Legality and Legitimacy: The Legal and Political Philosophy of Popular Sovereignty in the New Latin American Constitutions

To my family Acknowledgments Writing this book was a delightful process of learning and discovery thanks to the kind cooperation of my two supervisors. I am very grateful with Prof. Vlad Perju for his kind support and challenging comments during my stay in Boston. I am also indebted with him for opening my professional horizons by encouraging me to aspire to greater ambitions. I am also very grateful with Prof. Jacques Commaille who followed my progress at all times and kept an eye on my work until the very last moment. Of course, this work would not have been possible without the permanent support of my parents. From the distance they have believed in my work and provided me with the confidence and courage to pursue my goals. Finally, I am also indebted to Marion, who supported me and my work while here in Brussels with patience and care. Brussels, March 2010 Contents Page Introduction 7 I The Origins of Political Philosophy: Classic Natural Law and Political Authority 14 1. Introduction: On the distinction between Natural Law(s) and Positive Law 14 2. The foundational Principles of Political Authority in Classic Natural Law 18 II The Foundational Principles of Political Authority and Natural Law in Modern Political Thought 30 1. The Decline of Classic Political Philosophy and Classic Natural Law 2. Nominalism and the Epistemology of Modernity 30 32 3. Hobbes and Locke: On the Origins of Modern Political and Legal Authority 34 III The Institutional Arrangements of the Modern State in the light of Popular Sovereignty and Positive Law 46 1. Introduction: The Consolidation of Modern Political Authority under Positive Law 2. Rousseau: On Popular Sovereignty and Positive Law 46 47 3. Montesquieu: Representation, Separation of Powers and Legal Sovereignty 4. Tocqueville and the Legal Dogma of the Sovereignty of the People 52 57 5. Concluding Remarks: On the Institutional Arrangement of Modern Democracies and the Supremacy of Positive Law 62 IV The Weimar Republic: A Debate on Legality and Legitimacy in Modern Liberal Democracy 64 1. Introduction: Legal Rationality and the Legitimacy of Law 64 2. The Weimar Political Principles and Article 48 of the Constitution 65 3. The Crisis of the Rechtsstaat: Schmitt on Popular Legitimacy 69 4. Kelsen on Legal Sovereignty and Constitutional Review 76 5. Schmitt and Kelsen: Two ways of looking at Liberal Modernity 80 V The Constitutions of Colombia, Venezuela and Bolivia: Popular Legitimacy in the Foundation, Structure and Functioning of the State 1. Introduction: The Latin American Neo-Constitutionalist Movement 83 83 2. On the Foundation of the State: The Constituent Power in Latin America 3. The Electoral Power in the Bolivarian Revolution 87 95 4. Popular Sovereignty and Constitutional Review: The Tutela Action in Colombia 102 5. Concluding Remarks: On Popular Legitimacy and Modernity 115 Concluding Remarks: Reviving the Faith in the Modern Project 120 Bibliography 126 Introduction The great dynamic of the constitutional movement in Latin America during the last two decades has focused on the recovery of popular sovereignty as the means for refounding the state and achieving full emancipation. The various centuries of colonialism that came to an end in the early 19th century, the government of economic aristocracies in the form of democratic regimes in the post-independence period, and the oppression of the underprivileged people and ethnic groups by political elites in the last 50 years, have questioned the foundations upon which Latin American states are built. The Latin American neo-constitutionalist movement claims to have recovered popular sovereignty as the main foundation of the state. This work will approach the ideas advanced by this movement by analyzing the principles underlying the institutional arrangements seeking to preserve popular sovereignty in the Constitutions of Colombia, Venezuela and Bolivia1. I will examine the sovereignty 1 The Constitutions of Venezuela and Bolivia are the result of the political project carried on by the radical wing of the Latin American Neo-Constitutionalist movement. This radical wing of the movement, which I will call the reformers, aims to re-found the state through new constitutions. The Bolivarian Revolution, led by the Venezuelan president Hugo Chavez, heads up this radical wing. I will refer to the ideas embraced by them as the re-foundation project. 7 principles underpinning the foundation, structure and functioning of these states in the light of history of legal and political thought. I intend to show that the political project of those constitutions does not provide, contrarily to what is held by its supporters, an alternative to modernity, and even less, a post-modern alternative. I will show that this re-foundation project is essentially a modern enterprise, one rooted in the liberal democratic tradition. I will further hold that it does not overcome the confusion of popular sovereignty and legal sovereignty that, according to the reformers, constitutes one of the central fallacies of modernity. I will focus, on one hand, on the paramount importance attributed to popular sovereignty in the re-foundation project, and, on the other hand, on the suitability of the concepts of legality and legitimacy for analyzing the nature of power and law in any given institutional setting. In short, I will advance my claim by analyzing the concepts of legality and legitimacy underlying the institutions guaranteeing popular legitimacy in the new constitutions of Colombia, Venezuela and Bolivia. To make clear the development of my claim, I will provide preliminary definitions to the concepts guiding my analysis. There are at least two different meanings of sovereignty. One refers to the status of a nation-state vis-à-vis other nation-states, indicating that each has autonomous jurisdiction within its own geographical area. The other, which is the one I will retain, considers that “within each individual state there is an entity that constitutes the supreme political and legal authority”2. In Schmittian terms, the sovereign, in the latter sense, would be whoever can decide what constitutes an exception to the application of general rules given some concrete circumstances. Popular sovereignty, or simply legitimacy, is then understood as the quality of a government or its norms whose authority is derived from the natural right of people to liberty. Political power is said to be legitimate if its authority emerges out of the people’s consent. In this case, we may say that the people are the 2 Cf. Scott Gordon, Controlling the State: Constitutionalism from ancient Athens to today. Cambridge. Harvard University Press. 1999. p. 18 8 sovereign. Legal sovereignty, or legality, would be the quality of a government or its norms whose authority is derived from the law, and not directly, from the people’s right to liberty. Hence, legality implies that the sovereign is the law itself. Since some concepts conveyed in the definitions are to be developed throughout the dissertation, the reader may not find them accurate or unambiguous. Hence, I pray that the reader keeps an open mind and take his objections and doubts with him into the next pages. Hopefully, in the unfolding of the arguments, he may find some ideas that may contribute to his understating. The supporters of the re-foundation project also claim that the modern fallacy of assimilating legality and legitimacy is complemented by the assimilation of democracy and representative government3. Hence, the new constitutions imply not only the re-foundation of the state on popular basis, but the instauration of democracy. Although I will not deal directly with this claim, it will show throughout the book, that this goal is not only compatible, but essentially embedded in a modern mindset. The emphasis on a popular re-foundation of the state through new constitutional charters is one of the core ideas of the radical wing of the Latin American neoconstitutionalist movement. I take into account two of its core arguments as guiding ideas for my analysis. On one hand, I take into consideration the importance attributed to the popular foundations of the new constitutions. Indeed, neoconstitutionalists claim that popular sovereignty must be the footing underpinning the new states. This, they claim, aims at promoting the inclusion of “marginal groups” in the construction of the national project, and moreover, at providing popular legitimacy to the old and new political institutions incorporated in the new constitutions. On the other hand, neo-constitutionalists grant a paramount importance 3 Noguera, A. “Constitución, democracia y movimientos sociales: la confusión legalidad-legitimidad en el Estado de derecho moderno.” Paper presented in the 6th Congress Ni una vida más para la toga: movimientos sociales, crisis de legalidad y desobediencia al derecho. Law School Eugenio María Hostos. Mayagüez. Puerto Rico. 2008. pp. 2-5 9 to the protection of constitutional fundamental rights. For them, if popular sovereignty is the foundational principle of the state, popular participation is the guiding principle in the further structure and functioning of it. Indeed, popular participation is seen as the main instrument for overcoming the ancient rhetoric on the protection of fundamental rights. Neo-constitutionalists highlight how the creation of efficient constitutional actions4 for the actualization of fundamental rights is a means for increasing the legitimacy of the political regime. In brief, popular participation becomes the source of legitimacy of the state not only in its foundation but in its structure and functioning. As mentioned before, I consider appropriate for the defense of my claim to examine the history of political and legal thought and its relation to political authority and law. This historical background will provide key elements to understand the theoretical implications presupposed in the institutional arrangements implemented by the new constitutions. Certainly, the crisis of the model of state that is inspiring these reforms is also a crisis of the political thought underpinning that form of government. Moreover, the crisis of the modern state has been related to a general crisis of modern political thought. Indeed one may argue that modernity has lost faith in itself, and thus, in the feasibility and superiority of its political project: “the construction of a universal society of free and equal nations of free and equal men and women enjoying universal affluence, and therefore universal justice and happiness, through science understood as the conquest of nature in the service of human power”5. Considering that the concepts of political authority and law are intimately related, I will open my first chapter by making a historical introduction on the transition of natural law to positive law from an epistemological viewpoint (1). This introduction 4 From the Latin “action”, is a legal institution that entitles a person to bring a claim before a court. Tarcov N. & Pangle T. “Epilogue: Leo Strauss and the History of Political Philosophy.” In: History of Political Philosophy. Strauss, L. & Cropsey, J. (eds). Chicago & London. University of Chicago Press. 1987. p. 908. 5 10 will provide some elements that will be paramount for understating the transition from ancient to modern political thought. Indeed, I argue that the decline of the classic metaphysical and comprehensive worldview -man, political institutions and cosmic order- in which natural right governed social life, gave way to a new conception of order in which free and autonomous human beings act and govern the world on the basis of both pure reason and the rejection of natural right. The profound rupture of modern conventionally6 oriented political philosophy with a comprehensive metaphysical worldview constitutes the cornerstone for understanding contemporary legal and political thought. In the second section, (2) I will examine in depth the origins of political thought in ancient Greece. I will focus on the oeuvre of Plato and Aristotle to draw the first ideas concerning political power and law. I will show the intimate relation existing between the conception of government and the metaphysical worldview held by the Greeks. Moreover, given the importance attributed by the Greeks to the cosmic order for the organization of social life, I consider convenient to introduce the relation existing between natural law -right- and the concept of political authority. In the second chapter, (1) I will first introduce the decline of classic natural law and its consequences over the conception of political authority. Then, (2) I will focus on the first and second scholastic period to show the decline of classic natural law and its conception of government. I will argue that the emergence of nominalism during the second scholastic period became the cradle of modern thought, and thus, the epistemological foundations of modern political thought. Finally, (3) I will introduce the emergence of modern natural law through the oeuvre of Hobbes and Locke, and with them, a new conception of political government anchored in the concept of sovereignty. 6 As it will be shown throughout this first chapter, the concept convention –conventionalism- is use in two different ways. On the one hand, it refers to a particular form of classical philosophy that holds, in both of its trends -philosophical and vulgar-, that “by nature everyone seeks only his own good or that it is according to nature that one does not pay any regard to other people’s good or that the regard for others arises only out of convention” (See Strauss, 1965. p. 115). On the other hand, convention refers to the modern phenomenon rooted in nominalism, by which, in absence of universals, men are obliged to give meaning to thing by common agreement. 11 In the third chapter, (1) I introduce the political shifts underpinning modern political arrangements. Then, I show through the oeuvre of (2) Rousseau, (3) Montesquieu and (4) Tocqueville, how the political philosophy underlying modern natural law unfolds into the institutional setting of the modern state. Therein, I will examine the transformation of classic natural law into positive law, the emergence of the division of powers and supremacy of people’s sovereignty, and consequently, the confusion of legality and legitimacy, or, more accurately expressed, the subjection of legitimacy to legality. Finally, (5) I will draw some conclusions on the institutional arrangement in the modern state and the primacy of positive law within modern liberal democracy. In Chapter four, I will present the tensions between the concepts of legality and legitimacy in contemporary political and legal thought. I will rely on the dialogue between (1) Carl Schmitt and (2) Hans Kelsen about the Weimar Republic, to analyze the fallacy of modernity recalled by the radical wing of the Latin American neo-constitutionalist movement, i.e. the replacement of popular sovereignty by legal sovereignty. I will delve into the concepts of popular and legal sovereignty as the foundations of the political and legal orders. I will open chapter V with a (1) brief introduction to the constituent power of the Colombian (1991), Venezuelan (1999) and Bolivian (2009) Constitutions, as the first step in the recovery of popular sovereignty; sovereignty in the foundation of the state. I will merely focus on these constitutions because they are the avant-garde of Latin American neo-constitutionalism. In the second section, (2) I will approach the fourth power established in the Venezuelan Constitution as means to endow with popular legitimacy –sovereignty- the structure of the state. In the third section, (3) I will deal with the Action de Tutela - constitutional review- in Colombia, as an institutional mechanism aiming at incorporating a sort of popular legitimacy in the functioning of the state. Finally, (4) I will claim that these reforms aiming at 12 institutionalizing popular sovereignty -legitimacy- over legal sovereignty –legalityin the foundation, structure and functioning of the state, are not in contradiction with the modern project as claimed by the reformers, but contrarily, they are an attempt to develop the modern project by somewhat innovative means. In the last chapter, I will conclude that the institutions aiming to endow the new Latin American Constitutions with popular sovereignty are devices of the modern political project itself. I will claim that their aim is to push further the teachings of modern political and legal thought and to recover our faith in the old modern project. 13 I The Origins of Political Philosophy: Classic Natural Law and Political Authority 1. Introduction: On the distinction between Natural Law(s) and Positive Law Probably any contemporary inquiry into the history of political and legal thought is concerned with the natural and positive law distinction. Yet, this is not originally a legal or political distinction, but essentially an epistemological one. The origins of natural law are related to the distinction between what is by nature and what is not. This distinction considers the possibility of thinking beyond the ways7 of things as the given order -law. Prior to the splitting of the totality of phenomena into those that are natural and those that are not, the characteristic behavior -ways- of all things was taken to be the right order. No difference was made between, for example, 7 For more comprehensive explanation of the ways of things as the preceding concept of natural right see Laws. Strauss, Leo. Natural Right and History. Chicago & London. Chicago University Press. 1965. pp. 1034. 14 the ways of plants and the ways or customs of different communities. In that sense, ways concerning human behavior –and thus political institutions- were based on tradition, which, in its turn, was rooted in the superior laws inherited from the ancestors. Therefore as “for authority as the right of human beings to be obeyed is essentially derivative from law, and law is originally nothing other than the way of life of the community”8, legitimacy and legality during the pre-philosophical period, were in practical terms, inseparable, and moreover, indiscernible from the intrinsic value of the community itself. They constituted together an indivisible attribute of authority anchored in the community’s immemorial practice of divine laws. The flourishing of classic natural law would not have been possible without challenging this conception of authority underlying the law –ways. Classic philosophy took the first step by questioning the unity of the diverse elements making the totality of phenomena. It pointed out that not all ways were natural and that it was possible to make the distinction between natural phenomena and conventional ones. In that sense, philosophy unveiled the twofold content of ways: physis and nomos. Hence, classic natural law presupposes both the existence of a comprehensive metaphysical worldview and the epistemological distinction between nature and convention. Rather than a set of norms enacted by men9, classic natural law was defined as the assemblage of just relations among men. This natural law has real existence because it is a constitutive part of the harmonious natural order of the universe. It rules social interaction among men, independently from human will, and aimed at the maintenance of the harmonious order. Hence, it seems senseless to distinguish in this stage of natural law between legality and legitimacy. Authority in classic natural law is not an attribute derivative from man but from the universe. In contrast with classic natural law, modern natural law abandons the metaphysical and teleological elements central for the classic comprehensive conception of the 8 9 Cf. Strauss, L. 1965 Ibid. p. 84. This is indeed what I mean by “conventional” in the second sense. 15 universal order. Modern natural law10, strongly influenced by nominalism, focuses on the individual as the only existing reality aiming at drawing subjective natural rights from the examination of his own nature. If this is certainly a modern and rational project, it yet constitutes a variant of natural law, because individuals’ natural rights exist independently of the political power –convention-, this is, by the mere existence of man. Positivism is also a modern project, but unlike modern natural law, it finds its roots in the emergence of the modern natural sciences. It denies the possibility of granting the status of genuine knowledge to metaphysical or theological assertions, stating therefore, that only knowledge accessible to men by means of a scientific -empiricalmethod is true knowledge. This epistemological distinction unfolds in at least two different senses in legal thought11. On one hand, it is the ground upon which legal science, inspired by the methodological parameters of natural sciences, was built upon. The object of study, in positivist legal science, is law conceived as an external object that has to be described without value judgments. On the other hand, positivism’s denial of metaphysical elements has been translated into the rejection of natural law and morality, not only as valid objects of study, but furthermore, as valid normative orders for the political community. Positivism has thus affirmed that only the law posited by political institutions is true law. Hence, the combination of modern natural law and positive law implies the rejection of a ruling cosmic order, and with it, the rejection of authority rooted in metaphysical foundations. It is thus the transition from modern natural law to positive law that will raise the necessity of legality and legitimacy as desirable attributes of legal and political authority. The epistemological assumption underlying the distinction between natural and positive right, is obviously, as mentioned before, the distinction between nature and 10 Cf. Troper, Michel. La Philosophie du Droit. Paris. PUF (Que sais-Je). 2003. pp. 16-17. Following the threefold meanings of Positivism according to Norberto Bobbio (1998), i.e. In Legal Science, in Legal Theory and as an Ideology; I basically limit myself in this stage to introduce Positivism within Legal Science. 11 16 convention. This distinction has influenced, in different ways, the understating of law and authority in natural law, modern and contemporary positivist thinkers. I argue that this epistemological distinction is methodologically convenient for our analysis because it provides the necessary analytical tools for interpreting the philosophical principles underlying the concept of authority in contemporary politics. Certainly, as it will be shown throughout this work, contingency is essential to the new conception of political power introduced by modern political philosophy. Contrary to classic political philosophy, modern political thought will prove to be unable to grasp the trans-historical relation between human beings and their political institutions. Due to the emphasis put by modern philosophy on human consent and positive law as the sources of political justice, its normative proposals regarding the foundational principles of authority and institutional arrangements within the modern state are unable to offer a satisfactory and comprehensive set of means capable of actualizing political justice. In the next section I will introduce the foundational principles of political and legal authority in classic political philosophy in the light of Plato’s and Aristotle’s oeuvres. Firstly, I will approach their whole cosmological approach to politics. Then, I will present their concepts of man’s nature, natural law, political authority and justice. Finally, I will link together these concepts for bringing forth the concept of “legality” and “legitimacy” underlying classic political thought12. Nonetheless, as I mentioned before, one must be aware that during classic political philosophy in which classic natural law prevailed, these two concepts were indeed indistinguishable. 12 I do not take for granted the distinction between legality and legitimacy as a modern one. I propose to go throughout a brief history of political thought and then to conclude the origin and content of those concepts. 17 2. The Foundational Principles of Political Authority in Classic Natural Law The comprehensive metaphysical view held in the classic period of Greek philosophy implies the necessary tension between the whole and the particular. The study of human things, divine things or natural things required a comprehensive approach; it required the study all things. This conception is shared by both Plato and Aristotle. Nonetheless, they do disagree in some more particular points regarding, among others, the concept of law and justice –dikaion. Therefore, I will focus on what can be considered to be the core of classic natural law, while I will provide particular remarks only in those issues in which they differ considerably. Classic natural law is inscribed in a transcendental worldview that places at its center the harmony of the cosmic order. The universe is composed by efficient, material and formal causes, but more essentially for Aristotle, final causes. The cornerstone of classic natural law, and particularly the Aristotelian view, is the end of things. Hence, to determine what is good for each thing –and thus for man- one must determine what the nature of that thing is, i.e. what man’s natural constitution is.13 In the case of man, “reason is required for discerning these operations: reason determines what is by nature right with ultimate regard to man’s natural end.”14 But for so doing, it is also necessary to take into account the teleological order, in which, particular things –with their own ends- are interconnected to make up the harmonic whole –final end of the cosmic order. Therefore one cannot detach what is good for man from what the order of the universe is. 13 14 Strauss, L. 1965. op. cit. p. 127. Strauss, L. 1965. op. cit. p. 7. 18 That every man has his own constitution, and hence his own ends, must not be taken as a denial of freedom, but the reference according to which freedom has to be interpreted. There is no external force that determines man’s actions. Contrarily, man is, according to his own nature, free to pursue his ends. Certainly we are not talking about the kind of freedom of modern natural law, but a freedom limited to the capabilities and nature of each man. There is a given realm in which man is free to pursue a life of virtue in accordance to his nature. One must not confuse the concept of freedom held by classic natural law with the actual concept of freedom practiced during the classic period of Athenian democracy. Freedom in the Athenian democracy contrasted sharply with slavery. Only those men bear free, with a determined amount of assets and able to contribute the polis’ defense were holders of full freedom, and thus, able to participate in the polis’ government.15 In any case it is known that neither Plato nor Aristotle thought of the Athenian constitution16 to be the best political regime. Moreover, for Plato and Aristotle men were not equal. “Since the classics viewed moral and political matters in the light of man’s perfection, they were not egalitarians. Not all men are equally equipped by nature for progress toward perfection, or not all “natures” are “good natures.”17As we mentioned before, the fact that man is somehow pre-set by his natural constitution determines his status in the social order. It is in the light of each man’s end that we have to interpret his particular equality status. This teleological view of man’s nature shocks our egalitarian modern spirit, because, unlike premodern political philosophy, modern political thought downplays the teleological realm of man’s nature and revalues the equal dignity of all human beings. As we will see later, this explains to a certain extent the modern appreciation of democratic government. In contrast, the classics 15 Aristotle. Politics. Cambridge. Harvard University Press. 1972. 1317b 40. p. 489. Cf. Aristotle, Ibid. 1279b 5. p. 207. Nonetheless, Aristotle thought that among the many cities’ and state’s constitutions empirically studied by him and his students, the Athenian Constitution could be considered the best, this is, the one that fitted the best to his members. Cf. Plato. Les Lois. Œuvres Complètes, Tome II. Brussels. Éditions Gallimard. 1950(a). III. 698-699. pp. 738-740. 17 Strauss, L. 1965. op. cit. p. 134. 16 19 regarded the capacity of virtue as the distinctive characteristic of governors. Regardless the potentialities of virtue residing in all men, classics privileged the capacity of effectively practicing it, which among men, vary considerably. Therefore, men able to practice virtue in a higher degree were entitled to guide the feeblest, or, in other words, the ruling class should be composed by the most virtuous men; by those able to guide the less docile men to virtue. That aristocratic government will enhance the possibilities of all citizens to live in accordance to virtue whereby they will meet their natural end. In that sense political ruling is well practiced if it conduces to men’s achievement of virtue or excellence. The polis in which political power is well distributed18 is that in which the most virtuous men rule, this is the politeia. In this perfect regime citizens will be those “who have the capacity and the will to be governed and to govern with a view to the life in accordance with virtue.”19 The politeia is the most noble and legitimate regime. Unlike politeia virtue oriented government and citizenship, Athenian democracy was characterized by a twofold concept of citizenship: Freedom and equality -justice. Freedom was the elementary condition of equality. Besides accomplishing the requirements of freedom - birth, assets and contribution to self defense- full citizenship required political participation. Only full citizens were equally free because they had equal share on government. Citizens holding power in government were essentially keeping their freedom as far as they were participating in selfgovernment20. Aristotle shows that access to the assembly was limited to citizens upon payment of a sort of entrance fee. The resources collected were to be invested in common defence in order to guarantee “full rights of sovereignty and selfgovernment” of the polis21. This explains why citizens where not only required to be 18 Cf. Strauss, L. 1965. op. cit. p. 136, the distinction of Constitution (politeia) for the classics as “the factual distribution of political power” and modern Constitution as the “legal stipulation regarding the distribution of political power”. 19 Aristotle. 1972. op. cit. 1283b 30. p. 241. 20 Aristotle. 1972. op. cit. 1317b 40. p. 493. 21 Aristotle. 1971. op. cit. XXIX: p. 109. 