Verfassung, Menschenrechte und Konsens. Eine philosophische Betrachtung

This essay, drawing on the constitutional debate of the last decades of the eighteenth century, addresses the function of constraints and pre-commitment in the so-called paradox of the constitutional democracy. This paradox sets constitutionalism — the ideal of self-government constrained by law — against democracy — the ideal of self-government by the people. Pre-commitments can be defined as higher laws and principles, decided during the founding stages of a political community, which organize the functions and powers of the government, as well as the citizens’ rights. The essay understand constitutional pre-commitment as conditions enabling the future generations to actually participate and experience democracy, by preventing past and current generations from restraining the future ones. Assessing Habermas’s solution of the paradox, consisting in a conception of constitution as unfinished project, in which a society further develops commitments made by earlier generations, the essay focuses on the question of the kind of consent to the constitutional principles, first of all the human rights, required for a pluralistic society. Contesting Habermas’s view that all participants must recognize the project as one throughout history and judge it from the same perspective, Cass Sunstein's notion of “incompletely theorized agreements” is suggested as to be more suitable to explain the possibility of the constitutional consent, among people not sharing the same values or interests.