Constitutional Violence: Legitimacy, Democracy and Human Rights

201 Pages·2012·0.67 MB·English

by  Antoni Abat i Ninet

Constitutional Violence

Constitutional Violence
Legitimacy, Democracy and Human Rights
Antoni Abat i Ninet
To my wife Marisol, the light of my life
© Antoni Abat i Ninet, 2013
Edinburgh University Press Ltd
22 George Square, Edinburgh EH8 9LF
www.euppublishing.com
Typeset in Sabon by
3btype.com, and
printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon CR0 4YY
A CIP record for this book is available from the British Library
ISBN 978 0 7486 6954 7 (hardback)
ISBN 978 0 7486 6955 4 (webready PDF)
ISBN 978 0 7486 7537 1 (epub)
ISBN 978 0 7486 7538 8 (Amazon ebook)
The right of Antoni Abat i Ninet to be
identified as author of this work
has been asserted in accordance with
the Copyright, Designs and Patents Act 1988.
Contents
Prefaceby Mark Tushnet vii
1 Introduction 1
2 Sovereignty and Constitution 8
3 Democracy 40
4 Legal Violence 90
5 Comparing Constitutional Violence 114
Afterword 171
Bibliography 179
Index 190

Preface
Sociologist and legal theorist Max Weber argued that states claimed a
monopoly on the legitimate use of violence. The monopoly is most
successful, of course, when the overt use of state violence is minimised,
acting as a sword of Damocles affecting the behaviour of everyone over
which it hangs. Robert Cover sought to bring into view the violence implicit
in the routine deployment of law – not merely in the use of police forces to
arrest people for what all concede to be arguable violations of existing and
uncontroversial law, but in the normative claims that ordinary and
constitutional law make, which induce people to believe that whatever
contrary views they might hold are somehow illegitimate.
Constitutions often originate in violence, as revolutionaries displace by
force regimes they regard as oppressive. Even relatively peaceful revolutions
can occur against a background of violence, as dissidents withdraw their
assent to the legitimacy of the state’s monopoly of violence, and thereby
enable the possibility that some other entities might now claim – and use –
violence as a legitimate weapon available to them no less than to the state.
Overt violence can sustainconstitutions as well, suppressing secession and
its predecessor, mere dissent. More interesting, perhaps, are the matters
Cover addressed, where violence lies behind state actions,but never appears
openly, even as normative communities other than the state find themselves
squeezed out of existence.
Antoni Abat i Ninet offers us a wide-ranging re-theorisation of the role
of violence in maintaining the constitutional order. He begins from the
common observation that constitutionalism and democracy are inevitably
in tension. Democracy seems to require that the current policy judgements
of today’s majority be implemented, while constitutionalism seems to require
that some such judgements be thwarted. Rather than accepting the equally
common observation that constitutionalism’s limits on democracy enable
greater democratic choice in the long run, an observation captured by the
implications of the cynical phrase about elections in new democracies, ‘One
person, one vote, one time’, Abat i Ninet argues that constitutionalism
prevails over democracy through the regular, albeit sometimes concealed,
exercise of violence.
viii CONSTITUTIONAL VIOLENCE
Some readers will be provoked by his wide-ranging overview of
constitutionalism’s foundations in religious and political theory. Others will
find his case studies of the violence of constitutionalism in modern societies
ranging from the United States to France and Spain valuable, in light of the
usual judgement that these nations are ‘stable’democracies not pervaded by
the open deployment of state violence. I suspect that every reader will find
something with which to disagree in the argument. I know that I have such
disagreements. And yet surely there is something here worth thinking about.
Scholars of constitutional law should bring Weber out of the shadows into
open view. Abat i Ninet’s project provides one source of illumination.
Prof. Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
1
Introduction
This book is the result of an extended process of thinking that began with
the draft of my paper ‘Playing at being Gods’.1
After this work I started to focus my interest on the main issues
addressed in this book: constitutional legitimacy and the relationship
between democracy and constitutions. The topics analysed in this book
emerged progressively as a consequence of thinking about the preceding
issues. The first question to be developed, constituting the opening premise,
was that of the origins and influences of the religious discourse in the
configuration of the modern constitutional system. Particularly important
were the sacred conception of the US Constitution and the expansion of
this phenomenon to the rest of the world’s modern constitutions.
The drafters of the US Constitution consciously played the role of a civil
God; the US Supreme Court developed the role of secular prophets; the
Constitution was the sacred tablets; and the people of the United States
became the chosen people. As the law was received by Moses on the tablets,
so too did the Constitution adopt a legal, moral and religious character.
This sort of metaphysical phenomenon and full authority was sought
deliberately by the Founding Fathers and the drafters of the US
Constitution, to obtain the kind of sovereignty and power that they needed.2
The new fundamental norm of the state came outfitted with a sort of
undisputed legitimacy, an almost divine authority.
The first issue analysed in this book considers the fundamentally religious
character of the secular constitutions that eventually became what we
understand as the modern American Constitution, and the undemocratic
nature of constitutions in general. The founding of this constitutional
doctrine, supported by this type of sacred speech, was not fortuitous. This
consecrated supra-legitimacy sought,and still seeks,somehow to coerce the
freedom of the people, requesting compliance instead of citizen partici-
pation. The first section of Chapter 2 deals with this new sort of theology
and the influences of the religious discourse on the modern constitutional
discourse, and also how jus-positivism contributed to the consolidation of
this sacred-civil language. Various manifestations and theological concepts