20 able to contribute economically to the defence of the Polis, but to be actually able to participate in its defence, i.e. to be soldiers.22 Aristotle criticized the interpretation of equality23 and liberty24 in Athenian democracy. He considered that equality was deprived from its twofold dimension, i.e. numerical equality and equality according to worth. Aristotle meant by the former “that which is the same and equal in number or dimension”, while by the latter “that which is equally by proportion”25. He claimed that in spite that men agree that the absolutely just is what is according to worth, they disagree in that some think that if they are equal in something they are wholly equal, and others think that if they are unequal in something they deserve an unequal share of things26. Thus the democratic misunderstanding of equality and freedom “arose from men’s thinking that if they are equal in any respect they are all equal absolutely -for they suppose that because they are all alike free they are equal absolutely.”27 Aristotle recomposes the triad citizenship, equality and freedom in classic Athenian democracy by stating what he considered to be the truly principle of democratic justice: “all to have equality according to number… for it is equality for the poor to have no larger share of power than the rich, and not for the poor alone to be supreme but for all to govern equally.”28 The democratic concept of equality was therefore essentially connected to political justice. Moreover, equality in the political realm was taken as participation in government -self-government-, which, along with freedom, were the constitutive concepts of democracy: “There are two things that are thought to be defining features of democracy, the sovereignty of the majority and liberty; for justice is suppose to be equality, and equality the sovereignty of whatever may have been decided by the multitude, and liberty doing just what one wants.”29 22 Aristotle. 1971. op. cit. XXIX: p. 119. Aristotle. 1972. op. cit. 1301a 30. p. 371. 24 Aristotle. 1972. op. cit. 1310a 25. p. 437. 25 Aristotle. 1972. op. cit. 1301b 25. p. 375. 26 Aristotle. 1972. op. cit. 1301b 35. p. 375. 27 Aristotle. 1972. op. cit 1301a 30. p. 371. 28 Aristotle. 1972. op. cit. 1317b 40. p.493. 29 Aristotle. 1972. op. cit. 1310a 25. p.437. 23 21 Politically just governments are thus desirable and moreover, legitimate. If for classic political philosophy the best regime was only possible –legitimate- under the most favorable conditions, contrarily, the legitimacy of earthly possible regimes had to be judged in accordance to the particular conditions of each society. For the classics “there is only one best regime, but there is a variety of legitimate regimes.”30 If the best regime is that in which virtue dominates the political domain, legitimate regimes are those in which justice is practiced. The concept of justice differs considerably in Plato and Aristotle and therefore that of legitimate regimes. Plato understood justice in a comprehensive way in which personal -instincts, heart, reason, etc.- and social domains –polis-31 are inseparable. For example, Plato thought that in any good constitutional regime man must subdue senses –passions- to courage or reason, because they drive man away from virtue. Because the city is made of people, Justice in the polis is connected with the justice of man. Furthermore, if it is true that it was Plato who originally stated the distributive justice maxima “justice is giving each person their due”32, for understanding the full meaning of justice in Plato we most go beyond that. Certainly, Plato was not thinking in what is due according to law but what is prescribed by nature. What is due to each person according to nature, cannot be anything else but what is good for him. Hence, only those men who can truly know what good are they entitled to govern, because they are the only ones who are able to deliver full justice. Only philosophers are able to know what is good for man, and thus they are the only ones who can guide the polis to virtue. This concept of justice is the underpinning of the politeia in which philosophers govern in accordance to nature and citizens obey the law which orders the natural city. The law of the natural city is the same as prudence and is essentially natural law. In this very 30 Strauss, L. 1965. op. cit. pp. 139-140. Plato. La République. Œuvres Complètes, Tome I. Brussels. Éditions Gallimard. 1950(c). IV, 427-428 (pp. 991-992); IV, 433-435 (pp. 999-1003) ; IV, 441. (p. 1011). 32 Plato. 1950c. op cit. IV, 433-434. P. 1000. 31 22 comprehensive natural law order, in which law and morality are intertwined, Justice is realizable in the politeia, but is unachievable for an earthly regime. Plato understood the necessity of the imperfect civil society regardless the impossibility of fully materializing natural right –law- for its citizens. The philosopher must know that in attempting to guide a city he must take into account peoples’ will. In Strauss’ words, wisdom has to be mediated by consent for the good of the city. Once again we find the philosopher at the head of the government. As well expressed by Villey33, the political man for Plato – the philosopher- has to be able to get through the world of appearances and reach the world of intelligible ideas, where real knowledge of things is34. Unfortunately, in the earthly city only a mixture of natural law discerned by reason –philosopher- and law based on opinion –citizensseems possible. It is in this imperfect city in which consent emerges as a necessary condition of government. Contrarily to the perfect regime, earthly regimes are legitimate if they are the result of natural justice and consent. Strauss beautifully presents the contrast between the legitimate authority of the perfect and imperfect city, where natural law and diluted natural law rule respectively. Strauss, aiming at making clear the meaning of full legitimate political authority, contrasts, on the one hand, the duty of obedience of Socrates to Athenian law described in Plato’s Crito, with, on the other hand, the philosopher’s duty of obedience presented in Plato’s Republic. In the former, Socrates’ duty of obedience to the imperfect Athenian law is presented on the basis of a tacit agreement –contract- between the corpus of the polis and him. Socrates broke the law of the city from which he had obtained benefits and before which he has, consequently, acquired the duty of belonging by obeying its law. Contrarily in the latter, the philosopher’s duty of obedience is not derived from a tacit contract, but from the nature of the regime itself. He obeys the law of the city because the city of the Republic is the best city. It is the city according to nature, where natural law rules. “Only the allegiance of an inferior community can be 33 34 Cf. Villey, Michel. La Formation de la Pensée Juridique Moderne. Paris. Quadrige/PUF. 2006. p. 72. Plato. 1950c. op. cit. V, 471-484. pp. 1049-1063. 23 derivative from contract, for an honest man keeps his promises to everyone regardless of the worth of him to whom he made the promise.”35 It seems obvious to conclude that, for Plato, justice -natural right- and thus, legitimacy in its original form, is only achievable in the best regime. Earthly regimes cannot aim beyond a weak type of legitimacy, i.e. a mixture of natural right and consent. Only a comprehensive realization of political, moral and cosmic justice fully legitimizes authority. Only authority that combines government on man’s virtue and city’s good is fully legitimate because it makes natural law rule. That highest form of justice and legitimacy is only achievable in the perfect city, in the politeia. Contrarily, Aristotle provides a more sharp and realistic concept o justice. First, he makes the distinction of what we know today as distributive and commutative justice, in which the former regards the division of public goods according to merits36, while the latter concerns the relations among particulars. But what is more interesting for us is his concept of political justice37. According to Aristotle, justice is the achievement of equilibrium of different interests of citizens, this is what he named dikaion politikon, and constitutes a mixture of nature and law. This more realistic concept of justice laid down by Aristotle provides more interesting elements for drawing a pragmatic and useful concept of legitimate authority. Since the best regime for Aristotle, even if always desirable, is only possible under very favorable circumstances, man is obliged to strive for the most just regime. An imperfect regime according to Aristotle will not have the attribute of virtue but it can always be just, and consequently legitimate. Therefore men are compelled to seek the best possible regime according to their people’s constitution aiming at providing actual solution to the community’s problems. Political power is 35 Strauss, L. 1965. op. cit. p. 119. Aristotle. Nicomachean Ethics. Cambridge. Cambridge University Press. 2002. II31a. p. 86. 37 Aristotle. Nicomachean Ethics. 2002. Ibid. II34b. pp. 93-94. 36 24 legitimate when it can put together law and nature in order to satisfy the notion of political justice. This radical difference between Plato and Aristotle concept of justice can be explained for at least two different reasons: On one hand, if it is true that both Plato’s and Aristotle’s theories are contextualized in a harmonious cosmic order, Plato departs from the cosmic order itself to find out what justice is. Contrarily, Aristotle combines his teleological conception of beings with an inductive -empirical- method. Aristotle departed from observation attempting to grasp the nature and ends of things. As for Aristotle things have the essence of the being before actually having its corresponding shape – a seed is a tree before having the tree shape-, he thought to be able to recognize the nature of things by following their natural process. Therefore the concept of political justice for Aristotle cannot be found anywhere else but in the natural social development of man in civil society. In other words, for Aristotle, justice in its narrow sense, cannot be found anywhere else but in social relations, i.e. within the polis. “Because man is by nature social, the perfection of his nature includes the social virtue par excellence, justice; justice and right are natural.”38 On the other hand, Plato and Aristotle also disagree in the concept of justice because of their understating of man’s political nature. As we know, for Plato civil society and its laws are necessary but undoubtedly imperfect because they are the mere reflection of natural right, it is nothing else than diluted natural right. Contrarily, for Aristotle civil society is where man, who is by nature a Zoon politikon, can develop his potentialities and achieve his ends. In that sense, political activity is the means whereby man can fully realized his nature and turn his potentiality in actuality. As far as justice is realizable within the polis, legitimate government is also possible. 38 Strauss, L. 1965. op. cit. p. 129. 25 Moreover, according to Aristotle, justice was realizable in the polis through a naturesociety complementation that does not imply the dilution either of natural law, or of the principle of consent by the people. Contrarily since man is by nature a political animal, justice –in its political sense- is only realizable by the natural development of man within the polis. Therefore, additionally to what has been already said regarding Aristotle’s viewpoint on equality and justice, we must know that Aristotle understood that the essence of justice is the common good. According to him, the common good precedes the notions of commutative and distributive justice. If justice emerges from the interaction between the particular constitution of the city and the cosmos in permanent movement, one must conclude that what is naturally right -justis essentially changeable39. Since Aristotle did not develop further this idea, there have been different interpretations of his assertion. I will stick to the understanding that for Aristotle justice is not an abstract concept built up of principles, but rather, a particular one made up of concrete decisions40. If natural right resides in particular decisions and not in general rules, and those decisions are to be taken within a particular political community -in which common good is paramount for its cohesion-, then natural law is essentially changeable. Once again this great difference with Plato’s teachings seems to have its roots in Aristotle’s empirical method. Among his studies on Greek constitutions he concluded that the Athenian constitution was the best political regime of the époque. Not because it was democratic –Aristotle was not a democrat- but because it was the best distribution of power according to the city’s nature. Athenian democracy was not the best regime because it was not a government of wise men neither of a mixture of philosophers and enlightened41 citizens under the rule of law; but it was just, and 39 Aristotle. Nicomachean Ethics. op. cit. II34b. pp. 92-94. Cf. Villey, Michel. “Le Droit Naturel et l’Histoire.” In: Seize essais. Paris. Dalloz. 1969. pp. 77-78. 40 Some have tried to explain the variability in the pragmatic concept of natural right by stating that for the classics “there is a universally valid hierarchy of ends, but there are not universally valid rules of action.” Cf. Strauss, L. 1965. op. cit. p. 162. 41 Cf. Strauss. 1965. p. 142. He makes the difference between philosopher and gentlemen. I retake that division but calling the latter enlightened citizens with which I make reference to those citizens that without being philosophers think beyond the darkness of the cavern -doxa. 26 thus legitimate. Legitimacy of law and the political power for Aristotle lies in the respect to the naturally just. This is why the just polis had to be understood as an extension of the natural order in which citizens sought to accomplish their natural ends. Aristotle provides not only a notion of natural right compatible –complementary ofwith the notion of positive law and civil society, but moreover with a dynamic conception of natural right as the grounds of both justice and legitimacy of the political authority. The achievement of a just regime for Aristotle implies human effort. There exists the potentiality of justice and human excellence in every political community, but it only becomes actual through the efforts of man’s action. This permanent interaction between nature and politics is the essence of legitimate authority. Classic political philosophy left us a huge legacy on the legitimacy of power in classic natural law. Indeed, the most shocking element to our modern eyes might be the classic’s comprehensive metaphysical understating of life and politics. Contrarily to modern thought that disregards the transcendental dimension of democracy and holds and instrumental viewpoint of government, the classics understood politics as essentially connected with the natural order and justice. They understood politics in regards to man’s nature and ends, closely tied to an account of human psychology, of man’s desires, interests and powers as well as in the light of the forces of the universe. This is why for classic political philosophy, and essentially for Aristotle, the city and its inner constitution had to be understood as an extension of the cosmic order, and hence ruled by natural law. Aristotle and Plato differ in the fact that natural law rules the politeia and the earthly city. As it was said before, I will retain Aristotle’s view because in my concept it provides the richest and most pragmatic account of classic natural law. According to him, natural law and political justice are not limited to an 27 account of the cosmic equilibrium, but also to man’s ends within a political community. Aristotle put together in an impressive way the exercise of virtue and justice, the cosmic order and political life to provide a comprehensive concept of legitimacy. Aristotle method of empirical investigation of the natural order has proved to be of great importance to bring natural law down to earth. He provided a dynamic concept of natural law that became to cornerstone of his pragmatic notions of legitimacy and justice. Although I hope to have made it clear to the readers’ eyes, it is worth stating that both Plato’s42 and Aristotle’s43 political philosophy, and in general all classic natural law, is incompatible with any doctrine of social contractualism or modern voluntarism regarding both the nature of law and legitimacy of authority. If it is true that the best regime, as of Plato’s and Aristotle’s understanding, is beyond any possible actual order. We must also be aware that Plato’s and Aristotle’s teachings can greatly contribute to understand the transcendental dimension of the political order. Aristotle taught us that it is possible to establish a just and legitimate order through the interaction of man, political life and natural right. In the next chapter, I will approach the emergence and foundational principles of modern natural law, as well as its teachings on political power. The philosophical shift implied in the understanding of natural law is central to both, the new concept of legitimate political authority, and to the modern political constructivism theory on which contemporary politics and positive law are based. In the first section, I will introduce the last stage of classic natural law during the scholastic period of Thomas Aquinas. Then, in section two, I will present the emergence of nominalism and the decline of classic natural law and its metaphysical conception of government. In section three, I will develop through the oeuvres of Hobbes and Locke, the emergence of modern natural law and the concepts of human nature and political 42 43 Cf. Plato. 1950a. op. cit. IV. 715. p. 761; 1950b. op. cit. 298-300. pp. 405-410. Cf. Aristotle. 1972. op. cit. p. 1253. 28 authority. Finally, I will draw some conclusions regarding the concepts of legitimate and legal authority in modern natural law, as well as on the shift from natural law to positive law as the source of regulation. 29 II The Foundational Principles of Political Authority and Natural Law in Modern Political Thought 1. The Decline of Classic Political Philosophy and Classic Natural Law The decline of classic political philosophy and natural law comes after the great recovery of Aristotle’s legacy by Tomas Aquinas. Aquinas’ version of classic natural law44 is revitalized by the scholastic tradition which aimed at harmonizing natural law with the catholic teachings. It implied the reconsideration of man’s nature in the light of the divine will -order. Hence, for Aquinas, natural law has to be interpreted under the teachings of the bible, which privileges belief over reason45, and thus, redefines both the sources and status of natural law first presented by the classics. His conception of natural law, grounded in belief and divine law, rules out the 44 Cf. D’Aquin, Thomas. Somme Théologique. Paris. Les Éditions du Cerf. 1984. pp. 569-613. Some argue that Aquinas proposes a middle way in theology between irrationalism and scepticism. See O’Connor, D. J. Aquinas and Natural Law. London, Melbourne, Toronto. Macmillan. 1967. pp. 6-9. Others, Cf. Villey, M. 2006. op. cit. pp. 167-176, argue for a reading of Aquinas’ theory on the basis of a complementation between faith and reason, an not merely a superiority of the former over the latter. 45 30 changeable character of classic natural law, and reveals a divine and natural order to which man’s established order must conform. In that sense, for Aquinas, natural law and theology are intertwined. Although Aquinas’s version of natural law seems to be grounded in a concept of essence similar to that of Aristotle, the consequences that the former unfolds thereafter are beyond the latter’s metaphysics. He understands human nature as constituted by a determined set of properties that define what “man is”: the essence of man tells us “what is to be a man”46. Therefore, according to Aquinas, natural law is invariable47 because it derives from the inalterable essence of the godly informed natural order and human nature. Although this characterization represents a radical rupture with Aristotle’s ontological understanding of natural law, both Aquinas and Aristotle do agree that natural law is accessible to men by means of reason. For Aquinas, the aim of this inquiry is the establishment of human laws that will lead men to the common good. The result of Aquinas’s theory, which is framed in the so called first scholastic period, is widely known as the baptizing of the Aristotle’s theory of natural law. It is precisely to this absorption of natural law by theology that modern political philosophy reacted on nominalistic basis, paradoxically set up during the second scholastic period. For this second wave of scholastic thinking emerged in the low middle ages, a fixed natural world in which god’s omnipotence was neglected, was inconceivable. This reaction was led by William of Occam, and gave birth to what became the epistemological cradle of modernity, i.e. nominalism. 46 47 O’Connor, D. J. Aquinas and Natural Law. 1967. op. cit. p. 15. D’Aquin, T. 1984. op. cit. Question 94. Art. 5. pp. 595-596. 31 2. Nominalism and the Epistemology of Modernity Nominalism, at least in its most original version, argues against the existence of universals. According to nominalists things only exist as particular objects and not as instances of unique and universal essences48. This anti-realists insight that opposes Aquinas’ conception of order grounded in essences -e.g. essence of man- is the underpinning of the modern philosophical project, and thus, the ground on which modern natural law and legal positivism have anchored their pillars. Nominalism is incompatible with Aquinas’ claim that man’s nature and the world order are constituted by unchangeable general essences -universals49. Nominalists agree that all things have merely particular existence, and therefore, that they have a single identity. Nonetheless they do disagree when explaining the differences among objects apparently sharing an identical nature, i.e. the nature of man. Different attempts have been made for classifying the diverse nominalist’s arguments on the issue50, an just as an illustrative example, I highlight the contribution of D.M Amstrong, who has classified the different types of nominalist arguments in five categories51 –Predicate Nominalism, Concept Nominalism, Class Nominalism, Mereological Nominalism and Resemblance Nominalism- while attempting to show the way in which nominalism can explain what is for a thing to have a property. 48 D’Ockham, Guillaume. Somme de Logique. Première Partie. Mauvezin. Trans-Europ-Repress. 1993. pp. 49-50. 49 I do not refer here to Aristotle’s concept of the “essence of man” because Aristotle did not understand “beings” on themselves to be essences. Cf. Aristotle. Metaphysics. Cambridge. Harvard University Press. 1969. Book X. I. 1053b 17-19. p. 13. 50 Cf. “Nominalisme”, Vignaux, P. in: Dictionnaire de Théologie Catholique. V. 11. Première Partie. Paris. Librairie Letouzey et Ané. 1931. pp.717-784. 51 Cf. Armstrong, D.M. Nominalism and Realism. Universals and Scientific Realism. Volume 1. Cambridge, New York, New Rochelle, Melbourne, Sydney. Cambridge University Press. 1988. pp. 11-57. 32 The work of William of Occam is widely recognized for having laid down, in a coherent and systematic way, the core ideas of nominalism. I hold52 that Occam’s ideas constitute the grounds on which modern natural law and legal positivism have flourished in opposition to the realist view adopted by the classics. Contrarily to the realist conception of the world, in which particular things share a natural order, relate to each other in terms of that order, and hold common properties that allow the existence of the order itself; nominalism as exposed by Occam, argues against the ontological existence of the nature of a thing, and moreover, against the existence of common forms or final causes53. Hence, for Occam universals are linguistic signs54 used for grouping together particular phenomena with apparent similarities. Universals as man, good, etc., are not existing beings in themselves but concepts expressing a relation among particular things, i.e. among particular men or particular good acts, etc. The only true knowledge resides in the particular things55 themselves and not in the generic terms. Therefore, according to Occam, man’s reason must focus on individual things as they were posited by god in the creation of the world, and not on universals, because they are not real entities56. The shift proposed by nominalism from the observation of nature and the whole external order to the constitution of particular things led modern philosophy to place the individual at the center of its thinking57. The incorporation of nominalism by political philosophy stands clear in the theory of the Social Contract, which in itself is the greatest achievement of modern political and legal thought. It wraps up the whole philosophical tradition developed since the second scholastic period in a systematic exposition on the origins of political and legal authority. I will approach the theory of the Social Contract through the 52 The works of Villey, Strauss, Vignaux, De Muralt and Berns that have been widely quoted in this dissertation hold the same view. 53 Hobbes. 1998. op. cit. pp. 65; Villey, M. 2006. op. cit. p. 226. 54 D’Ockham. 1993. op. cit. pp.125-126. Cf. Vignaux, 1931. op. cit. pp. 723-724 on Abelard; pp. 736-738 on Occam. 55 Vignaux, 1931. op. cit. p. 752. 56 Cf. D’Ockham. 1993. op. cit. p. 165-180. Vignaux, 1931. op. cit. pp. 746-748. 57 Cf. Vignaux, 1931. op. cit. p. 752 ; Villey, M. 2006. op. cit. p. 228. 33 influential oeuvre of Hobbes and Locke. I will focus on their justification of political and legal authority, as well as on their concepts of natural law, justice, legitimacy and legality. 3. Hobbes and Locke: On the Origins of Modern Political and Legal Authority The political work of Hobbes might be the best example of the gap opened by nominalism between classic and modern political philosophy, and thus, between the classic and the modern understating of law. On the one hand, and contrarily to the classics, Hobbes takes natural right to be both innate to the subject and source of the sovereign’s authority to enact and enforce the law. On the other hand, he abandons the Aristotelian view that the goal of political power is to promote the accomplishment of man’s end by the establishment of a virtue-oriented order. Instead, he proposes to seek in the original state of nature the foundations of political power. For so doing, he considered necessary to reformulate the esoteric philosophical method of the classics that impeded the production of true and accurate scientific knowledge58. According to Hobbes, certain knowledge of a thing can only be affirmed if that thing finds its origin in human mind, i.e. whose construction is our own power. Therefore, knowledge of those things which have been originated with the participation of external causes is merely hypothetical. Hobbes evidently rejects the possibility of thinking in terms of universals by stating the impossibility of getting scientific knowledge of the external world. Moreover, he considers that objects existing independently of the human mind are unintelligible. Consequently, Hobbes recognizes the external causation of the universe, and thus, its unintelligibility to 58 Hobbes. Leviathan. Oxford, New York. Oxford University Press. 1998. pp. 32-33. Cf. See Strauss, 1965. op. cit. pp. 172-173. 34 human mind. Hobbes regards the impossibly of having certain knowledge about the universe as the footing of man’s absolute sovereignty in the world: “man can be sovereign only because there is no cosmic support of his humanity… because he is absolutely a stranger in the universe…because he is forced to be sovereign”59. As conceived by Hobbes, political science has the objective to describe the nature of man, his experience in the political and social life60. First, and in accordance with his scientific thinking, his aim was to discover the principles governing political life from the study of man’s nature – man’s rights. For so doing, contrarily to the classics, he took into account the way men actually live and not their cosmic ends. He sought to reconstruct man’s present by inquiring into his past, returning to the pre-political stage, to the state of nature. According to Hobbes it is passions rather than reason that determine man’s behavior in the state of nature. He constructs his theory based on a negative anthropology of human nature in which “man is enemy to every man”61. He argues that human beings are naturally a-sociable62, competitive and guided by pleasure and desire. Furthermore, the fact that men are naturally granted with relatively similar mental and physical faculties63, have made of the state of nature a permanent state of war, in which everyone is in danger of violent death. Hobbes thought that by rooting his natural law in man’s fear of violent death, he was setting solid basis for his theory without betraying his nominalistic assumptions. If man’s most powerful passion is 59 Strauss, 1965. op. cit. p. 175. Hobbes, 1998. op. cit. p. 247. 61 Hobbes. 1998. op. cit. p. 84. 62 Although traditionally it has been argued that Hobbes presents an asocial nature of man in the state of nature, I include this controversial statement following a provocative note made by Rousseau in Discours sur l’origine et les fondements de l’inégalité parmi les hommes. According to Rousseau previous philosophers –mainly referring to Hobbes- tried to go back to the state of nature but they did not succeed. They remained, he argued, in the last stage of it. They have mistakenly transported man to those times as he is present in today’s society, and therefore, have neglected the moment in which men were living like “animals”. Hence, Hobbes contradicts himself in the sense that he aims to present an asocial man in the state of nature but he wrongly endowed him with all the vices of men living in society i.e. competition, diffidence and glory (Hobbes, 1998. op. cit. p.83). 63 Hobbes. 1998. op. cit. p. 82. 60 35 fear of violent death, consequently man’s most powerful desire is that of selfpreservation64. If there is any reason for which man ought to abandon the state of nature and unite in a civil society under the power of a centralized authority, it is men’s common desire for self-preservation. But the nature of that commonwealth is conditioned by the previous existence of man’s natural rights. According to Hobbes, the right to selfpreservation in the state of nature implies some other natural rights that entitle men to pursue their survival. In other words, Hobbes held that man has some -immanentnatural subjective rights in the state of nature which, being prior to the political community, were conditions limiting the setting of the commonwealth. No other right seems more absolute and necessary for self-preservation than liberty65. It is effectively the standing point of man’s struggle for survival in the state of nature. Moreover, because in the state of nature liberty is unlimited and the struggle for survival is unregulated, every man has right to everything. Only two natural laws, which are imposed by the dictate of reason, govern men in the state of nature: 1. “to seek peace and follow it… and… by all means we can, to defend ourselves. 