A description on the origins
The discussion on constitutional founding often eludes the description of the specific historical conditions and the concrete relations of power that interacted during the approval of a constitution. This silence on the previous set of coercions involved in the constitution-making process plays a role in conferring authority to the constitutional framework, especially within such constitutional contexts in which legitimacy has been erected on the ideas of popular sovereignty and the protection of fundamental rights.
Rights and democratic procedures could be reasonably respected according to constitutional provisions in force, but they were usually absent to some extent in the definition of the political framework that gave birth to the basic rules. They are rather connected to the conflicts and domination structures that made some social groups prevalent upon others (see, for instance, Mann, 1986, pp. 416–449 or Tilly, 1975).
As might be inferred from the remarks already expressed, my analysis of constituent power shall be centred in discerning the historical avatars that lead to the foundation of the constitutional settlement. It will be, thus, eminently, a descriptive approach, a description not related to the norms and their function (as would be developed from a positivist analysis) but to the facts (on the constituent power as de facto residuary power of changing and replacing a constitution, see also Friedrich, 1968, p. 134 and p. 138).
I will not be, in principle, concerned with normative propositions on the constituent power. Such a statement might be understood with a double sense: on the one hand, I will not deal with the phenomenon of the constituent power as a set of rules since, as it has been pointed out, I am reluctant to display any approach to the question through legal categories as presupposing that actions of the constituent drafters are bound to other rules or might be described as bound by other rules. On the other hand, I will not set out any normative theory on constituent power grounded in democratic theory. I will not offer, consequently, any ideal on how the constituent power ought to be expressed within a liberal and democratic framework. Such considerations do not mean that providing historical descriptions on constituent processes under what I call “the genealogical method” are not lacking consequences regarding the legitimacy of the constituent power and, specially, regarding the legitimacy of the liberal and democratic political orders developed within the limits traced by the action of the pouvoir constituant. The description of the circumstances involved in the founding might obviously call for a reinterpretation of the constitutional systems in force, as it has been well assumed by the “social contract theories” devoted to strengthening the justification of the present through the assessment of the past, but, generally, my normative approach (reduced, as we shall see, to only one proposition) will depart from assessments regarding the participation of citizenry, or the quality of such popular involvement.
My approach, thus, might be qualified as empirical, but not in the sense displayed by some authors inspired by some political science techniques of analysis according to which the point would be to depict the conditions involved in constitutional-making processes in order to predict some stability of the constitutional outcome (Ginsburg, Blount, and Elkins, 2009, p. 219; see Ackerman critics on the mentioned analysis, 2019, pp. 39–40). My enquiry, rather, would be concerned, firstly, in observing the influence of violence as a fact given in history during most constitutional transformations (if not all of them) and, secondly, in associating specific expressions of violence historically detected to the exercise of the constituent power that produced some constitutional rules of current liberal democracies.
As has been pointed out, the normative blindness of the research shall have an exception. An absolute normative exception as follows: the legitimacy of an episode of constitutional creation or transformation requires no violence understanding ”violence” as a “subjective one” according to the definition provided by Žižek. The problem, thus, would be how to determine that there had not been such coercion and, in order to answer such a question, I shall propose a kind of categorical imperative: during the formation of the constitutional system, there shall not have been the loss of any human life. No victims at all of political violence. This is what I shall call the “No victims rule.”. Consequently, instead of centring the analysis on an infinite of democratic variables (participation, mobilization, deliberation …) I will focus on a normative horizon only marked by a simple, binary pattern: the presence or the lack of at least one human death.
Before proceeding to sketch the main characteristics of the genealogical approach, I will refer to the two main competing theoretical frameworks which, in my view, have had the most profound impact in the explanation of the constituent supremacy and the possible agency that lies behind the creation of the highest norm. I will thus focus my concerns on elaborating a critique on both positivism, and social contract theories.
Legal positivist theories
The legal positivist analysis on constitutional issues is mainly concerned with the identification of the supreme norm that confers validity to the rest of the norms that compose a legal system. In spite of the vagueness on the use of the term “legal positivism” (Sebok, 1997; Schauer, 1993) it might be possible to identify this doctrine with any theorist willing to insist on distinguishing the category of “law” or “the legal” from that of “morals” or “the moral” (or “reason” and ”reasonable,” Michelman, 1998, p. 69; Schauer, 1993, p. 800). Concerning the questions on the constitution, thus, whereas positivist thought might provide answers to the conflicts between the constitution understood as the supreme rule of the system and the inferior norms of the legal structure, it does not inquire about the justification of constitutional supremacy. That explains why, for instance, according to the positivist insight, the notion of sovereignty can be just related to a norm. Within the legal world the idea of an original, supreme, and independent power is only attributable to a rule, the one that confers validity to the whole system.
