Jeremy Bentham’s definition of law as the sovereign’s command may be as inadequate as his utilitarian philosophy, yet it continues to draw the attention of theorists of law and politics due to its simplicity, clarity and ability to capture core problems of legal and political systems. Firmly placing the legal system in the positive realm of political reasoning and decision-making, Bentham separates law from both the transcendental cloud of natural law and the immanent burden of moral traditions and conventions. The legal method is separate from morality and its formalism protects legal subjects against the arbitrary use of political power.

According to the intellectual tradition of legal and political positivism, the modern democratic rule of law means that the people, as the political sovereign, is governing itself through the medium of legality. Nevertheless, this has always been challenged by sociological positivism, which claims that the law’s form is already predetermined by spontaneous forces of societal evolution. Furthermore, it has been criticized by moral normativism of all kinds claiming that the law’s legitimacy depends on its conformity to superior moral norms and principles. This new collection of essays Justiz als gesellschaftliches Über-Ich: Zur Position der Rechtsprechung in der Demokratie (The Judiciary as the Super-Ego of Society: On the Position of Legal Discourse in Democracy) by the German political theorist and philosopher Ingeborg Maus draws on this tradition of philosophical, political and sociological argument; criticizes both sociological and moralist attacks on legal formalism; and contributes to these classic polemics in the most illuminating and informative way by bringing together modern philosophical ideas, political arguments, legal theory and jurisprudence, social-theoretical insights and their historical contexts.

Although little of Maus’s work is available in English, and many of her essays still await translation, she has been very influential in continental legal and political philosophy and theory, and significantly affected debates and polemics regarding law and legal theory in the democratic and totalitarian state. Maus’s early interest in Carl Schmitt’s philosophy of law and politics informed her subsequent critique of law and jurisprudence during the Nazi period, perceived as the collapse of both popular sovereignty and legal formalism. Since the 1980s, she has been focusing on meeting-points between political and legal theory and framing them in the context of modern philosophy, especially of the ideas of Montesquieu, Kant, Locke and Rousseau.

Maus revisits major theories of modern democracy and popular sovereignty to address the problem of the validity of legal arguments from human rights, constitutional principles and political justice evolving at national, supranational and global levels, and to consider their impact on democratic legitimacy. In this collection of eight essays, which brings together the history of political ideas, critical analyses of the legal method in general, and of Nazi law and justice in particular, and jurisprudential reflections on recent developments of the democratic constitutional state, Maus focuses on the contrast and conflicts between popular sovereignty and the increasing limitation of democratic politics by supra-positive constitutional arguments and principles.

Some essays originate in lectures delivered in the 1970s and 1980s, such as the analyses of Friedrich Müllers’ legal methodology (‘Zur Problematik des Rationalitäts- und Rechtsstaatspostulats in der juristischen Methodik am Beispiel Friedrich Müllers’), the relation between law and morality (‘Zum Verhältnis von Recht und Moral’) and the structure of legal norms in National Socialism (‘“Gesetzsesbindung” der Justiz und die Struktur der nationalsozialistischen Rechtsnormen’). Other texts are either entirely new, or have their origins in lectures and addresses in the last two decades. The opening essay ‘Justiz als gesellschaftliches Über-Ich. Zur Funktion von Rechtsprechung in der “vaterlosen Gesellschaft”’ (‘The Judiciary as the Super-Ego of Society. On the Function of Legal Discourse in the “Fatherless Society”’) outlines the main arguments of the book, establishes the conceptual framework and sets the critical tone by inviting the perspective and language of psychoanalysis to expose the danger of political and historical regress caused by the replacement of modern legal formalism by supra-positive moralism emerging in the democratic constitutional state.

Maus adopts Marcuse’s use of Freud’s concept of the super-ego in his diagnosis of modern industrial society as the ‘fatherless society’ of technocratic domination in which judicial power paradoxically acquires the otherwise disappearing Father image and enjoys almost religious reverence from the public (pp. 17–19). According to her, this return of the Father image in the judiciary of the twentieth century represents a regress in modern development and the function of judicial power which, according to Weber, historically established its independence through formalist legal rationality and arguments used against traditional legitimacy of patriarchal power (p. 32).

In the essay ‘Zur Ideengeschichte der Gewaltenteilung und der Justizfunktion. Demokratie und Justiz in nationalstaatlicher und europäischer Perspektive’ (‘On the History of Ideas of the Separation of Powers and the Judiciary’s Function. Democracy and the Judiciary in the Nation State and European Perspective’), Maus further elaborates on this regress by historically and philosophically analysing constitutional developments in England and the United States in the seventeenth and eighteenth centuries, and their interpretations and misinterpretations in the works of Montesquieu, Hobbes and others.

