PHILOSOPHY on this theme with reference to the legal

 

 

 

 

PHILOSOPHY OF LAW

 

 

 

 

Written
by EL OUARRAK Iman

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  Presented to Professor VAN DER WALT Johan
Willem Gous

     Chosen Language: English

“The people is the source of law and law is
the expression of the will of the people”

Write an essay on this theme with reference to the
legal theories of Carl Schmitt and Hans Kelsen

 

 

 

 

 

 

 

 

 

In
Western societies, democracy as a form of government has become a stable
notion. Democracy was born in Greece, and as known, its meaning is « the rule of the
people » and it is a system in which the
sovereignty is exercised, indirectly or directly, by the people.

As time went
by, the idea of democracy got restricted and absolute monarchs took power. The
year 1789, however, changed the course of historical events: the French
Revolution happened. This revolutionary riot allowed the French, and later on,
Europeans to erase the concept of “absolutism” and dive in the idea of
“freedom”, “sovereignty of the people” by suffocating the idea of “L’état c’est
moi”. The “moi”, who was Louis XIV in France, became “l’état c’est le peuple”.

History, however, is a cycle and democracy,
as a human creation, in a certain historical moment, was meant to be demolished
as the totalitarianism of the 20th century approached. It is in this
historic and political scenario, that two of the most important protagonists of
juridical-political thinking can be situated: Kelsen and Carl Schmitt. Their
theories are essential in order to categorize the importance of the
Constitution and of democracy and they can be advantageous to resonate on this
statement: “The people is the source of law and law
is the expression of the will of the people.”

Philosophers in this political scenario, who
witnessed the downfall of the Weimarer
Republik followed by the well-known devastating epilogue, had the
possibility of meditating on serious themes, such as, for instance, democracy.
Kelsen and Schmitt reflected on the concept of democracy, and both were able to
advance two different conceptions, that, although matured in the same
historical and political period, came to different conclusions that are anywise,
opposite. It is in this opposition, anyhow, that a certain irreconcilable
unilaterality might be observed.

Democracy certainly flourished during the 20th.
It is in this time that the ideas of political and economic liberalism began
playing a major role, but it is also in this time, that democracy witness its
notorious wilting due to the establishment of communist and Nazi regimes. The
democratic form of government, being compared to the totalitarianisms of the 20th
century, presents already a clear-cut differentiation between the theory of
Kelsen and of Schmitt. For the former, visualizing the constructive elements of
the democratic ideas, is a tool able to render concrete a doctrinal answer to
the representative crisis of the parliamentary modalities, that are indicated
as being the most indicated for the functioning of democracy1.
For the latter, the task is visualizing and taking into account the limits
present inside of parliamentary system, the forms of consent and the expression
of political participation in order to define a concept of democracy that can
remain standing even without the previous aspects stated, also by including the
idea of an authoritarian turn.

Both philosophers, nevertheless, share a common
problem: founding a theoretical basis of the political form of democracy as an
abstract doctrinal model able to have a conceptual and realistic elaboration.

Kelsen explains
what democracy deals with and also articulates its weaknesses. He criticizes
the ideology by putting in place two different concepts: ideal democracy and
real democracy2.
The Austrian author strongly recognizes the differences between these two ideas
and consider that one must not be confused with the other and that ideal
thinking and real thinking do not coincide. He visualizes the organic moments
of a possible idea of democracy, freedom and formal equality by also
illustrating the process of modification needed in order to go from an ideal
understating of democracy, to a real understanding of democracy. It is clearly
a cogent analysis aimed to reflect on democracy. He bears in mind the notion of
“people”  and “popular government”, the
contraposition between forms of direct and indirect democracy, the relative
problem of political representation, the characterization of the parliament and
the relation between majority and minority, the role of political parties, the
form of production of law and the expression of consensus and political
participation.

Synthetically,
Kelsen considers that there is no common agreement among the people, but only a
plurality of values in conflict. “The rule of the majority, so characteristic
of democracy, is distinguished from ever sort of rule in that is not only –
according to its innermost essence—conceptually requires an opposition, the
minority, but also recognizes and protects it politically through basic rights
and the principle of proportionality”3.

By
these means, a democratic model is visualized and as a form of government, it
includes particular political contents indifferently by their specificity.   A form of government with rules and
procedures that establish how decisions must be taken, more than wanting to
establish which decisions have to be taken and what decisions do not have to be
taken, and that anyways considers of being able to include its own dialectic
political form, as well as sustaining itself as a form of democracy, and
entrusting to the function and to the procedural mechanism.

The
aim is not to constitute a limit to the political form that needs to represent
the political dimension and its Weltaschauung4:
political relativism and gnoseological relativism of modern thinking unite.