2. That a man be willing, when other are so too, as far-forth, as for peace, and defense of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other man, as he would allow other man against himself.”66 Hence, reason imposes to man the necessity of transforming the state of nature, in which perfect natural rights co-exist with imperfect -uncertain- duties, into a system in which a centralized authority guarantees peace by enacting and executing commands. Thus, man as holder of natural rights, is meant to consent on the establishment of that authority which will provide security by establishing a perfect 64 Hobbes. 1998. op. cit. pp. 111, 198. Hobbes. 1998. op. cit. p. 86. Ch. xiv. 66 Hobbes. 1998. op. cit. p. 87. Ch. xiv. 65 36 system –positive and coercible- of duties and rights. However, the existence of a sovereign authority implies the abandoning of the absolute character of man’s natural rights. If it is theoretically true that natural rights remain a limitation to the political authority, especially the right to life; in Hobbes, however, the sovereign claims absolute authority within the commonwealth on the basis of the people’s transfer of natural rights67- i.e. sovereignty by institution. In that sense, since the sovereign holds his absolute power –sovereignty-68 on his own right –derived from nature- the ruler is entitled to govern on the basis of mere authority and not on the basis of truth or reasonableness. Although Hobbes argues that sovereignty is rooted in the transfer of rights –poweroriginally belonging to the individuals, he also holds that political authority can emerge on the basis of the acquisition of rights by the sovereign. In case of conquest, if individuals fearing violent death consent in transferring their natural rights to the conqueror in exchange of protection of their life69, then, the conqueror is said to have gained sovereignty by acquisition. For Hobbes, the sovereign in both cases holds full sovereignty. Alike in sovereignty by institution, individuals when consenting in the establishment of sovereignty by acquisition, transfer their natural rights to the governor in exchange of life protection. However, contrarily to the sovereignty by institution in which the contract is inspired in the fear of man to every other man, in the sovereignty by acquisition, the contract is inspired in fear to the conqueror70. The fact that force has mediated this transfer of rights is not relevant, because it was finally fear, as it is in sovereignty by institution, what gave birth to the authority. If fear would render void the social contract, “no 67 Cf. Hobbes. 1998. op. cit. 132. Ch. xx. Hobbes names this establishment of authority “sovereignty by institution” in contrast with sovereignty by acquisition. He considers the former the ideal (legitimate) constitution of the commonwealth. Cf. also Hobbes. De Cive. Oxford. Clarendon Press. 1987. p. 90. Ch. V, 12. 68 Hobbes. 1998. op. cit. 138. ch. xxi. 69 Hobbes. 1998. op. cit. 134-135. ch. xx. 70 Hobbes. 1987. op. cit. p. 90. Ch. V. 12. 37 man, in any kind of commonwealth, could be obliged to obedience.”71 Nonetheless these two types of establishment of sovereignty are irreducible to one. In the sovereignty by institution the contract is accomplished among men. Each man restrains his rights in as much as the others do. These resign of rights is made among men in benefit of the sovereign, who thereafter, holds absolute power to guarantee the execution of the social contract. In sovereignty by acquisition the contract is not accomplished among men, but between the conqueror and each individual. Each man resigns his rights to and in benefit of the sovereign, who must guarantee the life of each of the contracting persons. Hence, if it is true that for Hobbes consent is the origin of sovereign authority, what must be regarded to determine the legitimacy of that consent, is not if it was produce by force, but if it was given in exchange of protection of life. The goal of self-preservation is the only valid reason for which man can abandon his natural rights. It is precisely from the abovementioned argument that Hobbes draws his theory of sovereignty. He rooted the supreme powers of the sovereign not in positive law or general custom, but in natural law. Consequently, Hobbes makes of legitimacy the highest attribute of a political order. In words of Leo Strauss, Hobbes lowered the classic goal of politics of the “best regime” to that of a “legitimate government”72. Hobbes succeeded in laying down a theory of a right social order whose actualization is possible in all circumstances. Hobbes disregards the teaching of classic political philosophy that distinguished between good and legitimate regimes on the basis of the different existing circumstances. Contrarily, Hobbes brings forth a scheme under which one may judge the legitimacy of any regime at all times and under any circumstance. Furthermore, the reduction of the best regime to legitimate government implies the impossibility of distinguishing between good and bad regimes. Man must neglect doctrines advocating for the individual’s autonomy in judging the good and the evil, and must follow the sovereign’s dictates as far ad they are not repugnant to 71 72 Hobbes. 1998. op. cit. 132. ch. xx. Strauss. 1965. op. cit. p. 191. 38 the laws of god73. Moreover, if for Hobbes justice remained an independent virtue from that of peaceableness, he did provide a new interpretation. He disregarded justice as the establishment of a good political order pursuing the fulfillment of the natural and particular standards governing the cosmic and individuals order respectively. Instead, he looked into human will and identified justice with the accomplishment of the social contract and its unfolding consequences, i.e. the fulfillment of the sovereign’s commands. Hobbes theory combines the possibility of a legitimate government operating in all circumstances with a theory of justice attached to positive rules. The most remarkable consequence of Hobbes’ theory of sovereignty is the conjunction in one central authority of physical power –potential- and legal power potestas. The fact that sovereignty is rooted in the transfer of subjective natural rights from the people to the instituted authority74 provides unlimited and legitimate power to the ruler. He may disregard any law that constrains his own will. In all cases, the sovereign is not bounded by legality because civil laws are only his commands and he can release himself from them at his pleasure. As we said before, the sovereign in Hobbes does not rule on the basis of reasonableness but on the basis of authority, in other words, the sovereign is not reason but pure –inherited- will75. This is the main consequence of absolute sovereignty granted from the people to the sovereign. Men are obliged to follow the commands of the sovereign not because they are reasonable, but because they have the quality of authority. Furthermore obedience appears as imperative because citizens are devoid of moral objection given the fact that law does not establish what is honorable or not, but what is permitted or not. Therefore, in Hobbes, the only reason that justifies civil disobedience is the threat to selfpreservation by the sovereign or an alien third. 73 Hobbes. 1998. op. cit. pp. 235. Ch. xxxi. Berns states briefly and precisely the role of subjective rights as the underpinning of the legitimate absolute sovereignty in Hobbes’ theory: “Only the possessors of absolute power can grant absolute power. Berns, L. Thomas Hobbes, in: History of Political Philosophy. Strauss, L. & Cropsey, J. (eds). Chicago & London. University of Chicago Press. 1987. p .407. 75 Cf. Berns, L. 1987. ibid. p. 407. 74 39 Although alike Hobbes, Locke sought the underpinnings of sovereignty in the origins of man, and more precisely in his natural rights, he nonetheless differs in the qualities attributed to that state of nature. Even if for both the state of nature is characterized by the aim of self-preservation, Locke does not consider man to be naturally corrupt or bad. Contrarily, he argues for a state of nature in which innocence of spirit76 dominates the struggle for survival77. Locke follows Hobbes in considering that competition for self-preservation opens the door for conflict and permanent insecurity, but he once again differs from Hobbes, when considering the terms of the conflict itself. He takes distance in regards to Hobbes’ understanding of selfpreservation and war. Locke considers that the struggle for self-preservation is not carried out in terms of violent threat to life, but in terms of threat to survival by the appropriation of basic goods required for living – e.g. shelter and food. Thus, for Locke, there is not a truly natural law in the state of nature that imposes universal and unambiguous duties on man’s behavior towards the others or towards god. In Locke, the state of nature is governed by the sole principle of the pursuit of a proper order conducing to happiness, which is neither a law belonging to the external order nor a natural mandate anchored in the subjects, but simply, a dictate of reason78. It thus lacks the attributes of a truly natural law and stands merely as a reasonable mandate that facilitates the pursue of social happiness In spite of the inexistence of a natural law imposing perfect duties in the state of nature man holds innate natural rights governing his fate. Man has been naturally preset with the indelible desire of happiness. The pursuit of this natural desire endows man with additional natural rights, i.e. self-preservation and property, which 76 Locke, J. Two Treatises of Government. Cambridge. Cambridge University Press. 1988. II, §111. pp. 342343. 77 I highlight the sharp contrast existing between Locke’s first passages of the Two Treatise in which he presents a peaceful state of nature that respects the natural mandate of preserving mankind (1988, II, § 6-, 8. pp.270-272; II, §19. pp. 280-281), with the passages of later pages in the Treatise in which he affirms that the real state of peace is civil society because the state preceding it is in an ongoing war (1988, II, § 13-21. pp. 275-282). I argue that Locke wanted to present, in opposition to Hobbes, a positive anthropology of man, but making clear that the conditions of the state of nature led men into war. 78 Locke 1988. op. cit. II. §6, pp. 270-271; II. §19. 280-281. Also Cf. Strauss 1965. op. cit. p. 220. 40 are prerequisites for the attainment of happiness. Moreover, if happiness is in itself a natural right, life and property according to Locke, prevail in case of conflict. The former is the maximum precondition for happiness, while the latter, understood as the natural right to use natural resources in benefit of man’s own survival, also proves to prevail over the right of happiness. In absence of a natural law imposing duties among man living in the state of nature, every man has the right to judge the breach to his natural rights of survival, property and happiness79. Men, led to the permanent state of war, are thus obliged to appeal to reason and recognized the equality among them in regards to the basic rights. If they aim to assure the fulfillment of their natural rights, then, a peaceful society must be established. Subsequently, this recognition allows men’s mutual commitment to constitute a political authority that governs society in behalf of each of them as one sole body80. Locke agrees with Hobbes that civil society is the sole judge of which transgressions are, and which are not, deserving of punishment81. However, Locke’s theory of civil society and political power differs considerably from that of Hobbes. On the one hand, Locke identifies man’s desire of self-preservation with the ownership of the basic goods required for survival and not with the fear of violent death. Hence, the protection of property as means for self-preservation, and not the protection of men from violent death, is at the center of Locke’s social contract. In this way Locke avoids, to a certain extent, the criticism made to Hobbes’ theory of sovereignty82, that it is only operative in extreme cases, i.e. when men fear violent death. On the other hand, Locke argues that the right of self-preservation governing the constitution of the civil society favors a limited type of government. Locke rejects Hobbes appreciation of absolute government as the ideal means for self-preservation within 79 Locke 1988. op. cit. II. §13, pp. 275-276; II. §87. p. 323. Locke 1988. op. cit. II. §89, p. 325; II. §95-98. pp. 330-332. 81 Locke 1988. op. cit. II. §88, pp. 324-325. 82 Strauss 1995. op. cit. pp. 196-197. 80 41 civil society. Contrarily, he considers unlawful any absolute arbitrary power, as well as any government, established without the free consent of the subjects. Therefore, for Locke, the only legitimate government is that which is structurally incapable of oppressing its member once they have resigned their natural rights. This might be the gist of Locke theory of legitimacy and legality. Locke considers that a legitimate government -political power- is that which has been constituted, not only by the free consent of all the subjects, but which is designed in a way that prevents the oppression of its citizens. In spite of the monarchic tendency of Hobbes, authors like Leo Strauss argue that all “natural public law doctrines”83, like those of Hobbes and Locke, have the deficiency that in practical terms they imply that the only legitimate government is democracy84. Although one may agree with this affirmation regarding the legitimacy of government, it is important to remark the differences that unfold regarding the operation of government itself. It seems that Strauss rather than making reference to the actual institutional arrangements of a political regime organized in a democratic form, he refers to the constitution of the state on popular basis. Therefore the differences between Locke and Hobbes must be seek not in the concept of legitimacy -origin of government-, but in that of legality operation of government. Contrarily to Hobbes who affirms the absolute power of the sovereign, Locke subjected the supreme power to a system of checks and balances. He considered that the only guarantee of people’s rights was a limited government respectful of the law, i.e. subjected to legality. Moreover, even if Locke did not confer to the people the permanent task of government, he did considered them to be the last control of a tyrannical government. At this point it is then possible to appreciate clearer the influence of nominalims in Locke’s political theory. According to Locke, the inexistence of common forms or 83 Natural public law “is concerned with that right social order whose actualization is possible under all circumstances. It therefore tries to delineate that right order that can claim to be legitimate or just in all cases, regardless of the circumstances” (Strauss 1995. op. cit. p. 181). 84 Strauss 1965. op. cit. p. 193, also Cf. Berns, L. 1987. op. cit. p. 411. 42 universal ends impedes individuals to reach the peace that the state of nature was meant to offer. If men are naturally good, sincere and supportive, it is thus the absence of common innate forms that leads them to conflict. Every man judges individually what satisfies his –subjective- natural rights -desires. Those rights are knowable to the individual because they are the consequence of his desire of happiness. Contrarily, natural law, which would impose general duties on man’s behavior, lacks a common form accessible to everyone, and thus, it is in itself unknowable. Hence, the actualization of the law of nature, which will allow the establishment and enforcement of general duties, and in this way the attainment of a peaceful life, is only possible in civil society. Therefore, individuals are appeal to resign their natural rights in benefit of a common authority who will prescribe positive laws for the common goal of happiness. The fact that both Hobbes and Locke political philosophy have placed man and reason at the center of their analysis shows the great influence of nominalism in the conception that inform our current understating of law and political power. This conception has privileged man introspection, and thus, provided the grounds for edifying a legal order on the basis of human invention and self-reflection. The centrality of man’s will and reason in the production of law is justified because it is man’s natural rights which are the underpinnings of the instituted political and legal authority. Moreover, the nominalist emphasis on individual sovereignty -freedomindividualism- and laicism -anti-orthodox religious viewpoint- led modern political and legal philosophy to downplay the role of external constraints in the establishment of a positive order. In that sense, modern natural law as the source of political power was deprived of the transcendence recognized by the classics, and subsequently encaged into the individual’s sphere. In sharp contrast with a realist viewpoint, modern natural law emphasized the subjective rights innate in man’s nature, then, it grounded the legitimacy of political and legal power on man’s consent, i.e. in the social contract, and finally, it established a positive system for the production of law. This project advanced by modern political philosophy was reinforced by the general 43 lines of the modern –emancipatory- philosophical project that sought to enhance man’s autonomy by freeing reason from religion. The epistemological assertion of nominalism that only the study of particular things produce valid scientific knowledge, drove Hobbes and Locke to abandon the contemplation of the cosmic order as a source of law -dikaikon or ius- and justice. The ambition of scientific knowledge characterizing their theories led them to focus on the individual, the most real and particular subject of study, in order to draw the scientific principles governing the legal and political order. Man’s natural rights were thus established as the core of the philosophical study of political and legal authority. Moreover, the freedom and unlimited power –sovereignty- innate to man became the measure of all things. The individual is the source of political power, while his will and reason are the source of law and justice. Man’s will is thus the only legitimate source of authority, and additionally, his consent is the only means by which political legitimacy can be realized. Lastly, I want to make clear that although Hobbes and Locke agree that popular legitimacy –sovereignty- is the foundational principle of political authority, they disagree in regards to the subjection of the authority to the law. For Hobbes, the sovereign is not subjected to legality because he embodies the will of the people, and as such, he has absolute legitimacy to disregard the law. The law emerges from the sovereign’s will, which is the people’s will. Therefore the sovereign is not limited by his own law and he does not owe due respect to it. However, the law is absolute rule for officials and citizens. The former are subjected to legality in the accomplishment of their functions. The latter are also subjected to the law, because it is the origins of their rights and duties. Hence, the law operates only below the sovereign’s realm legality does not constrain the sovereign’s political and legal authority because that would entail constraining the people’s will. Contrarily, Locke understood that popular legitimacy, as the foundational principle of government, was an insufficient guarantee of man’s natural rights. He subjected the functioning of the political 44 regime to a system of check and balances regulated by the law. He conceived that a system regulated by the law was unable to oppress the citizens. In brief, for Locke, legitimacy as the original foundation of government, is distinguishable from legality, as the desirable attribute in the structure and functioning of government. However, it must be clearly stated that, for Locke, the law remains the expression of popular sovereignty. In the next section, I will briefly introduce the decline of modern natural right in light of Rousseau’s theory, as well as the institutional settings that these political theories have thereafter inspired. I will focus on the concepts of popular legitimacy and legality as the basis of contemporary political arrangements. Finally, I will bring into light the role of positive law in the consolidation of the modern and liberal political project. 45 III The Institutional Arrangements of the Modern State in the light of Popular Sovereignty and Positive Law 1. Introduction: The Consolidation of Modern Political Authority under Positive Law Certainly, Hobbes and Locke set forth the core ideas on which the main political institutions operating in the modern state have been constructed. Yet, at least one more philosophical shift must be mentioned before entering into the institutional arrangements characterizing modern states. The transformation of the understanding of natural right from antiquity to present days has been informed, as we have seen up to now, by the reinterpretation of man’s nature and its relation with the universe and government. The transition from modern natural right to positive right, and thus to the predominance of positive law and legality, is underpinned by a new interpretation of human nature and civil government. Firstly, I will focus on Rousseau’s attempt to recover part of the teachings of classic political philosophy that led him paradoxically to set the principles of positive right in his piece Du Contrat Social. 46 Then, I will approach the oeuvre of Montesquieu and Tocqueville to show the way, in which popular sovereignty has been made into institutional arrangements within modern democratic regimes. Finally, I will point out the unfolding consequences of this institutionalization upon the concepts of legitimacy and legality as attributes of governmental authority. 2. Rousseau: On Popular Sovereignty and Positive Law Since Rousseau agreed that one must inquire into the origins of man for finding the type of civil government that is in accordance with natural right, he wanted first to make clear his divergence with the preceding theories of the state of nature. He accused previous philosophers to have failed in their attempt to describe the state of nature because, therein, they had conferred to man a nature informed by vices pertaining to men living in civil society. Rousseau agreed with Hobbes and Locke that passions rather than reason governs man in the state of nature, and that selfpreservation is the foundational desire of natural law. However, he did not follow Hobbes’ and Locke’s teachings concerning the nature of man and the foundational principles of civil society. Regarding the former, Rousseau thought that man was naturally deprived of reason because, in the early state of nature, man instinctively satisfied his biological needs by making use of the existing natural resources. Since according to Rousseau, man in that pre-rational stage could not know any natural law, there were no moral references for judging man’s nature as good or bad. This restatement of the state of nature as a moment of full isolation and moral emptiness gave Rousseau the idea that man was a perfectible being. This evolutionary conception was indeed confirmed with the emergence of man’s rationally. He thought that man had acquired reason in a later stage in which he was compelled to think how to face the scarcity of natural means available for satisfying his basic needs. In contrast to Hobbes, he concluded that man was to be taken as naturally good given his perfectibility. The moral emptiness characterizing man in the state of 47 nature and his capability of perfection was interpreted by Rousseau as the groundings for distinguishing between natural and conventional attributes - things. Consequently, Rousseau questioned passions and reason as the foundations of civil society. Since some passions are natural because they belong to man’s constitution, and others are conventional because they come into existence with the development of society, one must be careful not to set the foundations of society in passions that are themselves born at the heart of social life. For him, the foundation of civil society had to be rooted in something preceding any conventional passion85; in something characterizing the solitary individual in the state of nature. Rousseau believed that for civil society to last, it needed stronger a bonding than mere calculation of interest or the protection of property. Rousseau tried to show that the transition from the state of nature to civil society was indeed a natural process. He accepted that only natural passions existed in the early civil society, however, he conceived of reason and conventional passions as part of the normal development of events required for the transition from the state of nature to civil society. Hence, in the late stage of the state of nature, in which men find themselves captured by conventional passions, they are driven to a state of war86 that threatens their survival. Men are obliged to appeal to reason and recognize their equal natural rights, especially the right to self-preservation. This collective recognition of rights is transformed into a rational desire of cooperation, as much as it has become a generalized desire. Men agree to pursue a rational, and thus, just society in which freedom is privileged. It goes without saying that for Rousseau freedom rather than self-preservation characterizes the original state of nature87. Hence, for Rousseau freedom is the most important value to be kept in the transition to civil society. This means that obedience to law, contrarily to the teachings of Hobbes, provides 85 Here we mean those passions that find its origin in society and which will be then consider to be “conventional” in opposition to those that are “natural”. 86 Rousseau. J.J. Du Contrat Social. Aubier. Mayenne. Édition Montagne. 1976. I-6. p. 89. 87 Rousseau. 1976. op. cit. I-1. pp 58-59; I-6. pp. 89-90. 48 insufficient guarantee of man’s natural rights unless law itself is the creation of those who due obedience to it. For Rousseau freedom in civil society is obedience to the law that one has given to oneself 88 . Although one might find some similarities between Rousseau and Locke, the former clearly diverges from the latter regarding the underpinnings of civil society. Even if for both of them men are compelled to use reason for the establishment of civil society, Rousseau digs deeper aiming to anchor the basis of civil society beyond mere calculation. In fact, Rousseau saw civil society as the historical –natural- stage in which man had taken control over destiny by the use of reason, and not merely, as the conventional stage in which will founds a new order that opposes the state of nature. Rousseau’s idea was to naturalized man’s right to creative action by rooting will in freedom, and making freedom the supreme natural right. Man’s natural freedom is maintain in civil society if he himself is the author of the laws to which he due obedience. Thus, even if Rousseau agrees with Hobbes and Locke that it is the desire for self-preservation what drives man into the social contract, he however, emphasizes that the main function of civil society is the re-establishment of the freedom and equality that were disrupted in the late state of nature89. Self-legislation becomes the way of assuring self-preservation along with freedom and equality. In Rousseau, man’s sovereignty i.e. freedom and equality, is fully transferred into the law. Since the law is equalized to citizens’ freedom and equality, the binding force and respect of positive law is of imperative respect to all citizens, and especially, to the government. Rousseau tries to overcome the deficiencies of Hobbes’ absolute sovereign and Locke’s system of checks and balances in assuring individual rights in 88 89 Rousseau. 1976. op. cit. I-8. pp. 115. Rousseau. 1976. op. cit. I-6. p. 89. 49 civil society. For so doing, he makes citizens sovereigns90. Through the social contract men surrendered all their rights to society, and thus, accepted society to be the only judge of their acts and source of their rights91. Once the majority rule is unanimously accepted, the social contract completed, man is deprived of his natural rights and subjected to the common will. However this complete subjection of man’s rights to society guarantees his freedom insofar as society is ruled by laws of his authorship, i.e. by himself. Thereafter all duties and rights can only emerge from the general will, from civil society. This emphasis of Rousseau on individuals’ will was the turning point of what Leo Strauss has called the “absorption of natural right by positive law”92. General will took the place of natural right, and thus legality the place of legitimacy. Rousseau introduces legality as the framework of government, which is just and legitimate if it respects the law popularly enacted. In other words, for Rousseau, legitimacy is subjected to legality. Rousseau lays down this reasoning as the basic premise of the Republic. People in a democratic regime are those who define what is to be right, good, just and legitimate, because they define what the law is. By subjecting legitimacy to legality Rousseau subjected politics to law. The government is legitimate not because it draws its authority from the people, but because it conforms to the law: “J’appelle donc République tout État régi par des loix, sous quelque forme d’administration que ce puisse être… Tout gouvernement légitime est républicain” 93 90 Rousseau. 1976. op. cit. 1-7. pp. 104-106. Rousseau. 1976. op. cit. I-6. pp. 90-92. 92 Strauss. 1965. op. cit. p. 286. 93 Rousseau. 1976. op. cit. II-6. p. 171. 91 50 Legality becomes the defining attribute of legitimacy from the very moment that law becomes the reflection of man’s freedom in civil society. The general will is not bounded by the compliance to an external order because it expresses the most valuable right of man, i.e. freedom. This boundless authority transferred from man to the law is thus the origins of positive right. Justice, right, good, etc. are thereafter conventionally defined, because they are to find their source only in positive law i.e. in the general will. Rousseau’s philosophical picture is yet in need of being stated in terms of institutional arrangements. Although, I will not enter into the details of the institutional setting presented in Du Contrat Social94, I will highlight two ideas that are of main importance for the analysis of the Latin American Constitutions. On one hand, certainly Rousseau did not accept the division or representation of popular sovereignty95. He thought that sovereignty was the expression of popular will, which in some cases, needed the guide of a legislator96. On the other hand, Rousseau did not appreciate the separation of powers as means for avoiding abuse of authority. Instead, he proposed the implementation of the Tribunat, inspired in the old roman institution of “people’s tribune”97, for securing the law and solving the disputes within the government and between the government and the people. The Tribunat, however was not part of the structure of the state, and thus its function was essentially of opposition rather than of enactment and execution of the law. I will now turn to Rousseau’s contemporary Montesquieu who laid down key features of the institutional setting in modern states. Montesquieu left aside the ambition of direct democracy and proposed a moderate system of elections and separation of powers. He was inspired by the monarchic England of his time, in which he believed and which was on contrary less democratic than he thought. 