THE CONSTITUTIONALISM OF NORBERTO BOBBIO: A BRIDGE BETWEEN POWER AND LAW*
Pedro SALAZAR UGARTE**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. Matter and method: from power to law and back again. III. The lesson learned from the classics. IV. Constitutionalism of the basic rights/laws. V. The Copernican revolution and the positivist method. VI. Modern democracy. VII. The Bobbian ideal: social democratic liberalism.
I. INTRODUCTION
Norberto Bobbio’s work is sprinkled with analogies, fitting images and linguistic figures. Most of the time, they are formulas that transmit complex ideas simply, summarized and concisely. The capacity of translating the problems that abound in the history of legal and political thought and institutions in accessible terms is probably one of the greatest treasures enclosed in Bobbio’s work. Above all, because the ability to untangle the knots of complexity does not presume simplifications or falsifications. Bobbio’s texts facilitate the approach of readers that (not only) specialize in matters that are intricate in themselves and, to this degree, they are an invaluable instrument to spread knowledge and lead us through the twisting labyrinth of legal and political philosophy. But the density of the problems remains intact and the clarity in its exposition does not diminish the profundity of the reflections. Thus, Bobbio is one of those authors to whom it is fitting to constantly return to because each reading can reveal a new vantage point to observe (once more) topics or authors that we believed had been fully decoded. To put it in a few words: in his work, clarity does not imply impoverishment.
Furthermore, his vast intellectual production covers a surprising range of issues and problems. An admission and a date gives proof of this statement: in 1972, Bobbio himself states that “(he had) dealt in many things, maybe too many… I have dealt in so many things that it is now difficult for me to find the thread that joins them all together. I have gone through various paths, but to be honest, I have not reached the end of any of them”.1 It is a premature admission that gives us insight into what Bobbian work already was in the early 1970s, but is much more revealing considering that Bobbio could still attend the presentation of his Teoria general de la politica [General Theory on Politics] (edited by Michelangelo Bovero) in 19992 and that he was able to see approximately 4000 of his works published in his lifetime.3 We can assert that Bobbian production, which few can say they know in depth, is full of ideas/keys that give us access to complicated topics with relative ease, but that in itself constitutes a dense and complex work with many entrances, multiple routes to explore and few escape hatches.4
II. MATTER AND METHOD: FROM POWER TO LAW AND BACK AGAIN
One of the apt summarized figures coined by Bobbio teaches us with apparent simplicity that “law and power are the two sides of a same coin”.5 For Bobbio, the relationship between both concepts, always complex, is a relationship of reciprocal interdependence.6 In fact, “the principal concept that legal and political studies have in common… is the concept of power”.7 On one side, law is the product of political power and without this, it cannot be applied. On the other, the legitimization of power is ultimately legal justification. While law cannot exist (or lacks all efficiency) without a power capable of creating it and applying it,8 power is only legitimate, not mere de facto power, when it is based on a norm or on a set of legal norms.9 This inevitable bi-dimensionality of legal/political or political/legal problems transversally runs through Bobbio’s work and distinguishes his reflections on the Constitution and constitutionalism.
In a certain sense, his own intellectual path is a journey through the edge that joins (and at the same time separates) law and politics and vice versa. In fact, a first phase of his academic activities was centered on studies of a legal nature. While it is possible to find some writings worth noting from the 1930s, most of his production as a legal theorist originates in the late 1940s and continues until the 1970s. During these years, Norberto Bobbio positions himself as one of the most renowned legal philosophers in Italian legal history and makes contributions that go beyond the borders of his country and his continent. His school of thought (built, as will be explained below, on the pillars of legal positivism and guided by analytical philosophy) set the bases for the creation of the so-called “School of Turin” or “Analytical School of Legal Philosophy”10 which, among other traits, is characterized by a method of analysis that can well be called the “Bobbian method”. However, it is necessary to avoid simplifications: the fact that Bobbio favored legal focus and topics during some decades does not mean that political problems (and the texts) were unknown to him.11 This partially explains the (apparent) “leap” in subjects that he would make some years later and that, in addition to leading him to change from teaching legal philosophy to political philosophy, it would give rise to the “political” branch of his School, which is still active and productive today, as seen in its intellectual leading role in the Italian journal Teoria Politica [Political Theory] “founded” by Bobbio and headed by some of his most outstanding students.
