How can there ever be a “Commonist” constitution – a constitution that does not leave the citizens forming the polity alone and on their own, but enables them to form meaningful relationships based on solidarity? My starting point in answering this question is Hannah Arendt’s important essay “Truth and Politics” (Arendt, Wahrheit und Politik, in: Wahrheit und Lüge in der Politik, 1972, p. 30, my translation) in which she states: "Seen from the standpoint of politics, truth is despotic". Whereas political thinking, she argues, is representative. Arendt emphasizes, as political virtues, the common sense, prudentia, phronesis: the capacity of including different points of view within one’s power of imagination – as an "extended way of thinking". She regards Kant's power of judgment as a paradigm that was, she contends, misunderstood by himself as not political – while it is deeply political and, one should add, probably juridical as well.

The principal demand here is "disinterestedness" understood as "liberation from entanglement in private and group interests". This happens to be a frequently encountered idea of the common good in liberal theory. But is it a liberal idea? Not in the very narrow sense of an always necessary balance of interests of isolated private persons who need the state to save them from their neighbours by means of an enclosure of their respective property. This conception of the common good as an aggregate of private goods, in any case, would be in tension with democratic citizenship, which ideally (Athens!) negotiates everything at least in a representative way. Therefore such balancing is not democratic-liberal. Might we better call that illusionary “common good” (abstract disinterestedness beyond the aggregate of private goods) the flipside of enclosing, fencing proprietary liberalism – its ideological stepbrother?

This partly atomistic, partly illusionary liberal conception stands in even clearer contrast to the “communist/Commonist” idea of real-material communal negotiation, which is located on a continuous scale with democratic, yet not with proprietary liberalism and its illusionary flipside of disinterestedness. It has become clear that, once more, Arendt can educate us on where to start (even if not on where to stop).

If the republican-liberal constitution only leads us so far, what would that “true”, material Communio – as a still idealistic substance of the Commons form, enabling relationships based on solidarity – mean?

Is it a matter of group interest, conceived of as a particular-single, homogeneous group interest in the property of many – without a transcending horizon? Would it be, sort of, collectively “individualistic”? No (as that would not leave space for nonconformism). Collectively possessive? Proprietary? Or, paradoxically, collectively atomistic (cf. Charles Taylor, Atomism, in: Philosophy and the human sciences, 2012)? Probably, we would, in all these cases, deal only with the statist flipside of individual property.

In any case, this loss of transcendence, triggered by the privatism of fenced property, does not happen in true "commo/unism". Nor in the Christian faith, according to its "Catholic", universalist understanding - which, however, in turn is not to be applied exclusively, as an "identitarian", dominating ideology. Transcendence is kept alive in all kinds of modes of relating in solidarity (Bini Adamczak, Beziehungsweise Revolution, 2017, close to Gustav Landauer), which can never be exclusive nor exclusionary.

Commonism (Christian or not) is all about this immanent transcendence, the necessity of weaving worldly webs of solidarity (agape, love).

Adamczak draws an analogy to a chess game and asks: “How can the characters' relationships to each other be reconstructed, transforming both the game and the characters?” A theory of solidary relationships has to start thinking from the space in between as a genuinely social space instead of the singularity or the totality (p. 237, my translation).

My thesis is: The constitution does know and helps to reconstruct this social space “in between” and it could even help us preserve the transcendent-Commonist spirit of property (and related) regimes.

Human rights are social rights, too. Some of them have a primarily social structure: somewhat surprisingly, not the so-called social rights (to assistance by state or insurance agencies), but communal or associative freedom rights, including the overarching principle of social democracy itself.

The bottom line is: The Commonist Constitutio depends on the acceptance of the public nature of constitutional (!) property on the one hand, and the priority of communal freedoms, including the practice of democracy as a form of life, on the other. Property not only comes with duties (German Basic Law, art. 14 II), moreover it is established solely by democratic legislation – and communal invention! It therefore comprises common forms of property, as emphasized by Ugo Mattei and others with regard to the European Convention on Human Rights (cf. Ugo Mattei et al., Commons as possessions, European Law Journal 2019, 25, pp. 230-250). Communal invention, however, can only come into being if you accept the priority of communal principles and freedoms like the social democracy principle of the Grundgesetz (art. 20 German Basic Law), which enables us to “democratize democracy”, as developed so thoughtfully and elegantly by eminent constitutional scholar Helmut Ridder and others, in combination with the freedoms of association, assembly, religion etc.

These associative freedoms of solidarity, as I would like to call them: Claude Lefort’s freedoms, understood as core principles of fully democratic constitutions, potentially dismantle the state-market duopoly from the inside, transcend it from immanence. Yet, this can only happen if you grant them, case by case, priority over individualistic liberties – with the help of principles, or notions of social democracy.

The constitution, then, does not work as an illusionary, mythical fence between proprietary state and proprietary society, but as an enabling mechanism of overcoming individualistic notions of property and – consequentially – of freedom.

While all this is possible against the background of every liberal constitution, the German Basic Law contains, with its – so far unused – Art. 15 on socialization, even more: an explicit collective democratic right to the creation of large-scale commons from all kinds of means of production, natural resources and land. There are comparable provisions in other constitutions, like in Italy.

Fixed hierarchy, in my view, is part of a proprietary mindset, and stabilizes enclosures of goods and minds. If God has no hands but our own hands, to quote St. Teresa of Avila and her mystic follower, the famous heterodox Protestant theologist Dorothee Sölle (The silent cry. Mysticism and resistance, 2001), no fixed hierarchy will save us, but only Christ reborn in every human being and, more precisely, her/his relations. It is entirely up to us all to take the work of organizing and commoning, rather than “governing” the commons into our own hands, to liberate ourselves for solidarity (cf. Helmut Gollwitzer, Befreiung zur Solidarität, 1984): to lose fear and start to act as if “we shall have an association, in which the free development of each is the condition for the free development of all“ (Marx/Engels), and not its limit and hindrance. This has little, if anything, to do with historical communism. Commonism is still unfinished business, and more than that: still to be invented. Constitutional rights – if finally interpreted as relational, and pervasive rights – will form the structure of solidarity-based relations.