94 Rousseau. 1976. op. cit. Books III-IV. Rousseau. 1976. II-1. p. 135. 96 Rousseau. 1976. op.cit. II-6-7.pp. 172-173 ;182. 97 Rousseau. 1976. op. cit. IV-5. pp 394-397. 95 51 3. Montesquieu: Representation, Separation of Powers and Legal Sovereignty In principle, one may be tempted to point out some similarities between Rousseau’s atypical interpretation of the legislator as the guide of popular will98, and Montesquieu’s concept of the legislator as the organ in charged of preparing the laws to be submitted to people’s approval. However, one must be aware, on the one hand, that Rousseau was dealing with a hypothetical organization of the state, while Montesquieu combined in an ambiguous way, the description of existing regimes with his proposal on the structure of government. On the other hand, Montesquieu abandoned soon the ideal of direct democracy in middle size-states, and with it, he turned to the traditional conception of the legislative power. According to Montesquieu, the sovereign people must elect common authorities in a democratic republic to carry out functions they cannot do on their own. The elected representatives will be in charge, among other things, of preparing the legislation, which however, in small republics, can only be legitimately enacted by the people. Montesquieu had indeed a great appreciation for republican government because he considered it to be the form of government that best preserves popular sovereignty99. In fact, Montesquieu was, alike Rousseau, committed with the preservation of man’s liberty100 and equality in the institutional setting of government. From the exposition of the different forms of government that Montesquieu presents in De l’ésprit des 98 Rousseau. 1976. op.cit. II-6-7.pp. 172-173 ;182. Montesquieu. L’Esprit des Lois. Paris. Éditions Sociales. 1969. II-2. p. 57. 100 It is important to remark that the concept “liberty” is used with a different meaning in Montesquieu’s oeuvre. While for Rousseau liberty refers to the natural right that allows its holders to choose their governors, for Montesquieu, it refers to the safeguard of the people and their goods from the action of government. In Isaiah Berlin’s words, Rousseau refers to positive liberty while Montesquieu refers to negative liberty. However, Montesquieu says regarding positive liberty: “Comme dans un état libre, tout homme qui est censé avoir une âme libre doit être gouverné par lui-même, il faudrait que le peuple en corps eût la puissance législative.” (1969. op. cit. XI-6.p. 121). 99 52 lois, it is precisely the republican government, in opposition to monarchic and despotic government, which is most respectful of man’s freedom. Yet, the republic understood as the form of government subjected to the sovereign’s laws can either be aristocratic or democratic. While neither of them is by nature more respectful of man’s liberty101, they do differ in regards to the natural holder of sovereignty. While in the aristocratic republic only a part of the people is sovereign, in the democratic republic it is all people who hold the sovereignty of the republic. Montesquieu aimed at showing in De l’ésprit des lois the laws through which each form of government was perfected. Although he shows a special consideration for the aristocratic republic, I will henceforth focus mainly in the democratic republic. Montesquieu argued that vigorous democratic republics require the sovereign people to feel love for the republic and its laws- that a spirit of patriotism grows in its citizens’ hearts. Indeed, Montesquieu’s demand of moral cohesion within the democratic republic as a requirement for the well functioning of the regime is closely connected to Rousseau’s concept of “civil religion”102. According to Montesquieu, republican democracy in its perfect expression is only achievable in a small city-state in which public good can prevail over the private interests of citizens103. Therein, citizens feel bound by the law, which constitutes not only their own will, but the core of public morality necessary for the achievement of the common good. Therefore, he considered that the most legitimate laws for a truly democratic government are those that are enacted directly by the people. Montesquieu considered that for giving raise to patriotism in larger republics it was necessary something more than mere popular representation in the enactment of the law104. He considered that if republican government, en especially democratic government, wanted to be fully committed with the liberty of its citizens while 101 Montesquieu. 1965. op. cit. XI-4. p. 117. Rousseau. 1976. op. cit. IV-8. pp. 413-430. 103 Montesquieu. 1969. op. cit. VIII-16.p. 100. 104 Montesquieu. 1969. op. cit. XI-6. pp. 121-122. 102 53 strengthening the popular bonding of the nation, it had to meet two more requirements. On one hand, he considered essential for the preservation of liberty the separation of the three powers of government, namely the legislative, executive and judicial powers. Montesquieu’s division or powers differs greatly form Locke’s system of check and balances. Since Montesquieu was highly concerned with the security of people among themselves and before the state, he rejects the concentration of power granted in Locke’s theory to the executive branch. Montesquieu questioned the convenience of granting to the executive power the execution of the laws and judgment of its breakers105. Instead, he claims convenient to constitute an independent judicial power for trialing the lawbreakers in accordance to the law enacted by the legislative power. Judges are thus limited to be “la bouche qui prononce les paroles de la loi”106, they must not attempt to moderate the force and harshness of the popular will. The executive power on its turn will be limited to the execution of both the internal law and the external policy107. Regarding the legislative power, Montesquieu considered that ideally it should be the people directly who enact the laws. However, he recognized that within large nations, people are meant to participate in legislation through their representatives108. The representatives have a greater capacity than the generality of the people to discuss the different issues concerning the republic, and thus they prove to be a better guarantee to the common good. Moreover, Montesquieu proposes a legislative power composed by two chambers for assuring the representation of the nobles and the people. The relation between the executive and legislative power is based on the 105 Montesquieu. 1969. op. cit. XI-6. pp. 118-119. Montesquieu. 1969. op. cit. XI-6. p. 127. 107 I will not go into the details of the executive power in Montesquieu. It is known Montesquieu’s predilection for a monarchic executive power in the detriment of an executive government issue from the parliament (op. cit XI-6. pp. 124). 108 Montesquieu. 1969. op. cit. XI-6. pp. 121-122. 106 54 prerogatives of the former to call the latter to assembly, as well as to extend the latter’s sessions of deliberation109. On the other hand, Montesquieu considered that for guaranteeing political freedom, the republic had to assured the election of its officials by a mixed system of lot and popular vote. Although for Montesquieu all citizens are meant to participate in the popular election of functionaries, the actual access to offices, either by vote or lot, must be limited to certain type of citizens. For example, the election of the senate and lower magistrature that is made by lot, as well as that of the higher magistrature that is to be made by popular vote, must be restricted to haves. However, the have-nots are eligible for the popular courts by means of popular vote. Montesquieu set forth an institutional setting that was well informed by the discussions of his time, especially, that of the social contract. Although Montesquieu has often been included among those refusing the theory of the social contract – mainly that of Hobbes and Locke that were available at his time- I rather agree with those who claim a tacit agreement with it on the basis of his “contractual language”110. Hence, I argue that Montesquieu provides an important introduction to one of the most classical expositions of institutional arrangements within republican government –aristocratic/democratic- – besides the one provided by Tocqueville in Democracy in America. Montesquieu approached the English system for showing the underlying principles that would guide an ideal republic. However, he made it clear that there was a gap between the English system rooted in commerce and the desirable republican democratic system rooted in virtue. Yet, what is to be highlighted from Montesquieu’s institutional arrangement is the emphasis put on massive popular foundations of republican democracy as the best means for achieving common good. His proposal constitutes one of the first settings in which the law is a dominant feature of politics to the detriment of statesmanship. One must 109 110 Montesquieu. 1969. op. cit. XI-6. p. 126. Cf. Introduction by J. Ehrard in Montesquieu. 1969. op. cit. p. 35. 55 accept that his language –and why, not his program- is that of a convinced liberal even if his institutional arrangements, legitimacy has not been completely overtaken by legality, because he keeps some restrictions to positive law on the basis of a universal moral law111. Montesquieu’s exposition provides at least two important elements to be retained to the next sections. He argues that the election of representatives for the legislative chamber is itself an expression of popular sovereignty. If it is true that Montesquieu leans towards the aristocratic republic, he makes it clear that it is important to maintain the law as the expression of popular sovereignty. As for Montesquieu, a good government is that in which liberty is preserved, one may conclude that political legitimacy is a combination of popular legitimacy and the preservation of liberty. On the other hand, Montesquieu does concede to legality an important role in the functioning of government. His system of checks and balances is based on the sovereignty of the law. It is the law that rules the relation among the powers; it rules the organic functioning of the state. Although we have concluded that according to Montesquieu, government is subjected to law in its structural functioning, Tocqueville explained the intertwinement existing between legality and legitimacy in the structure and functioning of the modern state in a clearer way. Moreover, Tocqueville’s De la Démocratie en Amérique is a great introduction to representative democracy as the governmental form of the future. In the next section I will present his description of the American democracy in regards to popular participation, legality and political liberty. Finally, I will draw some conclusions on the institutional setting of the modern state and its consequences over our understating of legality and modernity as an attribute of political and legal authority. 111 Montesquieu writes “L’auteur a eu en vue d’attaquer le système de Hobbes, système terrible qui, faisant déprendre toutes les vertus et tous les vices de l’établissement des lois que les hommes se sont faites …. renverse, comme Spinoza, et toute religion et toute morale.” (Voir Montesquieu. op. cit. p. 30). 56 4. Tocqueville and the Legal Dogma of the Sovereignty of the People Tocqueville thought that the great political liberty granted by democracy to people was a double-edged sword. Liberty is a necessary condition in the pursuit of happiness, but it is also a powerful threat to democracy when it exacerbates individualism. Indeed, his exposition in the two volumes of De la Démocratie en Amérique deals with this dilemma of democratic liberty awaken by the improvement of equality of conditions112, in the light of the early 19th century American democracy. Moreover, it provides an analysis of how the principle of equality shapes political institutions and peoples’ morality while promoting the conditions of political liberty. Yet, my approach to Tocqueville’s work aims at bringing forth the concepts of legitimacy and legality underlying the political principles governing democratic republics respectful of equality and liberty. Tocqueville highlighted equality as the natural force moving history. He considered the principle of equality113 the cornerstone of his political philosophy. For example, he argued that passion for equality inspired men to disobey the mandates of the nobles, whose authority was considered illegitimate because it had been obtained through usurpation114. According to Tocqueville, equality makes men independent from each other and awakes in them the desire of following nothing else but their own will. In that sense, Tocqueville unfolds the desire of equality into two ideas. On one hand, equality as the social state associated with the abolishment of social privileges among people. The rights to wealth, education and welfare must be the 112 Tocqueville, A. La Démocratie en Amérique. V. 1. Paris. GF-Flammarion. 1981. Introduction. p. 57. However Montesquieu advertises in the introduction of the second volume of La Démocratie en Amérique that he does not take equality to be the unique source of the unfolding event of his time- this including the “democratic revolution” (Tocqueville 1981, V. 2. op. cit. Introduction. pp. 5); Also see V. 2 p. 397. 114 Tocqueville. A. La Démocratie en Amérique. V. 2. Paris. GF-Flammarion. 1981. Introduction. p. 63. 113113 57 same for all. Moreover, the state must promote the actualization of those rights. On the other hand, the desire of equality is understood as the underpinning of political liberty. Indeed equality plants the seeds of political freedom by questioning the legitimacy of governors whose authority has not been granted by the people. The rupture of political equality among men, demands the agreement of those who resign part of their natural right to equality in benefit of a political authority115. Hence, according to Tocqueville, the political effect eventually arising from the relationship between equality and political freedom is either the ambition of obeying only authorities popularly chosen or falling into anarchy116. He understood that the triumph of popular government in America was, thus, the triumph of the former over the latter; it was the triumph of democracy. Indeed, Tocqueville considered America to have the most fertile popular sovereignty117 in spite of its representative government. His study of the American system provided him the empirical arguments to hold that only a government edified on the grounds of popular sovereignty118 could be respectful of equality and liberty – individual sovereignty. Therein, the law as the expression of political liberty guarantees the actualization of natural freedom and equality. If Tocqueville agreed that the dogma of political liberty has been used at all times to justify all types of government, he nonetheless claimed that only in democracy it is a meaningful consequence of the principles of equality and freedom. Thus freedom and equality are both the source and end of political liberty. The political dogma of popular sovereignty emerges as the consequence of this double nature of freedom and equality. Social power, as rightly conceived by the American people, can only emanate directly from the people, and once constituted, it 115 Tocqueville does not use this expression. However he takes for granted the modern political teachings of natural law by assuming that man holds by nature the individual rights of equality and freedom. Also cf. Tocqueville. 1981. V.2 op. cit. IV-1. p. 361. 116 Tocqueville. 1981. V.2 op. cit. IV-1. p. 353. 117 Tocqueville. 1981. V.1 op. cit. I-4. p. 117. 118 Tocqueville. 1981. V.1 op. cit. I-4. p. 117. 58 does not now any limits119. Montesquieu justified the representative government as the holder of popular sovereignty not only by arguing that when people govern, it is in fact the majority that rules, but by showing that the American political system, in general, provides the channels for the expression of opinions, passions and interests of the American people120. Moreover, popular sovereignty is instituted as the law of the laws121, and equality is set as a foundational principle of political and legal authority. Popular authorship of the law122 through representation is thus conceived as the natural channel through which the sovereignty of the people is expressed123. However, Tocqueville acknowledged that to claim rigorously that people govern in a certain state one must go beyond the mere popular roots of the law. Indeed, he claimed that in America it is the people who govern because they enact the law, execute it and compose the juries to punish the lawbreakers. He showed that political institutions in America were essentially democratic but also democratically composed. He argued that state officials people periodically elected state officials by popular vote, and by so doing; officials were accountable for their acts before the American people124. Beyond all this picture of popular legitimacy brought forth by Tocqueville, I will now target clearer the political foundations of this institutional setting. Indeed, it is the legitimacy of the law that gives legality to power. If it is true that the people govern in America not only through their representation in the enactment of the law, but through the election of officials and direct participation in state institutions –e.g. juries-, I argue that the latter expressions of sovereignty are subjected to the former. 119 Tocqueville 1981. V. 2 op. cit. IV-2. p. 356. The original text states: “Les Américains croient que, dans chaque État, le pouvoir social doit émaner directement du peuple; mais une fois que ce pouvoir est constitué, ils ne lui imaginent, pour ainsi dire, point de limites; ils reconnaissent volontiers qu’il a le droit a tout faire”. 120 Cf. Tocqueville. 1981. V.1 op. cit. II-1. p. 255. 121 Cf. Tocqueville. 1981. V.1 op. cit. I-4. p. 118. The original text states: « Le dogme de la souveraineté du peuple sortit de la commune et s’empara du gouvernement ; toutes les classes se compromirent pour sa cause ; on combattit et on triompha en son nom ; il devint la loi des lois » 122 Tocqueville. 1981. V.1 op. cit. Introduction. p. 64. 123 Cf. Tocqueville. 1981. V.1 op. cit. II-1. p. 255. 124 Cf. Tocqueville. 1981. V.1 op. cit. II-1. p. 255. 59 It is the laws that set the institutional arrangements through which popular sovereignty continues to be expressed. Therefore, it is the popular legitimacy of the law that is at the roots of any further expression of popular sovereignty. Any of the other expressions of popular sovereignty, listed by Tocqueville, are indirectly subjected to control of legality, and cannot be considered as a direct expression of the will of the people. Tocqueville seems to proclaim the dictatorship of positive law to the detriment of any objective limits to the will of the people in regards to political government. Tocqueville’s oeuvre discarded any possible return to the classic comprehensive view of government. His emphasis on the values of equality and freedom in the construction of political authority, led him, contrarily to his claim125, to lean towards a form of government that relies on positive law as an expression of popular sovereignty; i.e. he privileged legality over legitimacy. Tocqueville’s idea of popular sovereignty takes for granted the concept of natural rights anchored in modern political thought. Although Tocqueville claimed that man had by nature a restricted freedom, he considered it would endow man with the power to govern his fate126. Similarly, he considered that peoples are free to govern their fate within its natural limits, and hence, that the fate of a people must respect the freedom of its members. It is by emphasizing popular sovereignty as the condition of a government in accordance to man’s freedom that he retakes the tradition of modern natural law and the whole philosophical tradition of modernity. Moreover, the timid elaboration of Tocqueville on the nature of the rights of freedom and equality seems to be consequent with his proclamation of the sovereignty of positive law127. 125 In the conclusion of La Démocratie en Amérique he claims not to take part in judging the goodness of the emerging modern democracy in regards to previous aristocratic regimes. He claim that only time will show how it unfolds and its convenience over the latter. However one must conclude from his exposition throughout the books that he was indeed certain of the superiority of the former over the later. 126 Cf. Tocqueville. 1981. V.1 op. cit. V-8. p. 402. The original text states: “Providence n’a créé le genre humain ni entièrement indépendant, ni tout à fait esclave. Elle trace, il est vrai, autour de chaque homme, un cercle fatal dont il ne peut sortir ; mais, dans ses vastes limites, l’homme est puissant et libre ; ainsi les peuples”. 127 Cf. Tocqueville. 1981. V. 2. op. cit. IV-2. p. 356. Also Cf. Tocqueville. 1981. V.1 op. cit. V-8. p. 402. 60 Finally, Tocqueville remains highly concerned with the possibility of despotism within democracy. In fact, he said that a new kind of despotism compatible with popular sovereignty may arise in democratic societies. Such kind of despotism shall be favored by the growing equality of conditions. Tocqueville argued that the transition from aristocracy to democracy brought the improvement of social conditions of the people. Hence, the more equal the conditions were, the more people were encouraged to turn to themselves and abandon their care to others. Moreover, Tocqueville seems to imply that Rousseau’s civil religion and Montesquieu’s moral cohesion may not guarantee strong bonding in developed democratic societies in which individualism risks to turn into absolute egoism128. Democratic societies assuring equality of conditions risk falling into extreme atomism if citizens are merely concerned by their immediate circle of family and friends. Democratic societies are faced with the challenge of overcoming the inexistence of natural ties among citizens and the lack of concern to one another, in their pursuit for keeping social cohesion and avoiding democratic despotism. In fact, he claimed that citizens will focus on their own well being and private affairs, while leaving the decisions concerning public life129 to the elected authorities. Citizens thus, lose their freedom by limiting their political life to the election of their masters. Due to the lack of natural and artificial bonds in democratic society people become isolated and vulnerable. Individualism divides men into atoms and gives them the feeling that the sovereign is the only support of their individual weakness130. This new despotism may lead free citizens to become passive servants of the sovereign. Tocqueville claimed that to overcome this apparent threat to democracy nourished by the equality of conditions, one must rely on political liberty131. He used the example 128 Tocqueville. A. La Démocratie en Amérique. V. 2. Paris. GF-Flammarion. 1981. II-2. p. 125. Tocqueville. 1981. V. 2 op. cit. IV-3.p. 359. 130 Tocqueville. 1981. V. 2 op. cit. IV-3.p. 360. 131 Tocqueville. 1981. op. cit. II-4-1. p. 354. 129 61 of America to show that political liberty carries an emancipatory potential when it is transformed into permanent participation in public life. Participation in public affairs breaks the wall of individualism and puts together individual citizens in a common sphere. Tocqueville thought that the active participation of citizens in small public affairs was very effective in awakening of their interest in public affairs. Finally, some have also seen this permanent participation of citizens in public life as a weakening of legality as the source of legitimacy in modern democracies. Selfgovernment would not be limited to self-legislation and thus legitimacy would imply, contrarily to Rousseau’s view, an active generalized popular participation in public affairs. 5. Concluding Remarks: On the Institutional Arrangement of Modern Democracies and the Supremacy of Positive Law As we saw in the last section, Rousseau gave wheels to the instauration of positive law in the summit of the political system. Indeed, Rousseau went beyond Hobbes and Locke by strictly subjecting political authority to the law. He transformed modern natural law into positive law by taking the former as the underpinnings of modern political and legal authority, and the latter, as the means for actualizing popular sovereignty within civil society. Moreover, the subjection of political government to the law brought legality to the political realm that Hobbes had subjected merely to the sovereign’s will. Thereafter, legality was seen as an important constrain of political authority aiming at protecting individuals positive rights. If legality became a desirable and necessary attribute of democratic government, it would even have to be complemented by the division of powers and the active participation of the people. Montesquieu introduced the division of powers by aiming at enhancing the security of citizens. He thought that a system of checks and balances was an appropriate means for preserving individual positive rights. Moreover, Montesquieu planted the seed of representative democracy that was lately 62 taken by Tocqueville in his panegyric to American democracy. Tocqueville showed that legality, as an attribute of political authority, was indeed a guarantee of popular sovereignty. However, he argued that only an extensive popular participation in the running of official affairs would guarantee the effective government of the people. Moreover, he thought of popular participation as of the remedy to individualism, which he considered to be the most powerful threat to democracy. The republican form of government in its original version, i.e. the form of government in which political authority is subjected to the law in respect to popular sovereignty, evolved into the constitutional Rechtsstaat. Indeed, the requirement of founding the state on popular basis led to the establishment of constitutions. People’s sovereignty was thus transferred to the constitutional text which became the law of the laws by embodying the people’s will. The political authority instituted through the constitution was thus subjected to it. Although the concept of Rechtsstaat is usually attributed to Robert Von Moll in 1832, its constitutional form will reach its apogee in the late 19th and early 20th century. In the next chapter, I will approach the shift from the republican government to the constitutional Rechtsstaat in light of our guiding concepts, i.e. legality and legitimacy. I will rely on the debate between Carl Schmitt and Hans Kelsen during the fall of the Weimar republic to give a final approach to the concepts of legality in legitimacy. On one hand, I will try to identify the arguments presented by both of them to support the primacy of the law and the importance of direct people’s will. On the other hand, I will present their concern about people’s sovereignty, as the foundation of the legal and political system, and their discussion about what would be the best way of protecting people’s liberty i.e. the subjection of government to law or the supremacy of the sovereign over the law, if it embodies the people’s will. 63 IV The Weimar Republic: A Debate on Legality and Legitimacy in Modern Liberal Democracy 1. Introduction: Legal rationality and the Legitimacy of Law It would seem that the instauration of constitutional democracy under the liberal rule of law was the clearest evidence of Max Weber’s claim that legal rationality had become the dominant form of legitimacy132. Weber thought that for understating the reasons for which individuals obey a given authority, it was necessary, first, to understand the process through which power becomes political authority -Herrschaft. Weber provided an interesting answer. He claimed that the generalized belief in the rationality of the law concedes to political authorities’ rational-legal legitimacy when the latter acts according to legal procedures. Hence, given the modern generalized confidence on reason, citizens rely on the content and application of the law and accept their duty of obedience. 132 Weber, M. Wirtschaft und Gesellschaft. Die Stadt. Tübingen. J.C.B Mohr Siebeck. 2000. pp. 66, 68. 64 Weber’s claim that legality had become the main source of legitimacy of political authority due to its rational quality is of central importance for understating the forthcoming arguments. His claim is safely constructed on the basis of the modern natural law tradition in which the social contract and the sovereignty of the law emerges out of man’s rationality, either as an original or acquired attribute. As we have seen throughout this work, the concept of political order built upon man’s liberty and rationality, gave way to an institutional setting, in which people are considered authors of the law through their representatives in the legislative power. Thus, the novelty of Weber’s claim that power is also subjected to law due to its rational attributes is not really a new idea. Yet, he clearly stated the ongoing social process in which people’s will –popular sovereignty- is being replaced by the legislator’s rationality –legal sovereignty. The legislative power has become the political institution in charge of channeling man’s desire of power into the rational path of constitutional government by subjecting authority to –constitutional- legality. Yet, rationality for Weber was an attribute of both the law making and the application of the law. In brief, according to Weber, law is obeyed in a proper liberal Rechtsstaat not so much because it expresses popular sovereignty, but essentially, because individuals belief in its rational wrapping. 