NON-ENFORCEMENT OF LEGAL NORMS AND RULE OF LAW*
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I. General considerations. II. Rule of law. III. Social rule of law. IV. Social and democratic rule of law. V. Rule of law and constitutionalism. VI. Limits of the law. VII. Representation and legitimacy. VIII. Final considerations. IX. Bibliography.
I. GENERAL CONSIDERATIONS***
The problem of the Rule of Law is one of the most important issues in constitutional systems. Constitutionalism has, among others, the certainty of recognized rights guaranteed by the supreme norm. This certainty means that norms approved according to the Constitution itself will be enforced without exception as many times as the situations they foresee arise. In this sense, any act that departs from the exact fulfillment of the norm is in turn considered contrary to the Rule of Law.
Constitutionalism also aims to establish the legal bases for tolerance. This principle, which was present at the birth of constitutional systems, assumes there are spaces for freedom that go beyond even that which is strictly established by the norm. The norm only sets the minimum acceptable rules; but individual and collective behavior regarding said norm can broaden the matter of tolerance. Of course, the increase of tolerance is linked to the nature of the tolerated acts and the acts of the authority. This is not about a simple matter; it is, indeed, one of the most complex affairs in the State’s daily life.
At this stage, it is necessary to consider the matter of legitimacy. It is known that this is not a passive topic in the doctrine. The prevailing theories about legitimacy are greatly influenced by Weber, but the differences are many. Generally, it can be said that the idea of legitimacy is steeped with subjectivism that goes beyond the interpretation of a norm; it is about the interpretation of political power, which is the source of law and its enforcement agency.1
This paper starts from a conceptual scheme of the Rule of Law and concludes with a reference to the issues of representation and legitimacy, and the cultural problems observed regarding the accepted cases of non-enforcement of the norm, since these are considered closely related. The core issue is the limits of the law, understood as the circumstances in which State agencies decide on not enforcing the norm as a way to preserve the Rule of Law. This is, doubtlessly, one of many paradoxes seen in constitutional systems, and only when the categories of analysis proposed by Peter Häberle are implemented, as will be done at the end, will it be possible to find satisfactory solutions.
It is not a new problem, but it does present new dilemmas. The fact that power agencies are subject to law is one of the most important guarantees for preventing and correcting acts of arbitrariness. In reference to this point the cases of the Constitutions that already expressly forbid arbitrariness should be taken into account: Argentina (Article 43), Chile (Article 20), Spain (Article 9.3) and Switzerland (Article 9). To accept that these agencies can stop the enforcement of the legal norm means to open a space for discretionary action.2 The historical experience of power reveals that through that gap repealing legal practices have been introduced; but the simple enforcement of the norm is not sufficient guarantee to conciliate the certainty regarding acts of authority and the freedoms that individuals and societies require either. Frequently, for example, the legal principle of the Rule of Law has been confused with the conservative political speech of "law and order".3
Due to these reasons it is necessary to incorporate the issue of representation and legitimacy to the considerations made about the problems of the Rule of Law, since these elements are part of a single legal reality and of the cultural background of the norm. As proven by contemporary doctrine, representative institutions have many vulnerable points (distortions in electoral systems, mediatic distortions, failures in political party regimes, influences of interests, and representatives’ lack of responsibility, among others). On the other hand, the principle of legitimacy is much more complex than it seems because it involves the need to fuse three factors: origin, exercise and social perception of power.
At this point a warning should be posed: when referring to the non-enforcement of the norm within the Rule of Law, full validity of the constitutional order is being considered. The issue of the applicability of constitutional norms has another dimension, as J. J. Gómes Canotilho4 and J. Alfonso da Silva5 have shown. The non-enforcement of the norm referred to in this study corresponds to acts of the administrative authority and not of courts and congresses. Non-enforcement, in the case of both of these agencies of power, has other implications that are not analyzed herein. In the case of congresses, these have the possibility to change the norm, but according to previously established procedures. Any act of non-enforcement of legislative procedural norms is legally refutable, and the cases of omission in the development of constitutional norms may lead to arguing unconstitutionality due to omission.6 As to the courts, on the other hand, the possibilities to enforce principles instead of rules, is much wider. It can be said that while congresses are banned from that possibility, courts make use of it to a wider extent. In the middle, there are the government agencies. The German Federal Constitution summarizes this situation in Article 20-3, by pointing out that the legislator is subject to the constitutional order while the Executive and the judicial branches are subject to law and rights. Of course, the doctrine is not undisputed in terms of the content and scope of said constitutional provision. Starck7 identifies a broad set of understandings, from various authors, regarding said formula: he makes reference to the law in a formal and material sense; he refers to written and consuetudinary law; he acknowledges the coexistence of positive and natural law; and he combines positivism and axiology. The formula is tautological because law and rights are synonymous. It is clear that so many interpretations show how difficult it has been for the doctrine to accept that judges and the government have legal limits that go beyond the law stricto senso, and that the issue is much simpler if, as we will see below, the difference between rule and principle is taken into account. The purpose of this reference is to underline the complexity of the issue of the non-enforcement of the norm within the Rule of Law, exclusively referring herein to the aspect concerning the government.
The characteristics of the constitutional State regarding its structure, organization and performance are known, but there are two aspects that need to be clarified: how the State is set up and the possible causes of breaches. The constitutional State goes through preliminary phases that lead to its consolidation, just as it runs the risk of disintegration. How said building process is produced and how to prevent tensions and pressure from bringing on a destructive process needs to be determined.
It is not an easy task to identify the elements of both processes, because if all constitutional States tend to have more or less homogeneous characteristics, the dynamics that lead to their formation or their erosion is due to circumstances that cannot be repeated in time and space. The set of multiple cultural, political and even personal factors determines the intensity and direction of these processes.
This study does not discuss all the problems regarding the building or destruction of the constitutional State, but just one problem that is present in the different life phases of that kind of State. This element that is present in the different stages of the constitutional State is the one concerning the strict enforcement of the norm.
This phenomenon is important for defining the building process of the constitutional State and also for observing that the tendencies that lead to its decay have underway. To be able to identify up to what extent the non-enforcement of the norm corresponds to a formative phase of the constitutional State, is compatible with the duration of that State or predicts its crisis is a task that the constitutionalist should carry out to determine the possibilities or risks taking place in constitutional life.
This essay attempts to explain that in every constitutional State there are reasonable limits for transitory, partial, controllable and explicable deviations from the institutional workings in regards to the legal framework in force. I have been interested in the topic since this situation is common in developing constitutional States, in consolidated ones and in those undergoing a crisis. However, each case has different causes and different consequences.
As to the formation of a constitutional State, excessive severity in enforcing the law might inhibit the expressions of the groundwork for pluralism (demonstrations, freedom to express ideas and opinions, isolated cases of disobedience, for example). In the case of hindering these expressions, the possibilities for consolidating the constitutional State would also probably diminish or differ. If these margins of tolerance were reduced at the pinnacle of the constitutional State’s existence, it would contradict the nature itself of said State, and excessive tension might be created which would end up undermining the workings of the institutions. And if the margins of the non-enforcement of the norm were extended in such a way that it brought about entropy, the constitutional State would run the risk of losing meaning and effectiveness.
In discussing these problems, I have used the concept of constitutional State posed by Peter Häberle8 as a point of reference. His concept is made up of several elements: human dignity; home rule; the Constitution as a contract; the separation of powers understood as pluralism; the Rule of Law, the social State and the cultural State; fundamental rights and their guarantees; and the independence of jurisdiction, among others. It is clear that the combination of the elements of the constitutional State is very wide.
This is not a study of a philosophical nature but a constitutional one. What essentially interests me is to find certain regularities that make the circumstantial non-enforcement of the norm compatible with the building process or the running of the constitutional State, so as to avoid the extremes that lead to the collapse of said State.
In this study, the State problems that arise from circumstantial non-enforcement of norms will be discussed from a constitutional point of view. Regardless of the considerations that may be philosophically made on this issue, only aspects relevant to the constitutional State will be analyzed herein. It is clear that the multi-faceted point of view varies if a problem is seen as part of the general theory of the norm or of constitutional theory. In this case, the latter was chosen.
II. RULE OF LAW
The Rule of Law consists of the subordination of the State’s activity to the Constitution and the laws approved according to the procedures established in it. This guarantees the responsible and controlled operation of power agencies; the use of authority according to the provisions that are known and not retroactive in terms of harm, and the observance of individual, social, cultural and political rights.
The concept of Rule of Law was developed during liberalism and it has, among its philosophical sources, works by Kant and Humboldt. Both concluded that the action of the State is limited by the protection of an individual’s freedom. Even though that idea was clearly expressed in their works, the first one to introduce this as an important topic for political and legal definitions of the State was the German legal scholar and politician Robert von Mohl9 in his work Das Staatsrecht des Königreiches Württemberg, published on 1829. Many authors attribute to him the creation of the expression; however, Böckenförde shows10 that in 1813 this expression was first used by Carl Th. Welker, and in 1924 by Ch. Freiherr von Aretin. There is no doubt that the concept came from Germany. But even more interesting is the fact that it is not the source of a concept, but that Welker, as well as Aretin and Mohl, gave to this new concept a vital characteristic: the Rule of Law is the State of reason, of understanding, of political rationality. These statements gradually faded away so that other notes were able to form part of the definition of the Rule of Law.
The concept of Rule of Law is a response to the Absolutist State, characterized by the lack of freedom, the concentration of power and irresponsibility on behalf of the heads of power agencies. Thus, the legal guarantee of the Rule of Law corresponds to modern constitutionalism. Interestingly, the term "constitutionalism" was first used in 1832 by the poet Robert Southey, and it very recently spread as a legal expression. It has been understood that constitutionalism has two basic elements, which have been considered synonymous to the Rule of Law for a long time: the supremacy of the Constitution and the separation of faculties in the use of power. The 1791 French Constitution included the expression that would later become the dogma of liberal constitutionalism in Article 16: "Every society in which the guarantee of rights is neither assured nor the separation of powers is adopted, lacks a Constitution." However, it is important to remember that in 1793 the Constitution of Saint-Just project proposed the modification of the concept: "any nation in which the use of its rights is not guaranteed lacks a Constitution and principles of social order."11 In this case only constitutional supremacy was important.
It is useful not to forget that even if the Rule of Law is the antithesis of the Absolutist State, the instruments of both are the same: the supremacy of the norm. Neither does the content (this would only happen when the social Rule of Law appears) nor the enforcement (this would only happen when the democratic Rule of Law appears) vary, but the source of the norm does.
Dicey12 showed how in England, since the 14th century, the crown and the supremacy of the norm merged as a concept. The crown needed the norm to avoid the danger of being overthrown and usurped. The norm implied, in turn, the existence of a power to impose it. The royal power consisted of creating and enforcing the norm, both in the same hands. The English revolution meant the transfer of supreme power (sovereignty), which passed from the King to the Parliament; but the instrument to exercise power was the same: the norm. The Rule of Law, in turn, involved a triple guarantee: the legal process, universality of justice and the subordination of power acts to the decision of judges.
Later on, in the 20th century, the Rule of Law had totalitarianism as a counterpoint. It is seen that just the ideas of legal process and universality of justice are not enough. As to judges’ control of acts of power, it is necessary to take precautions not only against government excesses but those of legislators as well. Therefore, the Rule of Law is directed at forbidding the totalitarian expansion of the State. Totalitarianism was characterized by the suppression of individual and public freedoms, including outlawing parties and deliberative agencies; freedom of transit, assembly and expression. Not withstanding, Totalitarianism sought to legitimize itself through legal instruments. Except for Communism and Corporatism, which developed a formally constitutional structure, Falangism, Nationalism and Fascism were expressed through various laws that did not make up a systematic body.
Hitler basically governed with the support of the 1933 Law of Authorization, which entitled him to legislate on his own free will. Based on the parliamentary designation, he issued, among others, the racist Nuremberg laws in 1935 and the 11th Statutes on the Law of Citizenship of the Reich on November 25, 1941, which deprived the Jews of German citizenship. Alexy13 writes the Whereas of a Federal Constitutional Court decision in a case regarding that ominous norm. Among other important observations, the Court declares that "the legal national-socialist provisions should be denied validity as a law, because they so evidently contradict the fundamental principles of justice that the judge wishing to enforce them or accept their legal consequences would rule ‘no-law’ instead of law." He then reasserts: "the ‘no law’ imposed which manifestly violates the constituted principles of law do not become so by being enforced or obeyed." As Alexy comments, the Court could choose to invoke the precepts of a German constitutional order, but it preferred the non-positivist argument. Anyway, for the purposes of this study, it corroborates the insufficiency of a strictly formal Rule of Law.
In Italy, the formal effectiveness of the 1848 Albertini Statute remained in place, but various laws consolidated Mussolini’s power. In addition to the creation of the fascist Grand Council, its most important provision was the 1923 Acerbo Law, where Mussolini included the "governing clause:" the party of coalition that won a majority in elections was to be automatically awarded the absolute majority of the seats in Parliament. In 1925 Mussolini was endowed with delegated powers to legislate and his main decision was to form the Special Court for the Defense of the State in 1926. Several authors have considered this the truly Federal Constitution of the regime.