Maus describes the divergence between the British development of parliamentary sovereignty and America’s development of democratic government limited by the Supreme Court’s constitutional review as a difference between two very divergent notions of government. The first draws on the older idea of the separation of sovereign powers, adopted by the US republic at a historical period when Britain was already pushing for the principle of parliamentary sovereignty. The second notion is younger and draws on the idea of popular sovereignty as the people’s self-government by laws formally binding all constitutional power including the judiciary and executive branches (pp. 58–64). Maus subsequently strengthens her initial argument that American constitutional development is historically regressive because it turns the Supreme Court into the officially sanctioned consciousness of society. According to her, the Court liberated itself from the legislators’ control by claiming the power constitutionally to review their acts and the Constitution itself. It has thus immunized itself against criticisms by declaring the rule of law’s supremacy over popular sovereignty – a step necessarily followed by the judges’ claim of moral legitimacy as guardians of substantive moral values and principles expressed through the formal language of legality and legal reasoning.

Maus subsequently describes this particular regressive tendency in the context of German legal and political developments as well as in supranational European structures and criticizes its jurisprudential and legal philosophical justification, especially Ronald Dworkin’s legal theory. According to her, Dworkin’s view that legal and moral judgements are impossible to separate assumes a socially privileged position of judges as interpreters of ‘community morality’ who have a better understanding of it due to their supreme theoretical knowledge. However, this morality, which is expected to inform such theoretically guided judicial interpretation, is itself a product of judicial decision-making.

According to Maus, this paradoxical circularity of morality and law in recent legal theories and discourse on the constitutional state has dangerous consequences, especially the immunization of legal discourse against any critique (p. 21) and ‘creative’ judicial interpretation invited by the vagueness of moral concepts and principles incorporated into law (p. 84). When legal arguments adopt moral reasons as their foundations, they do not need democratic legitimation. Instead, they use initially external morality as the positive law’s internal formula of self-legitimation. If, as Dworkin states, ‘jurisprudential issues are at their core issues of moral principle’ (quoted at p. 229), morality becomes positive law’s basic norm and formal legality gets replaced by substantive social values.

In the system of positive law, moral principles have a dual function: they select between legitimate and illegitimate laws by introducing the category of ‘just law’ (richtiges Recht) while protecting morally integrated social domains from the legislated laws. In this dual sense, morality becomes positive law’s boundary. Moral principles thus paradoxically weaken the limits of both the state and legal regulation (p. 227) because, instead of embracing a notion of legal right, they can justify it by appeals to the social and common good. The recursive moral grounding of positive law ends up with the increasing power of state institutions and apparatus (p. 228). The de-differentiation of democratic legitimation and moral foundations of law leads to the weakening of social control by political decision-making because the moral argument can be easily abused as simulating the democratic argument (p. 229). This is an important point.

Maus’ sophisticated intellectual and political critique of such diverse figures as Montesquieu and Dworkin has a common target beyond the basic distinctions between legal and moral judgements, reasoning and concepts. It is the general modern tendency of replacing formal and general legal rules and reasoning by substantive social regulations and justification by specific interests and particular needs. For Maus, the recent conflation of law and morality is just another example of this tendency in which different calls for justice by different social agents represent not just the attack on abstract and generally applicable legal rules but a direct threat to the very idea of democracy as self-government of the people by laws. It is exactly why she recalls Montesquieu’s description of despotic government as that in which there is no rule of law, because a despot is the maker, judge and executioner of laws (p. 85).

In this respect, the Nazi regime and its laws represent the most virulent attack on the principles of both popular sovereignty and formal legality binding the executive and judiciary power in a democratic polity. Maus is a great expert and original interpreter of the legal and political philosophy of Carl Schmitt, who remains a fascinating thinker for all critics of constitutional democracy on the radical right and left. She persuasively shows how Schmitt twisted the concept of sovereignty, legitimized dictatorship by moving the sovereign law-making function from parliamentary to executive power (p. 89) and elaborated a critique of legal formalism which subsequently led to the messianic hopes and the most extreme negation of the state and its law as recently demonstrated by Giorgio Agamben and other critics of modern democracy (pp. 67, 90).

Maus’ critique of the Nazi legal system and doctrine is particularly important because it explains its perversions of popular sovereignty against the background of general developments of modern law and politics and specific contradictory asymmetries of the principle of popular sovereignty which involve both the risk of subjection of all citizens to the monopoly of state power and the risk of subjection of the state to the legislating sovereignty of the people (p. 71). Confronting these asymmetries, Maus finds common ground between Montesquieu and Kant’s view of the judiciary and its function as a guardian of citizens’ freedoms against arbitrary uses of state power which, nevertheless, has to strictly follow the laws in reasoning and decision-making.

The political and legal theory of Ingeborg Maus is presented in the most persuasive, lucid and intelligent manner in her latest collection of essays and thus will be of interest for all scholars in political, legal and social science. It is all the more to be regretted that her work and thoughts are still largely unavailable in English.