalism and democratic theory, as demonstrated by Moyn, resulted in the rejection of many aspects of liberal thought, including the French Revolution and the thought of its associated theories. Samuel Moyn’s analysis of Cold War liberalism reveals a doctrine that, while espousing progressivism and perfectionism, ultimately embraced a myopic approach, devoid of any genuine aspiration to shape the future (Moyn Reference Moyn2023: 3). This doctrine, as Moyn contends, was predicated on the misguided conviction that high expectations of freedom and emancipation inevitably gave rise to political repression. The ideals of the French Revolution, once regarded as aspirational, were now seen as illusory, as both human nature and the political order proved incapable of fulfilling them. The reinterpretation of liberalism as a defensive approach entailed a repudiation of the entire tradition. ‘Liberalism, no longer regarded as the agent of an unfolding plan to produce a better and more fulfilled humanity, had to be defended as an elemental and eternal set of principles that necessitated the renunciation of progress.’ (Moyn Reference Moyn2023: 5). The Cold War, as posited by Moyn, rendered ‘the liberal tradition unrecognisable and in ruins’ (Moyn Reference Moyn2023: 7).

Cold War liberalism’s anti-canon notably excludes the French Revolution, its underlying sources, and its representatives, along with German idealism, encompassing romanticism. In the context of the world wars, when seeking explanations for nationalism and irrationalism, romanticism was identified as a contributing factor, and fascism was presented as a reawakening of romanticism. Jean-Jacques Rousseau was assigned a role in romanticism, and book chapters with the title ‘From Rousseau to Hitler’ became more common, whether by Jacques Barzun or Bertrand Russell (Moyn Reference Moyn2023: 43–4).

Representatives of Cold War liberalism appropriated conservative and reactionary views of the French Revolution and condemned the Enlightenment as its source, according to Moyn. Consequently, the 1789 revolution was increasingly regarded not as a liberal breakthrough but as a precursor to totalitarianism (Moyn Reference Moyn2023: 49). Rousseau was held particularly culpable for the Revolution, especially for the rule of the Jacobins and the proto-communist movement of Gracchus Babeuf, which were portrayed as harbingers of Soviet communism.

Jacob Talmon’s Reference Talmon1952 work, ‘The Origins of Totalitarian Democracy’, exerted a profound influence on this perspective. In this highly influential work, Talmon systematically excluded Rousseau from the standard democratic canon. According to Moyn, Talmon’s thesis, that ‘the democratic ideal itself paved the way to tyranny’ (Moyn Reference Moyn2023: 51), leading from Rousseau to Stalin, made his book an archetypal text of Cold War liberalism. The consequences for political thought and the reception of the history of liberalism, its understanding of sources, and possible forms of expression were enormous. Moyn’s argument is that Talmon’s ‘book, barely read today, succeeded in detaching liberalism not merely from the Enlightenment but also from the French Revolution – a canonical revision as successful as it was terrible’ (Moyn Reference Moyn2023: 51).

Isaiah Berlin adopted this assessment and described Rousseau as ‘one of the most sinister and most formidable enemies of liberty in the whole history of modern thought’ (Isaiah Berlin, Freedom and Its Betrayal: 52, quoted from Moyn Reference Moyn2023: 54). Berlin traces a line from Robespierre via Babeuf to Marx, Lenin, Mussolini, and Hitler (Moyn Reference Moyn2023: 55) and further popularises Talmon’s position, ultimately leading to the anti-canon that excludes the revolution of 1789 and Rousseau.

Seen in this context, the task that Ingeborg Maus set herself becomes visible in all its extent – and grandeur. Maus’s work presents a radical interpretation of Kant that aims to reposition Kant and Rousseau within the democratic camp, seeking to rehabilitate their theories as theories of the French Revolution. She interprets the principles of the revolution – popular sovereignty, constituent power, and separation of powers – as principles of political reason.

