LAW AND POWER IN THE DEFENSE AND ENGINEERING OF THE CONSTITUTION
Imer B. FLORES*
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. Law and Power. III. Constitutional Defense and Engineering. IV. Conclusion. V. Bibliography.
I. INTRODUCTION
Organizing a State —its government and its society— is, without a doubt, the principal aim of a constitution, and implies not only the establishment and formation but also the composition and arrangement of a fundamental or supreme law that, as a Magna Charta, must guide the course and rule in a given nation or country. Accordingly, facing the third millennium’s enigmas, constitutionalism acquires a greater importance, just as Bruce Ackerman, Robert Alexy, Ronald Dworkin, Luis Prieto Sanchís and Gustavo Zagrebelsky, among others, have observed. Similarly, there are particularly two subjects that attract theoreticians like Héctor Fix-Zamudio and Robert Mangabeira Unger: constitutional defense and constitutional engineering, respectively. Although, they start from the intimate relationship between law and power, each one emphasizes different aspects of the correlation. Assessing the same phenomenon from different perspectives, the latter notes that since “law is power”: constitutional engineering is indispensable for the creation and reform of the different institutional arrangements; while the former asserts that since “law is the limit of power”: constitutional defense is imperative for the protection and safekeeping of constitutional guarantees.1
Hence, constitutional defense and engineering are two of the constant and permanent concerns of the contemporary constitutional law doctrine and will surely be a main theme in the coming years. In fact, experts in constitutional law agree that it is not enough merely issuing a text that contains essential ideas and values, such as the fundamental norms and rules for the organization of a political community, if both are not accompanied by a practical application of their precepts in deeds or in reality. Therefore, it is necessary to create mechanisms that would ensure the constitution’s justifiability, validity and applicability, as well as to correct or re-establish constitutional regulation when it is not observed or violated, or to change and reform it when it is out of touch with social reality.
It is for this reason that we intend to place these two aspects —constitutional defense and engineering— within the framework of the intimate relationship between law and power and ascertain its importance to the Constitution. We will proceed to discuss some of the inherent characteristics of each one of these subjects to determine the core issues within them. Finally, we will present some conclusions.
II. LAW AND POWER
Since the Ancient Greek to nowadays, both the relationship between law and power and the consideration about the phenomena of power have been key elements of legal and political philosophy. It has been a constant that those who hold power tend naturally to abusing it and exercising it in a “tyrannical” fashion. Consequently, in order to fight against tyranny, the Greeks devised various mechanisms designed to contain power within certain limits.
In this regard, Hector Fix-Zamudio puts forth some very eloquent examples.2 In Sparta, the kingship was enjoyed jointly by two kings who would monitor each other so as to insure that neither one would abuse the authority given to them by the people. Additionally, “ephors” were created to serve as overseers of constitutional regulation. In Athens, various institutions were gradually put in place to restrict the power of their rulers, such as the “aeropagetic” and “nomorfilacos”. Similarly, the distinction between the basic rules and principles (attributed to the Spartan Lycurgus or the Greek Solon) of political organization —called nomoi and which together form the politea or Constitution—3 and the decrees issued by the ecclesiao or citizen’s assembly —named psefismata— gave rise not only to the recognition of the primacy of the first over the second, but also to the establishment of instruments to keep the assembly from issuing resolutions contrary to the basic principles. Outstanding among those mechanisms was penal action classified as graphé paranomón, which any citizen could use against any other who may have presented a bill that had been approved by the assembly despite contradicting the higher principles. Such an offense was characterized by the proponent’s deceit of the assembly by means of an unlawful proposition.
Throughout the Roman Empire, all power was concentrated in the hands of emperors who committed much abuse and fell into extravagant excesses. And so, during the Republic, all offices were held jointly by two officials in order to avoid abuse of power by limiting one another: “quaestors”, “aediles”, “censors”, “praetors”, and especially “consuls”. However, this doubling led to dramatic confrontations, as in the case of consuls Marius and Sulla, and then between Julius Caesar and Pompey, because when one triumphed over the other, an authoritarian dictatorship was established. Likewise, tribunals for the common people to defend community interests were created with the authority to prevent the execution of legislative provisions against their interests (intercessio) as well as to provide protection to those persecuted by the authorities (ius auxili).