Therefore, aspects of a strictly formal nature (to have a Constitution, for example) were considered insufficient to identify the Rule of Law. From this, Zippelius14 proposed that the Rule of Law is governed by two basic principles: proportionality (a proper relationship between damage and the benefit caused by acts of the State), and excess (that nobody’s interests are affected more than necessary). As seen later on, the combination of both will be useful in determining the extent to which acts of non-enforcement of the norm go with or against the Rule of Law.
It is known that for Kelsen the identity of State order and legal order exists: "every State has to be a Rule of Law in a formal sense, since every State has to constitute a coactive order... and every coactive order must be a legal order."15 Now, this author accepts that a material Rule of Law can be spoken of to refer to the issue of how much concrete legal guarantees are demanded to ensure that individual legal acts correspond to the general norms.
Raz16 goes on to consider the Rule of Law a negative value: when coactive powers are endowed, the law creates the danger of arbitrary power; "the Rule of Law is made to minimize the danger created by the law itself." In turn and making reference to Kelsen’s argument, García-Pelayo points out that the idea of the Rule of Law makes sense from a legal and political point of view, as long as it represents the operation of the State system and brings standardization, rationality and, consequently, a diminution of uncertain factors into the system.
Few Constitutions expressly adopt the principle of Rule of Law. This happens in the case of the constitutions of the Russian Federation (Article 1), Honduras (Article 1), the Republic of South Africa (Article 1 c), Rumania (title 1, Article 4), and Switzerland (Article 5), for example. The Constitution of Chile (Article 6) establishes that "State agencies should subject their action to the Constitution and to the norms pronounced in compliance to it". Without directly referring to the Rule of Law, its meaning is stated.
III. SOCIAL RULE OF LAW
In accordance with the contemporary tendencies of constitutionalism, additional concepts for Rule of Law have been coined. The concepts of social Rule of Law and social and democratic Rule of Law have appeared. Moreover, with the 1999 Venezuelan Constitution (Article 2), the so-called democratic and social Rule of Law and justice arose. This one lacks of the elements that allow it to be distinguished from the other concepts, and even the inclusion of the word "justice" simply performs a semantic role.
The Rule of Law is the legal-political concept that immediately precedes the social Rule of Law. The appearance of social constitutionalism with the Constitutions of Querétaro (1917) and Weimar (1919) also created a new focus of the Rule of Law. Even though the Constitution of the 1918 Russian Union of Soviet Socialist Republics included an extensive "statement of the rights of the exploited and working classes" and various precepts on the right to work17, with which this Constitution could be considered among the precursors of the social Rule of Law, the extreme concentration of power that the Russian norm established do not allow for inserting it as part of modern and contemporary constitutionalism.
In the case of the Querétaro and Weimar charters, it was confirmed that the Rule of Law, on establishing formal equality before the law, produces economic disparities. Thus, the apparent paradise of the Rule of Law hid under deep contradictions. Herman Heller clearly noticed this situation and he proposed the transition of the liberal Rule (of law) to the social Rule of Law. Heller’s idea of the social Rule of Law would allow the working class movement and the middle-class to achieve a legally regulated balance. In other words, the possibility of a fair order of the authority on the economy, especially by limiting private property was posed, as well as the subordination of the labor regime to the law, the restraining intervention of the State in production processes and the transfer of the economic activity from the sphere of private law to the field of public interest.
For Heller18 the Rule of Law is the temporary result of the rationalizing process of power according to which the middle class is restored and strengthened. Progressively, however, workers, organized as labor unions and even as parties, were able to establish the "people’s legislative power". Thus, by means of new legislation, the economically weak individual seeks to "grasp" the economically powerful individual.
Zippelius19 uses the expression "liberal social State" to define the industrialized Western society where the possibilities of individual development are guaranteed while restricting the selfishness that damage the freedom of the group. As a rectification of the distortions of liberalism, said social State should intervene if the market economy puts the conditions of the free market in danger or causes significant damage to the national economy or the environment.
Herman Heller and Elías Díaz20 identify the social Rule of Law as a transitional stage: first, towards Socialism (from this comes the "temporality" of the social Rule of Law,) and second, towards the democratic Rule of Law. Zippelius refers to a swaying of historic development between the welfare State and liberalism in which the risk that the State continuously faces is made apparent: to lower the threshold of freedom, "smothering thus a basic need", or to extend the effects of freedom "with which the door is open to possibilities, gladly making use of them, to abuse freedom". Hence, he concludes, the source of instability of liberal State practices is that "freedom leads, over and over again, to its abuse", and said abuse again leads to its restriction.
Elías Díaz makes three transcendental remarks that should be taken into account when referring to the social Rule of Law. One, not everything that is called "empire of law" is necessarily a Rule of Law. This statement can be exemplified with the normative hypertrophy of dictatorships; second, the social Rule of Law requires a "strong executive power" capable of making the vindicatory interests of society and the interventionist ability of the State prevail, and third, there should be a clear bond between the social Rule of Law and the welfare State. This last one, in fact, is usually distinguished by the increasing rendering of public social interest benefits such as education, housing, supplies, healthcare and social services; a progressive tax system; protection of urban, working and agrarian rights and redistribution of wealth.
The Weimar (or European) concept of social Rule of Law strictly identifies this with the working class and its forms of organized struggle: the labor union and the party. In turn, the Latin American concept of the same reality tends to include, as said before, isolated sectors of cities and the agricultural workers. The protection of their interests (very vague in the first of the cases) is done with a middle degree of effectiveness by agrarian organizations. Therefore, the economical chapter of the social Rule of Law in Europe and Latin America is made up of different sectors: industrial and trade in the first case, in addition to urban and agricultural in the second.
In view of the above, I believe that two more principles can be added to the abovementioned basic principles of the Rule of Law (proportionality and excess) stated by Zippelius. These two additions complement the first ones and satisfactorily comprise the social Rule of Law. I propose including the principle of rationality, since the State organization should tend towards the integration of society and not to its stratification, and the principle of equity, since it equality among unequal individuals is simply speculation. These principles (the ones Zippelius supports and the ones I propose) allow for an explanation of the role of the Rule of Law in a democratic constitutional system.
Just as Kelsen questions the Rule of Law, the doctrine does not passively accept that of the social Rule of Law. Especially Forsthoff21 argued in 1961 that the relationship between the Rule of Law and the social State posed great problems. He said these deal with two different and incompatible States in the constitutional environment. On the one hand the Rule of Law has a system based on liberties as its axis, and on the other, the object of the social State is a system of benefits. The author believes the tendency of the social State leads to the progressive expansion of organized power and to society’s increasing dependence on the benefits and the actions of distribution of wealth by that power. Forsthoff adopts, in this point, the same conclusion that Hayek called "the road of serfdom": the social State ends up becoming the Rule of Law in a totalitarian State.
Fifteen years later, Forsthoff22 combined his points of view and admitted that the presence of democratic institutions could ease the tension between both models of the State, even allowing them to complement each other. This conclusion is partially confirmed by the tendencies of contemporary constitutionalism. In the Constitutions of Colombia (Article 1), Ecuador (Article 1) and Paraguay (Article 1), for example, the concept of social Rule of Law already appears. In the Constitutions of Germany (Article 28), Spain (Article 9.2), Turkey (Article 2) and Venezuela (Article 2), the social principle appears alongside the democratic principle. Moreover, as it can be seen in part 5, social constitutionalism arose with the 1917 Mexican and the 1919 German Constitutions, even if the social term was not expressly used. The social nature of many Constitutions is implicit in its contents, in the same way it has taken place with the concept of Rule of Law.
Contrary to what Hayek and Forsthoff stated in 1961, it was not the social State that took the place of the Rule of Law but it is the (liberal) Rule of Law that has prevailed over the social State. Despite of the constitutional provisions, if any, the prevailing tendency is in the sense of reducing State presence. The benefit system and distribution of wealth policies that define the welfare State are regressing. When they are preserved in the constitution, they are gradually turning into semantic clauses.
IV. SOCIAL AND DEMOCRATIC RULE OF LAW
The first time the expression "democratic and social State" was used was during the 1848 Parisian revolution, even though the integration of individual law and social law had already been observed during the intense years of the Convention.23 The demands for recognizing the right to work as presented by socialists, proposed by Louis Blanc and seconded by Louis de Cormenin, found strong opposition in Tocqueville and Thiers’ arguments. In the negotiation process prior to the creation of a new constitutional document, the socialists and conservatives agreed to launch a transactional model of "democratic and social State". As a result, the presidential Constitution was approved that year. This norm included some social vindications but not the right to work.
A century later, Bonn’s 1949 Federal Constitution (Article 28.1) was the first constitutional provision that included the concept of democratic and social Rule of Law. Afterwards, also the Constitutions of Spain (Article 9.2), Turkey (Article 2) and Venezuela (Article 2) followed suit. Other Constitutions have incorporated the principle of democratic Rule of Law, without expressly mentioning the social element. This is the case of Brazil’s Constitution (Article 1). Abendroth24 observes that, in the case of Germany, the term "social Rule of Law" has lost its connection to "social and democratic Rule of Law". To corroborate this, he mentions the Federal Constitutional Court and the Federal Court for Labor decisions, which only refer to the social element of the constitutional text. He admits,25 however, that "with the formulation of the legal principle that democratic and social law pertain to the State, the Constitution has without a doubt sought to effectively safeguard at least some ideas of the contents of said principle". This produces a binding force for the legislator, the government and the Länder.
The social and democratic Rule of Law includes the protection of the individual and of his rights to participate in politics and class relations, establishing mechanisms for the distribution of wealth by means of salaries, the use of collective rights and a set of benefits that ensure well-being.
What distinguishes this kind of State is the link between social content and those concerning pluralism. Citizen participation is essential both to extend rights that correspond to the social body and to carry out effective vertical control on the agencies of power. A State that waives pluralism rapidly tends to paternalism and from there, to adopt dogmatic forms of exercising authority.
V. RULE OF LAW AND CONSTITUTIONALISM
The characteristics of the Rule of Law allowed the constitutional system to be defined. In this sense four major tendencies are noticed: liberal, social, democratic and cultural. In the early 20th century, liberal constitutionalism prevailed, planned throughout the previous century. Constitutions were structured from the rights of freedom, property, legal security and equality. Some of their issues were the rights to association, petition, suffrage and freedom of awareness.
Although, as Vanossi26 says, it is not easy to form an opinion that covers entire cycle of social constitutionalism because among other things it is not yet extinguished. However, it is possible to identify some general positions.
The fundamental characteristics of social constitutionalism were the acknowledgment of the right to professional organization, to strike, to collective contracts, to access to wealth (in the Mexican case it meant a wide range of actions of an agrarian nature), and principles of equality in legal and economic relations. This explains the origin of social security, labor courts and the defense of rights such as a day’s work, salaries and mandatory rest. Moreover, the rights for benefits charged to the State appeared, such as education, health, housing and supplies.
One of the most commented consequences of social constitutionalism was to become the basis for State interventionist acts. Therefore, during the process begun in the eighties of the twentieth century, the gradual disassembling of the State has inevitably implied the gradual decrease of the welfare State.
Democratic constitutionalism, in itself, was the object of significant previsions immediately after the Second World War. Parting from Bonn’s Federal Constitution, parliamentary systems became stabilized by means of partial presidentialization, and presidential systems tended towards gradual flexibility to become more receptive to instruments and procedures of political control, of parliamentary origin. In the United States of America limits were even established for presidential reelection (22nd Amendment, 1951).
The characteristics of democratic constitutionalism consist of acknowledging political parties; guaranteeing free and impartial elections; decentralizing power, including the forms of the federal and regional States; strengthening the organization, powers and operation of representative bodies; adopting partially direct democratic forms, sometimes, even, to the detriment of representative systems, such as the legislative referendum, the plebiscite, popular initiative and, less frequently, recall.
Constitutionalism in the last decade of the 20th century is noted for an emphasis on cultural rights. Cultural rights are not class rights as social ones are. Nor are they universal rights, like democratic ones are. Cultural rights are collective rights that protect specific interests that concern all social-economic levels. Among these interests are human rights, but the scope is very broad. It includes the right to protect the environment, to development, to leisure time and sports, to privacy, to non-discrimination, to migration, to information, to objection of conscience, to security in consumption and to linguistic, cultural and ethnical diversity, among many others.
Peter Häberle, on the other hand, believes that the social Rule of Law is an element of the constitutional State. This thesis should not be mistaken for Zagrebelsky’s proposal, which Rodolfo Vázquez27 logically refuted, since the Italian professor presents the concept of "constitutional Rule of Law" as an alternative to that of the Rule of Law. In Häberle’s28 case, he does not suggest substituting one concept for another, but to incorporate one concept into the other. The arguments are convincing, since, as mentioned above, the relationship between the Rule of Law and constitutionalism has been developing symbiotically until it reaches clear unity.
