A Constitution without Theory and without “Image-of-Mankind” Conceived of in the Context of Intensive Theoretical Debate

Abstract

Among the many genres of constitutional literature that have established themselves after WW2 there are the writings reflecting on the “image of mankind” to be found in – or enshrined in or theorised by – the Constitution. Under such circumstances it may appear plausible to ask oneself as to which kind of such image is to be found in the Austrian Federal Constitution, enacted a 100 years ago in its original framing. This paper aims at showing that theories about “image of mankind-theories” in constitutions are flawed and their use in legal scholarship therefore highly problematic. In fact, these conceptions were introduced in the very particular setting of the immediate aftermath of the brake-down of the Nazi-regime in Germany and were aiming at providing a moral added-value to the new Constitution, which was not only conceived of as an antithesis to the former regime, but as a means to cancel it retrospectively in history. These conceptions were extracted from an inconsistent mixture of philosophical theories elaborated during the pre-war period, ie neo-kantian (<italic>Rickert</italic>) and anti-kantian (<italic>Scheeler</italic>) philosophies of value as well as philosophical anthropology (<italic>Plessner</italic>, <italic>Scheeler</italic>, <italic>Gehlen</italic>) and it was considered that the reference to “Human dignity” in Article 1 of the Basic Law had embedded these conceptions in the Constitution and that other constitutions could be distinguished from the German one mainly by the kind of “image of mankind” they are purporting to enshrine. The point is that Constitutions are normative settings and thus unable to enshrine any theory whatsoever, even though they are obviously inspired by political and moral theories, but inspiration is not identity and requires at any event a specific transformation into legal norms under the specific constraints and strictures required by the construction of a legal system. Neither the German, nor the Austrian, nor any constitution has an “image-of-mankind”. This admitted, the interesting problem raised by such conceptions is another one: what do constitution-makers <italic>presuppose</italic> about understanding and applying legal norms, when framing a legal setting? The Austrian case is indeed highly relevant in this respect as it applies presuppositions about cognitive abilities of norm-addressees gained through theories of interpretation and resulting in a conception which may be termed <italic>prospective minimalism</italic>.