「越參與越民主？」：論二十世紀德國憲法理論對代議民主之分析

“More Participation, More Democracy?”: On the Analysis of representative Democracy of the Germany Constitutional Theories in 20th Century

民主是當代最重要的政體（政治形式）之一，自由民主的憲政秩序，也是我國憲法所重視的基本價值。民主政治基於事實上的需要，常須以代議民主方式進行。但是代議民主常遭受忽視人民民意的批評，從盧梭到當代的民粹政治，代議民主常常被認為忽視真正的民意，從而需要許多矯正的措施，甚而以其他方式來加以取代。本文研究的目的，主要是希望分析威瑪共和到當代德國憲法理論對民主的通說，並透過此一分析，指出代議民主對於民主政治有其重要的意義。代議民主並非只是直接民主難以落實的替代物；對於社會中的多元民意來說，代議民主有其協助認識並形塑人民意見，並以適當的程序形成法律的積極作用。威瑪共和後，許多德國憲法理論認為，民主政治面對的困難就是並非所有的人民都有意願參與政治，也無法讓所有人都參與政治與立法程序。藉由代議民主的組織民意的過程，當代民主政治得以克服「民主政治只是積極參與政治之公民的政治」難題，藉由代議民主建立的國家組織、政黨與政治程序，才能協調並形塑人民的意見，落實民主政治的理想。

Democracy is the most important political form in modern society. The ideal of constitutional democratic order is also the principle and basic value of our constitution. In most democratic state, the representative government is the practical form of ideal of democracy. (the so-called “representative democracy”). But from Rousseau until modern populism, the representative democracy is always criticized as “un-democracy”, people in the democratic state always considers that the “true will of people” is neglected by the representative government (especially the political elite). Hence, the government of representative democracy is often regarded as the second-best choice of the democratic government. This paper tries to discuss and analyze the theories of representative democracy in the Germany constitutional theory. It tries to point out, how the Germany constitutional theories justify the legitimacy of representative democracy. In first democratic state in Germany history (the Weimarer Republik, 1919-1933), four important legal theorists in the Germany public law, Hans Kelsen, Hermann Heller, Carl Schmitt, and Rudolf Smend, analyzed the ideal and reality of democracy, they all noticed, the democracy must face one basic problem: the ideal of democracy means “people rule themselves”, but not all citizens can participate all political decision in the state. Only the active citizen (Aktivbürger) can influence the political process in the democratic state. The representative government has therefore its important function for the democracy. Kelsen and Heller, as the supporters of parliamentarism, pointed out the representative function of parliament and political parties; The skeptics or Opponents of parliamentarism, such as Rudolf Smend and Carl Schmitt then emphasized the representative function of political leader (Reichpresdent, the president in the Weimarer Republik). Smend poined out the integrative function of the president for the formation of whole people; Schmitt tried to legitimate the function and necessity of the president for the representation of the homogeneous people. After 1945, the main current opinion of democratic theory of Germany public law is the national-liberalism, the democratic theory of Ernst-Wolfgang Böckenförde (1930-2019). His theory of democracy attaches great importance to the political parties and parliament for the formation of the people’s will, and he believed the officers of the state (include the members of parliament) should keep neutrality and distance with any particular interest in civil society. The officers of the state should exercise their legal authority according to the law and general interest. That is so-called “Prinzip des Amtes” in the Germany public law. This paper tries to use these arguments for the justification of representative democracy. From points of views of many Germany constitutional theories, the ideal of democracy isn’ t to reflect the particular interest of any social groups in the policies and law. The political processes in democratic state should not only “reflect” the different interest in plural society, also to form the people’ will in the state institutions.