In the Middle-Ages, the superior authority of a natural law was believed to exist. Derived from human nature as a refection of divine revelation, it was regarded as being above the civil laws issued by monarchs (ius civile). In fact, monarchs believed themselves above legislative provisions, but subordinate to the precepts of natural law. It was for this reason that some philosophers justified “tyrannicide” when dealing with rulers who gravely violated said superior and immutable law.
The appearance of the Encyclopedia and the Enlightenment played very important roles in the independence of the thirteen colonies and the French Revolution. Iusnaturalist philosophers from the classical natural law school of thought had a decisive influence on the framers of the first constitutional texts and on their corresponding declarations of human rights, in both the Constitution of the Unites States of America of 1787 and the Bill of Rights of 1791, as well as in the French revolutionary Constitutions of 1791 and 1799 (though Napoleonic authoritarianism was later imposed on them) and the Declaration of the Rights of Man and the Citizen of 1789.
The iusnaturalist view of individual rights as being above political organization, whose responsibility was precisely to protect these rights, is at the core of these documents. Under the influence of John Locke and Charles Louis de Secondat Baron of Bréde and Montesquieu, the idea of the division of functions, commonly known as “separation of powers”, began to be introduced in varying degrees with the intention of having power as a check to power in such a way that essential activities of political power be deposited in a plurality of agencies as a means of checks and balances.
Thus, not only is the intimate relationship between law and power exposed, but its influence on the Constitution can be readily seen, as with constitutional defense and engineering. Next, we will proceed to emphasize the interaction between law and power so as to later link it with the Constitution, its defense and its engineering.
1. The Law-Power Binomial
The relationship between law and power does not lie solely on the subordination of one to the other and vice-versa, but rather in their interaction with each other. On the one hand, law is necessary to legitimize authority and the existing political order, and authority is indispensable for the enforcement of the law and the prevailing legal or judicial system. On the other hand, law is essential in dictating the limits and rules with which power will be exercised legally, and power is imperative for revitalizing the confines and precepts of the Rule of Law and modern constitutionalism.
Law and power are the focal points in analyses of legal and political phenomena correspondingly. However, law and power may be considered two sides of the same coin. Both are, in fact, the fundamental concepts of legal and political philosophy. The contrast is derived from one being “heads” and the other “tails”. For a jurist law is “heads” and power “tails”; whereas for a political scientist power is “heads” and law, “tails”.4
Therefore, law and power must complement each other reciprocally; law without power is impotent and inefficient, while power without law is brutish and illegitimate. Rudolf von Ihering referred to this in his apology of Astrea —or Themis—:
Every right in the world had to be acquired through struggle. Those principles of law, which are today in force, were necessarily imposed through the struggle against those who would not accept them... Law is not a logical idea, but rather, one of force. Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. The scales and the sword belong together, and the state of the law is perfect, only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales. (sic).5
Likewise, both law and power are indispensable tools in carrying out basic ends such as justice and the common good in the different levels of State, government and society: iustitia fundamentum, regnorum salus populi, suprema lex est. In this regard, Nicollo Machiavelli maintains that: “The main foundations of all states, new, old, or mixed, are good laws and good arms; and since there cannot be good laws where there are not good arms and likewise where there are good arms the laws must be good too”.6
On one side, Thomas Hobbes points out that: “The Power of a Man, (to take it Universally), is his present means, to obtain some future apparent Good. And is either Originall, or Instrumentall” (sic).7 He also states that the evidence shows that there is “a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth only in death” (sic).8 On the other, John Locke notes that:
[T]he end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own (sic).9
The ratio of force in action and change requires that the will of power be met by the will of law, in terms of the protection of freedom. In fact, freedom is not merely autonomy —i.e. self-determination or independence— but rather a combination of power and law.10 Doubtless, the history of humankind has been characterized by the struggle for freedom against its antithesis: oppression. The link between liberty and oppression is as evident as the bond between law and power. The instruments that support the knights in their battle for freedom are swords to attack and shields to defend themselves from the new forms of oppression that appear on the horizon of the battlefield. And so, history is full of examples concerning the battle between the dichotomies of law-power and freedom-oppression.