Maus’s analysis mirrors Moyn’s in its essence, yet she offers a distinctive perspective on the German situation. In this setting, Carl Schmitt’s interpretation of Rousseau’s theories is for her of particular interest, and she carefully examines Schmitt’s arguments. Schmitt’s aim is to demonstrate that Rousseau opens the way for a bourgeois theory of ‘democratic dictatorship’ that is on a par with Marxist theories. Schmitt’s argument is that in Rousseau’s republic, the individual loses all rights – a claim that is shared by Cold War liberalism. According to Schmitt, the question of inalienable rights of the individual can no longer be raised under the volonté générale (Schmitt Reference Schmitt1964: 120), thereby promoting a contradiction between democracy and liberalism. Schmitt refers to a sentence in Rousseau’s work, in which Rousseau states that people must sometimes be forced to be free (Rousseau Reference Rousseau1962: I, 7). Despite not detecting any romantic programme in Rousseau’s work, Schmitt identifies the ascendancy of dictatorship and terror. According to Schmitt, political participation in Rousseau’s Republic is reserved exclusively for the virtuous, with the rest deemed ‘morally corrupt, a slave that must be rendered harmless’ (Schmitt Reference Schmitt1964: 123, my translation). Rousseau according to Schmitt provides a justification for a reign of virtue, stating that ‘if it turns out that the majority has fallen prey to corruption, the virtuous minority can use all means of violence to help virtue to victory. The terror they exert cannot even be called coercion; it is only the means to help the unfree egoist to find his true own will’ (Schmitt Reference Schmitt1964: 123, my translation).

This conclusion bears a striking resemblance to that of Cold War liberalism. While Cold War liberalism sees Rousseau as the originator of totalitarianism, Schmitt identifies an intriguing source of concepts for a democratic dictatorship that is capable of recognising and ‘destroying’ the ‘unfree’ (Schmitt Reference Schmitt1964: 124, my translation).

Ingeborg Maus accurately perceives this parallel. Schmitt’s interpretation has been instrumental in establishing the 18th-century democratic theory as a harbinger of the ‘totalitarian democracies’ that emerged in the 20th century (Maus Reference Maus2011: 115).

While it is possible to demonstrate precisely how Rousseau incurred the hatred of Cold War liberals, this is much more challenging to do for Kant. In a footnote, Moyn observes that the treatment of Kant by Cold War liberalism has not yet been described. Kant was treated with more restraint and eventually received a positive reception through Rawls and Habermas. In Cold War liberalism, however, Kant was inserted ‘as Fichte, to the Rousseau-and-company road to serfdom story’ (Moyn Reference Moyn2023: 189, footnote 31, chapter 3).

4. Bringing Kant back in democratic theory

The misinterpretation of Kant is further elaborated upon in Maus’s major work ‘On the Enlightenment of Democratic Theory’ (‘Zur Aufklärung der Demokratietheorie’ Reference Maus1994). In this book, she sought to establish the relationship between the Enlightenment, the French Revolution, and democratic theory, a task which includes the challenge of explaining ‘how the most consistent democratic theories of the 18th century, such as those propounded by Kant (or even Rousseau), could in the 20th century no longer be identified as democratic, rather being suspected of being enlightened absolutist (or even ‘totalitarian’)’ (Maus Reference Maus1994: 7). This misunderstanding, according to Maus, results in a misinterpretation of the very concept of democracy and therefore also to a failure of the critique of totalitarian systems. Maus thereby establishes a close connection between Rousseau and Kant, who are regarded by her as the most advanced theories of democracy in the 18th century and, consequently, of the French Revolution. She interprets their theories as a yardstick for an enlightened theory of democracy.

To understand why Kant was interpreted in this way, one must subject contemporary consciousness of democracy to ideological criticism. She begins her book with the sentence ‘We live in a century of counter-enlightenment’ (Maus Reference Maus1994: 7), in which theories of Enlightenment can no longer be recognised as democratic theories. She has in mind Carl Schmitt’s attempt to reinterpret Rousseau’s democratic theory as a theory of dictatorship, on the one hand, and the corresponding reading of Rousseau by Cold War liberals as a source of totalitarian regimes, on the other. This totalitarian reading of democratic thinkers is a central theme in Maus’s work. She asks why the radical democratic content of Rousseau’s and Kant’s theories is no longer recognisable. An explanation she gives is that a democratic theory is measured against a pre-democratic standard (such as the right of resistance). This is because democracy as popular sovereignty has been co-opted by interests to tame democracy and prevent social revolution. Theories and interpretations of theories must be seen not only in a historical but also in a social context.

