Legal proceduralization and the fictions of the political
Chris Thornhill
1. Introduction: An idea of politics
Central to modern democracy is a concept of politics, or of the political. This is perhaps no surprise, as in many ways the birth of democracy and the emergence of a determinately political dimension in society are closely correlated. If we trace the origins of modern democracy to the processes of constitutional revolution and systemic transformation that occurred in the USA and France in the later eighteenth century, it is evident that the first tentative construction of an order of democratic governance was integrally linked to the consolidation of a distinctively political mode of societal organization.
This is visible, in particular, in France, where the organizational structure of society prior to 1789 had been based, to a large degree, in pluralistic patterns of corporatistic self-administration, in which each functional sector contained a distinct institutional regime for ordering its exchanges, usually centred around highly localized institutions. In most instances, this societal regime was concentrated in the statutes and judicial bodies relating to professional corporations and guilds, whose regulatory authority was binding in a designated economic sector.[1] Generally, the power of corporations obviated the emergence of obviously political patterns of governance in society. In the medieval period, to be sure, larger guilds and corporations had in some instances been able to establish control of entire municipalities, and, albeit infrequently, corporations became dominant sources of political authority.[2] In some cases, moreover, guilds controlled professions whose influence extended across sectoral boundaries, so that their factual authority reached beyond the strict confines of their given functional focus.[3] Broadly speaking, however, societies marked by powerful guilds and corporations lacked preconditions for the abstraction of a distinctively political societal domain.[4]
Notably, one consequence of the power of sectoral/professional bodies in early modern Europe was that most patterns of coercion in society were partly embedded in economic functions. For most people, in fact, the economic authority exercised by an employer or guildmaster at the place of work was linked to, or in fact inseparable from, powers of sanction in other functional spheres. For example, economic authority overlapped with powers of spiritual judgement (many guilds had churches), with powers of legal punishment (most guilds had courts), with powers of fiscal extraction (guilds could raise taxes), with powers of educational discipline (many guilds contained educational facilities, at least relating to professional skills), and with powers of moral-familial guidance (this was implicit in judicial, religious, and pedagogic authority). In other words, the structure of social motivation in early modern society was pervasively undifferentiated, and, in many interactions, quite different modes of authorization and powers of sanction or influence were embodied in the same person.[5] A further consequence of the power of societal/professional bodies was that early modern society as a whole was marked by a patchwork or pluralistic pattern of legal regulation, and each functional domain, containing its own corporatistic order, was relatively closed to external functional influence. Importantly, this legal pluralism was not solely of a horizontal nature; it also militated against the establishment of any clearly centralized or vertical normative hierarchy in society. In pre-revolutionary France, for example, it was accepted that the monarchy itself, like other social status groups, was nothing more than a corporation, and its authority pertained to a restricted set of interactions. Tellingly, in the centuries prior to the revolutionary period, both in France and in other parts of Europe, there had been lengthy attempts by monarchical and imperial families to suppress the guilds, in order to consolidate monarchical authority as a centralized source of societal obligation. However, these endeavours had only met with limited success.[6]
This societal background determined both the early emergence of democratic governmental institutions and the consolidation of a distinctive modern concept of politics, both of which processes assumed radical expression in the revolutionary events of the late eighteenth century.
First, the transformative processes that were concentrated around the American and French Revolutions reflected a deep functional logic of political differentiation. The revolutionaries in Versailles in 1789, notably, insisted that traditional bearers of structural authority, especially guilds, should be abolished, and that all access to governmental power for non-political actors and by non-political avenues should be prohibited.[7] In this respect, the revolutionaries applied a strictly differentiated definition of politics to the society which they were attempting to re-design, and they imagined society as possessing a political dimension that was manifestly detached from other functional arenas. In addition, the revolutionaries in both France and America claimed that certain spheres of social interaction had to be insulated against the functional reach of the newly emerging Republican state. As a result, they drafted constitutions that placed normative limits on the power of the state to intervene in activities that were not deemed to possess an inherently political quality. A clearly differentiated construction of politics can thus also be observed in the importance attached to constitutional rights in the institutional imagination of eighteenth-century revolutionaries, in both France and America. In both these revolutionary settings, constitutional rights were constructed as instruments to block any uncontrolled or amorphous politicization of society, and to constrain the political dimension of society to the regulation of functions that were intrinsically political: that is, functions not linked to economic interaction, to scientific inquiry, to educational initiatives, or to religious practices. In both contexts, constitutional provisions were made for rights of free entry into economic contracts, free mobility and exchange of labour, free expression of opinion, free access to knowledge, freedom of confessional disposition, etc, and these provisions meant that relatively hard boundaries were cemented between the newly differentiated domain of politics and other functional spheres in society.[8] In both constitutional revolutions, therefore, constitutional rights were employed as instruments of political differentiation, such that, alongside politics, other modes of exchange were also constructed in relatively autonomous, differentiated form. In both respects, revolutionary constitutionalism propelled processes of differentiation which aimed to eradicate the diffuse corporatistic structure of early modern society, which had revolved around patterns of cross-sectoral, status-based recognition, and which had obstructed both the abstraction of a political system and the wider trajectory of socio-functional differentiation.