As mentioned above, from his perspective as a legal scholar, Norberto Bobbio proposed an innovative approach that was destined to stay: the empirical-analytical method. Ricardo Guastini has more than fittingly called this “Bobbian method” the “method of distinction”. Its main feature specifically consists of making distinctions among the different fields of study that should be included: legal philosophy, legal sciences and legal sociology. In the first field (legal philosophy), legal theory, normative philosophy of justice and the epistemology of legal science within are included.12 In addition to this, the Bobbian method insists on the scrupulous distinction between analogous concepts and, to express it someway, internally. A master of distinctions, Bobbio used language analysis as an instrument to organize debates and to expose conceptual confusions. This is the case, for instance, of his celebrated distinction among the three ways of understanding legal positivism: ideological positivism, theoretical positivism and methodological positivism.13
In fact, Bobbio thought up certain contributions to legal theory that channeled discussions between the supporters of legal positivism in a new direction.14 A simple example is sufficient: in contrast to what Kelsen had asserted, Norberto Bobbio proposed a distinction between two sources of legitimacy (one formal and the other material) of legal norms.15 This theory has come to have its own identity: a norm is formally legitimate when it has been created by the competent individual, abiding by the established procedures, but it is only fully valid if it complies with the criteria of material legitimacy, that is, if it is not in conflict with any other norm in the body of laws.16 This and other Bobbian contributions to legal theory have had an impact that goes beyond the boundaries of strictly legal studies and serve as starting points for other prominent philosophers. The work of Luigi Ferrajoli, Bobbio’s disciple, is a good example of the revolutionary potential of the theory outlined by his teacher. In fact, the theory that points out the differences between the formal legitimacy and the material legitimacy of norms has allowed Ferrajoli to introduce new criteria (a test) to evaluate legal norms in constitutional laws: the contents of secondary norms is a factor to be considered to be able to declare their full legitimacy and this, specifically, implies that constitutional principles (those referring to basic rights, in particular) are privileged parameters in determining when a norm should be removed from a body of laws. Basing himself on Bobbian distinction, Ferrajoli has proposed to differentiate effectiveness (creation abiding by venues and procedures) of a norm from its legitimacy (its full agreement with the substance of the constitution)17 and thus, has outlined his (controversial) theory on substantive democracy.
This is how Bobbian distinctions, among other things, opened the doors for promoting legal scholars to take an active role that traditional positivism would have categorically rejected. It is fitting to recall another example: given the fact that there may be formally legitimate norms (in force in Ferrajoli’s terminology) are materially invalid, legal scholars would have assumed the important task of reporting. Furthermore, the opposite is also possible, that is, legal scholars can identify those norms that are materially legitimate that have not been created (that is, that lack formal legitimacy) and that should be created.18 In this case too, the scientific work of legal scholars will be modified because now they will have the obligation of reporting the gaps and propose (demand) that they are fulfilled. These examples, that do not try to deplete Bobbio’s (direct or indirect) contributions to the debate on contemporary legal theory, show us Bobbio’s scientific rigor on one hand, and the transforming potential of his reflections on the other. The methodological power of his ruminations made it possible for him to face the debates of (his) time with a critical attitude that, beyond possible certainties, allowed him to identify the cracks through which future dissertations would flow through.19
As said before, Bobbio not only marched through the edge that joins and separates law from politics, but he had the daring and the capacity to explore both sides of the coin. Using his interest in the political problems that had led him to explore important political topics and texts, in 1972, he decided to distance himself from legal studies and left his professorship of legal philosophy at the University of Turin, which he had headed since 1948.20 Since then, he devoted his reflections to mainly political philosophy studies. Just seven years later, in 1979, he would abandon the classroom and leave his professorship at the University of Turin to one of his students, Michelangelo Bovero (even though, as I have mentioned, his intellectual activity would continue to bear fruit in the years to come). What is true is that for the purposes of this essay, Bobbio decided to turn the edge of the coin and deal with the same problems that had caught his attention for decades, but now observed with closer attention and discriminating care to the other side of the medal that explains and legitimizes political power. Also in this field he made significant innovations. As had happened in the field of legal studies, he introduced a new style of studying problems regarding power: he transferred the analytical method he used to study legal phenomena to the field of politics. As Luigi Ferrajoli pointed out, “with this method —that of analyzing concepts that are common to legal theory and political theory— (Bobbio) was able to build compromise between both fields of study”.21 Along with the general concepts of “law” and “power” —to which he dedicated more than one treatise in which he inquire into their tensions and implications—, Bobbio centered his attentions on other “border” concepts, such as “freedom”, “equality”, “rights”, “duties”, the “individual”, the “social group”, “society”, the “State”, “peace”, “war”, “democracy”, “constitutionalism”, etc. Furthermore, when the structure of the concepts themselves allowed it, he devoted himself to study them by ordering them in separate pairs: power/law, liberalism/absolutism, public/private, civil society/State, democracy/autocracy, etc. With this method, the bi-dimensionality (political and legal) of these concepts became transparent, but furthermore, their complexity shone in the light of its opposite. This way of proceeding allowed Bobbio to build real conceptual models that, more than specific topics or matters, were the principal legacy left to the members of his School.