2. The Weimar Political Principles and Article 48 of the Constitution Although Carl Schmitt retakes part of Weber’s legacy on legitimacy, it was truly a way for developing his criticism against liberal democracy. Schmitt disagrees with Weber in regards to central points. First, Schmitt did not agreed with Weber’s claim that the main source of legitimacy was the belief in the rationality of the norms. Contrarily, he claimed that the legitimacy of the norms relies upon people’s rejection 65 or acclamation of them133. In that sense he claimed that the general decline on the cultivation of modern rationality had diminished the belief in legal rationality as a valid source of legitimacy. In fact, he attempted to show that the crisis of parliamentary democracy was partly motivated by the overtaking of the belief in will over the belief in reason134. Therefore, he concluded that political legitimacy had to be sought beyond the mere authority and rationality of the law. Additionally, Schmitt diverged from Weber in regards to the role of consent as a key element of the concept of legitimacy. For Weber active consent distinguished legitimate domination from naked domination, while for Schmitt, it is passive consent - i.e. the not activation of the right to resistance- which confers legitimacy to domination. Hence, by fundamentally rejecting the claim of legal-rationality as the source of legitimacy in constitutional democracies under the rule of law, Schmitt opened a polemic debate on the role of legality and legitimacy during the crisis of the Weimar Rechtsstaat. The Weimar Republic was the political system operating in Germany between 1919 and 1932, before the Nazi’s seizure of power. The weakness of the republic in the early 1930’s obliged the Reich government to use regularly the article 48 of the constitution. The application of this article in 1932 led to the famous crisis of the Weimar Republic that became, at the same time, a profitable moment for philosophical and practical debates on the concepts of legality and legitimacy135. Article 48 granted the president the power to compel the Länder to act in accordance to the Reich’s constitution and laws. For so doing, Article 48 conferred to the Reich president the faculty of issuing emergency decrees for suspending rights and using armed force in the whole national territory: 133 McCormick, J. “Identifying or exploiting the Paradoxes of Constitutional Democracy?” In: Schmitt Carl. Legality and Legitimacy. Durham and London. Duke University Press. Introduction. 2004. pp. xv. 134 Cf. Schmitt, C. The Crisis of Parliamentary Democracy. Cambridge & London. MIT Press. 1988. pp. 4850; 76. 135 There were many important lawyers and academic participating in the discussion. Among the most important are those of the Frankfurt School as well as Radbruch, Schmitt and Heller. 66 “If a state –Land- does not fulfill the obligations laid upon it by the Reich constitution or Reich laws, the Reich President may use armed force to cause it to oblige. In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. To this end he may temporarily suspend the civil rights described in articles 114 [personal liberty], 115 [inviolability of the home], 117 [privacy of mail, telegraph and phone], 118 [freedom of opinion and press], 123 [freedom of assembly], 124 [freedom of association] and 153 [inviolability of private property], partially or entirely. The Reich President must inform the Reichstag immediately about all measures undertaken based on paragraphs 1 and 2 of this article. The measures must be suspended immediately if the Reichstag so demands. If danger is imminent, the provincial government may, for their specific territory, implement steps as described in paragraph 2. These steps may be suspended if so demanded by the Reich President or the Reichstag Further details shall be established by Reich legislation”(emphasis added). In 1932 the Reich’s President Field Marshal decided to make use of article 48 for restoring “law and order” in the Land of Prussia. President Field issued an emergency decree in which he conferred to the chancellor Franz Von Papen, the powers to take over the government of Prussia, which was at the time, seen as negligent in the control of the political unrest and violence within its territory. The 67 president’s decree was not welcome by the government of Prussia, and especially by the Social Democratic Party –SDP-, who perceived it as a Coup d’État, i.e. an illegal usurpation of power136. The SDP was the main socialist party integrating the coalition governing Prussia, which generally, was considered the most important base of institutional resistance against Nazi’s seizure of power137. Their commitment to legality led them to challenge the constitutional validity of the decree before the Staatsgerichtshof - the court competent for solving the disputes between the Reich government and the Länder. The Staatsgerichtshof affirmed its competence for deciding the claim filed by the Prussian government, which in Schmittian terms, meant that the court claimed for itself the guard of the constitution. In the decision, the Court denied the possibility of applying paragraph one of article 48 to the dispute. However, the Court upheld the validity of the decree through which the Reich government assumed control of the Prussian political machinery on the basis of paragraph two. The Staatsgerichtshof did not withdraw from the Prussian government the constitutional functions that were not incompatible with the political control of the Reich. Those political functions were basically the participation in the Reichsrat, the handling of relations with other Länder, and the participation in national committees. Finally, the Court considered that any conflict originated by the action of the Prussian government that could interfere with the Reich administration of Prussia, would entitle the Reich president to make use of paragraph one of Article 48. During the study of the claim by the Staatsgerichtshof and after the decision, several discussions took place among recognized German professors and jurists. Although the Court upheld the validity of the decree in a moment in which the SDP was no longer an effective force in Prussia, the academic debate on the legality and legitimacy of the decision continued for some more years. In the next section I will 136 Cf. Dyzenhaus, D. Legality and Legitimacy. Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. Oxford. Oxford University Press. 1999. p. 35. 137 Cf. Dyzenhaus. 1999. op. cit. 68 focus on the arguments concerning the convenience of a government grounded in legal-legitimacy or in will legitimacy rather than on the proper arguments exposed before the Staatsgerichtshof. Kelsen and Schmitt held respectively the abovementioned positions, which additionally, corresponded respectively to a defense of liberal democracy and an attack to it. 3. The Crisis of the Rechtsstaat: Schmitt on Popular Legitimacy The Weimar Republic had a legislative system of legality with an institutional arrangement characterized by the predominance of the legislative power – a “legislative state”138. Schmitt applies the whole tradition of modern political philosophy to the definition of legislative state. He defined it as a political system “that is distinctive in that norms intended to be just are the highest attribute and decisive expression of the community will”139. This definition highlights the fact that the legislative state attributes popular sovereignty to positive law. So conceived, Schmitt placed the legislative state within the modern liberal tradition. He claimed, similarly to Weber, that such regimes aim at defining the substantive values of the political and legal order through a formal legitimating procedure -i.e. the making of the law. Moreover, Schmitt argued that the replacement of statesmanship by the rule of law in the legislative state implied an institutional setting based on the separation between the function of enacting the law, which is exercised in abstract terms by the legislative power, and the application of the law, which is carry out in particular cases140 by the executive power. Schmitt concluded that legislative states imply the institutional division of powers for guaranteeing the rule of law, and thus, since the law itself rules the division of powers, the legislative state is, indeed, a liberal Rechtsstaat. 138 Cf. Schmitt C. Legality and Legitimacy. Durham and London. Duke University Press. 2004. Schmitt. 2004. op. cit p. 3. 140 Schmitt. 2004. op. cit. p. 4. 139 69 It goes without saying that Schmitt did not appreciate the concept of legitimacy underpinning liberal democracy under the rule of law. Thus, Schmitt started by questioning the nature of a political regime in which popular will is formally bound. He asks, when can we say the law is authored by or consented to by those upon which it is to be applied? When it is elevated to constitutional norm? When people’s representatives in the parliament approve it? or, when it is approved by the majority of the people themselves? Would it have to be absolute or qualified majority?141 Schmitt wanted to bring into light the risks innate to liberal democracy under the rule of law in which legitimacy is merely grounded in formal standards and procedures142. These presumptively rational standards, he argues, do not provide consistent solutions for legal -and value- conflicts emerged at the heart of liberal -or even social -democratic regimes. Schmitt dismissed legal rationality as a form of legitimacy because it was inspired in the tired belief in reason, as it was proved with the crisis of parliamentary democracy. Since legal legitimacy was not only fading away but had proved to be insufficient in solving disputes within democracy, Schmitt proposed to rely on some pre-constitutional and pre-legal values. He said, once we have acknowledged the existence of those pre-existing values one is compelled to recognize them, and not the law itself, as the liberals claim, as the source of the regime’s legitimacy143. In that sense Schmitt evaluated the Weimar Constitution as containing a structural and organizational contradiction. He argued that the Weimar Constitution mixed a constitution containing organizational procedural regulations and general liberty 141 Schmitt. 2004. op. cit. pp. 29-30. Among others, Richard Thomas held that the Weimar Republic was a liberal democracy because it was governed, as a proper democracy, by forms and procedures. Cf. Thoma, R. „Der Begriff der modernen Demokratie im seinem Verhaltens zum Staatsbegriff.” In: Melchior Palyi, ed. Hauptprobleme der Soziologie. Erinnerungsgabe fur Max Weber. Vol. 2. Munich & Leipzig. Ducker & Humblot. 1922. pp 3765, quoted in: Schmitt. C. The Crisis of Parliamentary Democracy. Cambridge & London. MIT Press. 1988. p. xxxi. 143 McCormick, J. 2004. op. cit Introduction. Introduction. p. xvi. 142 70 rights with extensive entrenchments and guarantees in the form of substantial law144. According to Schmitt, it was not possible to actualize this Constitution, because there cannot be a formal and legal system of legitimacy coexisting with core values that require protection beyond mere formality. In brief, “no one constitution can guarantee freedom and equality.”145 It goes without saying that between these two types of constitution Schmitt leant towards the one containing substantive values. He argued that a constitution –and especially a constitutional reform- must be able to construct the fundamental values that are beyond any partisan interest146. A constitution must reflect the substantive characteristics and capacities of a people to the detriment of mere functionalist valueneutral content147. “A constitution that would not dare to reach a decision on this question, one that forgoes imposing a substantive order, but chooses instead to give warring factions, intellectual circles, and political programs the illusion of gaining satisfaction legally, of achieving their party goals and eliminating their enemies, both by legal means; such a constitution is no longer even possible today as a dilatory formal compromise; and, as a practical matter, it would end by destroying its own legality and legitimacy. It will necessarily fail at the critical moment when a constitution must proof itself”148 144 Schmitt 2004. op. cit. pp. 60-61. McCormick, J. 2004. op. cit. Introduction. p. xxxiv. 146 Cf. Schmitt, C. Verfassungslehre. Berlin. Ducker & Humbold. 1989. p. 4; Schmitt 2004. op. cit. p. 93 147 Schmitt 1989. op. cit. pp. 3-11. 148 Schmitt. 2004. op. cit. p. 94. 145 71 Although Schmitt provided a set of guidelines for achieving legitimate written constitutions149 he was rather in favor of a non textual concept of the constitution. He argued that statues or written texts immobilize people’s values150 and suppress the right to resistance. Therefore, Schmitt found attractive a dynamic concept of constitution151 in which substantive and changing values were assured by a vigorous authority embodying people’s sovereignty -will. That authority assuring peoples values should be the sovereign, which in the Weimar context, was equivalent to claim that the president should be the guardian of the constitution152. The president must be the sovereign; it must be him who decides when an exception applies to the general rule153. For Schmitt, the decree of 1932 against the Prussian government was the perfect opportunity to reaffirm his concept of sovereignty and, to show the weakness of a value-neutral democratic system and the virtues of his substantive concept of democracy. Schmitt had written before the 1932 court case a text dealing with article 48154. He discussed through rather technical arguments, that to interpret the second sentence of the second paragraph155 as a limitation of presidents extraordinary powers contained in the first sentence of the same paragraph156, would not be an interpretation based on technical legal reasoning but on pure liberal ideology157. He argued that this limitation was a liberal attempt to maintain a closed legal system in which sovereignty was reduced to legal terms, to the legal hierarchy. Schmitt considered that an interpretation of article 48 holding that the president could only suspend fundamental rights to the end of restoring public order, would impose a legal 149 Schmitt. 1989. op. cit. pp. 87-91. Schmitt. 2004. op. cit. pp. 22-23. 151 Schmitt. 1989. op. cit. p. 5. 152 Schmitt, C. Der Hüter Der Verfassung. Berlin. Ducker & Humbold. 1985. 153 Schmitt inspired in Bodin opens his Politische Theologie with the sentence “Souverän ist, wer über den Ausnahmenzustand entscheidet.” Cf. Schmitt. C. Politische Theologie. Berlin. Ducker & Humbold. 1996. p. 13. 154 Schmitt, C. “Die Diktatur des Reichspräsidenten nach Art. 48 der Weimarer Verfassung.” 1924. pp. 209257. In Schmitt. C. Die Diktatur. Berlin. Ducker & Humblot. 1994. 155 “To this ends he may temporarily suspend the civil rights described in articles….” 156 “In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force.” 157 Schmitt. 1924 (1994). op. cit. pp. 216-127. 150 72 restriction on the president, i.e. a legal limitation to the sovereign. Accordingly, the decision made by Staatsgerichtshof was not fully satisfactory for Schmitt. Although on one hand it upheld the validity of the decree, on the other hand, the validity was upheld on the basis of paragraph two and not of paragraph one. In spite of the fact that the explicit reason laid down by the Court was that Prussia had not violated the constitution or laws of the Republic, the hidden message was that paragraph two, contrarily to paragraph one, allowed the government to suspend certain fundamental rights. Therefore, even if the Court decided in favor of Schmitt’s general defense, the decision assumed that the guardian of the constitution was the Staatsgerichtshof and, that paragraph two, does actually impose a legal limitation upon the sovereign. Schmitt rejected any possibility of reducing sovereignty to law. He argued that sovereignty was a major political quality unavailable to formal and value-neutral procedures. Hence, he tried to show that the president was the actual sovereign in the Weimar republic because he had both the direct commission of the people158 and the authority to take the crucial decisions of the Republic –i.e. the exceptions to the general rule. The idea that the president had the direct commission of the people endows him with legitimacy to decide beyond the law but within the bounds of the collective decisions of the German people themselves. According to this, the president will hold a commissarial power159, alike the one held by the Constitutional Assembly, through which in a moment of crisis he would be entitled to decide free from legal constrains. He is the direct and only actual representative of the people’s will. Although that decisional-freedom granted by commissarial sovereignty is limited in its scope, it suffices to entitle the president for appealing to the second paragraph of article 48 in the pursuit of ends others than the suspension of fundamental rights. 158 Cf. Schmitt 1985. op. cit. p. 159. It seems that Schmitt refers here to his concept of “commissarial dictatorship”. Schmitt constructs this concept in opposition to sovereign dictatorship that is who holds an absolute power to establish a constitution. Contrarily, Schmitt develops the concept of commissarial dictatorship from Bodin description of the Roman dictatorships and others who were not wholly sovereign: „Der Diktator hatte nur eine Kommission, wie Krieg zu führen, einen Aufstand zu unterdrücken, den Staat zu reformieren oder eine neue Behördenorganisation einzurichten.“ Schmitt. 1994. op. cit. p. 26. 159 73 However, Schmitt expressly denied that the power granted by article 48-2 to the president corresponded to the powers of a sovereign dictatorship. He argued that the type of authority granted by it corresponded to what he called “residual sovereignty from the National Assembly” 160. Yet, I claim that Schmitt’s defense of article 48-2 goes beyond residual sovereignty and falls into commissarial sovereignty dictatorship. Schmitt claimed, under 48-2, that the Reich president was entitled to disregard, in emergency circumstances, a norm explicitly contained in the Constitution and approved by the Constitutional Assembly. It means the president holds an equal sovereign authority to that of the Constitutional Assembly, i.e. “commissarial sovereignty”. In any case, what comes clear from his discussion of article 48 is that the president was indeed the sovereign within the Weimar republic. Schmitt ratified the sovereignty of the president by declaring him the guardian of the Constitution. Indeed, Schmitt regarded the president to be entitled to take the transcendental decisions of the Republic, including the decision on the existence of an exception to the general rule. Schmitt argued that any state requires an authority able to deal with critical decisions i.e. with those decisions that are out of the normal functioning of state and beyond the competence of the established institutions. Hence, since the president’s sovereign power become available only for deciding in emergency cases, Schmitt considered that the sovereign power of the Weimar president was not in competition with the normal established organs of the state. Although the legitimacy of the decision taken by the president in emergency cases is based on the sovereignty chain coming from the people to the president, it would be 160 The original text states: „Die Eigenart der zwischenzeitlich geltenden Befugnis aus Art. 48. Abs. 1 Satz 1liegt darin, dass einerseits die „souveräne Diktatur“ der verfassungsgebenden Versammlung mit dem Inkrafttreten der Verfassung aufhöre, andererseits eine der typischen rechtsstaatlichen Entwicklung entsprechende Umgrenzung der „Kommissarichen Diktatur“ noch nicht erfolgte sei, weil sich die verfassungsgebende Versammlung angesichts der abnormen Lage des Deutschen Reichstages, einen weiteren Spielraum habe sichern wollte. Somit sei die „Diktatur des Reichpräsidenten“ ist infolge des bloßen Umstandes, dass die Verfassung in Kraft trat, notwendig eine kommissarische. Aber sie ist absichtlich weit gelassen, und in der Sache, nicht in ehren rechtlichen Begründung, wirk sie wie das Residuum einer souveränen Diktatur der Nationalversammlung.“. Schmitt 1924 (1994). op. cit. pp. 238-239. 74 only people’s acclamation, or abstention from activating the right to resistance, that would render the president’s decision fully legitimate. Schmitt’s concept of constitutional democracy rests upon the presupposition that the state is the political unit of the people. He believes people are united by a substantive homogeneity contained in the constitution. Hence, if the constitution is at the summit of the legal order, one can argue that the basic assumption of Schmitt is that all concepts of law are essentially political. This is actually the gist of Schmitt’s opposition to liberalism. He argues that liberals are mistaken when they attribute sovereignty to the law on the basis of majority decision-making process within a parliamentary democracy. He argues that majority rule can never be taken to be the expression of general will –of the homogeneity of the people. Moreover, the changing will of the majority, which can be composed by partisan coalitions, requires a neutral state, a state alien to substantive values. Schmitt considered that both the neutrality of the state’s values and the supremacy of the law guaranteed by the division of powers, were the grounds on which a tyrant will seize power through legal means. He claimed that legal-normativism underpinning liberal democracy takes away the power from the people by depriving the state of core values and by setting a formal system of legitimacy. Liberals place legitimacy in a closed system of norms that provides its own formal conditions of validity. Finally, Schmitt highlighted that liberal democracy’s most powerful threat was its pluralism. Liberal democracy assumes a high risk by implementing a value-neutral state that allows plurality. Liberal democratic states will be unable to defend themselves from both legal-based tyrants wanting to seize power was well as from the mighty overwhelming amount of rights-based claims brought up by their citizens before the state. Schmitt thought liberal democracies will hold together as far as they are made up by a homogenous population, but he claimed that a highly diverse society might not be able to overcome its internal fissures. This diverse society represents a direct challenge to Schmitt’s assumption that the state is the political 75 unit of the people, and that the people are united by a substantive homogeneity which is expressed in its constitution. 4. Kelsen on Legal Sovereignty and Constitutional Review If it is true that Kelsen wanted to construct a closed system of norms purged of any moral, political, sociological and causal elements161, one must not lose of sight that he conceived of law to be man’s product. Kelsen argued that law is an intellectual product of man that contributes to the establishment of a positive coercive order. Indeed, Kelsen denied any metaphysical or mystical conception of the law and politics162. He conceived man to be the author of the law, and the law to be the force structuring the political order, i.e. the state. 163. “Erblickt man erst in der Bildung solch arbeitsteilig funktionierender Organe eine „Organisation“ im engeren, technischen Sinne der Wortes, dann hat das positive Recht wegen seiner Natur als menschlich-will-kürliche Satzung, deren Normen –mangels Evidenz ihrer RichtigkeitZwangs-Normen sein müssen, und der damit verbundenen Notwendigkeit eines den Zwangsakt realisierenden Organs die immanente Tendenz, aus einer Zwangsordnung zu einer spezifischen Zwangs –„Organisation“ zu werden. Diese Zwangsordnung, zumal wenn sie Zwangsorganisation ist, ist der Staat.“164 (emphasis added). 161 Cf. Kelsen, H. Pure Theory of Law. Berkeley & Los Angeles. University of California Press. 1989. pp.1, 57-78; 66. 162 Kelsen 1989. op. cit. p. 286. 163 Kelsen 1989. op. cit. pp. 70, 286-288. 164 Kelsen, H. Die Philosophischen Grundlagen der Naturrechtslehre und des Rechtpositivismus. Berlin. Pan-Verlag Rolf Heise. 1928. p. 9. 76 Hence, contrarily to Schmitt, Kelsen subjected the political force to the law165. Law reveals itself as an autonomous order from politics because the validity of its norms do not rest upon the authority of the political power that enacts them, but on their production according to established legal procedures. Norms are valid if they meet the form requirements of legal production established within a given legal order166. Every legal order is built in the form of a hierarchical structure guaranteeing the validity of all norms in a contradiction-free chain up to the Grundnorm167. The Grundnorm is placed at the highest level of the hierarchy to guarantee the closure of the system. Hence, the legitimacy of a legal order rests upon its own parameters, in the autonomy assured by the Grundnorm. Although norms at the interior of the legal order draw their validity from its own forms, Kelsen recognizes that the validity of a legal order as a whole depends on its general effectiveness168. Consequently, if the validity of a legal order as a whole rests upon the Grundnorm establishing that “one ought to behave according to the actually established and effective constitution”, and if the constitution is the superior norm of the legal hierarchy that regulates the production of law and the structure of organs dealing with its creation and application169, then one must conclude that political power is subjected to law. Now, considering that constitutions are legal norm that structure the heart of the legal order -the production and application of law- by structuring the political order –the state- Kelsen argues that the guardian of the constitution must be a legal instance who assures the independence of law from politics. Hence, Kelsen did not agree with Schmitt’s claim that the president should be the guardian of the constitution170. However, Kelsen admitted that the president holds a certain type of guardianship of the constitution, but one that is subjected to legal constrains. In fact, 165 Cf. Kelsen. The state as a Legal Order. 1989. op. cit. pp. 286-290. “The reason for the validity of a norm can only be the validity of another norm”- Kelsen. 1989. op. cit. p. 193. 167 Kelsen. 1989. op. cit. pp. 8, 195. 168 “… a coercive order, presenting itself as the law, is regarded as valid only if it is by and large effective. That means: the basic norm which is the reason for the validity of a legal order, refers to a constitution which is the basis of an effective coercive order.” Kelsen. 1989. op. cit. pp. 46-47. 169 Kelsen. 1989. op. cit. pp. 222-223 170 Kelsen, H. Wer Soll der Hüter der Verfassung sein?, Die Justiz, 6. 1930-1931. pp. 576-628. 166 77 Kelsen held that article 48 of the Weimar Constitution in its first two paragraphs proved respectively both the president’s specific guardianship of the Constitution as well as his limitations in the exercise of that power. Kelsen considered unconceivable to place the guard of the constitution in a political authority that was outside of the law. Kelsen took Schmitt’s claim to be an attempt to revive the monarchical ideology in which the guard of the constitution was left precisely to the monarch, who constituted at the same time the greatest threat to the constitution itself171. Kelsen was therefore in favor of an independent court for judging the constitutional validity –legality- of the acts of the government, including those of the legislative power. If the judiciary and the executive branches were subjected to legality by their duty to respect the constitution, the division of powers and the laws enacted by the parliament; the principle of legality also provided the means for constraining the legislature through the constitution, which is itself, the highest level of legality preceding the legislature. The acts of the legislature are subjected to legality because they have to comply with the highest level of positive law; the constitution. Consequently, for Kelsen “the justiciability of the state was the justiciability of the constitution and as such an appropriate guarantee of the constitution.”172 For Kelsen, the function of constitutional review undertaken to safeguard fundamental rights and liberties contained in the constitution is the control of legality over the state’s act. It aims at avoiding the violation of “negative liberty rights”173 and equality by the enactment or execution of statues174. Liberty and equality are the characteristic principles of democracy and thus, according to Kelsen, have to be 171 Kelsen. 1930-31. op. cit. p. 577. Kelsen, H. “Wesen und Entwicklung der Staatsgerichtsbarkeit.” in: Hans Klecatsky et al. Eds. Die Wiener Rechtstheorie Schule: Schrifen von Hans Kelsen, Adolf Merkl, Alfred Verdross. Vienna. Europa Verlga. 1968. pp. 1813, 1818-21 quoted in Dyzenhaus 1999. op. cit. pp. 149-150. 173 Kelsen calls them the Germanic idea of freedom. This is limited to freedom from rule –in fact, to freedom from the state itself. Kelsen, H. “On the Essence and Value of Democracy.” In: Jacobson, Arthur & Schlink, Bernhard (eds). Weimar. A Jurisprudence of Crisis. Berkeley, Los Angeles, London. University of California Press. 2002. p. 85 174 Kelsen. 1989. op. cit. p. 224. 172 78 protected at the constitutional level. Kelsen disregarded the political content of this claim and tried to uphold his theory of formal legality. He argued that if it is possible to conclude from the very basic assumption that all men are equal - a claim for being free of alien rule,- then experience shows that if we wish to remain equal in reality, we must let ourselves be ruled. Thus, Kelsen blames political ideology of having linked equality and liberty since Cicero times175 up to Rousseau, who he called the “most important theorist of democracy”. However, for Kelsen the traditionally established contrast between the classic idea of freedom according to which citizens’ have the right to political self-determination and to participate in forming the governing will of the state, with the Germanic idea of freedom according to which citizens’ freedom relates exclusively to freedom from state rule, is neither a historical nor an ethnographic difference176. For Kelsen “this distinction in the classic articulation of the problem of freedom is only the first step in the inevitable process of change … from its natural condition to a coercive legal order”177. Thus, Kelsen claims that liberal democratic rule demands the autonomy of the legal order in regards to politics, not only because legality makes part of the natural evolution of the idea of freedom and equality but especially because, contrarily to what is claim by political ideology, legality assures a minimum of freedom that mere political democracy cannot. Kelsen brought into question Rousseau’s critique of the English representative democracy in which citizens are free only when they chose their representatives. Kelsen argued that in Rousseau’s direct democracy, in which the governing will of the state arises directly from referendum, individuals are free only at one moment, only while voting, and only if they vote with the majority and not with the outvoted minority. Additionally, Kelsen argued that the principle of legality, especially if it is gurantee through constitutional 175 Kelsen says: “This was expressed by a master of political ideology, Cicero in his famous words “Hence liberty has no dwelling-place in any state except that in which the people’s power is the greatest, and surely nothing can be sweeter than liberty, but if it is not the same for all, it does not deserve the name of liberty (De Republica IXXXI (47)” Kelsen. 2002. op. cit. p. 86. 176 Kelsen. 2002. op. cit. p. 85. 177 Kelsen. 2002. op. cit. p. 85. 