But Maus refuses to blame this social condition on the Enlightenment itself, as Adorno and Horkheimer did in their Dialectic of Enlightenment. As Martin Welsch has shown, her own variant of critical theory with its thesis of an undialectical counter-Enlightenment refers to the ‘assumption of an unadulterated origin of the democratic’ that Maus finds in Kant and Rousseau (Welsch Reference Welsch2022: 397). Rousseau and Kant are the original sources of a radical democratic theory before the Counter-Enlightenment began its reactionary and anti-democratic course. The sovereignty of the people is not a means of tyranny by the virtuous, but the programme of democratic self-legislation and social self-determination. The effects of the Counter-Enlightenment (especially Carl Schmitt) and the deficits of contemporary consciousness are particularly evident in the reception of Kant. Maus writes:

One explanation for this misinterpretation has to do with the way in which National Socialism was dealt with: it was interpreted as the result of democratic decisions, not anti-democratic activities, and therefore, the only appropriate response was to restrict democracy. The other reason for the reception of Kant as an authoritarian thinker is a much more pervasive issue: within late capitalist societies, there is a general inability to conceptualise democracy as a praxis of freedom that fosters social self-determination and unbridled rule. During the era of counter-enlightenment, the prevailing sentiment asserted that democracy posed significant threats and, consequently, necessitated limitations. This erroneous consciousness must be dispelled through enlightenment:

If this summarises Maus’s radical theory of democracy and its positioning within critical theory (Brunkhorst Reference Brunkhorst2020), I would like to draw attention to a further aspect, the absence of which may result in an incomplete comprehension of Maus’s work.

5. Social superego and the republic

For Maus, popular sovereignty is the constitutional and legislative power that stands at the top of a hierarchical arrangement of powers which binds the powers that apply within it – the judiciary and the executive. The special position that the German Federal Constitutional Court (and many other Constitutional Courts, first of all the US-American Supreme Court) occupies in the trust of the citizens therefore appears as a counterpart to the right of resistance, which strives for a judicial resolution of political conflicts. This excessive trust in the highest Court, which is superior to the legislature and which Maus interprets as ‘quasi-religious veneration’, is problematic for Maus, because the Court ‘must be characterised as an opponent of popular sovereignty in the assumptions of its practice’ (Maus Reference Maus2018: 11, my translation). In order to decipher this connection between undemocratic practice and quasi-religious veneration, Maus holds it in accordance with early critical theory necessary to take a look at the ‘psychological mechanisms of this process’ (ibid.). To this end, Maus draws on Marcuse’s text ‘The Obsolescence of Psychoanalysis’ (‘Das Veralten der Psychoanalyse’, Marcuse Reference Marcuse1965), from which she takes a decisive insight. In both family and society, the importance of the father figure for the constitution of the ego and the ‘masses’ is dwindling and the classically formed superego is being formed less and less through fatherly domination.

This is a diagnosis rich in theses: the disappearance of the father figure in the constitution of individuals and personal rule leads to the disappearance of individuals’ ability to criticize. Individuals in fatherless late capitalist societies marked by a ‘depersonalised functionaries of technocratic rule’ (Maus Reference Maus2018: 18, my translation) no longer know at which authority criticism should be directed. The disappearance of the father, who forced the development of the superego and conscience through authority, does not lead to the free development of individuals but, according to Maus, to an ‘infantilism of subjects’ who can no longer see through their co-dependent relationships.

However, it is now necessary to explain why these ‘libidinal occupations’ of the judiciary occur. Maus sees a ‘classic pattern of superego delegation’ both in the US tradition of constitutional jurisdiction and the selection of the right judges, as well as in the Weimar debate about the personality of judges.

Psychologically, the state apparatus acts as father and conscience for an infantilised population that invests it with an authority based on infantile trust. Referring back to the Enlightenment, Maus shows that its programme in politics and in moral philosophy consists of liberation from the authority of the paternal ego. In the revolutionary turn, the Abbé Sieyès sees the ‘paternally protective state power’ (Sieyès Reference Sieyès, Schmitt and Reichardt1981: 94) replaced by self-given laws, which places the generation of laws above the executive power. Maus argues that state apparatuses are subject to the will of the legislating people. This is recognised as one of the most significant principles of popular sovereignty: the state, from a normative perspective, is the result of the union of citizens and is only legitimised to the extent that they mandate it. Accordingly, the judiciary is subject to the laws, which they must strictly apply. Maus sees the same reversal of the paternal-infantile dependency in Kant’s conception of morality, which no longer sees commandments and tradition realised through transmission by the father, but instead provides individuals with a test procedure of maxims of action in the form of the categorical imperative, which replaces the father (Maus Reference Maus2015: 25).