III. THE LESSONS LEARNED FROM THE CLASSICS
Especially in the field of political studies, the Bobbian method, its conceptual models are enriched with what he called “the lessons learned from the Classics”: from Hobbes to Locke, from Rousseau to Kant, from Hegel to Kelsen and from Kelsen to Weber. This way, his ideas took up and updated the notable paths outlined by the “Classics” of political thought. Bobbio himself established the criteria that made possible to include a philosopher in this select group:
An author I consider classical is one who can be attributed with the following traits: a) to be considered an authentic and unique interpreter of his time, whose work is used as an indispensable instrument to understand it (think of, for instance, The City of God by Saint Augustine, Elements of the Philosophy of Right by Hegel); b) to be always current, which is why each period, or even each generation, feels the need to re-read it and by doing that, re-interprets it (Rousseau, democratic or totalitarian?; Hegel, a philosopher of the Restoration or of the French Revolution?; Nietzsche, reactionary or revolutionary?) and c) to have created model-theories that have been continuously been used to understand reality, even a reality different from the one in which it originated and to which it was applied, and that have become true and characteristic mental categories over the years.22
Dealing with the theories of these authors, in-depth knowledge of their works and, above all, the art of establishing relationships, connections and tensions among their different theories are an art that Bobbio carried out with surprising mastery. However, the “lessons learned from the Classics” are not foreign to the analytical method: they are its complement. As Michelangelo Bovero reminds us in the introduction to Teoria general de la politica, Bobbio favored an analytical reading of the classic texts over historical and ideological readings. This is because only the first type of reading made it possible to unravel the conceptual apparatus of the author in question, discover his sources, assess the arguments for and against the proposed theories and compare texts without having to take note of the historical context or influences exerted upon it.23 Thus, Bobbio condensed the thoughts of the most important writers in the history of (political and legal) ideas and by doing so, contributed with unique lenses that shed light on the corners and brought to light connections that had never been explored before. One of these connections, again, is the one that joins politics and law and vice versa.
Not all of Bobbio’s “Classics” observe the two sides of a same coin, but even those that do not, leave traces outlining the parallel path left by the absence of law when separated from politics. After all, no matter how much we insist on looking at only one of the two sides of a same coin, we will never be able to deny the existence of the opposite side. Bobbio always knew that legal philosophy, together with political philosophy, formed part of a single “general theory”, a complex but compact theory. Michelangelo Bovero reminds us that in 1998, Bobbio had summarized his thoughts on the matter as follows:
… in my writings, what the two (political and legal) theories have in common… is not only their exclusively cognitive (not proposed) purpose, but also the way of proceeding in order to reach it. It is the procedure of “reconstruction” through linguistic analysis along with historical references to classic authors of the fundamental categories that make it possible to establish its outside boundaries and to organize inside the two areas, that of law and of politics and (to establish) their reciprocal relationships.24
It is possible to claim that the tendency to look for traces of the norm on the other side of power during his time as a political scholar was a legacy from his time as a legal philosophy scholar. And, most of the times, he was able to find it.