79 review, provides the means for guaranteeing freedom by keeping individuals free from state rule. Indeed, Kelsen’s considered constitutional review as the appropriate technical means that upholds the primacy of the principle of legality. The principle of legality purged of any political content, as claimed by the legal science178, guarantees an adequate system for ruling society. Constitutional courts are the guardians of legality because they are the guardians of the highest positive law; the constitution. Finally, Kelsen highlighted the difference between constitutional courts and other courts. He argued the former were a type of negative legislator because they had the competence to invalidate norms of general application, while the latter only produce norms for concrete cases179. For Kelsen, the fact that constitutional courts could actually perform legislative competences was not problematic. In fact, this condescending attitude can be explained on the grounds of Kelsen’s legal conception of democracy. Constitutional courts’ competence to guard the constitution as well as their negative legislative function finds legitimizing grounds in legality as a main feature of democracy. Kelsen system of constitutional control is consistent with his claim that sovereignty resides in the law and not in the popularly elected organs of the state. Hence, for Kelsen sovereignty resides neither in the parliament as avowed by the modern republican democratic thought, nor in the president as advocated by Schmitt. 5. Schmitt and Kelsen: Two ways of looking at Liberal Modernity It might be true that Schmitt’s and Kelsen’s theories of political and legal sovereignty respectively were accomplices of the Nazi’s seizure of power. The former by placing sovereignty beyond the boundaries of the law and in hands of the president seemed to have paved the way to the Coup d’état in Prussia and the 178 179 Cf. Dyzenhaus. 1999. op. cit. p. 128. Kelsen. 1930-31. op. cit. pp. 589-591. 80 dictatorship of National Socialism. The latter set forth a concept of legal sovereignty and legal order that offered no means for preventing the Nazi’s arrival to power. However, what is to be retained from their “dialogue” is the existing conceptual distance in the departing points. As Dyzenhaus180 rightly points out, when Kelsen argued that the Staatsgerichtshof should be the constitution he had in mind who would be the best fitted authority, according to the Weimar Constitution, to decide on the legal validity of a norm. However, when Schmitt argued that the president was the guardian of the constitution his claim was the result of an inquire regarding who was the legitimate political authority to decide exceptional cases that are not legally regulated. Dyzenhaus open a door through which it is possible to approach Schmitt and Kelsen understating of the role of law and politics in liberal modernity. Schmitt arguments’, contrarily to his thoughts, presuppose the modern liberal conception that political power is underpinned by natural human liberty. His claim that political power could not be limited by the law is thus an expression of the radical liberalism previously defended by Hobbes. In that way Schmitt placed the sovereign’s power in hands of the president who, according to him, is the only entity that can embody a homogenous general will. Legitimacy is thus a political attribute that, residing on the president but being derivative from people’s original liberty, confers to its holder the power to rule beyond the law. Kelsen, on his side, put together Weber’s claim of rational-legality in the construction of the law and its application in the function of constitutional courts. If Kelsen did not emphasize the rational procedure behind his formal conception of legality, it would go without saying that Kelsen’s system of constitutional control would lie in the liberal assumption of the rationality of man in making the law and the rational coherence of the legal order. The Rechtsstaat in Kelsen, although rooted in a closed system of constitutional legality, finds its deepest underpinnings in the 180 Cf. Dyzenhaus. 1999. op. cit. p. 123. 81 belief in free will and rationality. Legality, thus understood, is a core principle of constitutionality i.e. a principle of the legality of the acts of the legislator. In the next chapter, I will approach the relation between legality and legitimacy in the new Latin American constitutions. First, I will explore the aim of the new constitutions to recover popular sovereignty, to the detriment of legal sovereignty, by returning back to the original constituent the power to make the constitution. In the second section, I will analyze the nature of constitutional review implemented by the Colombian Constitution. I will argue that the popular constitutional review system established in the avant-garde 1991 Colombian Constitution is an attempt to establish a mechanism that endows the functioning of state and the law with popular legitimacy. In the third section, I will analyze the importance granted to popular legitimacy in the drafting of the constitutions of Bolivia and Venezuela to ground the re-foundation project. I will study the establishment of the fourth power, the electoral branch, as a means to grating popular legitimacy to the structure of the state. Finally, I will show that these measures do not necessarily lead to the primacy of popular legitimacy over legal legitimacy in the foundation, functioning and structure of the state. Nonetheless, I claim they provide the appearance of an open and direct democracy. Finally, I will wrap up my main claim. I will hold that the attempts undertaken through the new Latin American Constitutions to recover popular sovereignty in the foundation, functioning and structure of the state do not provide an alternative to the political proposal of liberal modernity. Contrarily, I will argue that the reformers, and thus the re-foundation project, try to radicalize some of the key modern liberal ideas –i.e. direct democracy and popular sovereignty- aiming to recover our lost faith in the modern project. 82 V The Constitutions of Colombia, Venezuela and Bolivia: Popular Legitimacy in the Foundation, Structure and Functioning of the State “Las armas nos dieron la independencia, las leyes nos darán las libertad”181 1. Introduction: The Latin American Neo-Constitutional Movement The Latin America constitutionalist movement emergence in the last decade of the twentieth century was the result of a generalized popular disapproval of the existing political structures. However, it has not been a spontaneous movement but, as it happens in most of the political transformations, it was the result of an imperceptible enforcement of a new ideology of -political- power and social 181 This war cry of Santander, one of the founders of the Colombian Republic, decorates the entrance to the Colombian Supreme and Constitutional Courts. 83 emancipation. Indeed, the massive popular mobilizations that gave birth to the new Latin American Constitutions were inspired in a project of political emancipation that aims at overcoming the fallacies and structures of liberal modernity, particularly that of the confusion of legality and legitimacy182. In that sense, although the constitutional re-foundation project183 shares central elements with the Latin American neo-constitutionalist movement, as well as with the more general theories of European neo-constitutionalism, its underpinnings and agenda go far beyond them. The decline of the European continental constitutional systems inspired in the French constitutions of the late 18th century led to the emergence of the European theories of neo-constitutionalism in the early and middle 20th century184. Since this transition was undertaken in the post-war period of continental Europe, it had little theoretical impacts on the British and American constitutional systems. The former does not follow the continental constitutionalist tradition, while the latter’s constitution dates from the very beginnings of the American state185. The Constitutions that were in force in European countries before the two world-wars were certainly the legacy of the political transition from monarchic governments to democratic republics. They sought to anchor their pillars in the social contract 182 Cf. Noguera, A. 2008. op. cit. pp. 1-19. Since the re-foundation project in Latin America is a recent and almost unexplored phenomenon in the academic field, the available bibliography on the topic is almost inexistent and the little available documentation is basically in Spanish. Hence my claim regarding the “ideological unity of the project” is based on my own examination of the constitutional texts of Venezuela, Bolivia and Ecuador. I was also very enthusiastic with the congress “The Forms of Law in Latin America: Democracy, Development and Liberation” held in Spain 2008, in which I had the opportunity to exchange point of views with several Latin American academics. Although I hope to be loyal to the core arguments of the re-foundation project, I pray the reader to read my claims regarding its ideological unity with skeptical eyes. 184 Comanducci, P. “Formas de (Neo) Constitucionalismo: Un Análisis Metateórico.” In: Miguel Carbonell (ed). Neoconstitucionalism(s). Madrid. 2005. pp. 75-76. 185 The process of the American Constitution antedates the European transition from Constitutionalism to New-Constitutionalism. Moreover the process of establishment of the Federal Constitution that mixes social pacts (e.g. Mayflower) with Covenants seems to be too far from the development of European and Latin American Constitutions. However it is important to remark that the American constitutional process has often been regarded as one that coincides with the foundation of the state. This particular idea will be of interest for the analysis of the Latin American re-foundation project, and thus it will be further developed in this section. 183 84 theories that privileged the modern conception of natural subjective rights and the absolute believe in human reason. Sièyes, inspired in Rousseau’s direct democratic thought, claimed in his famous project Reconnaissance et Exposition Raisonnés des Droits de l’Homme et du Citoyen presented to the National Assembly in 1979, claimed that a constitution presupposes necessarily a constituent power different from the constituted powers186. The original constituent power proposed by Sièyes was thus in accordance with the social contract tradition. It presupposed a state of nature in which people were free and there were no coercible rules of procedure. His proposal was indeed strongly influenced by the concept of natural law prevailing at the époque. However, the idea of an original constituent power, rooted in legitimacy rather than legality, would have to overcome organizational problems relating to the institutional setting. Schmitt unveils the difficulty of allowing the people decide directly on the form and structure of political power, when the people as such are unorganized187. In spite of the claims of Sièyes, the will of the French people was deposited in the hands of a representative organ; the National Assembly. The influence of the contractualist theories, and in general of the modern political tradition in the European constitutions particularly in French constitutionalism, is also reflected in the establishment of a system of checks and balances inspired in the early ideas of Locke and Montesquieu. They wanted to guarantee subjective natural rights against state abuses through an institutional setting in which state powers were divided among the legislative, executive and judicial branches. Yet, in spite of the axiological content incorporated in the constitutions, their novelty was rather the new institutional arrangement they had implemented aiming to guarantee individual rights from state abuses. The emergence of European neo-constitutionalism proposes a shift in the intrinsic value of the constitution. Neo-constitutionalists claimed that constitutions are not 186 Cf. Gonzalo, R. C. Los Limites a la Reforma Constitucional y las Garantías-Límites del Poder Constituyente: Los Derechos Fundamentales como Paradigma. Bogotá. Instituto de Estudios Constitucionales Carlos Restrepo Piedrahita. 2003. p. 12. 187 Schmitt. 1989. op .cit. pp. 78-79. 85 only axiological charters that structure political power, but rather, that their content is essentially normative188. Since the constitution is the highest normative text –lawwithin the state, it must contain, besides the institutional arrangements, a catalog of inviolable rights of citizens to which everyone, including the state, owe respect. The political- constitution becomes a supreme legal text that regulates the enactment, interpretation and application of the once sovereign law. Moreover, if for neoconstitutionalists the control of the state power is an important function of the constitution, they argue that it is overshadowed by the importance granted to the protection of fundamental rights189. Consequently, constitutions must, on one hand, provide legal means for the protection of those fundamental rights, and on the other hand, encourage the legislative and judicial powers to perform their function with the end result of assuring their supremacy. Many of the European constitutions currently in force are the result of this legalist approach to the political charter. For example, the Italian and Portuguese constitutions, dating from 1947 and 1976 respectively, meet the abovementioned characteristics. Yet, I want to highlight the fact that they are not focused anymore on the nature of their constituent power, but rather on their content, e.g. a catalog of rights. Indeed the Italian and Portuguese constitutions draw their validity from legality rather than from legitimacy. They were both drafted and approved through legislative procedures in which representation rather than direct popular participation prevailed. Despite the popular participation in the election of the Constitutional Assemblies, the Italian and Portuguese people never approved the final text by referendum. Thus, one may say that they are superior laws but not, to use Jellinek’s expression, constitutional constitutions. If Latin American neo-constitutionalism incorporates a large part of the legal legacy of European neo-constitutionalism, especially the 1991 and 1993 Colombian and 188 189 Comanducci. 2005. op. cit. pp. 84-85. Comanducci. 2005. op. cit. p.85. 86 Peruvian constitutions respectively, the political and social particularities of the continent provided the grounds for implementing new popular-based institutions. In this chapter, I will focus on three characteristics share by the Latin American neoconstitutionalism and the re-foundation project190, i.e. (1) the recovery of popular sovereignty by the establishment of original constituent powers, (2) the promotion of active political participation, and (3) the focus on the justiciability of constitutional rights. I will deal with the first claim in the next section, and with the second and third claims in section C and D respectively. 2. On the Foundation of the State: The Constituent Power in Latin America Although the Latin American neo-constitutionalist movement timidly attempted to recover popular sovereignty in the early 1990’s with constitutional projects like that of Colombia, it was the radical wing of the movement who claimed in the late 1990’s the necessity of a re-foundation project. The reformers, led by the Venezuelan president Hugo Chavez, thought that only new constitutions fully built upon popular support would actualize popular sovereignty as the core element of the new states. Indeed, the reformers claim the new constitutions would overcome the modern confusion –fallacy- between legitimacy and legality by anchoring their pillars in popular legitimacy191. Considering the long lasting efforts undergone by most Latin American countries in the last two centuries for consolidating liberal democracies in the region, the reformers’ claim had to be taken seriously. At first glance, it seems that the idea of re-founding the states through new constitutions comes from the distinction made by Schmitt between constitutions born within a state and the constitution giving birth –Konstituiering- to a state. Schmitt argues that when “a 190 As stated before, the re-foundation project is advance by what I have called the radical wing of the Latin American neo-constitutionalist movement or the reformers. 191 Cf. Vargas, V. A. Refundar democracias con asambleas constituyentes. Medellín. Periódico El Colombiano. 2008. 87 people takes consciousness for the first time of their capacity to act as a nation it is comprehensible that they claim to be in the latter case rather than in the first192. If the massive popular mobilizations in some Latin American countries can be taken to be the gain of national consciousness from the part of the peoples, I consider more convenient to approach this phenomena by focusing on the reasons - ideologyunderlying the massive mobilization in Colombia, Venezuela and Bolivia. In my analysis, I replace the concept gain of consciousness by development of a new ideology, and I argue that the latter led to the popular mobilizations that ended up in popular constitutional assemblies. Hence, the first question is what does it mean to establish a state on the basis of popular legitimacy? Are the Colombian constitution and the new Andean constitutions, i.e. Venezuela, Bolivia, Ecuador, providing a political alternative to modernity? The Colombian constitution is considered to be the first Latin American Constitution to have rooted its foundations in popular sovereignty. Although it certainly represents a less radical attempt to recover popular sovereignty than the constitutions of the refoundation project, it took the first step in the struggle for emancipation by establishing an original constituent power. During the pre-constitutional arrangements in Colombian, contrarily to Venezuela and Bolivia, there was not a public campaign cheering the slogan of a re-foundation of the state as such. However, the Colombian constitutional movement was itself the result of popular mobilizations claiming for a new constitutional order more respectful of people’s diversity and more coherent with the reality of the nation. 192 Schmitt. 1989. op. cit. p. 61. The original text states: “Mann hat eine bestimmte Art der Verfassung mit dem Idealbegriff einer Verfassung verbunden, dann diese Verfassung mit dem Staat selbst identifiziert und auf solche Weise den Erlass einer Verfassung, d.h. den Art den einer verfassungsgebenden Gewalt, als Gründung –Konstituierung- des Staates überhaupt angesehen. Wenn ein Volk als Nation sich seiner Handlungsfähigkeit zum erstmal bewusst wird, ist eine derartige Verwechslung und Gleichstellung wohl begreiflich.” 88 The 1991 Colombian Constitution was more than a necessary project. In spite of the several amendments concerning fundamental rights and extension of citizenship that were incorporated to the 1886 Constitution, it was still a quasi-colonial constitutional and political system. In 1990 there were an important number of political and social claims in the country that ended up in massive social mobilization and the call to a constitutional assembly: ethnic groups excluded from political participation, guerillas claiming for social justice and political reforms, farmers proclaiming the theories of liberation as well as the rise of the workers movement and the inefficient and exceptionality in the administration of justice193. The plural participation and outstanding representation of minorities and historically excluded groups in the Constitutional Assembly was the cornerstone of its popular legitimacy. Indeed, it was the result of a wide participation of historically excluded groups -e.g. indigenous peoples-, guerrilla movements that turned to civil life and left the weapons aside -e.g. M-19- and in general civil society -academics, political parties, NGOs, etc. This popularly elected constitutional assembly was seen as truly issued out of a national consensus. Hence, it claimed for itself the original constituent power and, thus, the legitimate constituent power of the Colombian state. The constitutional assembly was characterized by its legitimacy rather than by its legality. It was a constituent power and not a constituted power. It was the source of the law because it was built upon popular sovereignty. The Colombian constitution opens the preamble by stating: “The People of Colombia, in the exercise of their sovereign power, represented by their delegates to the National Constituent Assembly, invoking the protection of God, and 193 Cf. Uprimmy, R. “Las transformaciones de la administración de justicia en Colombia.” In: Santos Boaventura & Garcia Villegas Mauricio (Eds). El Caleidoscopio de las Justicias en Colombia (Tomo I). Bogotá. Conciencias, CES, Universidad de los Andes, Siglo del Hombre Editores. 2001. pp. 264-277; Restrepo Amariles, David. Between Social Movements and Identity: The Case of the Urban Indigenous Multiethnic Cabildo; the Chibcariwak in Colombia”. Master Thesis. http://www.dhdi.free.fr/recherches/etudesdiverses/index.htm 89 in order to strengthen the unity of the nation and ensure its members life, peaceful coexistence, work, justice equality knowledge, freedom, and peace with a legal, democratic, and participatory framework that may guarantee a just political, economic, and social order and committed to promote the integration of the Latin American community decree, sanction and promulgate the following Constitution of Colombia” Contrarily to the constitutions issued by the radical wing of the Latin American neoconstitutionalist movement, which are rooted in an ideological framework that aims at overcoming the deficiencies of the modern liberal project, the Colombian constitution emerged from a relatively spontaneous social mobilization and was not constricted to a defined ideological agenda. The Venezuelan and Bolivian constitutional projects took into account the Colombian experience in recovering popular sovereignty at the core of its political project, and incorporated an ideological framework of resistance to the modern-liberal agenda194. The radical wing of Latin American neo-constitutionalism claims that given the evident failure of the modern political project in fulfilling its promises, it has unleashed a social and political dynamic of exclusion at national and global levels195. Thus, the liberal political project has to be dropped because it has perpetuated oppression by setting a framework that justifies the coercive institutions that sustained and naturalized the hegemony of dominant classes and groups196. They 194 The ideology encompassing the constitutions of Venezuela, Bolivia and Ecuador is usually named Bolivarian Revolution. This name has been the war cry of Hugo Chavez who claims to continue the incomplete project of Simón Bolivar, the General who gained the independence for the Andean countries of South America. 195 Santos, Boaventura & Garavito, César. “Law, Politics, and the Subaltern in Counter-Hegemonic Globalization.” In: Boaventura and Garavito (eds), Law and Globalization from Below. Towards a Cosmopolitan Legality. Cambridge. Cambridge University Press. 2005. pp. 9-10. 196 Santos, Boaventura & Garavito, César. 2005. op. cit. p. 12. They retake this idea from Gramsci, A. Selections from the Prison Notebooks of Antonio Gramsci. International Publishers. New York. 1971. p. 12. 90 assert that the dynamics of exclusion and monopoly of political means by national elites characterize the constitutions and institutional arrangements of the Latin American states built upon the inherited tradition of European modernity197. This oppressive system is run by a legal order deemed to be neutral and autonomous in regards to its validity, but which actually is a value-biased modern artifact to perpetuate the power of the haves and the political elites. Since law captured the political system rendering it hardly useful as a counter hegemonic tool198, political and economic oppressions have to be fought in different grounds. The bottom-up strategies of social mobilization that were being developed in the region as an alternative to the top-down intervention from the state and international agencies had already prepared the ground for raising a strong ideological claim: to promote a political reform starting from the bottom. The oppression could only be abolished with the eradication of the ideology underlying the foundations, functioning and structure of the state, i.e. the modern liberal project. The state has to be re-founded away from the logic of representative democracy and sovereignty of the law199. For so doing, it was necessary to establish a constitutional assembly holding the original constituent power. Indeed, the establishment of an original constituent power was the war cry of the political project of Hugo Chavez in Venezuela, Rafael Correa in Ecuador and Evo Morales in Bolivia, who saw the justification and necessity of their political project in the increasing social mobilizations: “In Venezuela the 1999 constitutional process is the result of a long process of popular mobilization that starts with the Caracazo in 1999, when thousands of people 197 Noguera 2008. op. cit. p. 1. Boaventura de Sousa Santos’ works have been a great source of inspiration for the reformers. However in this point they seem to dissent because while the former considers the possibility of using the law as a counter hegemonic tool for advancing a political agenda, the latter seem to denied the legal and political system of the state as useful tools, and thus they propose to re-build the whole legal and political structure. 199 Noguera, A. 2008. op. cit. p. 14. 198 91 participated in demonstrations to show their inconformity with the corrupt, elitist and marginalizing system. This process will lead to the election of Hugo Chavez in December 1998. In Bolivia, since April 2000 when the war of water in Cochabamba exploded, the social and indigenous movements started a struggle that led to the resignation of President Gonzalo Sánches de Lozada and the victory of Evo Morales in the presidential elections of 2005. Evo Morales immediately disposed, as promised in his campaign, the nationalization of the oil and gas foreign companies settled in Bolivia the modification of the law INRA and the establishment of a popularly based constitutional assembly” 200 Contrarily to the 1991 Colombian constitution, the constitutional processes in Venezuela, Bolivia and Ecuador, are advanced by a wave of politicians who transformed the above-mentioned ideological framework into political practices. I argued before that the Colombian constitutional project, compared to that of Venezuela and Bolivia, was a timid attempt to recover national sovereignty. The Colombian constitutional assembly was constituted as an original constituent power based on the legitimacy drawn from the popular election of its members and the presence of historically marginalized groups. Although the constitutional assembly 200 Noguera, Albert. “El Neoconstitucioanlismo Latinoamericano: Un Nuevo Proyecto de Democratización Política y Económica para el Continente”. Paper presented in the Second Socio-Legal Congress Las formas del Derecho en Latinoamérica. Democracia, desarrollo y liberación. Internacional Institute for the Sociology of Law (IISJ), Oñate, Spain. 2007. p. 15 The original text states: “En Venezuela, el proceso constituyente de 1999 es fruto de un largo proceso de movilización popular que empieza con el denominado Caracazo en 1989, cuando miles de personas se lanzaron a las calles para expresar su disconformidad con un sistema corrupto, elitista y marginador, hasta la victoria electoral de Hugo Chávez en diciembre de 1998; En Bolivia ya desde los acontecimientos de la guerra del agua en Cochabamba, en abril del 2000, que suponen el inicio del ciclo de luchas de los movimientos sociales y pueblos indígenas que llevaron a la renuncia del Presidente Gonzalo Sánchez de Lozada y la Victoria electoral de Evo Morales en diciembre del 2005, una de sus principales demandas había sido, juntamente con la nacionalización de los hidrocarburos y la modificación de la ley INRA, la convocatoria de una asamblea constituyente.” 92 was not legally constrained, it did not submit the final text of the constitution to an approbatory referendum. The Venezuelan constitutional project aimed to go beyond the Colombian experience. First, there was a referendum in which the people were to decide on the establishment or the non-establishment of a constitutional assembly. Then, the members of the constitutional assembly were elected by popular vote, and similarly to the Colombian assembly, it guaranteed the participation of historically marginalized groups. Finally, although the constitutional assembly composed by popularly elected members drafted the constitution; the original constituent power was truly in hands of the people because the final text was presented to an approbatory referendum. The Constitution was finally approved in 1999 with a favorable vote of 71%. If I concluded that the Colombian constitution was characterized by popular legitimacy, then the radical wing of the Latin American neo-constitutionalist movement would claim the Venezuelan constitution has full popular legitimacy. They reformers argue the Venezuelan constitutional assembly was truly the original constituent power acting in the legal nothingness because it was not constrained by the law. Contrarily, it was the origin of the political and legal order. Finally, the Bolivian Constitution has undergone a rougher path in its drafting and approval processes. The decision of calling a constitutional assembly was taken by president Evo Morales after his arrival in the office. If it is true that its members were popularly elected, the decision of calling a constitutional assembly was not the result of a referendum. Evo Morales assumed that his electoral victory entrusted him with the power to establish a constitutional assembly. The particular ethnic and political composition of the country, in which half of the population claims to be indigenous people oppressed by minorities201, rendered the constitutional assembly a real battlefield. Although the constitutional assembly approved the final text of the 201 Cf. Restrepo Amariles. 2007. op. cit. p. 82. 