The individual can scrutinise moral imperatives himself and is capable of self-legislation in politics. I will not go into detail as to how Maus sees these processes thwarted by the remoralisation of law and jurisprudence, but rather focus on the two processes that prevent democracy in contemporary social consciousness: the role of the Constitutional Court as a social authority of conscience and the associated displacement of the principle of popular sovereignty by reference to a right of resistance. Both processes reveal a search for paternal authority and a fear of fatherless politics. Kant’s sapere aude rings aloud in all its significance for contemporary politics. In the following, I will show why Maus interprets the reference to the right of resistance as a self-misunderstanding of the democratic sovereign and why the Federal Constitutional Court sees it as an obstacle on the path to a Republic.

6. Right of resistance vs. popular sovereignty

Maus’s distinction between principles of the right of resistance and popular sovereignty form two opposing principles. While the right of resistance refers to predetermined rights whose violation by the ruler may be resisted, popular sovereignty establishes the constitutional and legislative competence of the people as extra-legal. While resistance reactively defends the status quo, popular sovereignty opens up the space for democratic innovations and democratic participation in the formulation of law.

Maus emphasises the difference between a medieval contract of domination like the Magna Carta and the modern social contract. A discussion of the nature of the Magna Carta is helpful to understand the difference to popular sovereignty (cf. Maus Reference Maus1994: 33, 51–3). In the feudal states of the Middle Ages, resistance was directed against the king, who attempted to extend his power over the territorial lords and enforce higher taxes and war contributions. However, this expansion of state activity led to a violation of the ‘well-acquired subjective rights’ of the nobles and regional princes (Kern Reference Kern and Buchner1954: 163). If the ruler breached these rights, he was committing ‘violence’ – and then violence was permitted against violence. Royal measures therefore had to win the consent of the princes and negotiate a balance between central and regional powers with the aristocracy.

The Magna Carta of 1215 is a ruling treaty between the monarch and the barons that precisely formulated the conditions for resistance and guaranteed the barons a positive right to resist in the event of a breach of contract. In the context of such a contract, the governing principles are determined by the conditions mutually agreed upon by the parties. In the event of a breach of contract by the ruler, resistance is permitted (cf. Vincent Reference Vincent2012: 111–124).

Most importantly, the ‘security clause’ formulated in Article 61 of the Magna Carta contains the collective right of resistance against the king. Should the king (or his officials) violate the rules of the Magna Carta, the great charter of liberty, a committee of 25 barons would be justified in identifying offences and demanding redress within 40 days. Should the king fail to respond appropriately, the barons were authorised to take violent action against him. They had legal permission ‘with the community of the whole realm [to] distrain and distress us [the king and officials] in all ways possible by taking castles, lands, and possessions and in any other ways they can, until it has been put right, in accordance with their judgement, saving our person and the persons of our queen and children’ (Article 61, cf. Vincent Reference Vincent2012: 123 ff; Jones Reference Jones2015: 134–8). This provision actually subjects the king to the barons, because it leaves it to the judgement of the barons, i.e., one of the disputing parties, to decide whether the case of their injury has occurred. The surrender of the king, who is only guaranteed his life and that of his family, could hardly be clearer.

Maus shows how a substantial body of literature has been critical of Kant’s failure to incorporate the concept of such a right to resistance (Maus Reference Maus1994: 45–8). The erroneous assumption that democratic quality can be evaluated using a pre-democratic concept constitutes the central point of her critique. With the revolutionary demand for popular sovereignty in the 18^th century, the protest was no longer directed against an unjust autocrat or his laws, but more fundamentally against the monarchical form of rule itself. Maus stresses that the Rousseau-led idea of sovereignty as a sovereignty of the people turned the concept of the Magna Carta on its head by replacing the contract of rule with only one contract and that is the social contract, the pactum unionis. The contract of domination (pactum subjectionis) was reframed as a single social contract and a ‘guideline’ (4: 313) for the critical judgement of existing states and their forms of rulership and domination. Maus also shows that Kant explicitly rejects any idea of a pactum between the sovereign and the people (Maus Reference Maus1994: 46–7). The broader thrust of this argument is that Kant never opposed the French Revolution, but rather explicitly justified it by rejecting such a pact. Maus concludes that ‘it is precisely in view of the absence of this pact that Kant legitimises the central event of the French Revolution, the transfer of sovereignty from the king to the people’ (Maus Reference Maus1994: 47).