The will of law and the will of power are our starting points. Law can be characterized as a system of just mandates that confers faculties and imposes duties aimed at carrying out justice, while power is seen as a system of mandates and obedience inclined towards building up a common good. Nevertheless, neither of the two can by themselves explain the nature of humankind, or direct human life completely. It is necessary to recognize both as complementary and interdependent.11
The exercise of power leads us to believe that all those invested with power tend to abuse it. However, the will of power can be both necessary and dangerous and can even lead to extremes such as anarchy and despotism. In like manner, power can seem like an aphrodisiac to either maintain dependence or obedience to a command, or independence and resistance to it.
In that sense, power is always described as a ratio of force, a will or desire that enables the obedience or resistance of a command. In this way, power is force. On the one hand, it consists of the force that allows someone to impose obedience of that person’s command. On the other hand, it resides in the force that allows it to offer resistance to a command. Hence, power is defined as a binomial relationship of force: mandate-obedience and mandate-resistance.12
In order to differentiate between the different forms of power, it is useful to recall Max Weber’s description of legitimization and the three forms of legitimate dominance and authority, he distinguishes: 1) legal or rational, 2) traditional, and 3) charismatic;13 but we prefer the typology that Norberto Bobbio and Michelangelo Bovero offer because it rests not merely on legitimacy, but on the concrete means that allow the identification of different forms of power and the concrete means on which the imposition, obedience or resistance to a command is based.14
Therefore, we can conceive and conceptualize power as a force to impose the obedience of a command or resistance to it. With respect to the means through which it can be done: those who posses: the means of production will have “economic power”; the means of coercion will have “political power”; and the means of persuasion will have “ideological power”, among others. There are many more categories and even combinations, but these three are clearly very good examples of the will of power and the means with which it has at its disposal to impose obedience or resistance to a command.
Next, we intend to focus on political power, not only because it is the synthesis of the intimate interaction between law and power, but also because of its inherent importance regarding the Constitution, its defense, and its engineering. The understanding of political power as the possession of the means of coercion enables us to talk both of the concentration of power and its distribution; the legitimacy of the entitlement and the legality of its exercise; limiting and organizing power by law; control as certainty or security and change as progress or reform.
Seen in this light, political power is characterized by the possession of means of coercion and by the monopoly of its use. Political power as a monopoly on force requires it to be legitimate and differentiated from other forms of legitimate authority. Aristotle had distinguished between a ruler’s power over his subjects, exercised in the interest of both parties; parent’s power over their children in assistance of the latter, and a master’s power over his slaves, in favor of the former.15
Meanwhile, John Locke points out the differences between the ruler of a State, the father of a family and the captain of a ship on the basis of the legitimacy of their title —ex tituli—. The paternal power has a natural foundation —ex natura—; the power of the captain derives from the punishment of a crime or offense —ex delictu—, and the political power is justified on the basis of consensus —ex consensu—.16
In a similar vein, Jean Jacques Rousseau’s interpretation is presented with great eloquence and vehemence: “The strongest is never strong enough to be master all the time, unless he transforms force into right and obedience into duty… Let us then agree that force does not bring about right, and that one is obliged to obey only legitimate powers... Since no man has a natural authority over his fellow man, and since force does not give rise to any right, conventions therefore remain the basis of all legitimate authority among men.”17
Legitimate political power must not only be monopolized but exercised in the interests of both the government —ex parte principis— and the governed —ex parte populli—. It is justified solely by its coming from a general consensus framed within a social contract. Similarly, it must be carried out lawfully. Legitimacy refers to its title, whereas legality to its exercise. The former requires that those who hold political power do so legitimately and the latter necessitates that those who enforce it do so legally. For the ruler, legitimacy is the foundation on which his authority to govern is based, and lawfulness is the means through which his duties are limited so as to not be overstepped. For the governed, legitimacy is the foundation of their duty to obey, and lawfulness is the guarantee that their rights will be respected and not oppressed.18
The opposite of legitimate power is usurped or de facto power; and the opposite of lawful power is arbitrary or tyrannical power. Therefore, in order for political power to be legitimate, it must not have been usurped, nor can it be tyrannical. Abuses or deviations in the exercise of power can lead to the resistance of a command rather than to its obedience. Thus, the boundless nature of the will of power requires certain controls that limit its exercise. If power is abused, it can corrupt people absolutely. If the exercise of power is not limited, one can only remember Lord Acton’s assertion that “absolute power corrupts absolutely.” The best strategy for imposing limits on the exercise of power is the Rule of Law, and, within it, the establishment of a Constitution that regulates both the, legitimacy and legality of political power.