VI. LIMITS OF THE LAW
From Habermas’29 perspective, the Rule of Law is the way to regulate the cycles of power in complex societies. In this sense it brings in a new element: complex societies. It is not difficult to understand what it refers to, but it is not explicit in any way. Apparently, it could conceal needless repetition, because the idea of State, with its normative and conceptual framework, only arises in "complex societies"; not in what would be the opposite: tribal societies,30 for example. But this seeming redundancy is clarified when the same author assures31 that "the rule of Law cannot be maintained without radical democracy". At this point, the new question to answer is how this kind of democracy should be understood. It is not, of course, a radical concept derived from the forcefulness of power in the name of society, or from society under the pretext of freedom. Democracy is radical and society is complex, because communicative reasoning prevails.32 This reason is the linguistic means that allows lifestyles to be formed and interactions typical to these forms of democracy and society to be fulfilled. Moreover Elías Díaz33 accurately makes a close link between the democratic system and the Rule of Law, by identifying the converging lines of their evolution.
This communicative reasoning expounded by Habermas is present in daily relations and this is what allows reaching agreements or delaying the solution of conflicts. There is permanent tension among normative statements "which are constantly in danger of losing contact with reality" and objective statements "which screen all normative aspects". It is, in the words of Habermas34 for this purpose, the problem between facts and validity. So, the normative regulation of interactions35 arises to solve conflicts, which is what turns law into a condition of social mediation.
The hypothesis of legal validity, with its elements of freedom and obligations, should take into account the tension with reality or facts. Here, Habermas’ concept of complex society reappears: "modern societies are integrated socially through values, norms and mutual of understanding, but also systematically, through markets and administrative use of power".36 Therefore, while in the Rule of Law power can only act based on the normative order, which allows for stabilizing expectations37 and maintaining the legally structured life, facts bring in elements of tension whose solution is also demanded by society. In this case, meetings of the minds are not dismissed as a means to solve conflicts. "Communicative power" is found in both spaces: the space for creating and enforcing the norm and the space for deliberating and entering into agreements. Therefore, this is a concept of considerable extent that includes the phenomena of facts and validity.
The problem is that the consensual composition of conflicts lends itself to distortions. The sociological perspective of the Rule of Law38 does not exclude a balance among the powers of social integration: money, political power and solidarity. Here, there is a risk to overextend the number of elements involved in social mediation, in addition to law itself. The solution consists of accepting that all the powers of integration are regulated powers. As to the subject of this essay, that of the non-enforcement of the norm, this allows us to reach a satisfactory solution from the point of view of the Rule of Law: it is likely that if a norm is not enforced in order to prevent greater damage than if it were enforced, then another legal provision is being enforced. In other words, it is possible that the specific rule yields to the general principle. This we know brings risks, but it is justified only in extreme situations, which any Rule of Law has to face to avoid ruptures. The statement of the principles collides into interpretative problems, which are not always easy to overcome. Furthermore, it should be taken into account that legal provisions constitutes a system that allows explaining omissions concerning the enforcement of a specific norm while another one is enforced.39 As long as the system shows a coherent relationship among norms (be these rules or principles) that integrate it, it can be said that if a provision is not enforced another one is. However, this would imply that a system is perfect and has no gaps. Since it has not be proven that such a thing exists, we have to admit that in some cases it could be said that non-enforcement of a norm can be explained in terms of enforcing another one, without this being an antinomy. In this case it would be a flawed system because it includes norms that contradict each other. But it is also possible that in some cases a provision is plainly not enforced without being able to fully prove the enforcement of another. Hence, this is a very complex problem.
As to the enforcement of general principles it should be remembered that legal statutes are very broad and include rules and principles. Hereof, we are using the word "norm" as a synonym for "rule". This explanation is relevant because the difference to principles can lead to confusion. Avoiding the old controversy about the meaning of both concepts (rule and principle), I find the differences posed by Alexy40 very practical for the purposes of this paper: principles are orders of improvement that can be obeyed to different degrees, while rules can only be fulfilled or not. On the other hand and for the purpose of legally outlining (as corresponds to a problem of the Rule of Law) the non-enforcement of the norm, we can also refer to the ample space opened up by Elías Díaz’s renewed concept of legal pluralism.41 For Díaz, the interrelation of society-State-law allows us to understand that legal statutes are made up of new norms and previous behavior through the capacity of social self-regulation, through the independence of will, through jurisprudential creation and through the coactive order of the State, which nowadays is subject to very dynamic processes of transformation. The thesis, tied in with legal sources, has a long tradition, but the important thing is to notice that even well grounded paradigms are subject to conceptual updating, precisely because of the need to explain such dissenting phenomena as the non-enforcement of the norm in the Rule of Law.
Since ancient times there has been an area of collective life where strict enforcement of law has been the object of differences. In Analects,42 Confucius stated: "If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given to them by the rules of propriety, they will have the sense of shame, and moreover will become good." In this point, as Wilhelm43 points out, the Chinese philosopher opposes the norm to custom. Modern man cannot understand this, adds Confucius’ biographer, because "men cannot imagine a State mechanism without codes," but it was part of the debate on China’s social structure in the 6th century BC. In opposition to Confucius was Han Fei Zi,44 almost three centuries later. Contrary to the old master, Han believes the severity of the punishment is the expression of true love, because it is the only action that separates man from evil.
Tsï Tschan, Confucius’ contemporary who governed Tschong, decided to make the laws known by engraving them on copper plates so that nobody could argue not having followed them because of not knowing them. This way to make the law known in ancient times, by engraving it in stone or metal, was a practice that was also followed by the Semites and then by the Greeks and Romans.45 In the mentioned case, the discrepancy between Tsï and Confucius lies in the different points of view they have of government. The moralist knew that there is no law that can foresee all behavior.
Thus it must have been discussed over the centuries. Five centuries later, Cicero also points it out when he collected a proverb that seems to have been very well known in at that time: summum ius summa iniuria.46 Indeed, almost one hundred years before Cicero wrote it, Terence uses a similar expression and identifies it as being in common use for many years. The end of the comedy Heautontimoroumenos [The Self-Punisher]47 reaches the point where it is necessary to pay a large amount of money in order that one of the characters can recover his daughter, "given as a guarantee" to a third party. Then he exclaims "verum illud dicunt: ‘ius summumm saepe summa est malitia’" (that is why it is said ‘supreme law is supreme evil’").
For his part, Cicero mentions an illustrative example: suppose, he says, that two rivals agree a thirty-day truce; however, one of them ravages his enemy’s fields at night "because the truce stipulated days, not nights." The saying obviously refers to a way of interpreting the law; but in any case it is known that any act of enforcement is a form of interpretation. Hence, Cicero’s principle is used here as an element to endorse the very remote concern to attenuate the severity of law.
Columella expressed himself at that time along the same lines. In referring to the legal burden on agricultural workers, Columella48 stresses that everything the law stipulates should not be enforced, because it can cause more disadvantages than advantages for the people. Therefore, he adds, since "ancient times" it is known that the maximum severity of law is equivalent to the maximum severity of oppression (nam summun ius antiqui summam putabant crucem.)
For Kant49 the principle summun ius summa iniuria ("the highest authority is capable of the gravest injustice") represents the apothegm of equality. However, he adds, such damage is not remedied by legal procedures, "even if it affects a legal demand." Equality is "a dumb deity that cannot be heard." In Metaphysical Elements of Justice50 he reiterated that said expression is the motto of equality, observing that a claim based on equality has no power "except in the court of the conscience," and not in a civil court.
On the other hand, the philosopher is attributed to having coined the devastating saying: "fiat iustitia et peseat mundus" ("let justice be done though the world go to ruin"), which repeats another used expression "fiat iustitia, ruam caelum" ("let justice be done though the heavens fall"). Meanwhile, Hegel is attributed with having corrected it in the sense that "fiat iustitia ne pereat mundus" ("let justice be done even though the world be destroyed"). As to Kant, this was an expression used in his time that he justified51 as "a brave legal principle that intercepts all the paths twisted by violence or malice". He later stated that the principle should not be misinterpreted as permission to use law with the utmost severity since this would be contrary to ethical duties and that its true dimension is the obligation of the holders of power not to refuse anyone their rights. So, the justice to which he refers, and Kant understands it so, is justice that can be claimed before an authority. Therefore, the German philosopher concluded, "it is necessary to have an internal Constitution of the State in compliance with the general principles of law." There is no room for error, the direct reading of the Latin expression without the intelligent difference that Kant used becomes a license to commit abuses in the name of law.
Tacitus52 mentions a case in which the Senate discussed the severity of enforcing the law. In the year 61 the prefect of Rome, Pedanius Secundus, was murdered by one of his slaves. Wrath was great and it was immediately demanded that an old custom, which had been made law during the reign of Augustus be enforced. This ancient law required that the entire slave-establishment should be executed if one of them murdered his master. In this case the victim was wealthy and the number of slaves came to four hundred.
A great number of citizens gathered requesting indulgence for Pedanius’ slaves. The opinions were divided in the Senate but Senator Caius Cassius’ opinion prevailed: law should be enforced. Caius Cassius stated that Pedanius could "have been justly slain"; that surely "the innocent will perish," and that "the cruelty of such old custom" was evident, but so was the law and its enforcement was inexcusable. However, the political statement that really convinced the Senators was very simple: Rome was filling up with slaves from various places of origin and it was necessary to give a deterring and effective message to prevent any actions adverse to the interests of power. This should have touched sensitive fibers at a time when Christian religious doctrine was progressively gaining followers. The Senate decision was based on considerations inherent to the reason of the State. This explains the enforcement of such a drastic provision even though it was admitted how disproportionate the punishment was.
Seneca offers the most accurate point of view on the problem of severity of law in his exceptional work on clemency. Being first Nero’s preceptor and, secondly, his counselor, Seneca was compelled to write a summary of Stoic policies to guide decisions of the new prince, whose sense he probably already foresaw. The treatise was written before Nero adopted the decisions that characterized him as a psychopath. Most probably, Seneca had already noticed the emperor’s tendencies and therefore he started the treatise53 explaining, "I have written about clemency, oh Nero Caesar, to act as your mirror."
Setting Seneca’s statements regarding the exaltation of Caesar’s power aside, "On Clemency" is a profound study of policies from a viewpoint close to what we would now call tolerance. Seneca, himself, differentiates clemency from mercy because the first is linked to reason and the second, to the pain caused by external misery.54 Nowadays, there is a coinciding expression when Zagrebelsky admits55 that the stress of passing time makes "severity" converge in enforcement of the law, but so does piety in the face of the most rigorous consequences."
Seneca’s philosophical legacy eclipses his literary work and his political work even more. However, it should be taken into account that his political abilities were made evident in Nero’s acts and words when he began his rule. In his first speech before the Senate, the emperor made use of an old principle already proposed by Aristotle: the separation of power. According to the text written by Seneca, Nero made a democratic proclamation: "the absolute control of all should not be given to the government of a few individuals."56 Later on, he declared that his power and the Senate’s "were separate and different," and that justice corresponded only to the consuls.
On clemency, Seneca argued as did Aristotle for the happy medium: "clemency should not be blind..., because so much cruelty can exist in forgiving everybody as it can in not forgiving anyone. It is necessary to maintain a happy medium."57 He adds that the prince should be towards for his citizens as he would like gods to be towards him: indulgent and fair. "The gods, being indulgent and fair, do not punish at the time of the act with the ray the crimes of the powerful...".58
There is another important indication that leads into the thesis of the reason of the State only just appears until the Renaissance (Machiavelli, Botero, Campanella, Franchetta, Zuccoli, Settala, Chiramonti, etc.): the difference between a tyrant and a prince is that the first one punishes for pleasure and the second one because it is necessary. The alternative that Machiavelli would present centuries later already appears in Seneca,59 when he makes reference to an "deplorable verse" which, according to him, so many princes had made their own: "let them hate me as long as they fear me." This happened, according to the philosopher, because they did not practice clemency.
What is clemency after all? Seneca attributes it with various characteristics: to punish without harshness; to punish because it is necessary; to punish at the right time. Clemency, he concludes, "is the moderation that suppresses something of due and deserved punishment."60 The key to clemency is in the equality, which allows it "to pardon and judge punishment."61 Once again, Seneca introduces considerations on justice that will be further developed eighteen centuries later when the subject is taken up again from another point of view by Vattel in his famous treaty on International Law.62 In the 18th century, Vattel states that "the nature of government demands that the executor of the laws have the power to dispense them when he can do so without harming anyone, and in certain specific cases when the well-being of the State requests an exception." Here, the famous Swiss humanist touches upon an issue to be discussed below: the effects of the non-enforcement of the norm regarding third parties. The core lies in the accurate and clear way he sees the problem, which does not deviate from the concept of "justice and clemency" that we find as of Seneca.
Regarding the non-enforcement of the norm, Seneca refers to an interesting case:63 a Senate edict decreed "in other times", that slaves would wear specific clothes that would distinguish them from free men. "Very soon, danger for us was perceived if slaves began to count us." So it was decided not to enforce the punishment set forth by the norm, because it was observed that the harm was greater than the benefits it rendered.
This event was not foreign to the behavior of the Roman State. Ihering64 has shown to what degree there is a pronounced contrast between the modern State, organized to a certain extent to grant tranquility to the governed class and to attenuate the distrust in institutions and politicians; and the Roman State, with just a few written norms and many of these consuetudinary, in which trust towards the holders of power was in mutual control, in short-term mandates and in the search for prestige and respect, which distinguished performance of public duties, at least from the 4th century B.C to the end of the Republic.