Among the many essays that could serve as to corroborate this Bobbian conviction (and to show the virtues of his work method), one text in particular comes to mind. A text entitled “Max Weber and Hans Kelsen” was presented at a congress in 1980 and was published in a collection of works devoted to Max Weber and Law.25 It seems to me that the text has a twofold value: a) on one hand, it is a magisterial exercise of analytical reconstruction of the connections, implications and tensions between two particularly complex theories that studied the problem of the State, of law and of political power from different perspectives and; b) on the other, in this case, the magnifying glass of Bobbian analysis favors the concept of law above that of political power, which allows it to observe a kind of methodological synthesis. In fact, even though the article is mainly about the boundaries that differentiate legal sociology from legal science, it bases its conclusions on the relationship that exists between law and the State, or more specifically, between law and the monopoly of physical strength.
What happens —as Bobbio reminds us— is that for Kelsen, the State was nothing more than a legal body of laws, but for Weber, while it was a legal body of laws, it was also more than that: “while for Weber the theory of the State is influenced by the theory of power and various forms of power is different from the theory of law, in Kelsen, on the other hand, the theory of the State is part of the theory of law”.26 In fact, for Weber the monopoly of physical strength is the first component in the definition of State (although legitimacy —legal/rational, traditional or charismatic— is an adequate condition), but for Kelsen, this monopoly only exists within the framework of a legal body of laws.27 This way, neither of the two authors can elude the dual dimension of the central problems to their reflections. This makes it possible for Bobbio, while making an extraordinary comparison of their theories, to start spinning the coin of power and law by demonstrating how this bi-dimensionality touches the different concepts trapped in the universe of politics. Furthermore, the comparison between Kelsen and Weber (and a rigorous study of their works appears again in many other essays) once more proposes two simultaneous processes that do not escape Bobbio’s notice and that from these two vantage points, they lead us to reconstruct the structure of the modern State: the “juridification of the State” that gave way to the precise traits of “Rule of Law” and of “Law belonging to the State of Law”, which evoke the “monopolization of public strength”.
IV. CONSTITUTIONALISM OF THE BASIC RIGHTS/LAWS
Bobbio’s conviction of the virtues of constitutionalism (also) has other explanations. The author embraces the liberal idea that fights for the legal limitation of power because it defends the conviction shown by the value of individuals and repudiates the devastating experience of totalitarianism in the 20th century. At the heart of this political conviction lies the fundamental pillar of the constitutional idea: basic individual rights (formerly known as human or natural). In fact, in his work, it is possible to find different definitions of constitutionalism —some more condensed and others more ambitious—, but they are always embedded in the unwaivable importance of the rights of man. His command of the works of the Classics and his calling towards analytical reconstruction of these concepts led him to stitch together, repeatedly, the threads that allowed him to interweave the fabric that originates in the classical ideal of a “government of laws” to contemporary constitutionalism and its complex institutions. I will give a single definition as an example:
Since classical ancient times, the idea of the predominance of a government of laws passes into Medieval legal thought… to go on to modern constitutionalism according to which political power, in all its forms and levels, including the highest one, is limited by the existence of natural rights, including the right of resisting tyrannical power, of which individuals are the holders of said rights since before the creation of civil society and; by constitutional laws that are guaranteed by the separation and reciprocal control of the powers that exercise the main functions of a government of society.28
This definition, once again, shows the duplicity of focus that is a trait of Bobbian thought. This paragraph expresses us that, for Bobbio, constitutionalism cannot be reduced to a strictly normative logic that vindicates to the existence of a legal document distinguished by constitutional supremacy and rigidity. Constitutional norms (or laws) are simply a component, though undoubtedly an essential one, of the concept of constitutionalism, but norms do not exhaust its scope or its sense. First of all, without the separation and reciprocal control of powers, the normative Constitution would be unable to fulfill the function entrusted to it: that of guaranteeing natural rights that have existed prior to State institutions. This separation, as shown in the definition, not only resides and depends on its normative facet (although it undoubtedly also does), but it also evokes Montesquieu’s notion of effectively balanced powers (“checks and balances”) that goes beyond and gives strength to this normative aspect. The requirement, in addition to being legal, is political and practical, and can be found categorically stated as a clear reference to Article 16 of the 1789 Declaration of the Rights of Man and of the Citizen: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”. Bobbio seems to tell us that what is important is that the powers are truly balanced