This transfer of sovereignty to the people is different from the promise to exercise power according to the agreed rules. Maus therefore also emphasises the distinction from the American constitutional tradition. In the struggle against the absolutist Stuarts in the 17^th century, the Magna Carta took on new significance. Edward Coke, Member of Parliament and Speaker of the House of Commons, interpreted it as the ‘Ancient Constitution’ of common law, which the kings had to follow (Coke Reference Coke and Shepard2003). This interpretation, propagated by William Blackstone, makes the ‘mythical’ Magna Carta a suitable point of reference for a demand requiring a limitation of royal power, particularly in the dispute between the American colonists and the English kings. In the American colonies, the Magna Carta thus influenced the colonial charters of Virginia, Massachusetts, and Connecticut and ultimately the Bill of Rights (Dillon Reference Dillon, Magraw, Martinez and Brownell II2014; Howard Reference Howard1968). The Magna Carta thus leads to American constitutionalism with a Bill of Rights, strong judicial oversight, and a separation of sovereignty between all three branches of government: executive, legal and administrative.

In contrast to the Anglo-American tradition, Maus sees the ground-breaking concept of democracy in the theory of popular sovereignty, which is spelt out in the French Revolution, as the end of all assumptions of a contract of rule and any relationship of trust between people and ruler. The social contract is no longer regarded as a contract at all, from which the unification of society into a political body emerges, which can then act as a contractual partner with the ruler. Instead, the social contract is purely fictitious, it is, as Kant puts it, ‘a mere idea of reason’ (8: 297), which binds all legislators to make laws in such a way that they can be understood as arisen from the united will of the people and to regard all subjects as possible co-legislators. It is the ‘touchstone of the legitimacy of every public law’ (ibid.). Maus concludes: ‘the idea of the social contract does not serve to interpret the existing socialisation, but to criticise and change it’ (Maus Reference Maus1994: 63). This change of perspective on the social contract has to do with Kant’s assessment of the beginning of rule and its development. Kant emphasises the factuality of rule, from which the task of democratising it arises. Existing rule must be brought into a justified form through democratisation: ‘All rule is facto usurped, iure it should be constitutional’. (R 8046 19: 592). From this, Maus argues that the radical goal of popular sovereignty is, in addition to the reclamation of rule, the total elimination of the ruler’s freedom through the ‘subjugation of the state apparatus to the legislative will of the people’ (Maus Reference Maus1994: 42).

Hence, the people are the sovereign and cannot transfer their sovereignty to a ruler through a treaty, not even tacitly (6: 341). Kant interprets the convocation of the États Généraux (States-General) by Louis XVI in 1789 as the king’s invitation to the people to take back their sovereignty. Kant sees the convocation of the États Généraux as a ‘misstep of judgement by a powerful ruler’, who hoped to find a legislative solution to the national debt, as a result of which, however, ‘the monarch’s sovereign power disappeared completely (was not merely suspended) and passed to the people’ (ibid.). There was no reason for the people to limit themselves to the purpose of the invitation, but the monarch’s power to rule then passed as a whole into the hands of the people. This is where Maus sees the radical beginning of popular sovereignty: the people have the right to establish a constitution, no matter what tradition or institutions are existing. This right of the people to give themselves a constitution is for Maus the original right of popular sovereignty.

For Maus, such popular sovereignty cancels the question of the right to resistance by establishing the extra-legal competence of the people to exercise constitutional and legislative power. This means that popular sovereignty cannot be reflected in or authorised by the monarchy, and becomes effective at any time outside of constitutional and legislative processes. To want to derive a right to non-institutionalised public action from the constitution or even to invoke a right to resistance appears to be a violation of the democratic principle of popular sovereignty. Maus describes the idea of wanting to vindicate protest on a right of resistance as an adaptation to the ‘re-feudalisation’ of society. As with the Magna Carta, the people have to negotiate rights with the sovereign king, rather than understand their pre-existing rights of sovereignty over public law. The incorrect justification of the right to protest applies to democratic theory as well as to protest movements, which also orientate their self-image and practice on the right of resistance to a sovereign State (Maus Reference Maus1994: 37). She sees the interplay between the re-feudalisation of theory and practice as a particular danger for the future of democracies. The practices of protest often include the aim of taking legal action and hoping for a judicial resolution of the conflict. For Maus, it is the belief in a juridical ‘superego’ that prevents the Republic from taking effect by referring conflicts to the judiciary in the hope of a conflict-free solution from a ‘higher’ institution.