An old principle of law posed by Ulpianus reads dura lex sed lex. Its implications are clear: between harm in enforcing the law and not doing so, the first one is chosen. The consequences of implacable severity can be extensive. Let’s take the literary examples from Victor Hugo in Les Miserables, Heinrich von Kleist in Michael Kolhaas or Dostoyevsky’s The Grand Inquisitor. These examples are intense moral portraits in which the enforcement of strict law leads to monstrosities. The reflections in The Grand Inquisitor —having to arrest Christ, who was in Seville, and condemning him to burn at the stake because if he did not do so he would establish an exception to the rule that would hasten the collapse of Christianity— also implies the paradox that severity goes against itself: the system based on severity is destroyed if it stops to practice this and if it practices it.
Back to Ulpianus, the above-mentioned statement really expresses a warning that goes against legal severity. The expression dura lex sed lex is a corruption. The literal text reads "durum est, sed ita lex scripta est" (it is hard, but the law is written thus.)65 The case it refers to is about the restrictions for liberating slaves. Therefore, the rule that hinders a divorced woman from granting her slaves freedom recognizes that "certainly it is hard, but the law is written thus."
It so happens that every contemporary political system, basically the most open ones, admits the possibility of limits for enforcing the law. These limits are specifically the freedom of appraisal given to representatives so they may determine which cases and up to what extent it is possible to tolerate unlawful behavior. The most frequent cases are those that generate disorderly demonstrations, which, from the perspective of strict legal order, may pertain to acts that are usually punished. Here, the useful typology of power proposed by Jorge Carpizo66 can be enforced. According to this typology, there are six kinds of power and one of them is originary power. This power establishes the rules for freedom and legal security and is in reality expressed in a regulated and organized way through electoral processes, for example, or spontaneously and sporadically through demonstrations and public meetings.
Nobody is authorized to impede the traffic on thoroughfares, but this restriction does not usually work for mass demonstrations whether administrative authorities have authorized them or not. There are many of similar cases. The terms of tolerance propagate in every democratic constitutional system in favor of public liberties, beyond the limitations imposed by legal precepts.67 Societies accept the fact that their representatives have discretional margins; the broader they are, the more legitimate societies are considered. In other words, the more societies distrust their representatives, the more demanding they will be with their representatives in terms of enforcing the law.
Under these conditions, law becomes a ritual object of textual enforcement. Those in power cannot exempt anyone from this process because collective trust does not favor them either. However, every society needs a relief valve for daily stress, which includes spaces for tolerance. When there are no such spaces due to the lack of trust in the competence of the representatives, social life hardens, in the name of society but to its detriment.
Even though it is not a highly important political issue, it is an example that can be mentioned because of the heated controversy it brings and the effects it had in terms of the use of basic freedoms, specifically those of creation and expression. In 1892 Oscar Wilde announced the performance of his play Salome, starring Sarah Bernhardt. The officer in-charge of authorizing the public performance banned the premiere, arguing that an old statute prohibited the exhibition of biblical scenes in the theater. Even though said statute was repealed in 1968, since October 1931 it was no longer enforced, precisely to allow at last Wilde’s play to premiere in London.68
We found another illustrative example in Germany. Some time after the Reunification of Germany, human rights activist Bärbel Bohley69 declared: "we wanted justice and they gave us the Rule of Law." Indeed, those who immediately after the reunification of Germany wanted to indict those responsible for many human rights violations found that the Rule of Law does not allow the retroactive enforcement of law. This case poses a certain contrast between the Rule of Law and reality, although in the opposite sense of what we uphold. According to Mrs. Bohley’s thesis, the Rule of Law was an obstacle to justice, while, according to our definition, the Rule of Law is not brought to a standstill because of an extraordinary non-enforcement of the norm. In this case, however, non-enforcement of the norm, which prohibits retroactive effects of the law, would have meant serious damage to people and the legal order.
Despite the plenitude of the legal order, it is accurate to admit that not everything that happens in the life of society can be normatively foreseen and regulated. Democracies, while open systems, are exposed to substantial sudden changes. Because of their characteristics, these systems allow behavior that even go against them. Tolerance is the greatest virtue of democratic systems, but it is also its most vulnerable point. Dictatorships fail when the excesses of intolerance leave no other way other than violence; meanwhile democracies collapse when tolerance turns into defenselessness.
Discretion has two facets: arbitrary discretion and the one that we can say coincides with the Rule of Law. As to the later, the original argument appears in Aristotle,70 basically referring to the legislator’s inability to foresee all possible behavior. "Law, he says, only keeps ordinary cases, without knowing on the other hand their insufficiency." Thus the "nature itself of equality lies in emending the law, as much as the law is inadequate due to its general character." However, the philosopher then examines another issue that acquires an ethical dimension because the "fair man" is he who "does not rely on his rights with excessive severity." He even compromises "to take less than what corresponds to him, even if the law is on his side." As can be seen, these are two different cases.
Even though the problem analyzed by Aristotle corresponds to what we could call the loopholes in the law, it also refers to the "severity" in exercising one’s rights, which is a different matter. The first case is about behavior that the norm does not foresee; the second case is about behavior the norm does foresee but recognizes that its enforcement could result in harmful excess. This is now the subject of interest. Therefore, this is not about what we have seen in contemporary administrative doctrine as the administration’s discretion in regulating the law or not; or to carry out administrative acts within broad margins for decisions, such as entering into contracts or granting permits or concessions. This is not the issue. What is presented here is in which cases, with a specific provision, the body of authority can stop coactively enforcing a norm without making the Rule of Law vulnerable. Moreover, it is necessary to determine whether there are circumstances in which the discretion of the government’s body is part of the Rule of Law, and in these cases, to what degree and who determines it.
The extreme of discretion is expressed with the known Castilian folk saying: "allá van leyes, do quieren reyes" [There go laws, where kings want] The origins of this expression are certainly funny. Mariana71 narrates that in the year 1088 a funny event happened in the Castilian Court. Centuries ago the gothic Missal was used, but the Crown, in agreement with pope, wanted to bring in the Roman breviary. Since the use of first Missal was deeply rooted and the populace did not accept the substitution willingly, it was decided to solve the dispute with a formal duel. The knight fighting for the old breviary won the duel. So, a second challenge was decided upon. This one consisted of placing both Missals in a bonfire. The Mass book that was not destroyed by the fire would prevail, but the Roman Mass book "was singed." In view of these circumstances, the king decided that the old breviary would be used in the oldest churches, known as "Mozárabes", and the Roman breviary would be used in the other churches. The quickly defeated traditionalist sector coined the response "there go laws, where kings want." Experience and the saying give a good portrait of a stage when monarchical authoritarianism was not fully consolidated, but in which the tendency for concentrating and exercising discretionary use of power was already seen.
The problem of discretion has not disappeared. For example, when Wade72 makes a series of objections to Dicey’s ideas on the Rule of Law, he remarks that the British constitutional system admits a large number of discretionary powers to the government, the use of which is subject to the assessment of the courts. Administrative doctrine has widely elaborated on this subject, also approached from the perspective of the theory of the State73, which is nowadays a scarcely controversial aspect. What is now necessary to determine is whether government authority can make exceptions in the enforcement of specific norms under the argument of not causing greater damage than that resulting from enforcing the law.
In analyzing the semantic connotations of the English expression "to enforce the law" translated into French and Spanish as "aplicar la ley", Derrida makes a series of observations that are useful for the purpose of this study. The real meaning is directly related to the power of law and implicitly this power translates into its enforcement. As Derrida also points out, it corresponds to the Kant’s idea of categorical imperative74: an action that is objectively necessary in itself. Now, the problem is not the norm’s coactive nature, but in the circumstantial decision of not executing said requirement. The norm does not cease to exist because it is not "enforced", according to Derrida’s example. The body in charge of enforcing it simply decides, according to a norm of powers (norm A) not to enforce the punishment set forth for the norm that was broken (norm B). At this point, we have to determine whether the Rule of Law is altered when the secondary (coactive) norm is not enforced.
On the other hand, in view of the thesis of "enforcement" to which Derrida refers, the law of the United States of America has also developed the so-called norm of justifiable non-enforcement75 and the concept of "departure from the rules",76 to which we refer as "non-enforcement" of the norm. Explicitly, some officials are authorized to enforce the law "discretionally".77 This is the case of the officials with the power to arrest lawbreakers under special circumstances (for example, street demonstrations) or not; the case of the prosecutors who may not investigate certain individuals (for example, protected witnesses); the case of judges, whose possibilities to appraise the seriousness of crimes are very broad; and state and national governors, who can exercise the supreme power of remission of debt (pardons or amnesty).
Besides this (explicit) "delegated discretion", there is the symbol of "legitimated interposition"78 which arises when officials move away with justification from the norms of jurisdiction that regulate their activities. As can be seen, the key is that this omission is "legitimate". At this point, the concept of legal system intervenes.79 This is a useful concept because, regardless of the specific norm that is the object of the non-enforcement, the system has an entire set of principles and provisions that are permanently enforced and that are not affected by the exception. Here, the exception is justified as long as it contributes to the purposes of the legal system and hence to the Rule of Law. Partial and exceptional non-enforcement does not correspond, therefore, to validity conflicts to which Alexy80 makes reference when he states that norms become inefficient when they are not "generally" obeyed or when the punishment corresponding to the violation is not enforced.
Legitimate interposition or the non-enforcement cannot be mistaken with usurpation or violation of the law. In the first case, the authority would be acting according to the powers granted to another agency; in the second case, the agent would be committing an act or omission punished by the norm. The non-enforcement, to which we make reference, does not consist of usurping the duties of another authority nor it is carried out to violate the norm, but to avoid greater damage than that resulting from its enforcement.
Of course, this is a very controversial aspect because it suggests recognizing discretion in the acts of authorities. This is the kind of issue that Dworkin81 calls "embarrassing" because it does not give a satisfactory response for everybody. According to Dworkin,82 there are three types of discretion: the action that is carried out outside the boundaries of reasonability allowed by the norm; the action that does not allow further revision and the action that is carried out under the strictly responsibility of the agent. On carefully studying the differences adopted by Dworkin, we perceive that the true element for distinguishing discretion levels lies in the definitiveness of the decision.
Possibly, the most complete, positive code that allows overcoming the risk of discretion from the reasonability of authorities’ acts has been coined by professor Eduard Maurits Meijers, considered the most prominent Dutch legal scholar of the 20th century. Since 1958 he has prepared the project of the new (1994) Dutch Civil Code. Article 248-2 stipulates that "a rule governs between the parties as a result of the contract is not enforceable, as long as said enforcement were inadmissible under the given circumstances, according to the criteria of reason and equality." Here, we find an additional factor to that of equality: the reasonability of the norm and, eventually, its non-enforcement. It is true that this brings in new problems because determining the reasonability of norms and decisions that lead to their enforcement or non-enforcement opens a new and wide space for reflection. I point this out simply as a new perspective originating from the suggestive innovation of the Dutch Civil Code, which should be looked into. The Swiss 1999 Constitution brings in a new concept (Article 5th) as an element of the Rule of Law: State agencies, just like individuals, should act in good faith. This means that possible cases of non-enforcement of a norm cannot be considered an act of leniency or a precedent against legal statutes, but a decision leading to avoid affecting social cohesion, which is one of the essential goals of the State.
O´Donell83 supports another important point of view. He stresses the obligation of the authority to enforce the norm, which implies certainty for governed individuals and control of the authority’s acts. He adopts Raz’84 thesis on the characteristic elements of the Rule of Law, which include absolute rejection regarding the discretion of crime prevention agencies. Notwithstanding, Raz also offers an extensive argument about disobedience to the law, since "so many times an act of violation to the law does not have adverse consequences."85 Apparently, O’Donell does not share this argument. Raz’ thesis on obeying the law does not dismiss margins for "administrative discretion,"86 as long as it is controlled.
Non-enforcement of the norm, without violating the Rule of Law, should be a revocable decision by the agent who adopted it or modifiable by a body of control. Otherwise, by lacking possibilities for rectification, discretion could be interpreted as arbitrariness. Of course, not all of the risks that are run with the non-enforcement of the norm have to do with possible excesses on behalf of the authority. Also, another phenomenon equally harmful to legal security and liberties can arise: leading to a collective practice of breaking norms as a way to reach certain goals that could be obtained through legal procedures.
One aspect worth consideration is that of the effects of the non-enforcement of the norm regarding third parties. Usually, the importance of this issue has focused on the direct relationship between the individual on whom the norm is not enforced and the individual who ceases to enforce it, without harm to the Rule of Law. However, the situation of the third party should be taken into account since the non-enforcement of the norm can cause greater damage than the benefits that would come from enforcing the norm.
Let us again use the example of violent demonstrations that are authorized based on the principle of tolerance in the exercise of public freedoms. In this case not only do we have the relationship between demonstrators and the authorities, but it may also affect the right to transit or that of assembly of third parties, let alone the property damage that the demonstrators may cause. Under this circumstance the problem becomes considerably more complicated because the greater damage avoided on one side are produced on the other. An extremely complicated situation may arise in which the lawbreaker is not punished on the one hand and the victim’s rights are left unprotected on the other and to the same degree.