because otherwise constitutional norms will be inefficient in their obligation to protect individual rights. In this respect, it is fitting to pause for a moment to recall Bobbio’s inclination towards parliamentarianism. Not only because of his democratic convictions (as will be seen below) but also for constitutional reasons, Bobbio always thought (as Kelsen had, among others) that the presidential system had the seed of authoritarianism. For him, representative constitutional regimes should lie on the bases of the division of powers and on legislative prevalence since only the parliament could be a true expression of political pluralism and an institutionalized guarantee of the rising power. In other words: only (constitutional) parliamentary democracy can guarantee limitations and the distribution of political power indispensable to guaranteeing rights.29
On the other hand, the definition offers another stratum of extreme importance for reconstructing the relationship that exists between power and rights in Bobbian constitutional theory. Individual rights (which in this case Bobbio goes back to the original contractualistic tradition to call them “natural” rights, but that in modern constitutionalism are referred to as “positive laws”) come before the State and conform a limitation to its powers. From this point of view, the two sides of the coin enter into permanent transformations: guaranteeing rights implies tempering and ties among public powers. However, for Bobbio, individual rights are also powers and therefore he does not hesitate in asserting the right/power of resistance in the face of abuse or excesses of political power. The right to resist arbitrary power has a purely political dimension because the ultimate measure of the legitimization of (artificial) powers of the civil State lies in its essence. From this perspective, Bobbio goes back to the tradition of contractualistic theory and lays it down as a general scheme with which he builds the constitutionalist ideal: the Constitution expresses the agreement that creates the State and establishes the “rules of the game” that conditions its legitimacy. Thus, we can say that the “fundamental hypothetical norm” that ended the Kelsenian system, for Bobbio, translates into a political agreement: a voluntary contract between the individuals that create the constitutional State. The contents of said pact is attained with the basic individual rights that, though legal, represent the triumph of the political project which was (initially) liberal, (then) democratic and (finally) socialist.
V. THE COPERNICAN REVOLUTION AND THE POSITIVIST METHOD
It is time to recall another fitting formula in Bobbian lexicon: the “Copernican Revolution”. All of Norberto Bobbio’s constitutionalist inclination can be summarized in the points contained in the figure. In fact, in explaining its meaning, Bobbio allowed himself a festive tone, uncommon in his usually measured prose:
More than what I myself have upheld that we should be very careful when observing transformations, qualitative leaps, historical mutations in every period, I do not hesitate in stating that the proclamation of the rights of man split the historical course of humanity in two, in terms of the notion of political relationships.30
The positivization of natural rights upset the sources of legitimacy of political power: consecrated in positive law, natural rights acquired the importance that had been posed by liberal thought (at lease since the work of John Locke) and began to be considered conditions of legitimacy of the State and of the social contract it originates. For the first time in the history of political/legal institutions, political relationships rearranged the weights on the scale to place individuals (and their rights) before and above the State (and its powers). For Bobbio, despite the dramatic regressions and reversals that struck 20th century history, this transformation became the only signum prognosticum that allows the thinking man to assuage his inevitable tendency towards pessimism. Furthermore, as he took upon himself to record, the first declarations and constitutions were only the beginning of a process of constitutionalization that gradually and not without surprises has taken place in expanding the list of rights recognized in positive law and that has gone on to be contemplated on the international plane (in two directions: horizontally and vertically). From the rights of freedom (which Bobbio calls “the four great freedoms of modern times”), going through political rights to come to social rights, modern constitutions have gone on to recognize more individual rights as the grounds of and the ultimate aim of contemporary States. Moreover, these rights have become the backbone of supra-national charters and covenants. The compilation of essays L’etá dei diritti published for the first time in 199031 is a compendium of thoughts that revolve around the implications, limitations and the potential of this transforming revolution. On the back cover of the 1997 edition of this book, there is an idea that summarizes the core of Bobbian political thought:
The rights of man, democracy and peace are three necessary moments in the same historical progress: without having the rights of man recognized and protected, there is no democracy; without democracy, the bare minimum of conditions does not exist for the peaceful solution of conflicts. In other words, democracy is a society of citizens and subjects become citizens when they are acknowledged as having certain basic rights. Lasting peace, peace that does not consider war an alternative, will only exist when there are citizens that are not from this or that State, but of the world.