7. State of nature, revolution, and barbarism

To better understand Maus’s argument, it may be helpful to compare it with Arthur Ripstein’s discussion of Kant’s right of revolution. Ripstein wants to find in Kant a right to revolution in order to free Kant from the accusation that he has no answer to totalitarian regimes because of his strict rejection of a right to resist (Ripstein Reference Ripstein2009). Ripstein is not saying that Kant is leading to a totalitarian regime, but that he is helpless against them. Again, Kant is measured against his relation to totalitarian systems, a move that also characterises Cold War liberalism.

Ripstein distinguishes three forms of Kant’s ‘anti-revolutionary argument’. The first is ‘that a constitution can never include a provision giving the people a right to revolution’. Ripstein calls this the argument ‘against a legal right to revolution’ (Ripstein Reference Ripstein2009: 327). Kant’s second argument against a right to revolution is, according to Ripstein, an argument about ‘the irrelevance of history’, meaning that it is wrong to inquire into the origin of the institutions of the state. The third argument is that ‘the revolutionary necessarily acts unilaterally and can therefore never be justified’ (ibid.: 328). Ripstein formulates assumptions that directly contradict Maus’s interpretation of Kant’s theory of popular sovereignty. For Ripstein, ‘Kant is also right that the use of extra-legal force can never be justified as an expression of the popular will’ and that ‘only if the people are represented by legal institutions can they act together’ (ibid.: 328). It is clear that Ripstein understands popular sovereignty only within the framework of a constitution, i.e., as a pouvoir constitué, and thus neglects the pouvoir constituant as a justification of revolution.

The first argument, according to which it would be contradictory for a constitution to contain an article on the right to revolution, is reformulated by Ripstein as a question of unilateral judgement in the event of a dispute at the constitutional level. For Ripstein, in the case of a revolution, however, ‘someone presents himself as outside the legal order, yet, entitled, to resolve a dispute in relation to it’ (ibid.: 330). This was precisely the central message of the theory of popular sovereignty when Sieyès declared that the dispute between the States-General and the king could not be resolved on the basis of the existing constitution, that the people needed a (new) constitution, and that the Third Estate therefore had the right to declare itself a constitutional assembly (Sieyès Reference Sieyès, Schmitt and Reichardt1981). The Third Estate acted here as a sovereign with extra-legal constitutional authority outside the constitution, and it is therefore, other than Ripstein thinks, in no way ‘surprising’, that Kant declares that the sovereign ‘is entitled to be judge in his own case’ (Ripstein Reference Ripstein2009: 330) – this is precisely popular sovereignty. However, Ripstein treats this case as a dispute to be decided by a constitutional court – more on this below.

The second argument, according to Ripstein, is that the legality of a legal state is above the question of the legality of particular laws. A ‘rightful condition does not lose its claim to be rightful simply because it passes unjust or even oppressive laws’ (ibid.: 335). The right to revolution, therefore, does not derive simply from unjust laws. Ripstein concludes: ‘The juridical nature of Kant’s argument leads to an exceptionless formulation: there can be no right to revolution.’ (ibid.: 336) Revolution means extra-legal violence and, according to Ripstein, this is morally justified only if it serves to force the other to leave the state of nature (ibid.: 333-4).

This argument leads Ripstein to justify revolution if the state falls back to the state of nature. He thus ends up agreeing with the traditional reading of Kant, according to which there can be no right to revolution. He does not examine the theory of popular sovereignty. Instead, he searches for the exception that can justify the use of force against the state. For this, he returns to the subject of totalitarian states. ‘Instead, cases in which the political powers conduct themselves so egregiously are thought to give rise to a right to revolution. Nazi Germany is the clearest example.’ (ibid.: 337) To place Nazi Germany in a scheme of illegitimacy, Ripstein draws on Kant’s table of forms of rule in the Anthropology (7: 330).

