Sociology of Constitutions

A Paradoxical Perspective

Alberto Febbrajo, Giancarlo Corsi

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138497566
• eBook ISBN: 9781317052920
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This collection brings together some of the most influential sociologists of law to confront the challenges of current transnational constitutionalism. It shows the constitution appearing in a new light: no longer as an essential factor of unity and stabilisation but as a potential defence of pluralism and innovation.

The first part of the book is devoted to the analysis of the concept of constitution, highlighting the elements that can contribute from a socio-legal perspective, to clarifying the principle meanings attributed to the constitution. The study goes on to analyse some concrete aspects of the functioning of constitutions in contemporary society. In applying Luhmann's General Systems Theory to a comparative analysis of the concept of constitution, the work contributes to a better understanding of this traditional concept in both its institutionalised and functional aspects.

Defining the constitution's contents and functions both at the conceptual level and by taking empirical issues of particular comparative interest into account, this study will be of importance to scholars and students of sociology of law, sociology of politics and comparative public law.

Part I

1 On paradoxes in constitutions

Giancarlo Corsi

Foreword

If sociology is the science that studies the improbability of social structures at the very moment when they have become thoroughly familiar and normal, then the constitution, given its ambiguous role in the legal order, should be an ideal terrain for socio-legal research. Constitutions are a very recent invention that have spread across the world, asserting themselves with surprising speed and acquiring a quasi-sacred status that defies explanation, but we have not to forget that they are an artificial normative instrument produced by decisions and whose every part is – at least in principle – subject to amendment.¹

Despite this the constitution is a topic that is not sufficiently analysed. It is only in recent years that studies have been published that refer constitution not only to legal theory or to politology, but also to sociology. Those of these studies that are more widely known and discussed focus primarily on the constitution’s function, in particular on the issue of the legitimation of the political power,² on the foundations of the law and on the role played by the constitution in regulating relations between the law and other sectors of society.³ Many of these studies share doubts about the role of the state and the relevance that it assumes in international or transnational organisations, going well beyond the classical territorial borders established by nation states and local jurisdictions.⁴

The specific nature of these phenomena is often observed starting out not from the normative orientation typical of legal approaches in the strict sense of the term, or from the central role played by the institutions and the organisational apparatuses for more typically politological analyses, but from unquestioned ideological approaches that are not justified for their empirical scope.⁵ That is why it is advisable to underline that a sociology of constitution does not have the task of providing the judge or political action with indications about how to operate. Legal theory is ultimately no more than a part of the system of law, which is where its meaning can be found, just as politology is ultimately no more than a part of the system of politics. This is therefore a question of differentiating society, which involves distinct functions for the various subsystems, implies also different problems, concepts and theoretical constructions. In terms of research, then, we can stress the interdisciplinarity or ‘transdisciplinarity’ of a study of the constitution that takes the form of a rather clear case of research that necessarily involves different perspectives.⁶

This diversity becomes apparent in the way that the constitution’s form is analysed.

The constitution is a self-legitimising text that establishes its own pre-eminent position (paramount law) over ordinary law. Starting out from this position, then, the constitution also has to talk about itself, about its own validity and about how it was constructed. It has to establish the criteria governing its own amendment and make due provision for exceptions that it imposes on itself, should the political situation require it (e.g. in the case of a state of emergency). It has to establish fundamental rights that are not just an historically recent invention, but are also the product of decisions, so contingent like any other decision. At closer sight this means that they are fundamental because they are not necessary. On the political side, the constitution provides that the power to decide who will govern is vested in those who are governed and establishes criteria for legitimising political action, so also itself. This calls for a non-material sovereign, with no communicative address, such as the people. The list could continue: these are just the most evident and more frequently studied cases.

I shall here attempt to analyse the constitution, starting from the structure of its text, its internal articulation and the contents that make it one of the more typical structures of modern systems of law and of politics. Starting from the premise of systems theory, which holds that the constitution’s function is not to provide foundations or to ‘constitute’, but to ‘regulate’ the relations between law and politics, the thesis that I shall propose is that this can only be achieved in an openly circular, tautological and thus inherently paradoxical manner. That is, in fact, the only way that the constitution allows both legal and political systems to face towards the future and not back towards the past, i.e. to operate on the basis of their own contingency and so not to identify with any specific structure. And that is the only way that law and politics can provide a foundation in the absence of existing foundations.

Why paradoxes?

Paradoxes are of interest to sociology not only because of the logical problems they generate. As has been demonstrated by abstract disciplines, such as systems theory, cybernetics and mathematics,⁷ paradoxes always come about when an observer is self-referential; in other words, when he can observe himself. This is always the case of social systems. Paradoxes can come about when texts take themselves into consideration, as is of course the case of constitutions.⁸ In general, a paradox is found when a distinction is made for itself. If a distinction is drawn between good and evil, for example, it is – or ought to be – inevitable that we ask ourselves whether drawing such a distinction is in itself good or evil. And that is a question to which no answer can be given.