Bobbio did not confuse democracy with constitutionalism, but as we can assess he made certain to stress the implications of its possible and most fruitful connections. Though faithful to the rigors of his analytical method, he devoted many complete essays to establish the boundaries that separate the constitutional idea (of liberal mold) of democracy as a form of government. He never stopped interweaving the threads that made possible to stitch the differences together. In another apt essay, Liberalismo e democrazia [Liberalism and Democracy],32 we find a detailed compilation of the theoretical and institutional means that gave way to modern liberalism and democracy to discover, by the author’s hand, the ties that shaped modern democratic/constitutional States in which the rights of liberty with political rights and (some) social rights are brought together. In fact, I dare say that there are many keys in this compendium that make possible to organize the core issues in current debates that defenders of strong constitutionalism (with the corresponding rigidity and supremacy of the Constitution guaranteed by jurisdictional protection mechanisms) face against the supporters of the so-called “radical democracy” (that defend the predominance of representative parliaments as instances of decision on matters regarding basic rights).33 Furthermore, as recalled by Sussana Pozzolo,34 this debate —which revolves around the relationships and tensions between modern democracy and contemporary constitutionalism (or “neo-constitutionalism”)— had already been anticipated by Norberto Bobbio in the 1930s.
In response to an article written by Nicola Matteucci entitled “Legal Positivism and Constitutionalism” in which the author questioned the compatibility between classical positivism and new constitutionalist theories,35 and in which he anticipated the criticism which years later would be aimed against him by authors such as Ronald Dworkin, Carlos S. Nino, Gustavo Zagrebelsky and others (who would be called “neo-constitutionalists”), Bobbio was aware of the errors caused by reducing (comparing) positive law with stateism: “it is my impression that you —Bobbio told Matteucci— completely committed to the anti-positivistic battle, have ended up also sacrificing the positive method on the altar of stateism theory as if by changing the construction, the method should also change”.36 Bobbio’s criticism constitutes a magisterial defense of the positivistic method (that identifies law by following the “formal rules of legal production”), but at the same time there is definite distancing between “ideological positivism” that, as Ferrajoli restlessly repeats, tends to confuse positive law with justice, incurring in a dangerous type of “ethical legalism”.37 In passing, with this dissertation, Bobbio anticipated the main points of the debate that currently holds the attention of constitutional theory scholars and that revolves around two central issues: a) the limitations of positivistic theory to account for the profound transformation that postwar democratic constitutions entail; b) the tensions that afflict the relationship between strong constitutionalism and democratic theory.
The defense Bobbio makes of the positivistic method in his response to Matteucci begins by acknowledging the profound transformation brought about by the rise (resurgence) of the constitutional paradigm with the institutions that set it apart: supremacy and rigidity guaranteed mainly by jurisdictional control mechanisms of constitutionality. Thus, Bobbio asserts his confidence in the virtues of methodological positivism, but at the same time, as mentioned above, it reminds us of his rejection of stateism legalism and its adhesion to the form of democratic government. At the same time, Bobbio justifies the scientific method to study law as a social phenomenon (in the letter, for instance, he censures the Matteucci’s tendency to call only “good constitutions”, “constitutions”). He reiterates his liberal conviction (by stating that, from a political and moral point of view, not all constitutions have the same merit) and he upholds his democratic convictions (by warning of the dangers that, in extreme cases, the leading role of constitutional judges could cause). In other words: respect for the positivistic method did not hinder him from recognizing the advantages of the so-called “long constitutions” that have the characteristic of recognizing a long list of basic rights, nor of ignoring their complexity. For me, one paragraph in the letter is revealing:
… jurisdictio limits the gubernaculum. But the right of judges, who can change that? If nobody, not even other judges, can modify it means the power of the judges is above the Law and then, the difference is not between a Constitution (that of the iuspositivista model) in which (legislative) power is above the Law and the other Constitution (that of the neo-constitutionalist model) in which the Law (the Constitution) is above power, but between a Constitution in which supreme power is king (the legislator) and another Constitution in which supreme power belongs to another body (constitutional judges?).38
Once again, we find the Bobbian conviction of the virtues of distinction reflected, but at the same time we rediscover his political commitment with the project of constitutionalism of rights, and with the democratic method. If this were not enough, in the context of these reflections, the complex relationship that exists between power and law reappears. On rejecting the alleged distinction between good constitutions (those that correspond to the constitutionalist paradigm) and bad constitutions (those that correspond to the legalist paradigm) by incurring in a methodological flaw,39 Bobbio sketches the lines of the core disagreement that currently divides the supporters of strong (neo)constitutionalism and the advocates of radical democracy. It is a disagreement that runs through the strands of power even though it is cloaked in the forms of law and can be summarized in a single question: in a constitutional democracy, who should hold the power of the “last word” when deciding on issues regarding basic rights (parliament or constitutional judges?)? The crux of the problem is certainly not new, but in the letter Bobbio addresses to Matteucci, the conceptual points that steer the debate of our times appear and stresses out the difficulties that democratic theory imposes on the construction (and guarantees) of strong constitutionalism.