2. The Constitution: Defense and Engineering
The limits on the exercise of power rely more on its distribution than on its fragmentation. Distributing and limiting political power is based as much on the protection of human rights as it is on the separation of powers, but must be complemented by a series of maxims that guarantee the justice, relevance, and efficiency of the Rule of Law as a government of law and not of individuals.
On the one hand, the Rule of Law is identified with the existence of current or formal guarantees on human rights protection, in their capacity as constitutional guarantees as well as in their real or efficient execution. On the other hand, it is organized not only through the separation of responsibilities and capacities, but through a system of checks and balances as well, designed to avoid absolute power and insure its limited exercise.
The question “which is the best form of government?” has traditionally been answered, since the time of Herodotus, by looking to the analysis of the different known forms of government: 1) monarchy, 2) aristocracy and 3) democracy.19 However, there is another way of answering that question by asking: “Which is better, a government of men or a government of laws?”20
The controversy dates back to Plato and Aristotle, the latter even inquired “whether it is more advantageous to be ruled by the best man or by the best laws.”21 For both, the first is more dangerous while the second is preferred because: “The law is passionless, passion must always sway the heart of man.”22 However, a government of laws is not sufficient when there are those who are above the law and do not obey it. And so, a government of laws requires that there be no one above them.
This formula is expressed in Cicero’s statement Omnes legume servi sumus ut liberi esse possimus. In other words, the more we are subject to laws, the more freedom we posses. To obtain this goal, it is necessary to cover certain requirements that Friedrich von Hayek points out as sine qua non elements of the Rule of Law: 1) the existence of general rules or leges legum, 2) the equal enforcement of the law without bias or prejudice of any sort, 3) the prohibition on retroactivity of the law or ex post facto, and 4) the connection of the law for everyone, including rulers.23
Likewise, we generally recognize the following as dictums of the rule of law: 1) a government of laws based on the adage: non sub homine sed sub Deo et lege, 2) equality under the law, which puts forth general principles such as: like cases must be treated alike; 3) the security or certainty of the law, that recalls the basic Roman precepts: nulla poena sine lege and nullum crimen sine legem, and 4) due process, that holds, among other principles, that no one can be the judge of his own cause of action.
Thus, the idea of Rule of Law is directly related to the Constitution. The existence of constitutions not only exemplifies the limitations on political authority through the separation of powers, but also the safeguards for protecting the individual against abuses of power. And so, the Constitution and the bills, charters or declarations of human rights that are either added or incorporated to it are prerequisites for the exercise of power and the enjoyment of fundamental civil liberties.
In that sense, the best guarantee for the Rule of Law is the existence of a Constitution. This is why the quintessence of constitutions implies both human rights and the mechanisms through which to organize and limit political power as the bases for Rule of Law and modern constitutionalism. Therefore, citizen participation in political power is a basic element in modern constitutional democratic States.