The non-enforcement of the norm faces a huge problem in dealing with effects on third parties. This problem requires, in the first place, determining who should be considered third parties in the cases cited, because if said concept extended to society, in which the events take place, in its entirety, it would be very difficult to explain the numerous cases of non-enforcement of the norm that do not aim at avoiding serious social damage. Therefore, society as a whole cannot be considered an injured party in the cases mentioned in this study. However, it is quite clear that there are specific individuals who do suffer the effects of the non-enforcement of norms.
The case of those who are not hampered to transit, to work or to assemble was already mentioned. Also, patrimonial damage may happen because some property may be affected or because, as happens with the non-regulated street vending, it may affect legitimate expectations of legally established businesses. Once again it is evident that the measures of the non-enforcement of the law should be transitory; especially if the negative effects are partially absorbed by third parties.
Another important aspect to consider when referring to third parties is that punishable acts to which the norm is not enforced, are not directed against such third parties, but that these acts establish behavior, which are principally concerned with State agencies. If behavior that is not punished had been exclusively or intentionally directed at causing some kind of effect on other members of the society in any way, then the non-enforcement of the norm is unexplainable from the point of view of the Rule of Law. It is one thing, for example, to hold demonstrations that restrict people’s transit, but in this case the direct goal is not precisely that one, and it is another to resort to sabotage to affect workplaces. In this case, the action goes directly against specific individuals or corporations.
The issue of third parties has not been satisfactorily solved in any positive system. Not even in States where there are instruments for claiming civil responsibility from the administration have these been used to demand compensation for damage caused by tolerance to certain behavior that harms third party interests or rights. For example, when thoroughfares are blocked in Europe due to truck drivers’ actions on the fringes of the norm, nobody has even tried to sue authorities, who in this case ceased to enforce the norm against the lawbreakers, for the redress of the resulting damage.
Of course it is not fitting for authorities to use acts of God as an excuse, because that would show that their lack of action was not due to a decision of prudence and tolerance, but merely powerlessness. This would be incompatible with the nature of power itself. In this case, the theory of representation can offer a reasonable explanation to admit that under certain circumstances third parties receive the negative results of the non-enforcement of norms. Only thus can it be explained that third parties are compelled to accept the results of the non-enforcement of norms. Those making decisions do so because of the legitimate representation they hold, passing in this way the legal consequences of their decisions to those represented, despite possible damage. If it were not understood this way, then there would be no theoretical solution to this problem.
VII. REPRESENTATION AND LEGITIMACY
The problem of political representation constitutes one of the basic issues in the organization of the contemporary State. The legitimacy of political systems as a whole depends on an adequate representative system, to a significant degree. When representation ceases to work along the terms established by the Constitution or the citizenry, there is a fracture in the legitimacy of power.
This is a very important issue because the Rule of Law depends on representatives’ actions. Usually, it is believed that the legality of the rulers’ behavior corresponds to their adapting to legal precepts. This is what is called Rule of Law. But besides legality, the representatives are required to have come to power through procedures the community deem reasonable, free, objective and fair.
Independently from traditional concepts of the Rule of Law and the concept used herein, Dworkin makes an observation that is important to mention. He says87 there are two "concepts" for the Rule of Law: one that states the power of the State cannot affect people, except according to specific norms of jurisdiction; and the other that corresponds to people’s perception of being holders of rights before third parties and power as a whole.
Even though, in general terms, both concepts form part of the same legal reality, the difference is noticeable in understanding the various attitudes about the Rule of Law. Therefore, in addition to what Dworkin points out, a third category should be added: one that corresponds to individuals who believe that the Rule of Law is enforced only when agencies of power work to protect what a certain number of people think are their rights in the face of another group of people considered lawbreakers of those rights.
According to this outline, perceptions about the Rule of Law are different depending on the individuals these views come from, their direct relationships with others and with power, or their relationships with others through power; or if these come from power itself in its relationships with individuals or among agencies of power.
All of these elements depend to a certain degree on the subjective appraisal of the collective being called political society. When according to the prevailing general opinion the mechanisms that grant power to representatives are reasonable, free, objective and fair, society is willing to stand by their representatives’ decisions; when this is not the general opinion, the bases for civil disobedience arise.
This issue is part of the concerns that affect many societies. Many of the events seen every day and deemed part of a process of institutional decline correspond to a loss of the generalized certainty of representatives’ legitimacy. One of the most frequent expressions of this consists of a disdain for politics. A paradoxical extreme is even reached in that main political figures express their disdain for politics.
The bad thing is that discrediting politics precedes authoritarian periods. This term gained popularity especially with the impulse Juan Linz gave it and it is currently a substitute of what is none other than the tendency to concentrate power in the hands of a single individual or group. Discrediting politics has a two-fold effect on legitimacy: citizens distrust those who want to represent them and instead of appreciating their political merit, they do so for exactly the opposite reason, for lacking the blemishes the exercise of politics brings. Thus, honesty is attributed to the individual lacking expertise, simply, because he had no contact with political business.
The general opinion on the legitimacy of representatives lies in the origin of collective and voluntary obedience to authority. It is known that, when authority oversteps its mark, there are proper means to correct the errors, but there is generally a guarantee of effectiveness and objectivity in the actions of agencies of power. This even allows solving one of the most serious problems the State faces: the limits of the law.
No Constitution establishes a balance point. This aspect corresponds to a good degree to politics. Hence, law is the ethical contents of politics while politics is the practical exercise of law. Whoever hopes to find all the solutions to problems of power in the text of the codes runs the risk of making a mistake; and whoever ignores the fact that law has limits that are necessary to surpass to act according to the precepts of politics, runs the risk of not finding any answers.
Rodolfo Vázquez88 has shown that the Rule of Law implies ethical content. From the point of view of non-enforcement of the norm, how can the Rule of Law be incorporated? Max Weber89 offers the best arguments that can be applied to this problem, when he distinguishes between the ethics of conviction and the ethics of responsibility. The first one corresponds to the action without taking the consequences into account; the second one corresponds to the decision taken to anticipate its results. As Weber points out, both are not necessarily incompatible but what is also clear is that under certain circumstances the decisions to enforce the norm or not should be taken while keeping the question of conviction or responsibility in mind. Probably, in the cases in which non-enforcement of the law is chosen, the criterion of responsibility will prevail; while, in the cases in which normative strictness is favored, the ethic of conviction will prevail. This will be a situation in which, of course, justice will be done even if the world perishes.
The Rule of Law consists of minutely adapting the acts of power to the law. However, law itself foresees the possibility of extreme cases, out of its specific control. It is not a contradiction. The possibility that situations unforeseen by legislative provisions arise is admitted by this assumption. In this case solutions should be found in the principles of law. Of course, we know that these principles are also norms in a broad sense; hence, we make this exception to stress the lack of foresight of a behavior for a rule. The Mexican Constitution sets forth (Article 14) that "In civil judgments the defined judgment shall conform with the letter of the judicial interpretation of the law, and the new interpretation (or the lack of it) shall be based on the general principles of what is right." The limits of this provision have been clearly acknowledged by Héctor Fix-Zamudio and Salvador Valencia,90 in that the concept of integration, "whose scopes are still controversial", has taken the place of the division between enforcement and interpretation of the law. However, as the authors point out, enforcement of the norm is impossible without prior interpretation. For our case, the important thing is to stress that interpretation in itself does not generate controversy, in the sense that when it restricts the effects of the norm, it conceals hypothetical acts of non-enforcement of the law.
In this sense, it is also fitting to keep in mind that the Civil Code for Mexico City (Article 19) compiles the constitutional precept and even broadens its consequences, since it refers not only to verdicts but, more generally, to "legal conflicts". The origins of these provisions are in the civil codes of Austria (1812) and Sardinia (1837). Later, these provisions passed on to Spanish legislation and appear in Mexico in the 1870 civil code and in the Constitution of Querétaro. Civil doctrine has determined this statement, but a question can be validly posed: Is the judges’ supplementary enforcement of the law’s general principles only valid in matters of a civil nature? Could it also be valid for matters of political nature and for the administrative authority? "Broadening the regulatory strength of principles"91 should be explored in this sense, beyond a judge’s power to invoke the principles in certain cases.
Also another issue arises: supplementary enforcement is admitted when there is no legal provision for the case in question. Now, the question is to determine whether whoever enforces the law has the ability to choose between the lesser evil and a worse one that results from enforcing or overlooking the law. In other words, there are breaking point situations where the cost of law enforcement can be higher for the community than its non-enforcement. This seems to be a paradox, but if we examine real examples we will see it is not so.
In 1999, the Turkish courts imposed the death penalty on the well-known Kurdish leader Abdullah Ocalam, based on the numerous and cruel attacks he ordered and carried out, thus killing many people. Ocalam’s response was immediate: his execution would be followed by a wave of terrorist attacks. The European Community reacted in a way that does not correspond to the strict law enforcement: it asked the Turkish government to declare the legal verdict null and void. Is this reasonable?
This is not a case in which the law does not provide the keys to solve a specific situation. On the contrary, the Turkish criminal provision for homicide is very clear. But it so happens that enforcing the law can mean more damage to society than its omission. This is what we call the limits of the law.
Another case is the one extending into criminal provisions, especially in those of countries severely affected by organized crime. A way to attenuate the strictness of the law has been developed for "repented individuals" or whoever offers relevant information to be able to prosecute other delinquents. In fact, it is an exception to the strict law enforcement, so as to avoid greater damage or to obtain a greater advantage.
Article 16 of the July 1998 Rome Statute of the International Criminal Court sets forth that the United Nations Security Council can ask the Court to suspend an investigation or trial for up to twelve months. This same provision points out that the request may be renewed by the Council.
Thus, suspension of an initiated investigation or a procedure that has already begun can be suspended for strictly political reasons. This is not a small matter, if one takes into account the jurisdiction of the International Criminal Court (Statute, Article 5): the crime of genocide (for example, killing members of the group, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group), crimes against humanity (for example, extermination, enslavement, torture, violation to fundamental rules of international law, enforced disappearance of persons, sexual slavery, enforced prostitution, persecution on religious, racial or gender grounds), war crimes (for example, attacks against civilian objects, intentional attacks against hospitals, subjecting war prisoners to physical mutilation or to medical and scientific experiments, willfully causing great suffering to the population or serious injury to body or health) and the crime of aggression, the meaning of which is still pending.
As seen, the Statute of the International Criminal Court expressly foresees the non-enforcement of punishment, leaving the decision to a political body without compelling it to base and ground its decision. Nor does it regulate the conditions under which such an important decision can be made.
Under these circumstances, it should also be remembered that the holders of agencies of power usually perform their duties after taking an oath to fulfill and enforce the law. When they do not, based on considerations near those that justify excepting circumstances, do they incur in a punishable breach? Every democratic constitutional system has decrees that can be enforced in cases of extreme tension, according to which it is possible to stay the effects of any or some norms of the Constitution itself. In this case it is about facing risks of a considerable magnitude for constitutional validity; but how to deal with less important cases, which are also likely to cause damage to the community and the State’s legal order?
What should be done in situations like these? Take the path of inflexibility even if it leads to a potentially bigger conflict than the problem to be solved or do what can be done to overcome it? Which of the two options mean lower social costs? Doctrine and the law recognize that special treatment should be given to individuals who under conditions of need incur in punishable behavior. Should the concept of conditions of need be inferred by agencies of power when it deals with protecting public freedoms?
Notice that this deals with a situation that is exactly opposite to the condition of exception, which corresponds to the old State Theory. If power can partially and temporarily limit some public liberties and individual rights, is it prevented from doing the opposite and extend the area of tolerance and liberties in extreme situations, beyond those established by the norm? So far, almost all constitutional systems accept the possibility of restricting the scope of social and individual freedom under exceptional conditions. Aren’t there exceptional conditions that justify exactly the opposite: to extend and guarantee that scope?
The Constitution of Guatemala (Article 155) contains an interesting provision: public servants are responsible when they "break the law to the detriment of individuals." Here, a principle similar to the one that prohibits retroactive enforcement of the law "to the harm of a person" applies. If the retroactivity that benefits people is admitted, it seems that in Guatemala’s system, breaking the law is also admitted when a benefit arises for the recipients of the norm from this act.
This is how it happens in the practice of politics and it has always happened in open systems. It is just that the problem has not been considered from the standpoint of its multiple theoretical connotations. One of the problems, in these cases, is that of opening the doors to the discretion of rulers, with the implied risks for society. Therefore, the issue of representation must be linked with that of legitimacy. Since representation is not imperative, representatives can be given a margin of understanding so that under extreme circumstances, when the damage to public liberties resulting from the strict enforcement of the law is greater than its partial omission, the latter is chosen. This is only accepted if the bond of trust that legitimates the holders of the agencies of power is based on acknowledgement of their public virtues, which Aristotle92 mentioned as the requisite of obedience that those governed impose on their rulers.
This is an important issue. Many times the authority cannot solve certain challenges with only the law. There are also issues in which effective political solutions need to be adopted so as not to cause greater damage than those that need to be solved. A problem is not solved by creating another, or by avoiding it. However, these political solutions are not alien to legal order, at least not in a democratic constitutional system. Politicians should take the proper decisions to solve specific social problems, but under no circumstances should it be understood that the non-enforcement of a specific norm opens the doors to discretion and that the norm becomes an instrument of political restriction.