Ripstein’s aim is to determine a state of violence that suits the most horrific regimes in history and our present, and he uses the concept of the state of nature to do so:

Ripstein intensifies Kant’s criticism in a manner typical of the 20th century: He identifies the ‘most terrible regimes’ with the state of nature and explains ‘barbaric violence’ as a justification for the violent (re)founding of states.

There are also a number of problems with this identification of the state of nature and barbarism: firstly, Ripstein does not discuss the implications of the term barbarism, which Kant takes from the description of other peoples and international law. Secondly, Kant considered all states to be ‘barbaric’, as they originate in violence and are themselves ‘barbaric’ as long as they have not submitted to the republican ideal and respect international and cosmopolitan law (Eberl Reference Eberlforthcoming). For Ripstein, ‘barbarism’ is the state that has reverted to the state of nature. His characterisation of ‘barbarism’ leaves Kantian ground when he believes that the state overcomes this form of barbarism. The state itself is – as long as it is no republic and long before it turns to Nazism – barbaric.

Ripstein’s concept of barbarism appears as a classic description of the state of nature: ‘a condition of barbarism can have no united will. All force is merely unilateral; […] in barbarism all exercises of power are necessarily for private purposes […]. In a condition of barbarism, there is no freedom, because each person is subject to the unilateral choice of others.’ (Ripstein Reference Ripstein2009: 341) Ripstein defines violence here as violence between individuals, because the lack of freedom of individuals in this ‘barbarism’ arises from the unilateral subjugation by others and of others. This description corresponds to the picture that Kant and Hobbes drew of the state of nature. Consequently, Ripstein confuses violence with executive violence in Kantian terms. Particularly with regard to the definition of the lack of a united will, however, Ripstein confuses ‘state of nature’ and ‘barbarism’ in his use of language, which Kant uses the other way round: without unification a state of nature, with violent unification a ‘barbaric’ state. Ripstein understands ‘barbarism’ as the most violent form of dissolution, but actually hypostatisation of the state, as critical positions have become accustomed to doing, especially in the debate on National Socialism. His view is thus typical of the further development of the concept of barbarism as a critical concept after National Socialism, which he has in mind alongside more recent despotisms. In doing so, however, he fails to recognise that ‘barbarism’ in Kant is itself the description of a state condition. If we see this state as a ‘defective’ state of nature, then we miss out on the criticism of the defective state and are mistaken about the development of the state constitution. What still appears in Kant as a continuous critique of state violence is transformed in Ripstein into a critique of typical disagreeable forms of government, which is in danger of losing the sting of self-criticism.

If this is true, then Ripstein has provided yet another example of an interpretation of Kant that discovers weaknesses in Kant’s theory against the background of the confrontation with totalitarian systems of our time, instead of gaining the strengths of Kant’s theory from dealing with the state systems of his time and their upheaval. Maus has constantly criticised the way out of conflicts over the constitution, which Ripstein also hinted at with constitutional courts, as an expression of a departure from the ideal of popular sovereignty. I will briefly present her arguments in conclusion.

8. The Federal Constitutional Court as the superego of the democratic sovereign

Maus has adopted the term ‘re-feudalisation’ from Max Weber and Jürgen Habermas (Reference Habermas1990) to describe the tendencies towards de-democratisation. For Maus, re-feudalisation means a decoupling of political decisions from the democratic process. One typical example is the migration of political decisions to the judiciary. The ‘process of re-feudalisation’ is ‘exacerbated by the favouring of the judiciary as a decentralised arbitration body’ (Maus Reference Maus2011: 37, my translation). The re-feudalisation of the legal system goes hand in hand with a fundamental re-feudalisation of the understanding of democracy and the practice of legal institutions, which no longer regards the programming of state apparatuses by popular sovereignty as the competence of citizens, but only the ‘resistance’ against authoritarian state orders (Maus Reference Maus1994: 37). The sovereign of popular sovereignty thus oscillates only between justice and resistance, denying and rejecting any obligation to lead the democratic public sphere with the aim of influencing the legislative process. The resistant acts of individuals which aim at a decision by courts, can then only, according to Maus, serve the ‘expertocratic handling of the law in Court proceedings’ (ibid.: 40). Even grassroots democratic votes on every single law could not change the fact that, in view of the self-programming of the state apparatus, there is now only an egalitarian electorate of ‘passive citizens’ (Maus Reference Maus2011: 20). The much-discussed renewal of democracy through direct democratic elements is therefore as a single instrument doomed to failure. This is due to the use by the executives of de-formalised formulas in laws. Exceptions and undefined general-clauses leave loopholes and space for arbitration.