However, Rule of Law can also become endangered especially when rigid adherence to written constitutions, which have not adapted to current reality, serves as a force of decay on the law itself. In fact, the warning that written law expires merely by passage of time seems significantly more relevant when, rather than being an obstacle for social change, it should be precisely the instrument that should guide it.24
As a result, law and power are indispensable in the necessary changes of State, government, and society in the fight for equality, justice, and freedom against their antitheses: inequality, injustice, and oppression. However, evidence suggests that neither laws nor power are enough. Nor should they be seen as opposing elements in a match-score game. On the contrary, they should support one another not only within the framework of a constitutional State, but also in the defense and engineering of the Constitution.
III. CONSTITUTIONAL DEFENSE AND ENGINEERING
Humanity possesses both a will to power and a will to law as can be appreciated in the vast majority of human-made objects. For example, automobiles have both a gas pedal and a brake. Thus, human life not only accelerates, but decelerates as well. It contains both characteristics, and without them, it could not exist. Therefore, humans require not only change, but control as well.
This is why interaction between law and power requires not the elimination or subtraction of one of these elements, but rather adding or complementing said elements. Thus, the exercise of political power within a constitutional State must rest more than ever on the relationship between law and power. These are and should be the most important instruments in the defense and engineering of the Constitution.
1. Constitutional Engineering
The importance of constitutional engineering is self-evident in organizing the State, government, or society through the distribution and limitation of political power; in order to legitimize its title; to maintain the lawfulness of its exercise; and finally, to implement both change and control in every institutional arrangement and cultural manifestation.
Besides, it is necessary to emphasize the need for constitutional engineering to be founded upon political power, which is, as we have maintained, the synthesis of the intimate interaction between law and power. In view of this, we will now move on to discuss certain aspects of constitutional engineering and its relationship to political power. Political power as the sole holder of the means of coercion requires: a) organizing political authority through the concentration of power and the distribution of responsibilities or functions; b) legitimizing the holder of political power and legalizing its execution; c) limiting the organization of power through law, and d) balancing the change-control dichotomy within political power that concerns both the engineering and defense of the Constitution.25
Power is defined as a binomial relationship of force in both mandate-obedience and mandate-resistance. Force is revealed in the possession of certain means. In the case of political power, possession of the means of coercion is usually the norm. In this case, political power is that which uses means of coercion to impose its mandate while resisting others.
Similarly, political power is not characterized exclusively by the possession of means of coercion, but by the monopoly of its use as well. This is why organization of power is necessary not only for the centralization and concentration of power, but for its distribution and limitation when distributing capacities and separating its functions.
It is not enough for political authority to possess a monopoly on force; it also needs to be legitimized by title or interest. On the one hand, political power is legitimized on the foundation that it must be executed in the interests of both the government —ex parte principis— and the governed —ex parte populli—, and, on the other hand, it is legitimized by the possession of title derived from consensus and popular will, framed within a contract —ex contractu—.
Consequently, political power must be employed according to law. Legitimacy refers to title, whereas legality to its exercise. The former requires that those who possess political power do so legitimately, while the latter requires that those who wield it do so legally. Thus, political power must be both legitimate and legal.
Human nature’s unlimited ambition for power necessitates certain mechanisms to limit its use. This thesis applies especially to political power which requires not only legitimacy and legality but also that the organization of power be limited by law. The organization of political authority through centralization or concentration of power and the distribution of capacities or responsibilities becomes an important limit on political power itself.
On the one hand, the relationship between the Constitution and political power is one of the clearest examples of the will to power and the will to law that characterizes human beings. It is for that reason that it is necessary that political power and legal authority limit one another reciprocally. Otherwise, both would be a threat to human life. In fact, we should recall that: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”26
On the other hand, the main purpose of the Constitution is to authorize the government’s command over the governed and to regulate the government so as to protect the people: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”27
Finally, as we have noted, constitutional engineering is not only interested in maintaining social control, but in encouraging social change as well. Social control is intimately linked with certainty and security. But when these are kept at the expense of equality, justice, and freedom, social change is imposed to put an end to inequalities, injustices, and oppression. Thus, we find different forces within the State, the government and society; both conservative forces that wish to maintain the status quo, and those that desire reform, encouraging change and progress.