It seems to me that Bobbio’s position on these issues never incurred in ambiguities: without losing sight of the tensions that inevitably plague the relationship between the different “sets” of basic rights (of freedom, political and social ones), he always fought for their (possible and) necessary complementariness. In Bobbian theory, democratic constitutionalism implies arrangements and commitments between the theories and the demands that different types of rights back up and project because a dignified life (based on the effective guarantee of certain social rights) constitutes a prior condition needed for the exercise of basic freedoms, which at the same time, constitute a condition for the exercise of political rights. From this perspective, the feasibility of democracy implies the (legal and) effective guarantee of constitutionalized rights. This again implies the commitment and the strength of political action: “only the enforcement of a right transforms it from a moral right into a legal right”40 and, I dare say, this is only possible when there are constitutional institutions (judges) capable of making effective the guarantees of rights.
VI. MODERN DEMOCRACY
When trying to define democracy, Bobbio asserts the importance of individuals’ political autonomy and bases the principle of democratic equality around this. But, as mentioned above, Bobbio never loses sight of the fact that citizens’ political autonomy should be limited within the framework of a constitutional ideal, at least from the perspective of democracy. His theoretical conviction is supported by an empirical affirmation: “all the authoritarian States in the world are at the same time anti-liberal and anti-democratic”.41 From this point of view, the implication of both ideals goes both ways:
Liberal ideals and the democratic method have gradually interwoven themselves in such a way that while it is true that the rights of freedom have been a necessary condition for the proper enforcement of the rules of the democratic game from the beginning, it is also true that the development of democracy has successively become the principal instrument for the defense of the rights of freedom.42
This is why, when we try to reconstruct Bobbian theories around constitutionalism, we need to refer back to his democratic theory. Only then we can fully understand the meaning of the relationship among the rights of man, democracy and peace as three movements of a single historical movement. However, what I want to stress at this time, because it might help in deciphering some of the debates of our times, is the essentially constitutional nature of the Bobbian concept of modern democracy. The formal and most concise definition of democracy that he set forth in his well-known essay The Future of Democracy in 1984 is the key to this theory. Democracy —according to Bobbio— is a “form of government characterized by a set of (primary and secondary) rules that establish who is authorized to adopt collective decisions and with which procedures”.43 From this definition, he gave six concrete rules (“universal actions”) the elements needed to determine the life of a democratic system. It is fitting to go back to that well-known set of rules: 1) all citizens that have reached legal age without distinction of race, religion, economic class, gender, etc. must enjoy political rights, that is, the right to express their opinion and/or choose someone to express it for them by means of their vote; 2) each citizen’s vote should have equal weight to that of others (it must count for one vote); 3) all the citizens that enjoy their political rights should be free to vote according to their own freely formed opinion, that is, within the context of a free competition among organized political groups; 4) citizens should also be free in the sense that they must be placed in circumstances in which they can select from among different options; 5) both for collective decisions and for the election of representatives, the rule of numerical majority is valid; 6) no decision taken by the majority should limit the rights of the minority (especially that of the right of becoming the majority, in the same circumstances).44
If we observe closely, the links between constitutionalism and democracy that this set of rules suggests are not limited to their purely legal nature, but go beyond the substance of some of them. The third and fourth rules invoke the recognition of a set of individual freedoms that have historically been advocated and defended by liberal thought and that are the basis of modern constitutionalism. But furthermore, the fifth rule implies the unwavering guarantee of a specific decision-making procedure: majority rule. And if that were not enough, the sixth rule opens the door for the requisite recognition and effective guarantee of (not only political) rights of individuals who, circumstantially are found in the situation of being the minority.45 This sixth rule, among other many implications, encloses the key that explains part of the close relationship that links democracy with the Kantian ideal (as well as the Bobbian ideal) of perpetual peace. Briefly said (and inevitably simplified): democracy contributes to peace (within States) because it allows the fight for political power (which, according to Weber, is the fight for the “monopoly of power”) to advance under the rules of competition that guarantee that there are neither any eternal winners nor any absolute losers. And these rules of competition are constitutional rules.