For
Schmitt, also, the bitterness of his time took him to define a renovated model
of democracy that is able to create a dialogue with new social assortment. He
agrees that there cannot be common good in a reality of heterogeneous masses,
in which values transform in instruments to political battles.

As
Kelsen, he analyzes the democratic form and traces out its characterizing
elements. He points out the problem of its foundation and its consequences: he
sets the mechanisms through which democracy lives and manifests itself, the
political subjectivity that it embodies by finally claiming that there is a way
to conjugate the authentic form of democracy, with the state of the 20th
century, yet in a different way from Kelsen.

Kelsen
clearly underlines the importance of freedom and equality in a democratic
system, for for Schmitt it is only substantial equality that is essential. The
idea of democracy, in this schmittian case, is substantial. Schmitt gives an
essential role to politics, and he reveals that it is  crucial the choice of a precise political
content that animates the democratic form and identifies the collective
appartenance, excluding at the same time anyone who does not identify with this
entity. Kelsen underlines that there is this relation of majority and minority,
but for Schmitt, that minority might be the enemy, and therefore must be
destroyed. In “Concept of the Political”, Schmitt creates
a distinction between friend and enemy. The political represents an antagonist,
an extreme one. The enemy is not an entity that is fought against on an
economic elevel, for instance, or somebody that we deeply hate. The enemy is
public. The political enemy is the “other”, the foreign, with whom there can be
conflicts, but this does not mean that the political sphere coincides with war:
in many case, this eneminity can be solved by the political. The State is a decisive
entity because the “jus belli” belongs to it: it is only this factor that can
determine the enemy, promote war etc. The State is, therefore, superior to any
other political or social entity, so that classes or social groups that pray
the role of the antagonists can exist until they become a threat to established
the legal order. The primary function of the State, is not to express in waging
war or controlling people’s private life, but more in establishing peace, order
and security. In extreme cases, it is also this State entity that decides which
is the enemy and declare that a determined phenomenon or group is the threat to
the existence of the State. However, interestingly, Schmitt considers that when
the conflict friend-enemy becomes an armed conflict, the State is not a
decisive political entity anymore, and a civil war follows up and it is in this
scenario that each group makes its enemy-friend distinction stronger. In some
kind of way, it is more or less what Hegel thinks. He also gives this importance
to the State and considers it the expression of God’s will put on Earth. The
State in Hegel’s philosophy determines everything, however, Hegel gives a major
importance to war, as he considers it to be that one element that saves
humanity from putrefaction. Schmitt, also, considers that it is essential to
have one political entity that embodies the State and is able to keep peace and
order. Of course, this is a conception developed in the scenario of the Weimar
Republic, but it is thanks to this aspect, that Schmitt sees as inevitable to
have a person that establishes order, order that did not exist in the Weimar
Republic. Kelsen, therefore,
alienates himself from the idea of identification with a principle and a
relative subjectivity, whereas, Schmitt identify a form of government that
works in function of a political unity, expressed by a sovereign power.

The
Austrian author creates a procedural democracy that aims at realizing its
principles, such as freedom and equality, and the concrete modalities for their
realization, due also to the dialectic minority-majority. He concludes that the
democratic structure can only articulate itself when there is general consent.

Schmitt,
anyhow, does not consider the idea of freedom, and equality, because, maybe, too
idealistic. He is more radical, but at the same time, more concrete. His model
of democracy finds the basis in the principle of substantial equality, which
becomes  its only constitutive moment,
and which, at the the same time, can live without the principle of freedom and
recognizes the individual, only as a part of a political collective identity.

 

To
the idea of democracy constitution is associated. Jurists and constitutional
studies considered that the top of every democratic jurisdictional order there
is the constitution.

Kelsen
and Schmitt definitely register the association present between constitution
and democratic government, and in this case, once more, a development of
different opposed conceptions is present.

Kelsen
reckons the existence of two different kinds of constitutions5
: the first one is linked to the principles that regulate the system and the
legislative procedures, whereas the second is referred to the fundamental
rights of individuals.

The
constitution has a double soul in this case: procedural soul and and
substantial soul. The result of this constitution is a modifiable constitution
that can be adjusted under precise procedures foreseen by the constitution
itself.

Schmitt
reflects on the elaboration of the concept of constitution, more precisely, by
the positive concept of constitution  and
he does so by criticizing the new modern state and its representative
modalities. In consequence, he ends up highlighting the political elements
present in every constitution and finds it inevitable to find a link between
constitution intended as “form of the forms”, which is the original form of the legal system and
the substantial dimension, political of the State and therefore, to the extent
that a democratic constitution will never be able to base itself on a political
determination. The democracy of substantial identity is firmly established in
its constitution and the political choice of the sovereign people undermines
the entire legal order of the democratic state, starting from its fundamental
norm.