On this respect, Luis Recaséns Siches maintains with great eloquence and simplicity, that:
Indeed, if on the one hand, law serves the purpose of certainty and security, on the other hand, it also serves the needs that arise from social change and the desire for progress. Therefore, while law appears to be stable, it must never remain unmovable, but on the contrary, it must change in tune with new social needs and circumstances. Complete security would mean society’s total immobility. Constant change, without any stable element or form, would make social life impossible.28
2. Constitutional Defense
Constitutional engineering on its own is insufficient if it is not completed by constitutional defense. It serves no purpose to design institutional arrangements only to leave them in the hands of chance. Although the concern about the limitation of power has been present throughout the ages, the systematization of the concepts and ideas pertaining to the mechanisms that have gradually been established in a constant and permanent struggle for the effectiveness of fundamental provisions did not begin until the 1930s.
The examination of the defense of the Constitution and the different forms and possibilities of safekeeping began with Carl Schmitt’s classic Der Hutter der Verfasung, literally “The Protector of the Constitution”,29 and Hans Kelsen’s reply Wer soll der Hutter der Verfasung sein?, plainly “Who should be the Constitution’s Protector?”30 Since then the development of the idea of constitutional defense, in terms of doctrine, jurisprudence and legislation, has been formidable. In the same way, today the concepts of constitutional justice or jurisdiction, or constitutional controls and guarantees stand on common ground. However, strict systematization of the defense of the Constitution and the mechanisms that have been established to protect fundamental principles or rules is still lacking.
The defense of the Constitution is comprised of all the structural and procedural instruments that have been established not only to preserve constitutional regulation but also to prevent its violation, curb its disregard, and achieve the development and evolution of constitutional provisions. The above must be seen from two angles: from the point of view of the formal Constitution, with the aim of achieving its gradual adaptation to the changing social and political realities; and from the vantage point of the real Constitution, in order to map out the path of its transformation in accordance with the programmatic principles and rules of the Constitution itself. From this perspective, true constitutional defense is that which can bridge what, at times, can be the large gap between the formal Constitution and the real Constitution.
The Constitution, both formal and real, is —and should be— necessarily dynamic and even more so in our era of rapid and successive changes. For this reason, constitutional defense means both maintaining its fundamental principles and rules, as well as its evolution and awareness of reality in order to avoid that the written document becomes a mere semantic or nominal formula.31 Therefore, it is meritorious to protect a regulation with a reasonable degree of efficiency and foresight, since it would not be possible or desirable to attempt protecting a mere set of bombastic manifestations.
The generic concept of constitutional defense, which we can identify with constitutional guarantees —lato sensu— can be divided in two fundamental categories, which in practice are intimately linked. The first is commonly known as “instruments for constitutional protection”, but we will use the term, “structural guarantees”, precisely because they correspond to the conservation of the regulation through the protection of the Constitution from within its own structure. The second that is called “constitutional guarantees” —stricto sensu— will be referred to as “procedural guarantees” which allow for the correction or procedural re-establishment of the regulation when the Constitution is disregarded or violated.32
Protecting the Constitution is comprised of all the political, economic, social and judicial factors that have been incorporated into the constitutional documents, having been channeled through fundamental principles or rules. All this is with the solid aim of limiting power and making those who hold it submit themselves to the guidelines established in the Constitution, in terms of both its authority and its respect for the human rights of those governed. Thus, these mechanisms aim at achieving the harmonious, balanced, and limited functioning of public authority, and, indeed, of authority in general.
Constitutional guarantees should not be understood, nor identified exclusively —strictly speaking— with the human rights constitutionally recognized and categorized under “individual rights” or even “social guarantees”. Rather, in a broader sense, they should be identified with all the juridical means, of a predominantly procedural nature, used for the reintegration of the system or constitutional order when it has been disavowed or violated by the instruments of power themselves.
IV. CONCLUSION
Although we had noted that this document was intended solely as an introduction to the subject of constitutional defense and engineering, and that further exploration of the themes would be required, we feel it imperious to:
1) Highlight the evidence suggesting the present development in modern constitutionalism, allowing us to state that it is shaping a new constitutional theory, in which the current Rule of Law seems to yield before the constitutional democratic State of the 21st century.