According to one of the most sophisticated versions of legal positivism, that is, the one elaborated by Hans Kelsen (Kelsen, 2005, pp. 193–224), the ultimate legal authority is empowered by the basic norm (die Grundnorm) that is not strictly speaking legal but presupposed in legal thinking. As is well known, Kelsen built his legal theory on the idea of a hierarchical legal structure and a strictly procedural relationship.1 The validity of a legal norm was inferred from a higher-order norm, whose own validity, in turn, was established by an appeal to its higher-order norm, and so on. The highest norm in the hierarchical legal system derived its own validity from a direct appeal to the constitution, but the validity of the constitution could not be derived from another positive norm. Thus:
[s]o far as the constitution-establishing authority is looked upon as the highest authority that cannot be regarded as authorized by the norm of a higher authority.
(Kelsen, 2005, p. 199)
The validity of the constitution was derived from such Grundnorm conceived as a hypothetical norm, a logical assumption, the existence and validity of which was needed in order to explain the normative character of the entire legal system, a transcendental-logical condition in which some writers have seen the echoes of theological and metaphysical thought (see, for instance, Batnitzky, 2016, pp. 14–16). Since Kelsen aspired to create a legal science free from moral considerations and to clean legal norms of any traces and influences of social developments, the questions around the origins of the validity of the basic norm itself (the issue of legitimacy) were dismissed in his analysis (or at least in Kelsen’s early writings, see Kalyvas, 2008, p. 104 and Dyzenhaus, 2012, p. 244). He basically argued that discourses on legitimacy were ideological by nature and, thus, irrelevant for statements on the validity of the legal system (Kelsen, 1992, pp. 18–19).
In further developments of his work, Kelsen gave more details on the construction of the ultimate source of validity and, in spite of his struggle to insulate the legal system from politics and power, the facticity of the grounds of the legal system reemerged. Kelsen explained that, at the highest level of the hierarchical structures of norms, the validity was founded by the historically “first constitution2 enacted by an assembly or individual (on this point see Lindhal, 2015, p. 168, Raz, 1974, p. 97, and Roznai, 2017, p. 116). The basic norm would then command “one ought to obey the prescriptions of the historically first constitution.” But which facts brought about the creation of the historically “first constitution”? Kelsen detailed that the historically first constitution was the outcome of replacing a positivist constitution with another positivist constitution without following the conditions of validity prescribed by the former constitution. Kelsen remarked, furthermore, that from the point of view of his insight, the conditions within political life that brought about the replacement of a constitution by another are irrelevant. Facts are only relevant in Kelsen’s positivist theory in order to show if the new constitution is “effective” in the sense that the norms of the legal order are created in conformity with the constitution emerged from the revolution and are by and large applied and obeyed. But, at the end of the day, as Kelsen’s theory critics in the time of the Weimar Republic, such as Schmitt or Heller, suggested,2 facticity was reintroduced into legal theory by the back door and even with a more pressing difficulty: Kelsen’s theory did not provide any criteria in order to assess such facts beyond observing the efficacy of certain actors to impose the basic norm. In other words, what counted was the effectiveness of the coercion able to oblige citizens to obey the legal system. Final statements on rules were, thus, referred to facts of social practice. As Frank Michelman (1998, p. 70) observed in his explanation on the legal positivism approach to constitutionalism, Kelsen’s account (in the same vein as Hart’s) has no other way out but admitting that the normative system’s ultimate foundation can only be a social fact that is not itself a norm.
As is well known, many other authors have at the end of their enquiries concluded that the source of the legal quality of a constitution must be found in some phenomenon other than law (see for instance, Kay, 1984, p. 116 and 1987, p. 58). The latter had been the path taken, for instance, by Wade (1955, p. 196) when describing the validity of a constitution as a matter of political fact or by Hart himself (1994, pp. 103–106) in postulating a legal system’s rule of recognition which provides the ultimate criteria for identifying valid law without being validated by prior positive law (for a more recent version on the positivist analysis concerning the constitutional founding grounded on Hartian terms see Barczentewicz, 2019, p. 77)
Confronted by the facts that are involved in the normative analysis, the theory traced by Kelsen was likely to fall into a contradiction: facts are expelled from the normative analysis but, at the same time, are invoked in order to evaluate the effectiveness of a positive constitution (if it is obeyed or not) and thus identifying the validity of the ultimate normative authority. There is, nonetheless, a silence about the question of why a positive constitution is obeyed within the social realm, not to mention the silence around the question on who dictated the constitution and under which legitimacy it was dictated.