President Porfirio Díaz is attributed with having said: "for my friends, justice and grace; for my enemies, simply justice." This phrase summarizes the risk of leaving politicians with the decision of the limits of law. Hence, when reference is made to the political decision of not enforcing a norm, this should not mean that this decision is made on the fringes of any norm. In a constitutional system, political acts always have a legal basis. The political aspect of the decision consists of assessing the circumstances and choosing the corresponding action. Suppose that the fact that the authority faces is a violent demonstration of a group and the subsequent obstruction of public thoroughfares. The authority has two options: to enforce the criminal norm or, by extending the effects of the rights to assembly and to express ideas, to tolerate the events.
At this point it is fitting to establish that, in addition to the fact that in every case the political decision should have a legal basis, it should also have the certainty that the representative system, the only one that allows subordinating decisions to political control, is working. In politics it is even more difficult to foresee all possible circumstances of the life of a society than it is in the scope of civil relations. Therefore, trust in political representatives is very important. The greater the certainty of their legitimacy, the greater the space for tolerance that all citizens will enjoy. The problem of representation has been analyzed from various perspectives. Kelsen93 considers representation a legal fiction and for Rousseau, it is just a democratic fiction. However, in his study on the Constitution of Poland (VI), Rousseau had to admit that, unlike The Social Contract, there were aspects of political life that can only be solved through representative procedures.
Currently, nobody questions that democratic systems need representation mechanisms. Only the Swiss democracy is based on instruments of direct democracy. But the problem of our time should be seen from another point of view: how "representative" is the "representation"? Electoral systems, the influence of the media, interest groups actions and "globalization" are factors that influence the workings of representative systems. It is a political and legal fact that representatives are not connected to the individuals they represent94 unless than by very weak ties, which does not imply an imperative rule for those who receive votes in favor. In this sense, Rousseau’s critique is also recoverable95 when he pointed out that the British were free only for a fleeting moment while voting.
The democratic remedies of representation are many. One is the recall or repeal that is enforced in constitutional systems like those of Switzerland or Venezuela, but that imply an obvious contradiction to the representative system;96 another remedy is to use forms of direct consultation with the citizenry, such as the plebiscite and referendum. Yet another, and the most efficient one, is the possibility for the voter to reelect his representative or not. The last one can be applied almost universally. There are very few cases, as happens in Mexico and Costa Rica, where successive reelection of legislators is prohibited. This restriction means, in the case of Mexico, a strong conditioning of the democratic nature of the representative system.
However, no remedy guarantees the ideal performance of the representative system. Electoral systems have not been able to get rid of the "purchasing" practices that accompany most elections. These systems have to be able to avoid the hegemony of party leader groups that restrict citizens’ electoral freedom. In turn, the influence of the mass media on citizens is closely related to the increment of the great economical interests on the mass media. This has also not been solved.
As to the manners of direct consultation to the citizenry, there basically are two restrictions: on the one hand, it is not possible to assure objectivity in party advertising actions and media publicity;97 on the other, the resource of a plebiscite consultation usually places a powerful instrument in the hands of the heads of government to subordinate to congresses or at least to diminish the importance and autonomy of said congresses.
Finally, procedures to reelect representatives are also susceptible to creating distortions. Therefore, some constitutional, national and local systems have set limits on reelection. This is the case of many states in the United States of America.98
There is a direct relation between forms of representation and the idea of legitimacy. It is not easy to solve the issue of the consequences between legitimacy and the Rule of Law, concerning non-regulated powers used by the holders of agencies of power, in the sense of not enforcing a norm under extraordinary circumstances.
This clearly deals with an issue posed over twenty centuries ago, for which there is an answer in the world of politics but not in the world of law. Hence, here, we face a contradiction that may be apparent or of content. It would be a problem of content if, in all cases of non-enforcement of the law, the Rule of Law were broken; but in reality what we can prove is the point where the legitimacy of the use of power is not questioned by other reasons. At the point where legitimacy of power is placed in doubt, not only is every act of non-enforcement rejected but also those acts enforcing the norm.
Weber99 points out that law enforcement can be irrational and he believes the decisions that "essentially depend on concrete appraisal appreciations of an ethical, sentimental or political nature and not on general norms" are irrational. Meanwhile, non-enforcement is a decision. Likewise, it can be read that it can also be irrational. Now, the cases of non-enforcement of a norm mentioned in this study are deemed justified if, by not affecting individual and collective rights, they aim to prevent greater damage in the sphere of fundamental rights than the damage that would arise if the norm were strictly enforced. Therefore, this is not about a consideration of an ethical, sentimental or political nature, but of a legal one. Hence, they would not incur in the irrational action Weber mentions.
There is another issue to clarify. French doctrine minted the concept of excess of power to refer to the administrative acts carried out by agencies with no jurisdiction or by bodies with jurisdiction, but that do not fulfill the legal requirements or incur in a deviation of power. This last case consists of using power for purposes other than its goal.100 Nor is this the case presented here, since non-enforcement of the law referred to deals with the opposite case: not to affect the sphere of fundamental rights of governed individuals.
On noticing there were government acts that were difficult to explain in legal statutes, Merkl101 tried to find an explanation by means of identifying the possible existence of meta-legal acts. It is about an interesting exercise that shows that any act by a State body is, necessarily, legal.
Within the legal order maybe, there could be a conceptual solution in the pure theory of law. If we admit, agreeing with Kelsen, the identity of the State with the law,102 we will find that non-enforcement of the law is a legal act and, as such, it produces effects. Whoever believes to have been affected by said legal act can oppose to it, according to the requirements and procedures set forth by the law. When the consent of non-enforcement of the law is attained it could be said that the body of authority acted within the limits of acknowledging the fundamental rights protected by the constitutional order. This conclusion, however, would clearly be unnatural and unsatisfactory.
Which are the specific acts referred-to when speaking of non-enforcement of a norm? To understand the outline of the problem it will be helpful to make reference to a case that took place a long time ago in Mexico. Article 130 of the Constitution set forth, until the 1992 amendment, that "ministers of denominations may never, in a public or private meeting constituting an assembly, criticize the fundamental laws of the country, of the authorities in particular or of the government in general..." The 1993 reformation removed the reference to private meetings and substituted the prohibition to criticize laws with the prohibition "to oppose laws".
Enforcement of this precept between 1926 and 1929 was one of the reasons a religious conflict broke out and turned into a cruel armed struggle. When the struggle ended, the precept continued to be in force but ceased to be enforced. When it was modified almost sixty years later, agencies of power expressly acknowledged that the norm lacked of positivity.103
The 1926-1929 religious conflict in Mexico was only overcome by the establishment of a modus vivendi that meant non-enforcement of the law. In the negotiating stage urged by U.S. Ambassador Dwight Morrow, Father J. J. Burke addressed a note to President Plutarco Elías Calles (March 29, 1928) that read: "...Mexican bishops have believed that the Constitution and laws, especially the law that demands the registration of priests and the law that grants the Rules of Law to set the number of priests, enforced in a spirit of antagonism, would threaten the identity of the Church, giving the State the power to probe into spiritual affairs. I am convinced that Mexican bishops are inspired by sincere patriotism and wish for lasting peace. I am also convinced that they wish to resume public worship, if it can be done according to their loyalty to the Republic and their consciences. I believe it can be carried out if they were sure of tolerance within the Law that would allow the Church to live and exercise its spiritual activities freely...".104 To this, the president answered: "...my colleagues and I are always willing to listen to anyone, a minister of a Church or a simple individual, who complains about injustices committed through excess in law enforcement."105
The conflict was finally solved. The Pope accepted (July 20, 1929) a "lay" solution and "lay" was understood as "in compliance with the laws."106 On July 21, a group of bishops met with President Emilio Portes Gil and Interior Minister Felipe Canales and they reached the agreements that would put an end to the religious conflict. A year later, Archbishop Pascual Díaz stated that "the existence of the Church was in fact acknowledged with all of its rights and liberties and, to that end, the government has committed itself to enforce the laws benevolently, until they are modified."107
VIII. FINAL CONSIDERATIONS
Hobbes108 formulated the first concept of the fundamental law of the land: the one that offers means of support to the existence of the State. For the same reason, there are laws whose absence or fracture is not a risk to the survival of the State. Further on he offers a suggestive differentiation between right and law. He said the first has to do with liberty and the second has to do with obligations and therefore restricts liberties.
Hobbes did not develop his concept of Federal Constitution in more detail, but it can be inferred that the complete legal order, integrated according to his argument, by rights and laws, arises from the norm. If we wanted to use these elements to identify the ones that correspond to the Rule of Law, we could conclude that the idea of Rule of Law is based on the fundamental norm and in the concept of law as the core of liberty. Hence, not every violation of the norm means breaking with the Rule of Law.
If it were understood that any act or omission, which would result in either a violation of a norm and the defense of liberties, was considered a rupture with the Rule of Law, it would simply mean that we are favoring the concept of law over the concept of right, according to Hobbes’ terms.
Zagrebelsky’s concept of law is meant to explain the integrating role of the law. Hence, he defines109 law as an objective order established to "limit" the instability of wills. However, law is "manageable" for several reasons: it varies depending on the powers that impose it110 or decide upon it;111 depending on how its interpreters apply it,112 or according to its structure, made up of principles and rules.113 The central point lies in acknowledging that law only "limits," but of course it does not suppress relations of instability.
The role of the norm in the Rule of Law is to reduce the authority’s discretion as much as possible and to increase individual and collective fundamental rights (freedom, equality, property, legal security, etc.), and guarantees as much as possible. Until the power to decide is more discretionary, its will is less foreseeable, and to the same degree it brings in a random element that counters one of the basic principles of the Rule of Law.
It is possible to lower this risk but not to suppress it. Therefore, instruments have been designed for jurisdictional control. These instruments are meant to protect the Constitution and the laws. For a community it is important that no act of power be left without some kind of control, be it jurisdictional or political. If it is foreseeable that the authority may exceed its faculties, there should be institutional means that decide and redress the damage. If it is desirable for the authority to not enforce the norm sometimes because less damage would be caused to the people, then there should also be a body to assess and resolve said decision, so that free-will does not become arbitrariness.
In his study on the social contract and obedience to the law, Pérez Bermejo114 eloquently abridges Rawls’ thesis: unfair laws are enforceable provided that disobedience could cause greater injustice. Without entering into the controversial topic of "fair laws," it is possible to state that the argument is reversible: enforcing of fair laws may be ceased if it prevents greater injustice. After all, this is about the same reason: in both cases the choice of lesser damage is presented as the most suitable one for the Rule of Law. It would be difficult to argue that the Rule of Law is weakened when it damages liberties to a lesser degree or, to the contrary, that the Rule of Law is strengthened when it makes certainty in the enforcement of the norm prevail over individual and public freedoms.
The two principles of justice that Rawls115 identifies as belonging to a constitutional system are: first, each has the same right to the most wide-ranging freedom, compatible with the same extent of freedom for all and, second, inequalities are arbitrary unless it is reasonable to expect them to be enforced for the benefit of all when similar circumstances arise. In this case, Rawls stresses, the moral obligation to obey the law is not affected, since said obligation corresponds to the social contractual principle of cooperation and fair play.
This is a good point to mention Vanossi’s contribution,116 which states that in order to identify the limits of power and the scope of rights, there are essentially two points of view: the one offering force, whose most representative doctrine is that of decisionism and the one offering reason, whose most accurate expression appears in that of contractualism. This difference is based on the fact that reason implies agreement, while force is justified in itself. In the problem we have been referring to, non-enforcement of a norm, in the often mentioned circumstances, is only compatible with the Rule of Law as long as it does not transgress the basic terms of the social agreement.
The main concern about the duration of the Rule of Law in a democratic society consists of identifying aspects in the limits of law but at the core of politics. The Rule of Law is a supreme value as a guarantee of the system of liberties demanded by modern society and consolidated in contemporary society, due to constitutionalism. But, it also goes unquestioned that in an open society there are forces that place democratic institutions at odds, because they cannot react as they would based on pre-constitutional procedures.
Non-enforcement of the law is considered from two opposite points of view:117 one is utilitarian, indicating that the law "weakens" and society, as a whole, is affected by the diminishing value of the norm; the other is pragmatic, arguing that when the State’s right to punish competes against individuals’ right to be protected by the State, the latter should prevail. Dworkin118 decidedly is in favor of finding a balance that allows the authority to solve specific cases that are within the limits of legality. His conclusion119 is categorical: the Rule of Law is "more complex and intelligent" than the simple Draconian enforcement of norms.
The most generalized phenomenon is the one concerning public protests. Contemplated strictly from a legal point of view, these actions are expressed as behaviors defined as a crime. Blocking public thoroughfares, for example, is one of the greatest attempts that a constitutional system can undergo. Most legislations set forth very hard punishments for those who attack thoroughfares in general, precisely because said thoroughfares are one of the most valuable instruments for exercising individual and public freedoms: expression, free transit and assembly. However this protest phenomenon is common to all democracies.