2) Recognize that two of the main points regarding the consolidation of the new constitutional theory are those concerning engineering —organization, legitimacy and legality, limitation, change and control of political power— as well as constitutional defense —structural and procedural constitutional guarantees—.
3) Enlarge upon the relationship within the law-power binomial, and likewise prove that the statements “law is power” and “the law is the limit of power” not only are and should be compatible, but are also interdependent in the modern constitutional and democratic State.
4) Continue with the analysis, discussion and research on issues associated with the defense and engineering of the Constitution, so that formal recognition of the fundamental principles and values go hand in hand with a real application of their precepts. Therefore, it is necessary to foment institutional innovation and cultural renovation, on one hand, and the creation of safeguarding mechanisms to guarantee justice, effectiveness and efficiency in the Constitution, on the other; and to correct or re-establish constitutional regulation when it is disregarded or violated, or if it is the case, to change it or reform it when it falls behind social realities.
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Notes
* Researcher at the Legal Research Institute.
1 Regarding the relationship between law and power in constitutional engineering and defense, see Flores Mendoza, Imer Benjamín, El liberalismo y la reforma del Estado. La evolución del derecho, Mexico, UNAM, Facultad de Derecho 1994 (Bachelor’s degree thesis); and, especially Law and Politics: Democratic Institutional Development. Government Reform and Separation of Powers in Mexico, Harvard University, Harvard Law School, LL. M. Paper, 1996 (on file with the author). Without a doubt, the school of thought of Roberto Mangabeira Unger and the writings of the pioneer of this field in Mexico Héctor Fix-Zamudio greatly influence this article. Cfr. their corresponding works mentioned in the bibliography, as well as those of Ackerman, Alexy, Dworkin, Prieto Sanchís y Zagrebelsky. Likewise, this text is on the one hand the result of attending the international Colloquium “La Actualidad de la Defensa de la Constitución” and the international Symposium “El Significado Actual de la Constitución”, and on the other hand, the result of teaching a couple of graduate courses. Finally, it is imperative to point out that this article is drawn upon the first part of the essay “La Constitución: su ingeniería y su defensa”, prized in 1997 in a National Competition regarding the Octogenarian Anniversary of the Mexican Constitution.
2 See Fix-Zamudio, Héctor, “Introducción”, in Introducción al estudio de la defensa de la Constitución en el ordenamiento mexicano, Mexico, UNAM, Corte de Constitucionalidad de Guatemala, Procurador de Derechos Humanos de Guatemala, 1994, pp. 11-14.
3 On politeia as a Constitution, see Aristotle, The Politics, New York, Cambridge University Press, 1988, Book II, chaps. I-XII, 1260a-1275b, pp. 67-106; Tamayo y Salmorán, Rolando, Introducción al estudio de la Constitución, 3rd ed., Mexico, UNAM, 1989, pp. 25-38.
4 On law and power as the two sides of a same coin, see Bobbio, Norberto, Teoría general del derecho, trans. Alfonso Ruiz Miguel, Madrid, Debate, 1991, and Estado, gobierno y sociedad. Por una teoría general de la política, trans. José F. Fernández Santillán, Mexico, Fondo de Cultura Económica, 1989.
5 Ihering, Rudolf von, Struggle for Law, Chicago, Callaghan and Co., 1879, p. 2.
6 Machiavelli, Niccolo, The Prince, trand. Thomas G. Bergin, Arlington Heights, Illinois, Harlan Davidson, 1947, chap. XII, p. 34.
7 Hobbes, Thomas, Leviathan, Cambridge, Cambridge University Press, 1991, chap. X, p. 62 (the emphasis is original).
8 Ibidem, chap. XI, p. 70.
9 Locke, John, Second Treatise of Government, Indianapolis, Hackett, 1980, book II, chap. VI, § 57, p. 32.
10 Cfr. García Máynez, Eduardo, “Liberty as Right and as Power”, in Recaséns Siches, Luis et al., Latin-American Legal Philosophy, Cambridge, Massachusetts, Harvard University Press, 1948, pp. 517-547.