The
kind of perspective that distinguished the reading of the democratic form, with
its relative consequence, seems to be proposed once again: Kelsen, when
analyzing the democratic form, privileges the procedural dimension rather than
the substantial one and he designs a constitutional model that prefers its
abstract purity in regards to the politicity of democracy. However, it is
remarkable that there is no “choice of democracy” at
manifests itself in the full assumption of its own democratic political
content, in the lack of awareness that the form dies without a minimum of consubstantial
content. On the other hand, the Schmittian model, expresses a more radical
conscience on the link between formal and material and he comprehends the
necessary substantial declination that the constitution needs to have, if
democratic, but on the other side the focus on the political linked to the
constitution seems to be excessive. In kelsen there is a lack of a choice of
identity, but on the other hand, in Schmitt this excessive identity between
politics and constitution gives no space to the autonomy of the constitution. In
the case of the democratic principle, the constitution is firmly bound to that
model of democracy of identity, of substantial homogeneity, which in the end
entails a significant compression of the role of mediation of law between
differentiated instances, with the lack of individual recognition. dual
participation in politics also in terms of dissent, in an authoritarian drift
that will come to contradict the same principle of democratic identity.

There
has been talk of a “guarantee constitution” and also of a
“tolerant constitution” regarding Kelsen, and of “order
constitution” and

“absolute
constitution”. For Schmitt In the contrast between the characterization of
guarantee and that of order seems to express the difficulties of the
post-liberal constitutional state to continue to represent and allow the unity
of civil society and, at the same time, the internal dialectic of the
confrontation of the instances and different social subjects, in the face of
the profound changes resulting from the advent of mass society.

 

On
the splitting of these two elements Kelsen and Schmitt operate: the former is
the bearer of an idea of ??constitution that
essentially guarantees the free play of the social and political parties, which
shuns any material definition of the common good and takes care to define the
logic of the rules and the consequent rational normative structure; the second as a witness to an inexhaustible need for a
common collective project, which allows us to go beyond the simple
acknowledgment of social and political differentiation, which is more and more
irrelevant, but seeks to overcome it in the unity of a new political order. And
it is always in this split that the limit of both models is consumed. The
constitution of guarantee is not able, given its characterization, to contain
and overcome the increasingly pressing impetus of the internal conflicts within
society and indeed, precisely because it is a formal framework, welcomes and
tolerates, with equal possibilities of expression, even those political
subjects declared to be enemies, ending up by disintegrating from within and
failing, therefore, precisely in the fulfillment of its priority task of
guaranteeing freedom and pluralism. The order constitution, on the other hand,
is at the service of the project of political recomposition of society,
favoring identification with a certain political content and tending to exclude
the rest, in a process of ever more accentuated political totalization that
solves the problem of pluralism and heterogeneity simply because it denies
them.

 

As
explained, for Schmitt, the constitution is more than an ensemble of laws,
because it determines the political order, and it is that element that
determines the specific form of the political order, which can be communist,
monarchic or democratic. No constitution, as a matter of fact, can be neutral
to the principles and values it represents. The constitution, therefore, does
not derive from a legal normativity, but from the political decision of those
who have the power. The constitution is not something we can violate: not even
a legal majority has the authority to transform it in another type of political
order. There must be a neutral force that garantees a certain equilibrium,
above the enemy-friend conflict, that represents the totality of the German
people and that is the protector of the constitution. This is the political
authority of the president of the Republic, nominated by the people, and so
independent from the parliamentarian majorities.  Kelsen, however, considers that there should
be “a theory
of the law”,
but Schmitt rejects this, because the “Norm” is not something original because normativism expects
the existence of already put-in-place norms by an authority, who imposes the
norms by imposing its own will under decision.

In
conclusion, Kelsen considers that there is a gap that needs to be filled when
it comes to Law, and this opening cannot be filled. Schmitt tried to fill it by
stating that the people is the source of
law and by assuming the real existence of the people as parts of social
life. Kelsen disapproved of this idea, and considers that the people is not the
source of law, but it is the law that is
the source of the people, because we cannot think the people as a united
entity. We must assume that the law assumed by a country as its law, is not the
product of the people, but is the source of the people because only once that
law is applied, we will be able to understand who are the people. The rule that
reveals who are the people, does not exist, but if Law is a real “construction de l’esprit”, then it is allowed to
suppose the existence of a norm, although it does not exist materially. This is
the Grundnorm, and it is thanks to this norm that all other rules are valided.
The Grundnorm is not validated by something, because it is not real and it is
the highest form of norm. Therefore, since Kelsen rejects sociology, we can
also state that society, or people are just the product of an assumption. It is
the product of an assumption of a rule that tells us who we are.

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3
Hans Kelsen, “On the essence and value of democracy” , page 108

4
106

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