Das Recht der Klage aus demokratietheoretischer Perspektive

Abstract

Abstract In recent decades, the courts, particularly on a transnational level, seem to have adopted a law-making function that was traditionally exclusive to parliaments. This trend is often problematised as a hollowing-out of democracy. By focusing on the right to legal action and on claimants, instead of on adjudication, this article suggests that a different assessment is in order. It draws on the assumption that there is a normative connection between law and democracy (as made explicit by Jürgen Habermas and Ingeborg Maus); and yet it argues that precisely because legal action remains largely unconsidered, contemporary theories of democracy fail to embrace an important shift from a legalistic version towards a fully procedural version of the rule of law. In defending this position, however, it is necessary to question the tendency of the German legal tradition to give substantive law priority over the procedural position of individuals. By turning to Bernhard Windscheid’s concept of a claim or title (Anspruch), it will be argued that the potential of subjective rights remains unexplored as long as its core element – the right to legal action – is underestimated. The article suggests that, in fact, taking legal action can at times unfold its own “counter-politics,” which matters for democracy.