11 On the balance between the wills of law and power, see Bodenheimer, Edgar, Power, Law and Society. A Study of the Will to Power and the Will to Law, New York, Crane, Russak & Company, 1972. On the pre-eminence of the will of power, cfr. Nietzche, Friedrich, The Will to Power, New York, Vintage Books, 1967.
12 See Bovero, Michelangelo, “Lugares clásicos y perspectivas contemporáneas sobre política y poder”, in Bobbio, Norberto and Michelangelo Bovero, Origen y fundamento del poder político, trans. José F. Fernández Santillán, Mexico, Grijalbo, 1985, pp. 37-64.
13 See Weber, Max, Economía y sociedad. Esbozo de sociología comprensiva, 2nd ed., trans. José Medina Echavarría et al., Mexico, Fondo de Cultura Económica, 1964, Vol. I, pp. 170-197.
14 See Bobbio, Norberto, Estado, gobierno y sociedad, cit. note 4, pp. 110-114; and Bovero, Michelangelo, cit., note 12, p. 45.
15 See Aristotle, Política, cit., note 3, Book. I, chaps. I-XIII, 1252a-1260b, pp. 41-66.
16 See Locke, John, Second Treatise of Government, cit., note 9, pp. 28 and 29.
17 Rousseau, Jean Jacques, “On the Social Contract”, in The Basic Political Writings, trans. Donald A. Cress, Indianapolis, Hackett, Book I, chap. III, pp. 143 and 144, and chap. IV, p. 144.
18 See Bobbio, Norberto, “El poder y el derecho”, cit., note 12, pp. 29 and 30.
19 See Bobbio, Norberto, La teoría de las formas de gobierno en la historia del pensamiento político, trans. José F. Fernández Santillán, Mexico, Fondo de Cultura Económica, 1987.
20 See Bobbio, Norberto, “¿Gobierno de los hombres o gobierno de las leyes?”, in El futuro de la democracia, trans. José F. Fernández Santillán, Mexico, Fondo de Cultura Económica, 1986, pp. 120-136; and Estado, gobierno y sociedad, cit., note 4, pp. 130-134.
21 Aristotle, Política, cit., note 3, Book III, chap. XV, 1286a, p. 139.
22 Idem.
23 Hayek, Friedrich von, The Constitution of Liberty, Chicago, University of Chicago Press, 1960, pp. 166 and 167.
24 See Novoa Monreal, Eduardo, El derecho como obstáculo al cambio social, Mexico, Siglo XXI, 1991.
25 See, Recaséns Siches, Luis, “Sociología del derecho”, in Tratado general de sociología, Mexico, Porrúa, 1971.
26 James Madison, “No. 51”, in Hamilton, Alexander et al. The Federalist Papers, New York, Mentor, 1961, p. 322.
27 Idem.
28 Recaséns Siches, Luis, “Sociología del derecho”, cit., note 25, p. 591.
29 Schmitt, Carl, La defensa de la Constitución. Estudio acerca de las diversas especies y posibilidades de salvaguardia de la Constitución, trans. Manuel Sánchez Sarto, Barcelona, Labor, 1931.
30 Kelsen, Hans, “Chi devéssere il custode della costituzione”, in La giustizia costituzionale, trans. Carmelo Geraci, Milán, Giuffrè, 1981. Originally published in the German review Die Justiz, Nos. 11 and 12, 1930-1931, pp. 576-628. See also Kelsen, Hans, “La garantía jurisdiccional de la Constitución. La justicia constitucional”, Anuario Jurídico, trans. Rolando Tamayo y Salmorán, Mexico, UNAM, 1974, pp. 471-515.
31 See Lowenstein, Karl, Teoría de la Constitución, trans. Alfredo Gallego Anabitarte, Barcelona, Ariel, 1965, pp. 218-222.
32 See Fix-Zamudio, Héctor, Introducción al estudio de la defensa de la Constitución en el ordenamiento mexicano, cit., note 2, pp. 15-18.