In every day practice of States, we find that individuals, who obstruct the freedom of transit, expression and property under certain circumstances, are generally not punished. It also happens that only some individuals are punished, but not all of them and in the end the penalties are very mild and they are sometimes even repealed or forgiven. In view of this situation, the doubt arises as to whether the Rule of Law is being sacrificed and power uses indulgence to the same extent as a kind of alibi for its own projects of non-authorized authoritarian expansion, or if repetitive non-enforcement can lead to forms of corruption in exercising public duties.
Paradoxically, it is not possible to demand that public power be inflexible in enforcing the law textually, without distorting the bases of an open society that needs spaces for tolerance. Nor can it be accepted that power can make discretional use of the coactive apparatus without running to the risk of deforming the exercise of public duty and the value of the norm.
Despite these problems, it is necessary to identify the terms that reconcile the authority’s attitude when the norm is not definitively enforced and the protection of the collective interest so as not to open the door, with this decision, to new forms of authoritarianism. Throughout these pages I have tried to illustrate the dominant concepts of the Rule of Law and the sudden changes in the enforcement of the norm. With these elements, I think it possible to propose some rules that allow accepting non-enforcement of the norm, in exceptional circumstances, without breaking the Rule of Law.
Doctrine has approached the right to resist oppression, the right to revolution and the right to civil disobedience in diverse ways. For any of these, it is thought the action of power, even if it is based on the law, can become unlawful. Concerning this aspect, criticism of the formal Rule of Law was examined. Hence, in this study, none of the issues concerning collective manifestations of rejection to the hypothetically illegitimate authority was approached. In these cases, it is understood that the Rule of Law has disappeared. Here, only non-enforcement of the law in a Rule of Law has been dealt with, and not as a correlation of the right to resistance. However, it is important to record Estévez Araujo’s brilliant research in which he examines the possible legal justification of civil disobedience within the scope of democratic constitutional systems. He concludes120 that said justification arises from the legitimacy crisis of the Constitution’s defense procedures. In any case, what it is presented here is not a case of non-enforcement of the law (because disobedience ceases to be penalized) without affecting the Rule of Law, but of tolerance to disobedience so as to restore the Rule of Law. These are clearly two different issues.
It is necessary to differentiate these manifestations from mere acts of public protest, especially when people express their opposition to specific public policies. In this case, legitimacy of authority is not placed in doubt, but just some of its decisions. It is normal that in these situations, the norm is not strictly enforced because "after all, the Rule of Law is created to allow the law to promote social well-being and it should not be used lightly to show it should not be that way. Sacrificing too many social purposes for the Rule of Law can make law sterile and empty."121
A different problem, which is not presented here, deals with the agents of power’s inability to enforce the norm. In this case we are faced with two similar but not necessarily equal situations: agencies of power have partially or completely lost the instruments to exercise their coactive duties or social resistance is greater than the possibilities of government action. In both cases, as indicated by Bobbio,122 anarchy is nearby and consequently the end of the duration of legal order, or else a radical change of legal statutes is at hand. Here, the problem is no longer about the duration of the Rule of Law, but about the permanence or substitution of the State’s form. A recent case study123 allows us to see the importance of social mobilizations in the transitions of Portugal and Spain.
As we have seen, non-enforcement of the law under certain circumstances has been accepted since the Classical times. Currently, it is a reality foreseen by doctrine, jurisprudence and certain legal provisions. While efforts have been made to explain the phenomenon, there is still a need for satisfactory statements that allow us to go beyond understanding the problem and to create the bases that support non-enforcement of the norm without breaking and even upholding the Rule of Law.
The difficulties in admitting that an act of non-enforcement of the norm does not damage the Rule of Law can be overcome from the point of view posed by Peter Häberle:124 the Constitution is part of the cultural scope of a society. So, he also presents the idea of "an open society of constituents" while the interpretation of the Constitution is subject to the most extensive assessment possible by all the participants of political society.
Häberle’s point of view has the drawback of reducing or increasing the scope of the interpreters according to the cultural development of each national society. Where cultural development levels are higher, individual and collective participation in the processes of constitutional interpretation will be more active; while where there are significant cultural deficiencies, the ability to identify constitutional values will be, likewise, more precarious. However, when the categories proposed by Häberle are accepted, it is essential to examine the context in which the norms are partially or not enforced, independently from the magnitude given in each case to the cultural environment. Häberle’s125 main thesis lies in that the Constitution is not merely a set of normative provisions, "but the expression of a certain level of cultural development". This is where the "constitutional culture" comes from and it is made up of individual and collective ideas, values, attitudes, experiences and expectations related to normative order.
But Häberle notices another cultural problem of law:126 the role of truth. On the one hand, there is a commitment of the norm to truth, when it expressly makes reference to truth’s being in force in the constitutional and legal texts. The first example Häberle identifies appears in the United States of America’s Declaration of Independence (1776). On the other hand, the concept of truth appears as an inseparable complement of the democratic State. Pluralism only exists where there is unrestricted freedom of science and conscience or, in other words, of knowing and believing. So, truth becomes the axis that legitimates rulers’ actions and expresses the demands of the governed class.
From this point of view, members of society assess the authority’s decisions and acts of political control dealing with non-enforcement of the law in a free, responsible and informed way. This opinion is highly important to make the exceptions regarding the proper enforcement of the norm compatible with the duration of the Rule of Law. This is about a complex operation that is directly related to cultural factors. The relationship of trust between citizens and the authorities will determine the acceptance or rejection of the exceptions to strict enforcement of the norm in each case.
When different cases are analyzed, it is also important to consider different scales. A society with contrasting cultural levels or that clearly shows deficiencies in this aspect will give rise to greater collective opposition to accept that the authority strays from the exact text of the norm, above all, when, as Cortiñas-Peláez127 reminds us, the holders of the agencies of authority are tied in by the formal oath to fulfill and enforce laws.
Even then, it is necessary to identify the general conditions to which non-enforcement of the norm should subject so as not to break the Rule of Law, assuming that the cultural conditions are the ideal ones to carry out a proper assessment of the authority’s decisions. In this sense we understand that non-enforcement of the norm does not affect the Rule of Law provided that the following circumstances are given:
The authority that omits enforcement of the norm does so to prevent greater damage than he would by enforcing it.
Non-enforcement of the norm cannot be the result of the official’s negligence or leniency.
Authority has originary legitimacy.
There are political control instruments that are also legitimate, which should assess the performance of the authority that did not enforce the norm.
In every case, the decision of non-enforcement of the law should be deliberated.
Non-enforcement of a norm should not be considered a derogatory practice.
Non-enforcement is the exception.
Repeated non-enforcement should be analyzed by legislative bodies so as to assess the conditions of the norm’s duration or its possible modification.
The causes for non-enforcement of the norm should be studied by political control agencies, in terms of the public policies that create them or do not solve them.
The decision of not enforcing a norm should always be revocable or emendatory.
All, and not just some, of the mentioned conditions should be present. The Rule of Law is a principle without which democracy is impossible. On reviewing some of the present problems of the Rule of Law concerning the representative system and law enforcement in effect, we have simply revived old issues of States’ normative life; but we wanted to do so from the perspective of the democratic Rule of Law, which still needs to clarify several queries.
Constitutionalism is part of a long process of rationalization of power. The concept of Rule of Law can only be understood from the perspective of a normative Constitution. This is why in this study the correlation between the Rule of Law and constitutionalism was stressed. However, as seen, variations of the Rule of Law (liberal, social and democratic) and stages of constitutionalism (liberal, social, democratic and cultural) do not in themselves solve the problem of non-enforcement of the norm without breaking the Rule of Law, which is stated and guaranteed in the Constitution.
Moreover, in the constitutional order there is some pathology needed to distinguish non-enforcement of the law without infringing the Rule of Law. The phenomenon, which in another study I named "constitutional irregularity", seems to be similar to non-enforcement of the norm, but it only just seems to. Constitutional irregularity is the coexistence of fully effective norms with others that are merely formally fulfilled, conditioned by processes of a political nature. Also, there are more serious cases in which substitution of the constitutional norm arises, but in this case it is clear that the Rule of Law is broken. This situation is not so apparent when said substitution is more or less concealed and a simple pretermission of certain aspects of legal statutes occurs, while nevertheless aiming for the norm to be properly enforced. This phenomenon is not part of what we have presented in this study, because it also means a break with the constitutional State and, therefore, the Rule of Law.
From the formal point of view, the Rule of Law was (in Germany with Von Mohl and in Great Britain with Dicey), a strictly procedural concept: it consisted of the possibility that the legal authority could evaluate the acts of the administrative authority. However, as of social constitutionalism and then with democratic constitutionalism, the concept was modified and the strictly adjective consideration became a substantive consideration. The social Rule of Law and the democratic Rule of Law are about the contents of the Rule of Law and not its exercise. From this point of view the progress made, in terms of thwarting distortions that a strictly formalist concept gives rise to, meant on the other hand the regression of the adjective nature originally attributed to the Rule of Law.
The Rule of Law has no connection to the contents of norms, but to the manner of enforcement. On the contrary, by incorporating contents of a social and democratic nature, rules were confused with principles, and the Rule of Law drifted from its adjective nature. Here the point of conciliation between non-enforcement of the norm and the Rule of Law can be posed, according to the rules we just mentioned. If in the beginning the Rule of Law was only mentioned when the government was responsible before jurisdictional bodies, it should be taken into account that the concept of political responsibility had not yet been developed, as it later was.
In view of this, while assessment of the norm corresponds to jurisdictional bodies, assessment of its eventual non-enforcement can be and should be made by bodies of political representation. Thus, the procedural nature of the Rule of Law is recovered, but the scope of government responsibility is extended beyond the courts to also include political assemblies. Far from clashing, both possibilities of control complement each other; they establish complementary guarantees for the governed individuals. To the attributes of jurisdictional control, those of political control exercised by congresses and parliaments are added.
Therefore, it is necessary to distinguish between the Rule of Law in a substantive sense, which corresponds to social and democratic contents, and the Rule of Law in an adjective sense, which refers to the government body’s responsibility before the other constitutional agencies of control. Generally, we can take into account that as long as there is a possibility to control the decisions and actions of government authority in compliance with constitutional norms, the Rule of Law can be preserved even when circumstantial non-enforcement of a norm takes place.
The Rule of Law has a dual nature, substantive and adjective: it sets forth rights and establishes guarantees for those rights. If we properly distinguish between those two elements of the Rule of Law, we could solve the paradoxes of non-enforcement of the norm in a normative system.
The assessment made of the circumstances in which the norm is not enforced will allow us to define whether the problem specifically lies in the deficient structure of the rule or whether there is a problem in public policies, which generates behaviors to which the rule is not enforced. An example that is recorded in many constitutional States consists of carrying out public demonstrations, which frequently lead to criminal acts. This is the case of the growing expressions of rejection to globalization processes and in many European and North American cities, these demonstrations turn violent.
In view of these demonstrations, as happens in most that take place in political spaces regulated by democratic Constitutions, tolerance is the usual response of the political authorities who do not enforce the corresponding criminal norms. It is thought that by acting this way generalized discomfort can be avoided, which if it intensified, it would generate growing tension and more violent confrontations. It can be said that this is a very clear case in which non-enforcement of a specific norm causes lesser collective damage than the use of the criminal action would.
In that case, it is quite clear that the specific rule that is not enforced does not present any problems and that it can still be obeyed in many other cases. The problem lies in the public policies that give rise to protests and whose solution eludes normative previsions. However, these policies have a direct repercussion on the behavior of various members of society and the law experiences the risk of a burgeoning of the same kind of events that can give way to a social process of entropy, which makes it difficult to lead collective life through a freely observed legal order. The characteristics and consequences of this scenario no longer correspond to legal study.
Non-enforcement of the law must have an exceptional trait; when it becomes a recurring phenomenon it does damage the Rule of Law, while the behavior of individuals who do not observe the norm and the authorities who do not enforce it, is seen as a regular tendency. One regularity on the fringes or against the rules does harm the Rule of Law. This phenomenon goes beyond the isolated cases, reasonably explainable, to which we have referred to in this study.
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* I deeply thank Professors Enrique Cáceres, Jorge Carpizo, Héctor Fix-Zamudio, Javier Saldaña and José Ma. Serna for their valuable remarks.
** Member of the UNAM Legal Research Institute, of the Sistema Nacional de Investigadores [National System of Researchers] and of Colegio de Sinaloa.
*** In this text the expression "Rule of Law" does not correspond to what is commonly understood in English terms, but in the sense of the Spanish "Estado de derecho" or in the German "Rechtsstaat".
1 See Balaguer Callejón, Francisco et al., Derecho constitucional, Madrid, Tecnos, 1999, pp. 55 and following pages.
2 See Fernández, Tomás-Ramón, De la arbitrariedad de la administración, Madrid, Civitas, 1997.
3 Compare. Durán Muñoz, Rafael, Contención y transgresión, Madrid, Centro de Estudios Políticos y Constitucionales, 2000, pp. 185 and subsequent pp.; and Raz, Joseph, La autoridad del derecho, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 1985, p. 266.
4 Gómes Canotilho, José Joaquim, Constituiçao dirigente e vinculaçao do legislador, Coimbra, Coimbra Editora, 1994, Spanish, pp. 216 and following pages.
