Ingeborg Maus is one of the most important contemporary theorists of democracy. Her research interests are mainly constitutional and legal policy issues. Her focus is the concept of popular sovereignty, a concept that has fallen somewhat into disrepute in the current constitutional debate, and one that she has defended both against abridged and distorting interpretations and against its abuse in political practice. She has resolutely opposed tendencies of government, administration and judiciary to make themselves autonomous with her demand to “democratize democracy”.
Ingeborg Maus | © Lorenz Vierecke
The academic career of Ingeborg Maus can be quickly retailed. From 1958 to 1964 Maus, who was born in 1937 in Wiesbaden, studied political science, German philology and philosophy at the University of Frankfurt am Main and the Free University of Berlin. In 1980 she took her qualifications to become a professor with Eberhard Denninger, Iring Fetscher and Kurt L. Shell, and shortly thereafter she received a temporary professorship. After this, having in the meantime become a “scholar in the state of nature”, Jürgen Habermas invited her in 1987 to join his “Working Group on Legal Theory”; Maus was later to describe her years there as “the best of my scholarly life”. From 1992 to her retirement in March 2003, she held the Chair for Political Science with Focus on Political Theory and the History of Ideas at the University of Frankfurt am Main. She became known to a broader public with her book, published in 1992 by Suhrkamp, Zur Aufklärung der Demokratietheorie. Rechts- und demokratietheoretische Überlegungen im Anschluss an Kant (On the Enlightenment of Democratic Theory: Reflections on Legal and Democratic Theory following Kant) and as co-editor of the influential monthly journal Blätter für deutsche und internationale Politik (Journal of German and International Politics).
“Masterfully executed frontal attack”
Ingeborg Maus’ double interest in the sociological context analysis of law and in the self-enlightenment of democratic theory was already clear at an early stage in her debate with Carl Schmitt. Schmitt’s turn to authoritarian governmental action and his startling support of Nazi emergency legislation after 1933 led Maus back to a fact in the sociology of law: the breakdown of bourgeois homogeneity. Challenged by the “incorporation” of reformist social democracy in the pluralistic system of the Weimar Republic, the troubled middle classes had in times of crisis no alternative to the threatened loss of power, and so to civil war, but the shifting of legislative powers from a parliament that was no longer drawn exclusively from its ranks to the executive.
In times of emergency, the sovereignty of the parliament is replaced by the sovereignty of the executive with its affinity to a permanent state of emergency, and parliamentary law by the executive emergency state theoretically anticipated by Schmitt. In the same context, according to Maus, belongs the deformalizing of positive law that paves the way for the emergency state, as heralded by Schmitt’s distinction between constitution and constitutional law. Schmitt, in a letter to Maus, himself spoke of her “masterfully executed frontal attack”. Maus took the correspondence as an opportunity to reinforce her theses about the “continuity of bourgeois legal thought” and, incidentally, to deplore the common “confusion of personal polemics with theoretical discussion”.
Popular sovereignty following Kant
Maus has shied away from theoretical debates as little as she has practical political ones. This is true not only of her defense of constitutional formalism against anti-formalists such as Schmitt, but also of her radical reinterpretation of the Kantian theory of democracy and, closely bound up with this, her resuscitation of the long-obsolete concept of popular sovereignty.
Popular sovereignty and strict legal formalism are, according to Maus, intimately connected: sovereign is not the state, but the people – not as ethnos
, but as a demos
, not as ethnic community but as legal community; that is, as an in principle heterogeneous collective of citizens that itself makes the laws under which it wishes to live. The people, as people, are present only in the constitutive legislative act, and then as final instance. Their will is unconditionally valid, so long, of course, as it is expressed in general form.
“Will” is defined by Maus as a result of a discursive process: only if citizens are capable of agreeing on key issues does there exist the prospect that the executive can enforce the laws. The popular will therefore has both an original and a derivative nature: it is the basis of a democratic society, but because of the constitutive heterogeneity of these societies it can be determined only by procedural means, only after the fact.
Democratic constitutions always presuppose the will of the people. They are binding for the legislator, but not for the constitution-constituting people. Above all, they are binding for the rest of the state apparatus: the government, administration and courts. The constitutional containment of all state violence becomes for Maus almost the “postulate of democracy” (Dieter Grimm): even civic deliberation and civic engagement, though vital, take second place to this.
Against the principal evil of democratic societies, the creeping autonomy of the executive and judicial branches sensitively diagnosed by Maus under the heading of “re-feudalization”, the only help is “democratizing democracy”. Essential decision-making powers should be returned to the social grass roots and state powers correspondingly cut back. This should apply even to respected institutions such as the German Federal Constitutional Court, whose freedom in interpreting the constitution has usurped the constitutional power of the people. The guardians of the constitution are ultimately not the court, but the people: “Not the powerful but the powerless judge the way they should use their freedom”!