Second, the transformative processes expressed in the constitutional revolutions of the eighteenth century involved, not only a strict disarticulation of society’s political functions, but also, as part of the same process of differentiation, a systematization of the sources of political authority in society. In particular, in separating the functional domain of politics from other spheres of exchange, the constitutionalists of the revolutionary period also sought to construct a political system whose authority could be generalized across all society, albeit only in designated functional spheres, and which was not restricted by sectorally embedded, privatistic counterweights. In other words, the revolutionaries of the late Enlightenment attempted to bring towards a conclusion the earlier endeavours of ruling dynasties to establish institutions with centralized powers of sanction, and to delineate certain competences (legislative, fiscal and judicial) as belonging exclusively to holders of distinctively political authority, and as applicable across all society. Indeed, the attempt to create a generalized political system was inextricably linked to the attempt to create a differentiated political system. In this endeavour, in particular, revolutionary theorists placed great emphasis on the capacity of a constitution to buttress, rationalize, and centralize the authority of the political system. The creation of a constitution was expected to signal that, insofar as it acted in conformity with constitutionally enshrined norms, the political system possessed greater legitimacy than all other institutions, and other institutions in fact presupposed a constitutional basis for their own subsidiary authority. As a constitutional state, therefore, the political system was authorized to assume control of the most important functions in society, and, vitally, it was given power to remove legal structures not founded in higher constitutional norms.[9] This idea of the constitution made it possible for constitutionally legitimated rulers to presume greater distinction than persons whose authority was rooted in sectoral or corporatistic structures, and to impose a uniform legal order on society as a whole, removing the pluralistic remnants of society’s pre-constitutional form. For this reason, the revolutionary constitutions of the late eighteenth century began to move, however uncertainly, towards that idea that the constitution, as higher law, should be subject to some degree of entrenchment, so that the normative superiority of the political system could be internally perpetuated.[10]
In this respect, the revolutionaries of the late Enlightenment relied on a particular concept of politics in order to promote the formation of a differentiated political system, containing generalizable reserves of political power. Notably, in articulating a description of the political system as authorized by higher law or even highest law, the revolutionaries in France and the USA set out the theory that, to assume constitutional rank, law had to be created directly by the people. That is, they claimed that constitutional law acquires higher-order standing to the degree that it reflects the immediate enactment of the collective will of the people, acting as popular sovereign or as constituent power. This theory involved the assumption that there can be no binding law prior to the first enactment of the constituent power: close to the standing of the social contract in earlier theories of political legitimacy, the constituent power creates the constitution of the state without restriction by any pre-existing norms, such that all constitutional norms flow originally from the political force of the constituent power.[11] In this doctrine, theorists of the revolutionary period attempted to found the political system in categorically political construction of legitimacy. They implied that, to assume genuine and generalized authority for their functions, the political institutions of society had to trace their authority to a distinctively political founding act: to an enactment of the higher or general will of the people.[12]
Through the revolutions of the eighteenth century, in sum, a concept of politics as a distinctively authorized societal domain, based in collectively defined interests of society as a whole, began to emerge. This concept began to assume material reality through two systemic processes, which are vital to the form of modern society: in the differentiation of the political system, and in the generalization of political power, in certain domains, as a monopolistic and universal resource. At the epicentre of the distinctively generalized political structure of modern society is a systemic reliance on the concept of a primary political will, which is prior, or external, to other institutional structures. The differentiation and generalization of the political system of contemporary society originally presupposed a radical moment of political will formation at its core: this political moment formed the premise for the basic structure of modern society as a whole.
