030176 SE The Political Theory of the Social Contract and its Significance for Constutionalism (2021W)

From the 16th century onwards, political philosophy considers the theory of the social contract as the new model by which political power can be grounded on the equal freedom of citizens: Previous justifications of political power as part of the divine world order are rejected, and people are being situated in an originally free but conflict-ridden "state of nature” which they overcome by voluntary submitting to political power which is supposed to guarantee peace and freedom. Firstly, Thomas Hobbes' social contract establishes absolute state sovereignty, which completely absorbs the natural freedom of the citizens for the sake of internal peace. Subsequently, two lines of argument emerge that seek to preserve civil liberty within the state: For John Locke, natural liberty ("life, liberty, and estate") is the bulwark that also entitles people to resist state tyranny. By contrast, according to Jean Jaques Rousseau, pre-state private freedom must not endanger state sovereignty and is therefore completely dissolved in the political freedom of collective participation in the sovereign general will ("aliénation totale"). These opposing basic concepts have an impact on the subsequent evolution of constitutional democracy: the liberal line, which goes back to Locke, emphasises the limitation of state rule through constitutionally guaranteed rights of freedom ("life, liberty, and property"), which can be enforced by the judiciary also against democratic majorities (USA). The republican line, going back to Rousseau, rejects a restriction of the democratic majority will and sees freedom safeguarded solely by the collective self-determination of citizens in democratic legislation (France; "la loi est l'expression de la volonté générale").
In the seminar, the two schools of thought will be explored in terms of different conceptions of contract while tracing their impact on the debates on the relationship between the rule of law and democracy, between human rights and the sovereignty of the people. Against this background, various understandings of fundamental rights as well as of the power of constitutional jurisdiction vis-à-vis democratic legislation may be better understood. Presentation topics will include theories of the social contract from Hugo Grotius to John Rawls, foundational and basic texts on constitutionalism, and current debates in constitutional theory and politics.