One of this argument’s underlying premises is that every distinction, without exception, is always the construct of an observer.⁹ The observer cannot come across his own distinctions ‘in nature’, but has to elaborate them on the basis of the resources and the structures he has available.¹⁰ For this reason, no observer can avoid asking himself what unit of distinction he is using, a question that is fated to end up in a short circuit. When that happens, the observer can do one of two things: he can drop it and observe something else, or he can become creative¹¹ – for example by inventing the constitution, if the old structures, such as natural law, have ceased to be functional. But whatever solution he chooses, it naturally postpones the paradox: it is just another paradoxical form that will have to be managed in a new form, so as to avoid being blocked by the short circuit, for example by replacing natural law with fundamental rights.

This is an important point that is not stressed enough in the literature:¹² paradoxes cannot be avoided, as any solution sought will bring them up again in any case, just in a different form. The problem is how to find forms that are compatible with existing structures, ultimately with the given societal context, and ‘compatible’ means that they succeed in concealing the paradox that would otherwise continuously block the communication’s development.

What this means is particularly clear in the case of a constitution. Let’s take the classical case of the constituent power. The constituent power’s paradox goes beyond the traditional paradox of political theory, which asks whether the person who holds the power is subject to the same limitations that he imposes on others. The problem here is how to justify a power that arrogates the right to constitute the state and so also itself: gone are the days when the solution could be that of an investiture whose origin is natural or divine, since modernity has explicitly set such yardsticks aside. The best solution for achieving a functional differentiation of society¹³ is therefore to distinguish between the constituent power and the constituted power. And yet this is clearly a sleight of hand: the difference only comes about after the constituent process, and it really ought to be admitted that the only true sovereign is the constituent power itself – i.e. the power that asserts that it is power without any additional adjectives.¹⁴ This in turn means that everything that can be said about how the power is exercised is a consequence of a short circuit. Then we can be creative and invent democracy, i.e. a form of government where the sovereign people choose whom they want to govern them.¹⁵ One paradox replaces another paradox, but in a way that is compatible with the requirements of modern politics, even though in democracy we can chose a dictatorship (see Europe’s twentieth-century fascisms) or we can choose not to choose at all, with the result of a statistically improvable, but not impossible, parity (such as the US presidential elections in 2000).

On the strictly legal side, we come across another typical paradox when we ask on the basis of what law it is that the law distinguishes between right and wrong.¹⁶ Once again, the problem is relatively simple: both sides of the distinction are products of the same system. It is not possible to be in the right unless someone else is in the wrong. This is probably one of the reasons why there exists such a concept as the prohibition of justice denied: the judge is obliged to decide, even when the information available to him is not sufficient to enable him to do so. An observer could ask whether an obliged decision is still a decision.¹⁷ But that is how the courts operate and it is to this that we can connect if we want to understand under what conditions we can be in the right or the wrong in a dispute. Once again in this case, the solution is both a paradox and at the same time a stimulus to construct structures that are more or less flexible and compatible with society’s evolution.

To summarise: paradoxes are inherent in every kind of observation and so in every kind of structure. Those who go in search of the essence, the fundament, the prime element, find a paradox, and paradoxes block observation, because they do not allow us to indicate anything without also indicating its opposite. The observer – every observer – always comes up against ‘hard cases’ or ‘tragic choices’ with no solution.¹⁸

In the next two paragraphs, I intend to analyse two aspects typical of any constitution, so as to demonstrate that their paradoxical formulation is actually the condition for the constitution to function and that they can only become a benchmark for the law and for politics if they are paradoxical. These two aspects are fundamental rights and legitimacy.

The aspecificity of fundamental rights

Constitutional texts typically comprise at least two parts. While the second of these is usually devoted to the ‘form of the state’ and the procedures for amending the constitution (and here it is clear that the constitution is talking about itself), the first groups together references to values and to fundamental rights. If we consider what the two parts refer to, we can say that the constitution distinguishes between referring to itself (in the second part) and referring to factors that it does not determine and that are placed (we ought to say: that the constitution places) outside and above itself (in the first part). In this sense, there is a demarcation towards the inside and towards the outside: towards the inside on the level of decision-making and procedural structures, for which the constitution takes on responsibility; towards the outside in reference to factors that evade decisions and are proposed as ‘quasi’ natural yardsticks that legitimate themselves and are referred to without being questioned.

This demarcation towards the outside shows some interesting idiosyncrasies. In fact, the first formulations of the rights that were in due course to become constitutional rights are still to a certain extent connected to traditional, pre-modern societal structures. Such terms as ‘subjects’ or ‘individuals’ originally referred to those who took part in society freely, above all as landowners: certain rights, such as franchise, were formulated primarily with them in mind (Stourzh 1989b). Similarly, such values as freedom and equality were devised for...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of tables
• List of contributors
• Introduction
• Part I
• Part II
• Appendix
• Index