5 Alfonso da Silva, José, Aplicabilidade das normas constitucionais, São Paulo, Malheiros Editores, 1998, Spanish, pp. 209 and following pages.
6 See Fernández Rodríguez, José Julio, La inconstitucionalidad por omisión, Madrid, Civitas, 1998.
7 Starck, Christian, El concepto de ley en la constitución alemana, Madrid, Centro de Estudios Constitucionales, 1979, pp. 61 and following pages.
8 Häberle, Peter, El Estado constitucional, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2001.
9 Compare Carcagni, Angelo, I diritti della "società": stato di diritto e associazione in R. von Mohl, Naples, Giannini, 1990.
10 Böckenförde, Ernst Wolfgang, Estudios sobre el Estado de derecho y la democracia, Madrid, Trotta, 2000, p. 19.
11 Quoted by Blanc, Louis, Histoire de la Révolution Française, Paris, Pagnerre, 1870, title VIII, p. 489.
12 Dicey, A. V., Introduction to the study of the law of the Constitution, Indianapolis, Liberty Fund, 1982, pp. 107 and following pages.
13 Alexy, Robert, El concepto y la validez del derecho, Barcelona, Gedisa, 1997, p. 15.
14 Zippelius, Reinhold, Teoría general del Estado, Mexico, UNAM, 1985, p. 314.
15 Raz, Joseph, op. cit, note 3, p. 279.
16 Raz, Joseph, op. cit, note 3, p. 279.
17 Compare Johnson, E. L., El sistema jurídico soviético, Barcelona, Península, 1974, pp. 42 and following pages, and Castro, Horacio de, Principios de derecho soviético, Madrid, Reus, 1934, pp. 990 and following pages.
18 Heller, Hermann, Escritos Poíticos, Madrid, Alianza Universidad, 1985, pp. 283 and following pages.
19 Zippelius, Reinhold, op. cit., note 14, p. 307.
20 Heller, Hermann, op. cit., note 18; Díaz Elías, Estado de derecho y sociedad democrática, Madrid, 1969, Cuadernos para el Diálogo, pp. 125 and following pages.
21 Forsthoff, Ernst, "Problemas constitucionales del Estado social," in Abendroth, W. et al., El Estado social, Madrid, Centro de Estudios Constitucionales, 1986, p. 45 and following pages.
22 Id., "Concepto y esencia del Estado social de derecho," in Abendroth, W. et al., op. cit., previous note, pp. 71 and following pages.
23 Blanc, Louis, op. cit., note 11, title XII, pp. 603 and following pages.
24 Abendroth, Wolfgang, "El Estado de derecho democrático y social como proyecto político," in id. et al., op. cit., note 22, p. 97.
25 Id., Sociedad antagónica y democracia política, Barcelona, Grijalbo, 1973, pp. 267 and 287.
26 Vanossi, Jorge R., "Etapas y transformaciones del constitucionalismo social," Revista del Colegio de Abogados de la Plata, Argentina, year XXIV, number 12, 1982, p. 21.
27 Vázquez, Rodolfo, Liberalismo, Estado de derecho y minorías, Mexico, Paidós, 2001, pp. 86 and 87.
28 Häberle, Peter, op.cit., note 8, pp. 224 and following pages.
29 Habermas, Jürgen, Between facts and norms, Cambridge, MIT Press, 1996, chapter 1.
31 Ibidem, p. xlii.
32 Ibidem, chapter 1.
33 Díaz, Elías, "Estado de derecho y derechos humanos," in Ética pública y Estado de derecho, Madrid, Fundación Juan March, 2000, pp. 20, 40 and following pages.
34 Habermas, cit., p. 6.
35 Ibidem, p. 26.
36 Ibidem, p. 39.
37 Ibidem, p. 133.
38 Ibidem, p. 150.
39 Bobbio, Norberto, Teoría general del derecho, Madrid, Debate, 1991, pp. 189 and following pages.
40 Alexy, Robert, Teoría de los derechos fundamentales, Madrid, Centro de Estudios Constitucionales, 1997, pp. 86 and following pages.
41 Díaz, Elías, Curso de filosofía del derecho, Madrid, Marcial Pons, 1998, pp. 85 and following pages.
42 Confucio, Analectas, Buenos Aires, NEED, 1998, II, III, 1 and 2.
43 Wilhelm, Ricardo, Kungtsé, Madrid, Revista de Occidente, 1926, pp. 131 and following pages.
44 Han Fei Zi, El arte de la política, Madrid, Tecnos, 1998, p. 175 and following pages.
45 Vid. Cortés Copete, Juan Manuel (ed.), Epigrafía griega, Madrid, Cátedra, 1999.
46 Cicerón, Sobre los deberes, Madrid, Tecnos, 1989, I, 10, 33.
47 Terencio, El atormentador de sí mismo (Heautontimorumenos), in Comedias, Mexico, UNAM, 1975, p. 796.
48 Columella, Lucius Junius Moderatus, Res rustica, Cambridge, Harvard University Press, 1977I, VII, 2.
49 Kant, Emmanuel, Fundamentación de la metafísica de las costumbres, Madrid, Santillana, 1996, p. 45.
50 Id., Principios metafísicos de la doctrina del derecho, Mexico, UNAM, 1978, p. 38.
51 Id., La paz perpetua, Madrid, Tecnos, 1985, p. 57.
52 Tácito, Los anales, Madrid, Viuda de Hernando y Compañía, 1891, p. 170.
53 Séneca, Lucio Anneo, "De la Clemencia," in Tratados filosóficos, Madrid, Sucesores de Hernando, 1913, p. 103.
54 Ibidem, pp. 136 and 137.
55 Zagrebelsky, Gustavo, El derecho dúctil, Madrid, Trotta, 1995, p. 16.
56 Tácito, op. cit., note 51, p. 87.
57 Séneca, Lucio Anneo, op. cit., note 52, p. 106.
58 Ibidem, p. 114.
59 Ibidem, p. 117.
60 Ibidem, p. 135.
61 Ibidem, p. 139.
62 Vattel, Emer, Derecho natural y de gentes, Madrid, Imp. Campuzano, 1846, &CLXXIII.
63 Seneca, Lucio Anneo, op. cit., note 52, p. 129.
64 Ihering, Rudolf von, El espíritu del derecho romano, Madrid, Marcial Pons, 1997, pp. 167 and following pages.
65 Ulpiano, "De los adulterios," in Digesto, Madrid, Ramón Vicente, 1874, 40, 9, 12, 1st.
66 Carpizo, Jorge, Nuevos estudios constitucionales, Mexico, Porrúa, 2000, p. 333.
67 See Voltaire, Traité sur la tolérance, in Oeuvres completes, Paris, Garnier, 1883.
68 Hyde, H. Montgomery, "Introduction," in Oscar Wilde, The complete plays, London, Methuen Drama, 1988, p. 27.
69 Münch, Ingo von, "¿Estado de derecho versus justicia?," in Estado de derecho y democracia, Buenos Aires, CIEDLA-Konrad Adenuer Stiftung, 1999, p. 279.
70 Aristóteles, Ética Bicomaquea, in Obras, Madrid, Aguilar, 1982, 1137 b, 1138 a.
71 Mariana, Juan de, Historia de España, Valencia, Benito Monfort, 1787, IX, XVIII.
72 Wade, H. W. R., Derecho administrativo, Madrid, Instituto de Estudios Políticos, 1971, pp. 11 and following pages.
73 Zippelius, Reinhold, op. cit., note 19, pp. 313 and 331.
74 Derrida, Jacques, Fuerza de la ley, Madrid, Tecnos, 1997, p. 38.
75 Ugartamendia Eceizabarrena, Juan Ignacio, La desobediencia civil en el Estado constitucional democrático, Madrid, Marcial Pons, 1999, p. 401 and following pages.
76 "Lawful departure from legal rules:" Kadish, Mortimer and Kadish, Sanford, Discretion to disobey, Stanford, Stanford University Press, 1973.
77 Ibidem, pp. 44, 72 and following pages.
78 Ibidem, p. 66.
79 Ibidem, pp. 184 and following pages.
80 Alexy, Robert, op. cit., note 13, pp. 90 and following pages.
81 Dworkin, Ronald, A matter of principle, Cambridge, Harvard University Press, 1985, p. 14.
82 Ibidem, pp. 31 and 32 and 69.
83 O´Donnell, Guillermo, "Polyarchies and the (Un)Rule of Law in Latin America," document submitted in the Meeting of the Asociación de Estudios Latinoamericanos, Chicago, September 1998, p. 12.
84 Raz, Joseph, op. cit., note 3, p. 272.
85 Ibidem, p. 323.
86 Ibidem, p. 277.
87 Dworkin, Ronald, op. cit., note 80, pp. 11 and following pages.
88 Vázquez, Rodolfo, op. cit., note 27, pp. 86 and following pages.
89 Weber, Max, El político y el científico, Madrid, Alianza Editorial, 1979, pp. 163 and following pages.
90 Fix-Zamudio, Héctor and Valencia Carmona, Salvador, Derecho constitucional mexicano y comparado, Mexico, Porrúa-UNAM, Instituto de Investigaciones Jurídicas, 1999, pp. 142 and following pages.
91 Hierro, Liborio, Estado de derecho. Problemas actuales, Mexico, Fontamara, 1998, pp. 36 and following pages.
92 Aristóteles, Politique, Paris, Les Belles Lettres, 1991, IV, 4, 17.
93 Kelsen, Hans, Teoría general del derecho y del Estado, Mexico, UNAM, 1979, pp. 343 and following pages.
94 Carré de Malberg, R., Teoría del Estado, Mexico, Fondo de Cultura Económica, 1998, pp. 956 and following pages.
95 Rousseau, J. J., Du Contrat Social, in Oeuvres politiques, Paris, Garnier, 1989, III, 15.
96 Manin, Bernard, Los principios del gobierno representativo, Madrid, Alianza, 1998, p. 201.
97 Habermas, Jürgen, Historia y crítica de la opinión pública, Barcelona, Gustavo Gili, 1994, chapter VI.
98 Tarr, G. Alan, Understanding State Constitutions, Princeton, Princeton University Press, 1998, pp. 170 and following pages.
99 Weber, Max, op. cit., note 88, p. 511.
100 Hauriou, Maurice, Précis de droit administratif et de droit public, Paris, Sirey, 1921, pp. 422 and following pages.
101 Merkl, Adolf, Teoría general del derecho administrativo, Mexico, Editora Nacional, 1975, pp. 62 and ff.
102 Kelsen, Hans, Teoría pura del derecho, Mexico, UNAM, 1979, pp. 291 and ff.
103 Diario de debates, Chamber of Deputies, December 16, 1991.
104 Meyer, Jean, La Cristiana, Mexico, Siglo XXI, 1998, volume II, p. 319.
105 Ibidem, p. 320.
106 Ibidem, pp. 339 and 340.
107 Ibidem, p. 376.
108 Hobbes, Thomas, Elementos de derecho natural y político, Madrid, Centro de Estudios Constitucionales, 1979, X, ; id., Leviatán, Mexico, Fondo de Cultura Económica, 1980, II, xxvi.
109 Zagrebelsky, Gustavo, op. cit., note 54, p. 94.
110 Ibidem, p. 37.
111 Ibidem, p. 38.
112 Ibidem, pp.131 and following pages.
113 Ibidem, pp. 109 and following pages.
114 Pérez Bermejo, Juan Manuel, Contrato social y obediencia al derecho, Granada, Comares, 1997, p. 258.
115 Rawls, John, "Legal obligation and the duty of fair play," in Hook, Sidney (ed.,) Law and philosophy, Nueva York, Nueva York University Press, 1964, p. 11.
116 Vanossi, Jorge R., El Estado de derecho en el constitucionalismo social, Buenos Aires, EU-DEBA, 1987, pp. 9 and following pages.
117 Dworkin, Ronald, Taking rights seriously, Cambridge, Harvard University Press, 1978, pp. 193, 201 and following pages.
118 Ibidem, p. 217.
119 Ibidem, p. 222.
120 Estévez, Araujo, José Antonio, La Constitución como proceso y la desobediencia civil, Madrid, Trotta, 1994, pp. 143 and following pages.
121 Raz, op. cit., note 3, p. 285.
122 Bobbio, Norberto, Contributi ad un dizionario giuridico, Turin, Giappichelli editore, 1994, p. 256.
123 Durán Muñoz, Rafael, op. cit., note 3.
124 Häberle, Peter, "Normatividad y reformabilidad de la Constitución desde la perspectiva de las ciencias de la cultura," Anuario de Derecho Constitucional Latinoamericano, Buenos Aires, CIEDLA-Konrad Adenauer Stiftung, 1999, p. 391; id., Retos actuales del Estado constitucional, Oñate, IVAP, 1996, pp. 15 and following pages.
125 Id., Teoría de la Constitución como ciencia de la cultura, Madrid, Tecnos, 2000, pp. 34 and following pages.
126 Id., Diritto e veritá, Turin, Einaudi, 2000, pp. 17 and following and 93 and following pages.
127 Cortiñas-Peláez, León, De la fórmula trinitaria como fundamento del Estado democrático social de derecho (in press,) p. 26.