93 constitution in December 2007, it was finally approved by referendum on February 2009. Probably the most remarkable difficulty undergone by the Bolivian Constitution was the opposition of some regions of the country ruled by the opposition party, to agree upon the drafted text of the constitution. In fact, when the central government was planning to call for the final approbatory referendum, 4 of the 9 regions of the country announced they had drafted autonomic statues that oppose the content of the constitution and that were ready to be submitted to referendum. In the four regions the autonomic statues were approved by more than 80% of the electorate. Subsequently, the central government had to declare illegal the autonomic referendums called in June 2008 aiming to remove from office the governors of all the Bolivian regions as well as the national president Evo Morales. After his ratification in office, the central administration of Evo Morales launched a national dialogue to reach a political consensus that would create the appropriate conditions to submit the text of the constitution to the approbatory referendum. Beyond the difficulties of the political process in Bolivia, it seems fair to affirm that the re-foundation project has proved to be more ambitious than Gramsci’s attack on liberalism. It has aimed not only at eroding the modern political liberal ideology but at providing a whole new framework for social life. The settlement of an original constituent power for re-founding the state on the basis of popular sovereignty was the first step in the battle against the modern liberal conception of low- intensity representative democracy. To use Santos’ terms, this first step gives way to the emergence of a proposal for “the radicalization of political and economic democracy”202. However, the recovery of popular sovereignty in the foundation of the state does not guarantee the defeat of legal sovereignty. Indeed, the structure and functioning of the state must also be equipped with an institutional setting that would guarantee popular sovereignty. 202 Santos & Garavito. 2005. op. cit. p. 18. 94 In the next section, I will present the claim of the reformers according to whom popular sovereignty could be guaranteed in the structure of the state by the establishment of an electoral power. For so doing, I will mainly focus on the Constitution of Venezuela for two reasons: first, the constitution of Venezuela was the first constitution drafted according to the doctrines held by the radical wing of the Latin American neo-constitutionalist movement to enter into force. Second, because the idea of keeping popular sovereignty in the structure of the state through the establishment of an electoral power is an original idea of the Bolivarian Revolution led by Venezuelan president Hugo Chavez. 3. The Electoral Power in the Bolivarian Revolution I must first recall my surprise when I found there was almost no bibliography on this topic written in English, and a very poor one in Spanish. Although the Constitution of Venezuela has been in force for almost 10 years, it seems that the study of the new institutional arrangements of the Venezuelan state has not caught the interest of academics. Probably this lack of interest comes from the fact that at first glance, the new powers -i.e. Electoral and Citizen’s power- seem a compilation of existing democratic institutions under the umbrella of a new public power of the state. However this superficial approach may underestimate the ideological content of the reformers’ claims. The Venezuelan constitution established by the sovereign people -in exercises of their constituent power- set an institutional arrangement of the state that intends to allow permanent popular participation. Indeed, the project giving birth to the new state203 conveyed the permanent expression of people’s sovereignty, and thus, it opposed a traditional institutional arrangement in which political power was taken 203 This new state included a new name. The Republic of Venezuela became with the 1999 Constitution the Bolivarian Republic of Venezuela. 95 away from the people. The opposition to the system of checks and balances was transformed into the implementation of the citizen’s and electoral power as the means for controlling states abuses. The main goal of these new powers was to assure citizen’s control over state intuitions, including the control of the three traditional powers. I will focus on the electoral power because it contains more meaningful elements for our analysis. The article 5 of the Venezuelan constitution establishes that: “Sovereignty resides untransferable in the people, who exercise it directly in the manner provided for in this Constitution and in the law, and indirectly, by suffrage, through the organs exercising Public Power. The organs of the State emanate from and are subject to the sovereignty of the people.” Now, the means to assure the effective exercise of people’s sovereignty was the establishment of an independent electoral power. The Bolivarian Constitution of Venezuela wanted to restore the original roman ideas of popular participation, which were part of Bolivar’s political project. The reformers claim the electoral power tries to restore, contrarily to representative democracy, the roman system of the mandate in which popularly elected magistrates decide on issues on which people directly have not decided. However, the decisions taken by the roman magistrates were under the supervision of the Tribunat, who had the power of veto. This Roman institution was latterly retaken by Rousseau for developing his institutional setting in Du Contrat Social, and was finally implemented by Simón 96 Bolivar in the Bolivian Constitution of 1826. Bolivar204 who had great admiration for the ancient roman state, and especially for the Roman constitution, incorporated the roman institution of the Tribunat by the establishment of a fourth power, i.e. the electoral power. Article 8 of the 1826 Bolivian constitution states: “The supreme power is divided for its exercise in four sections: Electoral, legislative, executive and judicial”205 The electoral power was established in article 19, reading as follows: “The electoral power is exercised directly by active citizens. There will be one person elected for every one hundred voters”206 Finally, article 26 established: “The Legislative power emanates directly from the electoral powers chosen by the people; its exercise is divided in three chambers: Tribune, senators, censurers.”207 The political structure was meant to bring the new Republic of Bolivia an appropriate institutional setting for achieving full independence from European power. Although political independence was formally achieved in the early 19th 204 For a complete analysis of Bolivar’s constitutional thought and projects See Catalano. P. “Conceptos y principios del Derecho Público Romano, de Rousseau a Bolívar.” In: Constitucionalismo Latino I. Torino. Istituto Universitario di Studi Europei. 1991, pp. 35-59. 205 I will include the original texts of the quoted articles because they are not of easy translation. In this way I try to be loyal to the reader and to the original ideas. The original text states art 8. “El Poder Supremo se divide para su ejercicio en cuatro secciones: Electoral, Legislativa, Ejecutiva y Judicial”. 206 Original text art. 19. “El Poder Electoral lo ejercen inmediatamente los ciudadanos en ejercicio, nombrando por casa ciento un elector”. 207 Original text art. 26. “El Poder Legislativo emana directamente de los cuerpos electorales nombrados por el pueblo; su ejercicio reside en tres cámaras: Tribunos, Senadores y Censores”. 97 century, the presence of European descendents, creoles and the pressure coming from the Spanish Crown was threatening the stability of the emerging state. Therefore, the institutional setting of Bolivia aimed at empowering the locals and limiting the power of those with European background; the Bolivians were thus the plebeians, while the Europeans were the patricians. The Bolivarian Republic of Venezuela wanted to recover Bolivar’s legacy by the establishment of the Electoral power as an independent branch of National Public Power. Article 136 establishes that: “Public Power is distributed among Municipal Power, that of the States Power and National Power. National Public Power is divided into Legislative, Executive, Judicial, Citizen and Electoral” The electoral power aims at guaranteeing popular participation at every moment and independently from the other public powers, especially, from those popularly elected. Considering the great variety of popular participatory means contained in the constitution, it was necessary to separate its direction, organization and control from the other branches of power. The electoral power will thus guarantee the expression of people’s sovereignty through vote, referendum, consultation of public opinion, mandate revocation, legislative initiative, constitutional and constituent initiative, open forums and meetings of citizens whose decisions are binding, etc. However, besides these participatory means established in article 70, the Electoral power can also direct, control and organize other participatory initiatives coming from civil society itself. Indeed, the Venezuelan Constitution emphasizes the importance of permanent interaction between members of civil society, and thus the electoral power can provide the means for assuring that successful interaction- e.g. by organizing elections for labor unions (art. 293, N. 6). 98 The independence of the fourth power is structurally guaranteed by two important means, i.e. financial and organic independence. Regarding the former208, the Electoral Power participates directly in the national budget. It is not subordinated to another branch of public power, but it participates in equality of conditions with them. Regarding the latter, the Electoral Power is an autonomous branch of the state whose functions are exercised by the National Electoral Council as governing body, which in itself, is constituted by different subordinated organs. The National Electoral Council is composed by five members “having no ties to organization for political purposes; three of these shall be nominated by civil society, one by the schools of law and political science of the national universities, and one by the Citizen Power.”209 The independence of the Electoral power was tested in a 2004 popular initiative, supported by the government’s opposition, which succeeded in collecting the required amount of signatures for running a recall referendum against Hugo Chavez. The National Electoral Council certified the validity of the signatures and ran the referendum elections in August with the question: Do you agree to revoke, for the current term, the popular mandate as President of the Bolivarian Republic of Venezuela conferred on citizen Hugo Rafael Chavez Frias through democratic and legitimate elections? NO or YES? The final result allowed for Chavez to retain office. Another important event happened in 2007 when the president of Venezuela handed in an initiative to modify more than 60 articles of the 1999 Constitution, which would have resulted in fully establishing his socialist project. The Electoral power called for a plebiscite the December 2nd in which it asked the original constituent power, i.e. the people, to approve or refuse the proposed reform. The people, making use of their sovereign power, refused the reform which was likewise certified by the Electoral power. 208 209 Cf. article 294 of the Bolivarian Constitution of Venezuela. Cf. article 296 of the Bolivarian Constitution of Venezuela. 99 Finally, the Electoral Power, as I said before, can provide direct assistance to the functioning of civil society organizations. Indeed the Bolivarian project aims at strengthening grassroots movements and bottom-up participative democracy. It is based in a strong ideological framework characterized by a direct challenge to neoliberalism and northern-hegemony. The aim of establishing social networks of cooperation, and an economic system based on associative work, requires the strengthening of civil society. In that sense, the Electoral Power intends to establish, without the necessary intermediation of political parties, a direct link among citizens, and between citizens and the state. The Bolivarian Revolution justifies its institutional arrangements in that it promotes and allows the expression of the citizen’s sovereign power at all times through institutional means. The independence granted by the Bolivarian Constitution to the Electoral Power is undeniable. It may be true that it assures popular participation in the everyday democratic life of Venezuela but questions remain. Does it really make popular sovereignty prevail over legal sovereignty? And further, does it really overcome or provide an alternative to the political thought underpinning modern and liberal institutional arrangements? The Electoral power aims at establishing the supremacy of popular sovereignty over legal sovereignty in the structure of the state. Yet the independence granted to the Electoral Power within the state structure is meant to guarantee the expression of the people’s will in regards to every necessary matter in the county’s life. However, are decisions taken through participatory means in Venezuela not subjected to the control of the law? Indeed, the will of the people expressed through referendum or plebiscite is not bound by the legal system except in its procedural requirements. However, these two participatory means are of extended use in other countries in South America and Europe in which the electoral authorities do not constitute an autonomous public power. Now, regarding the other participatory means I argue they are neither superior to the law nor authentic channels for the expression of people’s 100 will. The participation of people in everyday social and political life of the countrythrough social organizations, participatory budget discussion, participatory developments plans, etc.- does not necessarily mean that decisions taken in those participative instances are issued directly from people’s will. Decisions taken therein are not always the result of vote, but they are often taken on the basis of negotiations among actors or technical arguments. Thus, people’s participation in the decisionmaking process does not necessarily imply popular legitimacy and supremacy of people’s sovereignty –will-, since it could also mean deliberative legitimacy or rational legitimacy. Those instances are therefore not only subjected to the law in their procedure, but in their content. Finally I just recall the argument of Kelsen against Rousseau’s direct democracy in which, according to the former, the individual is only free at one moment, only while voting the referendum, and only if he votes with the majority and not with the outvoted minority. Now, precisely regarding the political philosophy underlying the Electoral Power, I argue that popular participation has always had an important place in the theory underlying modern liberal democracy, although it certainly varies according to place and time. I just recall our study of Tocqueville, for whom the radical wing of the Latin American Constitutionalist movement shows great aversion, regarding the means employed in America for avoiding extreme individuality. Tocqueville concluded that there was an active participation of citizens in all realms of public life. He thought that people were governing in America not only because they were electing people for filling the official offices, but because they had participation in small, medium, and large decision through their engagement in social life. In this sense one may argue that the autonomy granted by the Bolivarian Constitution to the Electoral power may indeed assure independence of the electoral authorities and strengthen grassroots movement in society. However, this form of direct participation is not beyond or against the political conception of modernity. Contrarily, modern political philosophy highlights that individuals are the original holders of sovereignty because they are free by nature. Thus, any political organization ought not to be run 101 without the people’s consent. This modern premise can be translated in different institutional arrangements, either in those characterized by representative institutions or in those in which people have a more direct participation. Here within I do not discuss the virtues of one or the other system; I just allude to the fact that they are different actualizations of the same core idea. In the next section, I will show how Latin American neo-constitutionalism claims to have anchored the functioning of the state in popular sovereignty. My choice for analyzing the practical relation between legality and legitimacy in the light of constitutional review is based in the elucidative potential residing in the connection between power and justice. Indeed, the central position occupied by the concern for justice within political societies makes the judicial –judging- function a privileged source for revealing the transformation -and nature- of power210. As it has been rightly pointed out, the history of justice is the political history of society itself 211 or, moreover, that the different models of justice are intimately related to different models of political order212. 4. Popular Sovereignty and Constitutional Review: The Tutela Action in Colombia The preamble of the Colombian Constitution sets a list of substantive values, e.g. liberty, equality, justice, etc. that are to be achieved within a “legal, democratic and participatory framework…” Certainly, modern democracies attribute an important value to participation in a country’s political life. Although participation is frequently 210 Commaille. J. “La justice entre Détraditionnalisation, Néolibéralisation et Démocratisation: vers une Théorie de Sociologie Politique de la Justice.” In : Commaille, J. & Kaluszynski, M. La Fonction Politique de la Justice. Paris. La Découverte/ Pacte. 2007. p. 317. 211 Cf. Royer. 2002 quoted in: Commaille, J. “Word: Sociologie politique.” In : Dictionnaire de la Justice. PUF. Paris. 2004. 212 Cf. Commaille. 2004. op cit. Also cf. Lejeune, Aude. “Justice institutionnelle, justice démocratique. Clercs et profanes. La maison de justice et du droit comme révélateur de tensions entre deux modèles politique de justice”. Droit et Société N. 66, 2007. pp. 361- 381. 102 limited to popular elections, the abovementioned references to both Rousseau’s criticism of the English representative system and Tocqueville’s claim of popular participation as means for avoiding extreme individualism, must remind us that a fit democracy has to promote the citizen’s participation beyond officials and parliamentarian elections. The Colombian constitutional assembly was aware of this late liberal democratic claim and thus established a wide participatory framework. I highlight article 103 of the constitution that states in its first paragraph: “The following are the people’s means for participating in the exercise of their sovereignty: the vote, plebiscite, referendum, popular consultation, open town council meeting, legislative initiative, and recall of officials.” (emphasis added) It is difficult to deny the importance that these participatory means have had in the political life of Colombia in the last two decades. However, I claim that the most interesting device of popular participation lies in the structure of constitutional review. The constitutional actions are not considered by the constitution as participatory means in the democratic life of the country; however, their simplicity in procedural terms has rendered them a natural channel of participation. I claim that the original aim of constitutional review in Colombia was to provide an overall popular legitimacy of the state and its law. By constitutional review I mean not merely the competence of the Constitutional Court to declare laws or administrative decrees void when they breach the constitutional charter, but the general system of “constitutional judicial review”213 213 I will not discuss here if constitutional review, and more particularly constitutionals courts’ review, make part of the functions of the judicial system, i.e. if it belongs to the judicial branch or not. However, for 103 established in Colombia for the protection of constitutional rights. Colombia has a semi-diffused system of constitutional control. i.e. only the Constitutional Court can declare a law or decree unconstitutional, but all judges of the Republic retain the competence not to apply a law or decree which they consider unconstitutional. This type of decentralized constitutional control, that makes every judge of the Republic guard of the constitution, aims at assuring, at all times, the foundational values of the state over mere functional legality. However, what is not covered by the concept of semi-diffused constitutional control, but included in my concept of constitutional review, are the constitutional actions established for the protection of individuals’ and groups’ fundamental rights. As I mentioned before, neo-constitutionalists advocate for the inclusion of a catalog of fundamental rights in the constitution. Latin American neo-constitutionalism in particular, has called for the establishment of judicial channels for actualizing, rather than merely protecting, those constitutional rights. It seems that the inclusion of a long catalog of social rights in the constitution was a strategy for gaining popular legitimacy. Indeed, the economic gap between haves and have- nots has polarized Colombian society. The former, which constitute a minority, enjoy full citizenship, while the latter, composed of the greatest part of the people, live under precarious conditions. The justiciability of constitutional fundamental rights, and particularly of social rights, was included in the constitution as a means for assuring popular legitimacy in the functioning of the state. In Chapter 4 of Title II “Concerning the Protection and Application of Rights” (emphasis added) the constitution establishes four different types of constitutional actions214 concerning the protection of fundamental rights. I will give a general Colombia, the fact that constitutional norms regulating the functioning of constitutional “justice” are under Title VIII concerning the “Judicial Branch” drives me to affirm that, in Colombia, it is organically part of the judicial power of the state. 214 As mentioned in the introduction, I use Action as derivative from the Latin “action”. Is a legal institution that entitles a person to bring a claim before a court. The Spanish names of these actions are: Tutela, cumplimiento, popular y de grupo. 104 overview of the fulfillment action (art. 87), popular action and group action (art. 88), while making an in-depth analysis of the Tutela action (art. 86). The fulfillment action entitles any person to appear before legal authorities to demand the application of a law or the fulfillment of an administrative act. The popular action, entitles a group of citizens to claim before a judge the protection of the collective rights incorporated in the Constitution. Among others, this action makes justiciable the rights to homeland, public space, public safety and health, administrative morality, free economic competition, clean environment, etc. The group action, which is also intended to protect constitutional collective rights, differs from the popular action, in that the former contrarily to the latter entitles the plaintiff to claim for indemnity. The Tutela action215 completes the constitutional protection of fundamental rights. It is to be remarked that constitutional actions are meant to make justiciable all fundamental rights and not only those known as negative liberties. The Tutela Action is established in article 86 of the Constitution and its text states: “Every person has the right to file a writ of protection before a judge, at any time or place, through a preferential and summary proceeding, for himself/herself or by whomever acts in his/her name for the immediate protection of his/her fundamental constitutional rights when that person fears the latter may be violated by the action or omission of any public authority. The protection will consist of all order issued by a judge enjoining others to act or refrain from acting. The order, which must be complied with immediately, may be challenged before a superior court judge, and in any case 215 For a complete socio-legal study of the Tutela Action cf. García Villegas, M. & Rodríguez, C. “La Acción de Tutela.” In: Caleidoscopio de las Justicias en Colombia (Tomo I). Bogotá. Conciencias, CES, Universidad de los Andes, Siglo del Hombre Editores. 2001. pp. 264-277. 105 the latter may send it to the Constitutional Court for possible revision. This action will be available only when the affected party does not dispose of another means of judicial defense, except when it is used as a temporary device to avoid irreversible harm. In no case can more than 10 days elapse between filing the writ of protection and its resolution. The law will establish the cases in which the writ of protection may be filed against private individuals entrusted with providing a public service or whose conduct may affect seriously and directly the collective interest or in respect of whom the applicant may find himself/herself in a state of subordination or vulnerability.” The Tutela action has some similarities with the Recurso de Amparo216 of the Spanish and other Latin American and European constitutions. Although it does belong to the family of Recursos de Amparo, the Tutela action has some very specific particularities. As it can be read from article 86, the claim can be filed before any judge of the Republic for the protection of the constitutional rights. Indeed any citizen through a very brief procedure has access to the protection of his constitutional rights. The personerias, which are public institutions belonging to the executive power and providing judicial assistance for the protection of rights, have tutelas samples and standard formats that can be filled in by the plaintiffs with the assistance of public officials. Although the Tutela action itself does not have any procedural formality –it can be done orally. For example, the assistance provided by 216 There is not an equivalent action in English or American Law. However the type of actions belonging to Recurso de Amparo can be defined as actions for the infringement of fundamental rights and freedoms. 106 the personerias allows a clearer identification of the fundamental right breached or needing protection, as well as the clear description of the facts217. Though the Tutela action was originally established for the protection of fundamental rights making part of the so called first-generation human rights, the Constitutional Court has set a reiterative precedent that made justiciable social rights through the Tutela action218. A study released in 2001 revealed that most of the plaintiffs used the Tutela Action for claiming protection to rights of petition (23.93%), work (16,32%), due process (12,84%), education (7,92%), social security (7,29%), property (5,86%) and health (4,12%)219. The time-frame in which decisions have to be handed down by judges is also a great strength of the Tutela action. Once the claim has been filed, judges must decide within the next 10 days. This decision time-frame has encouraged citizens to appeal to the Tutela action for the protection of their rights. However, one must be aware that the Tutela action has a narrower scope than regular action because it is restricted to cases in which the affected party “does not dispose of another means of judicial defense” or when it is used as “a temporary device to avoid irreversible harm”. The decisions reached by use of the Tutela action are fully coercible by police and administrative authorities, and consequently its contempt constitutes a criminal offense. The Tutela action has given the Constitutional Court and the whole judiciary in general an important and increasing role in the country’s political life. However, recently Tutela-based decisions have been questioned. On of the most controversial discussions concerns the consequences of Tutela decisions on the national budget. Judges deciding Tutela actions are not bound by the budgetary planning of the 217 For other types of legal assistance used prior to filing a Tutela action, cf. García Villegas, M. & Rodríguez, C. 2001. op. cit. p. 437. 218 García Villegas, M. & Rodríguez, C. 2001. op. cit. p. 423. 219 García Villegas, M. & Rodríguez, C. 2001. op. cit. pp. 426-427. 107 national or regional government/institutions. For example, judges can order public hospitals to undertake medical procedures or provide medicines that are not included in the social security system if those procedures/medicines are necessary to protect the right to life-health of the plaintiff. The obligation of hospitals to comply with the decision has led many of them to financial difficulties and administrative inefficiency. Another debate that has been overshadowed by the previous one, concerns the possibility granted by the Tutela action to low-hierarchy judges to overrule decisions of higher judges, including those sitting on the Supreme Court220. This phenomenon known as Tutela contra Sentencia –Tutela against judicial decisions- occurs when a claim filed through a Tutela action attacks decisions taken by judicial authorities in violation of the fundamental right to due process. Since the Tutela action can be filed before any judge of the Republic, it may happen that a low hierarchy judge, who in that case is the guard of the constitution, overrules the decision of a judge sitting on a higher court. Finally, I will focus on the function of the Constitutional Court in regards to the Tutela action. Then I will draw some concluding remarks on the role/position played/occupied by constitutional review within the framework of popular legitimacy laid down by the 1991 Colombian Constitution. Article 241 of the Constitution states that the Constitutional Court safeguards the integrity and supremacy of the Constitution. For so doing, the same article enumerates 10 different functions, from which I will just focus on number 9, i.e. “Revise, in the form determined by the law, the judicial decisions connected with the protection of constitutional rights”. The Court acts then as a third court of appeal in regards to Tutela decisions previously taken by lower judges. The Court has developed this function in two ways. On one hand, the procedure of Revision aims at unifying the decision-making criteria employed for the protection of fundamental rights in cases in which lower judges 220 This phenomenon in Colombia has been called “tutela contra sentencia”. 108 hold extreme divergent positions. This function is known in constitutional doctrine as Unificación de Jurisprudencia –Unification of precedent-. The Constitutional Court’s interpretations contained in decisions handed down by this procedure are not compelling for lower judges when deciding new tutela actions. However, they are widely incorporated by the whole judiciary taken into account the interpretative authority of the Constitutional Court in regards to the protection of constitutional rights. On the other hand, the procedure of Revision also aims to review particular decisions as such. The Constitutional Court selects “cases in which lower judges may not be able to see a violation of fundamental rights”221. Then, the Constitutional Court hands down a decision valid only for the particular case. However, the Constitutional Court is legally competent to advance “collective” revisions of Tutela actions -i.e. to aggregate individual claims for the protection of similar fundamental rights- in order to hand down decisions with general effects, i.e. erga omnes decisions. Some authors have seen in this procedure the origin of constitutional activism and production of judicial public policy. Contrarily to Kelsen’s conception of constitutional courts as negative legislators and holding essentially a judicial function, the Colombian Constitutional Court is an active actor in the legal and political life of the country. The terms judicialization or judicialization of politics222 have been coined to express the combination of these two realms in the judicial function. The concept judicialization implies two different but complementary situations. On one hand, there is an increasing number of claims concerning rights’ protection in both public and private spheres filed before justice- 221 García Villegas, M. & Rodríguez, C. 2001. op. cit. p. 434. Cf. Uprimmy, R. “Las transformaciones de la administración de justicia en Colombia.” In: Santos & García Villegas, M. (Eds). El Caleidoscopio de las Justicias en Colombia (Tomo I). Bogotá. Conciencias, CES, Universidad de los Andes, Siglo del Hombre Editores. 