2. Politics and the matrix of legal-political reflection
Analysis of these founding constructions of the modern political system became fundamental to the different lines of legal and political reflection that appeared after the revolutionary era, through the nineteenth century. In the longer wake of the revolutionary period, in fact, legal and political theory was pervasively shaped by the sense that the constitutional principles that first defined the modern political system were not entirely plausible, and not completely real, and they were unable abidingly to sustain the political system in its modern generalized form. In particular, different theoretical lineages that developed through the nineteenth century converged around the idea that the volitional concept of politics that underpinned the revolutionary constitutions had been constructed on simplified, rather fictitious, preconditions, and it provided only a fragile basis for a differentiated political order. This was of course linked to the fact that, after the revolutionary period, the normative and volitional principles of the radical Enlightenment soon lost conceptual authority. This was clearly reflected at the practical level of institutional construction, as, in Europe, very few constitutional states outlived the period of revolution, and, after 1815, the architecture of the democratic constitutional state was, almost without exception, eradicated.[13] Indeed, most European states only began to acquire abidingly democratic constitutions around 1870. As a result, legal-political analysis became increasingly polarized around rival reactions to the fate of revolutionary constitutionalism, and around rival attempts to re-articulate, and more persuasively to elucidate, the founding sources of society’s political structure.
2(i) Positivism
Of course, many constitutional theorists working in the wake of 1789 simply rejected the principle of a distinctly abstracted political system, and they were content to re-imagine the legitimacy of the governance system of society in reactionary, even religious categories.[14] Alongside this, however, in the longer wake of the revolutionary period, there emerged certain lines of legal-political reflection, which engaged in more nuanced manner with the implications of classical constitutionalism, and which, while questioning the theoretical basis of revolutionary constitutional ideals, sought to reconceive constitutional principles on new foundations, and to provide new legitimational premises for the political system. Initially salient amongst such theorists were historicists, who argued that the experiments in revolutionary constitutionalism had proved short-lived because constitutions created at this time were abstractly implanted in society, and they lacked support through historically embedded motivations.[15] More abidingly important in this line of reflection were the theorists now classified as positivists, whose ideas began to take shape soon after 1789. On one hand, positivists clearly accepted the formation of a differentiated, generalized political system in society, and they recognized that the political system presupposed distinct legitimational principles. However, they also implied that the founding experiments of the radical Enlightenment had miscarried because they had placed excessive trust in a projective or even fictitious construction of the political will of the people, reflected in a simple expression of constituent power.
In setting out this critique, the positivists did not reject constitutionalism as a primary mode of political-systemic organization. At one level, they followed the gradual, progressive approach of historicist thinkers, arguing that more reliable and effectively obligatory constitutional norms could be extracted from the national histories of different populations. For example, at the origins of positivism,[16] Gustav Hugo argued that the ‘legal truths’ of a particular people cannot be defined a priori as ‘pure, general, or necessary’. Instead, he explained, valid laws can only ‘be learned historically, from facts’; they are ‘empirical’, and they are ‘different depending on time and place’,[17] and they rest on the ‘spirit of positive law’.[18] On this basis, early positivists argued that the constitutional order of the state can never be reliably formed by express acts of rational political will formation. To be sure, unlike positivists of the twentieth century, earlier exponents of positivism claimed that the constitution is always created by a state, and a constitution presupposes the existence of a political order, embodying a personal will, in order to assume obligatory force.[19] Despite this, nonetheless, early positivists claimed that the constitution and other laws obtain their factual authority, not as the results of determinate, pre-legal political acts, but merely as facts of law, which only become meaningful as positively interpretable legal phenomena. Constitutional norms, therefore, acquire meaning exclusively by virtue of their positive-legal form, such that the political system of society is founded and authorized, not by any factual or societal will, but simply by the law, as it is objectively given. This was again reflected in the thought of Hugo, who argued that the constitutional personality of the state should be construed, in positivist terms, not as an ethical or political personality, but as a legal or juridical personality, defined solely by the law. Indeed, for Hugo, the validity of a law, whether private or public, always presupposes that there are other laws to which this law refers and is related, and legal dilemmas can only be resolved (in fact, they can only be posed) where a formal ‘legal condition’, extracted from a particular legal tradition, already exists.[20] Legitimate law, therefore, cannot be derived from supra-positive legal principles or from primary volitional acts, and it depends on the ‘particular constitution’ of positive law.[21]