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3.3. This realization reveals that the sítuation is untenable; ther¬
efore, it transforms into a system that is capable of enforcing
rights without creating further violence, and this will be the third
movement, constitutional rights.” It basically consists of this: if
my rights are violated, my own rights will not be enforced by me,
but rather I bestow that function to the sovereign power, so that
they may do it. Constitutional law is a matter of agreement. The
Cro Magnon comes to an agreement with the others (by entering
into a pseudo- or actual contract) to entrust someone (the sove¬
reign) to pass judgment over actions while avoiding tyranny, and
they agree to accept the sovereign’s decision in advance. This is
where restriction enters the picture. This is cooperation in the
strictest sense.
It is important to note that this interpretation is not at all a
novelty in the history of philosophy, as others have come to the
same conclusion in their analyses. We can already see it emerging
around the 5th century BC (in Critias), (DK 1.Fr.25.)*° and then
several variants of it are formulated by some of the thinkers of the
17th-18th centuries (Grotius, Spinoza, Hobbes, Locke).*" Many
theories of criminal law are also built on this principle, since
if the goal is to avoid the lex talionis (an eye for eye, a tooth for
tooth) as this principle, as they say, only “results in many, many
Staatsrecht.
41
formation of the state and religion, creating a very interesting theory of the
state. At its core are agreement and a contract.
Let me use a simple example. If someone knocks me down in the street, it
might be most direct for me to shove him back, but it is more legal for me
to “go” to the courthouse and say that my rights were violated. I leave the
enforcement of that to the bearer of sovereignty, the state. If I receive a wound
that is healed within eight days, then I can report the person for unlawful
wounding, but if the injuries are not that serious, then at most for battery.
In the best case, the state institutions serve justice punishing the perpetrator
(“shoving back”). In other words, if I take a stand based on my Zwangsrecht,
then I shove the person back, but I have to know, that this creates physical
violence. If I do it based on my Staatsrecht, then I leave all of this to the state.