While facts on the empirical experience that show the obedience to a positive constitution in a given society are relevant, facts concerning the question of why this positive constitution is obeyed are not relevant. Kelsen’s approach does not deal with the reasons and experiences that give force to a positive constitution, it declines to explain, for instance, why a positivist constitution was replaced by another or under which circumstances a positivist constitution was issued. In fact, a legal revolution and its specific social, political, and historical circumstances (thus, for example, if the normative change and the higher lawmaking were motivated by a popular mobilization or by a military coup d’état) are irrelevant in order to explore the validity of the constitution. There being no difference between a democratic revolution and a reactionary coup d’état (since there is no discrimination between legitimated and non-legitimated higher laws) the criteria to determine the validity of a constitution just depend on the ability of a group to impose a new constitution, and the people’s compliance with that norm (see on this point Kalyvas, 2008, p. 111).
As it has been advanced, as far as Kelsen’s theory alludes to the facts that reveal the effectiveness of a positivist constitution it can be argued that the idea of the use of force is not completely absent from the positivist analysis. Rather the idea of coercion seems central to this approach and this consideration would be coherent with Kelsen’s theory of norm, according to which norms are prescriptions that include a sanction. Legitimacy conditions in the constitutional founding are not mentioned by Kelsen because he counts that only effectiveness, that is, the ability to enforce a norm through violence, is relevant in order to identify norm’s supremacy.3 In the same strand, nevertheless, centring the debate on the validity conditions of a norm, and referring to the ultimate legal authority to a presupposed norm beyond the historical facts, Kelsen’s positivism declines to enter into the question of the specific relations of power that lie behind the constitutional founding and, thus, he doesn’t give account either of the positivist constitution origins or of the role of coercion in the definition of a norm’s supremacy.
Similar remarks can be mentioned around positivist contributions coming from the common law tradition such as the theory of H.L.A. Hart about the rule of recognition and the foundations of a legal system (1994, pp. 100–110). The rule of recognition would be, according to Hart, a secondary rule accepted and used for the identification of primary rules of obligation and, thus, it would provide the criteria by which the validity of other rules of the system is assessed. As long as the rule of recognition establishes the supreme criterion of validity it could be described as the ultimate rule of the legal system.
Unlike Kelsen’s basic norm, characterized as a presupposed norm whose validity cannot be demonstrated, but “assumed” or “postulated,” Hart’s rule of recognition is intertwined with the fact that a social group normally identifies the law by reference to certain criteria.4 As Hart asserts, whether as an external statement given by an observer of a social group’s behaviour or as an internal statement coming from a member of the system, the existence of the rule of recognition is a matter of fact (1994, p. 110). What is outside the scope of Hart’s analysis, in a similar strand to Kelsen’s basic norm theory, are, nevertheless, the causes of the fact that allow the existence of the rule of recognition to be ascertained: why, in other words, the rule of recognition is followed by a social group to identify the primary rules of obligation.
As we see, then, most prominent positivist theories are concerned with the facts only in order to confirm the effectiveness of the positivist constitution and the presupposed basic norm that confers validity to the former (as in Kelsen’s theory) or to identify the criteria of validity that are followed by the members of a social community (as in Hart’s theory on the determination of the existence of the rule of recognition). Even though the idea of coercion underlies the explanation of the basic norm’s effectiveness or the rule of recognition’s existence, both Kelsen and Hart refuse to explore the particular facts that are brought about the foundation of the legal system and that support the general obedience of the primary rules. Coercion factors that emerged in the construction of the constitutional framework are not considered although the stipulation of a sanction (as an expression of the physical force) is at the core of Kelsen’s and Hart’s theories on the primary rules and in their profound insight on the question of why a rule is obeyed. Both Kelsen’s and Hart’s approaches, on the other hand, reject any connection with moral or any other values in explaining the effectiveness of a legal system within a social group.5
Positivism, in summary, does not provide any information on the facts that lie behind the supremacy of the norm that confers validity to the legal system (see Arato, 1995–1996, p. 191). Both Kelsen’s version and Hart’s one, renounce any depiction of the factual conditions that construct the norm’s supremacy. Since positivism is mainly committed to analyzing the norms and their dynamic it consciously departs ...
