Page 84 [84]
OCR
39 3.3. This realization reveals that the sítuation is untenable; therefore, 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 sovereign) 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.