2001. pp. 261-262. Cf. Also Commaille. 2007. op. cit; Hirschl, R. Towards Juristocracy: The origins and Consequences of the New Constitutionalism. Cambridge. Harvard University Press. 2004. p. 169. 222 109 rendering authorities –especially judges and courts223. On the other hand, judicialization also refers to the fact that the activity of decision-making instances is intimately related with politics and policy-making224, moreover, that politics is being channeled through judicial authorities. The Colombian Constitutional Court can thus be included in this judicialization phenomenon. It has used judicial review as a means not only to decide particular cases, but to advance the social agenda of the constitution and promote structural changes that eliminate permanent threats to fundamental rights. Examples of the latter are the decision of the Constitutional Court ordering a jail reform225, as well as the decision establishing a public policy for the attention of the forced displaced population. I will make some final remarks by analyzing the phenomena of forced displacement in Colombia and the intervention of the Constitutional Court in the issue. The displaced population in Colombia counts for more than three million people living in poor conditions in the big urban centers of the country. This situation started to change when more than 1150 displaced families, by making use of the Tutela action, claimed before different judges and jurisdictions all throughout the country the state violation of their fundamental and constitutional rights. Giving the rising number of claims, the inefficacy of lower-judges’ decisions and the contradictory solutions handed down by most of them, the Constitutional Court took over the claims through the procedure of Revision. Aiming at making a comprehensive and systematic analysis of state public policies, laws and social conditions of the 223 Hirschl. 2004. op. cit. pp. 100-125. Hirschl. 2004. op. cit. pp. 169-210. 225 In the decision T-153/1998 the Constitutional Court intervene the jail situation in the country by establishing some parameters under which the government had to act in a specific time period to solve the imprisoned overpopulation. There are some similarities between the Colombian Constitutional Court decision on this issue with the judgment hand down by the American Supreme Court. Cf. Perry M. The Constitution, The Courts and Human Rights. An Inquiry into Legitimacy of Policy Making by the Judiciary. Westford. Yale University Press. 1982. p.148. 224 110 displaced population in the country, the Court handed down decision T-025/2004 with erga omnes effects. The Constitutional decision did not merely disapprove the public policy previously implemented by the state as appropriate means for the protection of the fundamental rights of the displaced population, but it also created a framework for renewing governmental intervention. This decision also became guideline to follow for lower courts and state agencies when interpreting the Constitutional fundamental rights of the displaced population. The Constitutional Court after having studied the claims, and in particular the situation of the displaced population, declared the Estado de Cosas Inconstitucionales -Unconstitutional state of things-. This declaration means that some generalized and permanent social facts do not meet the minimum standards for the fulfillment –actualization- of peoples’ fundamental rights. Consequently, the Court, as the highest guardian of the Constitution, is entitled to set some orders/guidelines, of compulsory implementation, for all state authorities, in order to enhance the protection of fundamental rights. In brief this judicial institution, developed by the Court itself, legitimates its political intervention in public policy. An example of this intervention can be seen in the decision T-025/2004: “In the present case, the Third Section of Revision of the Constitutional Court will give two types of orders. Orders of complex execution related to the unconstitutional state of things and directed to guarantee the rights of all the displaced population, even of those that haven’t filed a complaint. Such orders have as purpose that the organizations in charge of taking care of the displaced population establish, in a prudential term and inside of their field of competence the measures that are necessary 111 to overcome the problems of scarcity of resources and the inefficiency of state agencies to implement the state policy of attention to the displaced population.” (Judgments T025/2004). On the other hand the Court will also give orders of simple character “directed to respond concrete requests made by the plaintiffs” (T – 025/04). This decision certainly falls under phenomena of judicialization widely documented by authors like Hirschl and Sweet who have shown that “the power of Constitutionalbased judicial review has come to replace basic policy choices of the elected representatives of the people”226. Thus, one may ask what makes the constitutional review phenomenon in Colombia unique. I do argue that constitutional review in Colombia goes beyond the two main meanings of judicialization of politics. What I highlight to be of main importance in the Colombian system of constitutional review, and that contributes to advance my main claim regarding the recovery of popular sovereignty in Latin American neo constitutionalism, is not so much that judges are political actors, which indeed they are, or that there is a more frequent appeal to courts for the defense of constitutional rights, which is also true, but that it is intended to be an artifact that maintains popular sovereignty in the functioning of the state. Thus, I argue that direct and easy participation of people in constitutional review provides the illusion of direct democracy and thus of popular sovereignty over legal sovereignty. In this way I also turn to my conclusion remarks by contrasting the Colombian constitutional review with Kelsen’s claims on the nature and function of the constitutional courts. The distinction between constitutional courts and other courts, drawn by Kelsen, emphasizes that the former were a type of negative legislator 226 Friedman, L. “From Democracy to Juristocracy” (Review Essay). Law and Society. Vol. 38, N. 3. 2004. p. 617. 112 because they are entitled to invalidate norms of general application, while the latter only produce norms to concrete case227. This distinction does not seem to be valid for the Colombian constitutional review system. Although the Constitutional Court is the only judicial authority competent to invalidate norms of general application, any judge of the Republic is entitled not to apply a law deemed to be unconstitutional. Moreover, all judges have the active guard of the constitution due to the general competence granted by the Tutela action to the judicial system. Finally, the Colombian Constitutional Court does not only invalidate norms of general application, but it does enact them. Kelsen also remarked that the main function of constitutional courts is to guard “constitutional” legality within a legal system. However, I claim that the function of the constitutional review in Colombia is intended to go further than that. With the introduction of the constitutional actions for the actualization of fundamental rights, constitutional review becomes more than an instrument of legality; it becomes a means for achieving popular legitimacy of the state. The direct access of any citizen to constitutional actions, and in particular to the Tutela action, endows the institution of the judicial system with the apparent function of promoting direct democracy. The fact that the constitutional judges protect not only negative liberty rights but also positive rights -housing, work, social security, etc.- increases the legitimizing potential of constitutional review. In spite of the fact that the Colombian system of constitutional review may unveil the incompetence or incapacities of the executive and legislative branch in fulfilling citizen’s rights, which in a presidential democracy can be of considerable importance, it gives the overall image that the legal and political system as a whole provides the means for the attainment of the common well being. In this way, Constitutional review surpasses its mere function of guardian of legality and becomes a legitimizing institution grounded in popular participation. 227 Kelsen. 1930-31. op. cit. pp. 589-591. 113 The outstanding role of constitutional judges in the Colombian legal system can lead, as I have shown, to the claim that constitutional review has the unstated role of endowing the functioning of the state with popular legitimacy. However, one must distinguish between the sociological and philosophical dimensions of that claim. I do agree that constitutional review may increase the positive popular perception of the legal and political systems through what I have called the illusion of direct democracy. This sociological fact, however, does not necessarily coincide with the claim that the functioning of the state itself is grounded in popular sovereignty. The judiciary has held a political role along history that varies in strength according to particular circumstances of time and place. Nonetheless, the active protection of fundamental rights by constitutional judges cannot be taken as the necessary consequence of political systems rooted in popular sovereignty. Some supporters of the radical wing of the Latin American neo-constitutionalist movement see the America of Tocqueville as the origin and accomplishment of the confusion between legality and legitimacy, as well as of democracy and representative government228. However, Tocqueville showed that the great political power of the American judiciary was rooted in the predominance of the constitution within the legal system229. He argued that, although judges in America met the main characteristics of general judicial power -i.e. a referee in conflict resolution decides particular and not general cases and acts upon demand230– they were also granted with political power by their position within a system in which the constitution rules all the actors in society, including the three state powers231. Yet, the defenders of popular sovereignty may argue that in political and legal systems, in which the constitution is instituted by the original constituent power, the political intervention of constitutional judges is justified because they guarantee the primacy of people’s original will- the 228 Noguera. 2008. op. cit. pp. 8-9. Tocqueville. 1981. op. cit. pp. 1-6. 230 Tocqueville. 1981. op.cit. pp. 1- 4. 231 Tocqueville. 1981. op. cit. pp. I-1-4. 229 114 constitution. In that sense constitutional review is not a control of legality but of popular sovereignty. I approach this objection by one sociological and two philosophical arguments. First, one must be careful to attribute an absolute progressive role to courts regarding protection of the rights of underprivileged or marginalized populations. Hirschl 232 rightly remarks that the judicial function can also serve as an instrument for economic and political elites to reinforce their domination. Second, constitutional courts’ popular legitimacy to interpret the original will of the constituent in the light of the ever changing circumstances, may be questionable if we take into account that its members are not popularly elected. Thus one may ask, as Schmitt did, whether the president, or I say, other popularly elected institutions, would not be more legitimate guardians of the constitution233. Finally, I argue that the main function of this type of constitutional review is not to overcome the accused modern supremacy of legal sovereignty, but essentially, to try to recover the lost faith in the modern project regardless the type of legitimacy it may convey. 5. Concluding Remarks: On Popular Legitimacy and Modernity Since I have already provided some conclusion at the end of each section, I will just make some concrete final remarks. Latin American neo-constitutionalism advocates for constitutions built upon original constituent powers, i.e. the people. The Colombian 1991 constitution took the first step by establishing a National Assembly with wide representation of society and its members were popularly elected. However, the radical wing of the Latin American neo-constitutionalist movement and their re-foundation project wanted to 232 Hirschl. 2004. op. cit. pp. 38-64. This idea could also be approach in terms of the tension between electoral democracy and judicial lawmaking that has been discussed for long time in the United States. 233 115 go beyond. They wanted to re-found the state through new constitutions as a means of achieving popular sovereignty over legal sovereignty. This claim is based on a technical argument that downplays the substantive qualities of a constitutional foundation of the state. The reformers claims that it is possible to re-found the state on popular basis if it is done through a real original constituent power, in opposition to a derivate power. They claim that only an original constituent power makes a real constitution. Consequently they argue that a constitutional text issued from a derivative power is of the same nature as the law, because they are both subjected to legality rather than to popular sovereignty. This claim, however, downplays the more general difference between government by constitution and government by will, pointed out by Bolingbroke. The former, characteristic of the Rechtsstaat, is that in which a constitution originated in the general will, contains a system of rules that is always and at all times valid. The latter is a system of actuality; it rules what occurs at a given time, and is essentially changeable. The reformers certainly aimed at establishing a long lasting constitution that rules for a long time. The fact that the people, through referendum, approve the constitutional text drafted by a popularly elected assembly, guarantees a more inclusive state than the post-colonial states. However, the goal remains the same. The establishment of a constitutional text -this time approved by the people- that subjects political authority to legality, in respect to the constitution’s superiority within the legal order. Moreover, the claim that constitutions contain people’s will becomes questionable when it has to be interpreted and applied. Then constitutional courts, as the guardians of the constitution, actualize the people’s will contained in the constitution, in the light of the new social circumstances. Here, as it was mentioned before, we raised the question whether the president or other popularly elected institutions would not be more legitimate guardians of the constitution. I do not pretend to revive Schmitt’s radicalism, but if the neo-constitutionalist radical wing aims at establishing the absolute sovereignty of the people’s will –in opposition to the law- as an alternative to liberal modernity, it seems more coherent to assume 116 Schmitt’s proposal and to return to a government of will in which the president incarnates the people’s homogenous spirit. However, that will not be a government by constitution, but a government by will. Although Schmitt’s proposal also falls short in overcoming liberal modernity, he did point out some interesting points that may show the inconsistency of the refoundation project. Schmitt diagnoses a sort of liberal false consciousness whereby statues guarantee justice and freedom, however, what they actually do is they cast off the right to resistance: “only through the acceptance of these pairings [law and statue, justice and legality, substance and process] was it possible to subordinate oneself to the rule of law precisely in the name of freedom, remove the right to resistance from the catalogue of liberty rights, and grant to the statue the previously noted unconditional priority.”234 Even if constitutions are the result of the people’s will, their application becomes part of the legal system, and thus, a statute. It becomes a statute as far as it rules the system from above and claims to contain the essential norms of that society. It is a source of justice when the institutional arrangements and principles it has established are generally respected, i.e. when the legal order as a whole is effective235. Finally, the supporters of radical wing also argued against the traditional separation of powers. They claimed that the division of powers in the modern state is an inside system of checks and balances among the three branches but detached from the people. They claim it makes part of the confusion of both legality and legitimacy, and democracy and representative government. Consequently, they argue that the system of checks and balances takes the sovereignty away from citizens –legitimacyby subjecting institutional disputes to the sovereignty of the law -legality. Thus they claim that the establishment of the Electoral Power, inspired by the institution of the Bolivar Electoral Power, and this in the Roman Tribunat retaken by Rousseau, would 234 Schmitt. 2004. op. cit. p. 22. In this sense and regardless Kelsen’s claim of formal validity of norms, I do agree with him when he claims that the validity of the legal system as a whole relies in its general effectiveness. 235 117 bring political control back to the people. However, the supporters of the reformers seem to neglect that Rousseau entrusted to the law the regulation of the Tribunat, as the expression of common will. Similarly, the Electoral Power in Venezuela is subjected to legality because it must comply with the laws enacted by the parliament, the decision handed down by the courts, the decrees issued by the executive, etc. It makes part of the political system under the rule of law, and thus has to comply with the system of legality laid down by the Constitution. Moreover, the Electoral Power itself, contrarily to the 1826 Bolivian constitution236, is a representative organ with a very low representative coefficient, because the Consejo Nacional Electoral is composed of 5 elected members. Hence, the Electoral Power proposal constitutes neither a real objection to the subjection of legitimacy to legality, nor to the confusion of democracy with representative government. Contrarily, it is rooted in the same logic. On one hand, Rousseau himself said that the Tribunat was the guardian of the law and the legislative power237, while on the other hand, its competences and periods of session were to be defined strictly by the law238. I will approach, in the next section, the final remarks of the dissertation in which basically I will hold that the legal and political philosophy underlying the ideology of popular participation in the new Latin American constitutions, is that of modernity. I will show that what characterizes modern political thought is not popular nor legal sovereignty, but the radical break with a comprehensive metaphysical conception of political power. What comes to be dominant after this break is the rejection of natural right and the belief in a posited concept of justice, common good, etc. Strauss reminds us that the rejection of the natural right “is tantamount to saying that all right is positive right, and this means that what is right is determined exclusively by the 236 Cf. Bolivar, S. Mensaje al Congreso, quoted in: Catalano. P. 1991. op. cit. pp. 35-59. Bolivar wanted to go beyond the 100-1 proportion proposed by the Bolivian Constitution, he wanted the electoral power to have 1 person every 10 electors. 237 Rousseau .1976. op. cit. IV-5. p. 394. 238 Rousseau. 1976. op. cit. IV-5. p. 397. 118 legislators and the courts of the various countries”239. I will complement his general idea by adding, “by the people’s will”. 239 Strauss. 1965. op .cit. p. 2. 119 Concluding Remarks: Reviving the Faith in the Modern Project The epistemological underpinning of the methodological approach proposed by this work, a combination between theory -history of political and legal thought- and practice -Latin American neo-constitutionalism-, is the claim that the crisis of the modern state is a crisis of its underlying legal and political philosophy. Indeed, I have presented the transition from ancient to modern legal and political thought by making a great emphasis on the break of modern philosophy with the classic tradition of natural law and the metaphysical conception of political power. Then, I have dug deep into modern legal and political thought to understand the alternative project proposed by the Latin American neo-constitutionalist movement, and especially the re-foundation ambition of the Bolivarian Revolution. They claim to propose an alternative to modern liberal democracy that throughout my analysis I could not find. However, I did find the ideological claim through which, I argue, they pretend to revive the faith in the ideas of modern legal and political thought. They aim at overcoming the crisis of the modern state by denigrating the modern ideas that have allegedly driven the state to crisis, while highlighting the modern ideas that promised to lead to emancipation. 120 After the presentation of the concepts of legality and legitimacy throughout the dissertation, it goes without saying that the arguments held by the supporters of the re-foundation project are absurd. They claim to provide an alternative to modernity by recovering popular sovereignty and democracy to the detriment of legal sovereignty and representative government. However, we have seen that the concepts of popular sovereignty -legitimacy- and legal sovereignty –legality- become only distinguishable with the emergence of modernity. It is the emergence of modern political thought that, by cutting the classic link between metaphysics and politics, and thus, between classic natural law and social order, compels modern philosophy to search new foundations for legal and political authority. It is only from then that the concept of legitimacy, as the desirable attribute of government, and legality as the desirable attribute of the legal system ruling the social order, come into existence and can be confused. Hence, the reformers disregard that the modern political emancipatory project is precisely directed towards the consolidation of democracy and positive law as sources of political and legal authority respectively. This is faithfully proven by the modern tasks of abolishing religion as the source of legal authority, and consequently, aristocracy or monarchy as the form of government. Regarding the three realms -i.e. foundation, structure and functioning- of the Latin American states studied in light of the history of political and legal thought, I conclude the following: The foundation of the state in popular sovereignty is a generalized and accepted idea among modern liberal theorists. All contractualist authors who share the same assumption of man’s natural freedom agree that the origin of political power is only legitimate if it is made upon men’s consent. Thus, the claim of the supporters of the re-foundation project to anchor the pillars of the state in popular legitimacy is in 121 accordance with the modern liberal tradition. It has the assumption that equality and freedom must underpin the construction of the political structure that will govern men in social life. Regarding the structure and functioning of the state, I must concede that modern political philosophy provides different institutional settings in which popular sovereignty is more or less dominant over legal sovereignty. However, I want to remark that the reformers show appreciation for Rousseau, but not for Locke, because they consider the latter to have taken sovereignty away from the people and deposited into the law. Once again they are mistaken. Rousseau claimed that popular sovereignty invested in the law should run the political. He is a theoretician of the confusion between legality and legitimacy, because he subjects political power to law, when the latter is the direct expression of the people’s will. Hence, I argue that both Rousseau and Locke are theorists of the Rechtsstaat. The former sets the popular groundings for the supremacy of the law. The latter, establishes the division of powers as means for guaranteeing respect to the mandates of the law. Although in different ways, both Rousseau and Locke subject political power to the law. i.e. in both of them sovereignty is a legal concept. Moreover, in the Rechtsstaat the political authority is subjected to the presumption of the rationality of the legislator, and thus it seems that it is the people’s reason rather than the people’s will that govern. In contrast, Hobbes and Schmitt hold a political concept of sovereignty. They do not conceive of the political authority to be subjected to law. The sovereign is outside the legal system because he embodies peoples’ will, and thus it is him who transfers legitimacy to law. Hence, I argue that as a consequence of the transition from the metaphysical conception of government to the mere earthly political conception of government, the concept of sovereignty has acquired two different underpinnings. On one hand, and following the tradition of the theorist of the Rechtsstaat, sovereignty is a legal concept that transmits legitimacy from law to political power. On the other hand, 122 inspired mainly in Hobbes, sovereignty is a political concept that transmits legitimacy from the political authority to the law. If the political project aims at placing the sovereign outside the law, they should opt for following Hobbes or Schmitt rather than Rousseau. However, following Schmitt would not guarantee the reformers to be able to provide an alternative to modern political ideas either. Although certainly Schmitt argued against some of the very core ideas of liberalism, Strauss has remarkably noticed the limitation of Schmitt’s criticism to liberal modernity because, precisely, he seems to have followed some of Hobbes teachings. He shows that Schmitt’s political theology goes back to the very core and origin of modern liberalism, i.e. to Hobbes’ concept of the state of nature. According to him, Schmitt undertakes the attack of liberalism from inside, because he takes for granted the origins of man in civil society, when he reproduces the state of nature in his description of contemporary politics. When Hobbes describes the status naturalis as merely the status belli, Strauss240 argues that, in Schmitt’s ideas, it means that the status naturalis is the genuine political status. Hence, while for Hobbes the nature of war consists not in actual conflict but in the “knowing disposition thereto”, so for Schmitt the political relies not on fighting itself, but on a behavior that is determined by this possibility. Finally, the state’s modern institutional arrangements whether inspired in the Rechtsstaat model or not, is characterized by the supremacy of positive right. Indeed we have pointed out that in the modern setting of the state, the sovereign, either inside or outside the legal system, has the authority to posit the law, and thus, to define what is right, just, equal, etc. This feature of modernity is undoubtedly inherited from nominalism. It was the grounds upon which the modern emancipatory project rejected the classic metaphysical order governed by natural ends. Consequently, modern philosophy claimed that man was the center of action. Once 240 Strauss, L. “Notes on Carl Schmitt. The Concept of the Political.” In: Meier Henrich. Carl Schmitt & Leo Strauss. The Hidden Dialogue. Chicago and London. University of Chicago Press. 1995. p. 98. 123 again we see the limitation of the re-foundation project in providing an alternative to political modernity. It goes without mention that the idea of returning man to the center of power -popular sovereignty- so he can define his organization and future, is the deepest claim of the modern ideal of emancipation. Finally, I agree with Villey241 when he criticizes our modern spirit because we have dwelt in this modern conception of law and politics in spite of having strongly contested the philosophical enterprises underpinning their most central concepts. Although we think of Hobbes, Locke, Rousseau, etc. as philosophers with great historical value but insufficient width for a comprehensive explanation of today social life, we continue to reproduce, in the legal and political fields, concepts deeply anchored in modern philosophy. Our theories of law and the state have poorly questioned the centrality occupied by the concepts of absolute sovereignty, absolute property, subjective rights, assimilation of loi and droit, etc. Thus, it seems that the claim of re-founding the state beyond modernity has fallen short. They have misjudged political modernity and have failed to notice that what characterizes modernity is the break with the classic tradition of natural right and the metaphysical conception of politics, rather than the confusion of popular sovereignty with legal sovereignty. I do not argue against liberal democracy, which has been greatly renewed by authors like Rawls, but against the misunderstandings of the modern-liberal tradition. Hence, I do not think the re-foundation project is directed against modernity but it is essentially a way of recovering the faith in modern ideals. Its claims attempt to blur our political and legal notions to make indistinguishable what we approve and disapprove of liberal modernity. Its attacks on modern liberal ideals have to be interpreted as an ideological artifact that seeks the disapproval of our tired imaginary idea of modernity in order to trust in the new ones. In that way, it actually attempts to 241 Villey, M. 2006. op. cit. p. 182. 124 recover our faith in the overall modern project. The re-foundation project is thus not a renewal of the legal and political thought underlying the modern state, but a new ideological artifact of modern thought aiming to recover faith in itself. 125 Bibliography Aristotle. Metaphysics. Cambridge. Harvard University Press. 1969. ---------. The Athenian Constitution. Cambridge. Harvard University Press. 1971. ---------. Politics. Cambridge. Harvard University Press. 1972. ---------. Nicomachean Ethics. Cambridge. Cambridge University Press. 2002. Armstrong, D.M. Nominalism and Realism. 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