If we place the German Federal Constitutional Court in this context, we see a specific contribution to the disempowerment of the legislature as expression of popular sovereignty and a specific individualisation of political decision-making. Against this background, the often-described successes of the Federal Constitutional Court in stabilising post-war German democracy takes on the opposite meaning: what initially appears to be a strengthening of individual fundamental rights and new democratic institutions becomes recognisable as a prevention of popular sovereignty. The legal scholar Christoph Schönberger explains how the Court’s successes seem to contradict this:

The Court’s apparent success story also includes the fact that it is the most popular political body in the Federal Republic of Germany and has enjoyed the highest trust ratings for decades (cf. Rath Reference Rath2013: 11). In the early development of German post-war democracy, however, authoritarian trust in the judiciary and ‘traditional anti-Parliamentary resentment’ came together (Schönberger Reference Schönberger, Jestaedt, Lepsius, Möllers and Schönberger (eds.)2011: 41-3).

An examination of the history of ideas in the development of democracy shows that the success of the Federal Constitutional Court was based on a Europe-wide trend of restricting democracy. Jan-Werner Müller has shown that Constitutional Courts are typical of post-totalitarian democracies (Möllers Reference Möllers, Jestaedt, Lepsius, Möllers and Schönberger2011: 285). They were introduced in Japan and Italy after the Second World War, and later also in Spain.

This trend was, according to Maus, associated with a theoretical ‘demonisation’ of the idea of popular sovereignty (Maus Reference Maus2011: 7). In the search for ‘stability’, the means found was to strengthen governments instead of Parliaments or the public. Paradoxically, the executive excesses of the fascist systems, which consisted of the abolition of Parliaments and the unleashing of the executive, led to the conclusion that Parliaments had to be ‘disciplined’ in order to create a stable political order. ‘In concrete terms, this meant that the imperative of politically restricting entire peoples was translated into a weakening of Parliaments […]. The danger of ‘Parliamentary absolutism’ was thus to be banished once and for all’ (Müller Reference Müller2013: 250, my translation) which resulted in a legal victory of the Courts over Parliament.

It was no coincidence that conservative legal scholars already in the Weimar Republic demanded a judicial right of review vis-à-vis the newly democratised legislature and identified the strong personality of the judges as the guarantor of these rights (Maus Reference Maus2018: 33). In the Bonn Republic, the Constitutional Courts assumed the function of ensuring the protection of individual rights, which were removed from the reach of Parliaments through their guarantee of eternity.Footnote ¹ Democratic decision-making is thus subordinated to the Constitutional Court and not preserved by it. In addition, the Court was conceived as a body of professional experts. The stipulation that members of the Constitutional Court must be qualified judges (Schönberger Reference Schönberger, Jestaedt, Lepsius, Möllers and Schönberger (eds.)2011: 17) made the Court an instrument of the judiciary from the outset and at the same time removed it from democratic influences. From a sociological and democratic-theoretical perspective, the traditionally privileged judiciary has managed to rise above the legislature by placing itself on an equal and higher footing than the legislature.

The result was a paradox where the Court contributed to the liberalisation of society, but at the same time ‘benefited from a pre-democratic political culture that believed in authority’ (ibid.: 43). Where ‘history, nation and culture’ were missing as integration factors, the German Grundgesetz (Basic Law) filled the gap and the Federal Constitutional Court was able to become ‘a symbol of the break with the Nazi past, of the return to the circle of civilised peoples’ (ibid.: 47). The fact that it is not Parliament but the Court that symbolises the break with Nazism suggests that it was precisely the elitist-paternalistic variant of the democratic-legal path that the democrats were supposed to have set out on. Christoph Möllers recognises the reason for the high popularity of the Court in the ‘longing for conflict-free forms of political decision-making’ (Möllers Reference Möllers, Jestaedt, Lepsius, Möllers and Schönberger2011: 297, my translation), which are easier to accept than the representative-democratic process of decision-making. This expresses an excessive trust in experts and an anti-democratic distrust of Parliament, which complement each other and justify the success of the Federal Constitutional Court. This is precisely why Maus sees the Court as a father substitute in a fatherless post-war society.