Das verfassungstheoretische System als Betrachtungsebene des Verfassungsrechts

Abstract

The System of Constitutional Theory as Perspective of Reflection on Constitutional Law

State leadership (Staatsleitung), materiality (Wesentlichkeit), and sovereignty: concepts from the philosophy of the state and constitutional theory shape the way we think about constitutional law. Nevertheless, their theoretically grounded and systematically applied propositional content does not consistently fit into the regulatory mechanics of positive constitutional law. For this reason, constitutional law does not have to dispense with a systematic understanding of the concept and function of the state, the constitution, and its individual elements. On the contrary, the system of constitutional theory provides a level of consideration for formulating reflections on the philosophy of the state and constitutional theory for the purpose of obtaining law. Independent reflections create the framework for defining conceptual and methodological standards that take account of their interdisciplinary structure. In this way, state and constitutional theory concepts can be processed in a dosed manner to be subsequently applied to legal theory without overtaxing the differentiated positive law.