Regarding external peace among States, Bobbio tells us that the Kantian concept is still valid: “If citizens’ consent is requested to decide whether to make war or not, nothing is more natural than the fact that if they have to decide to have all the calamities of war fall on them… they would think twice before initiating such a bad game”.46 This way, not only law in general but also constitutional institutions in particular, as included in contractualist tradition which goes from Hobbes and is reborn in our times in the work of authors like Ferrajoli (and those among which Bobbio is an undeniable example),47 are the ideal instruments to guarantee peace but that the democratic form of government seems to be the essential complement. And once we accept that war is the worst enemy of basic rights, we then have a circle that comes to a closure.48
VII. THE BOBBIAN IDEAL: SOCIAL DEMOCRATIC LIBERALISM
Luigi Ferrajoli has called our attention on the fact that “Norberto Bobbio’s most significant contribution and the most important teaching of legal and philosophical culture” lay in showing that democracy is a set of legal rules and “not any rules, but the constitutional rules that ensure both the power of the majority and the limits of the power of the majority”.49 Above all, Ferrajoli concludes, it is because “during the last century, the illusion of socialism without laws represented the grand illusion. It was responsible for the failure of that great hope of mankind, which was communism fulfilled”.50 And, as we know, the failure was complete: the ideal turned into its opposite.
Bobbio summarized this historical failure with his usual precision: we have witnessed the “total inversion of a utopia, of the greatest political utopia in history (I am not referring to religious utopias) into its exact opposite”. Further along, he concludes: “Historical communism has failed, I do not deny it. But the problems are still there – precisely those (at least now and in the near future worldwide) problems that the communist utopia had confronted and believed possible to overcome”.51 This last statement conceals the information that, to conclude, I would like to bring to light: Norberto Bobbio was a left-wing intellectual, but not of just any left; he was a “liberal-socialist”52 or, to be more exact, a “liberal/socialist/democrat”. It would be a theoretical error and a conceptual incongruity to say that Bobbio was a “left-wing constitutionalist”, but it is not when we affirm that, along with his constitutional and democratic convictions, he was a left-wing intellectual. His defense of the basic rights was not an abstract struggle, a result of the historical reconstruction of a contemporary and passing model, but a reasoned and contemplated response of an in-depth conviction: each individual possesses a dignity that deserves recognition and that demands to be further developed. In his line of thought, the rights of liberty, political and social rights form a single valuable set, animated but complementary, that aspire to emancipate individuals from historical contributing factors and serve to attain them and give a practical, tangible meaning to their condition as upright and autonomous persons.
If what we are looking for is the ultimate origin of this mixture of ideas that give form to Bobbio’s theoretical model, but which, above all, conveys an ideological commitment, we would have to observe the exact opposite of the values he defends: fascism. In a single act and with the conviction that he has fastened himself on to a solid basis, Bobbio embraces the defense of individual freedom, political autonomy and the advocacy of (material) equality and of social justice because he knows and repudiates its absolute opposite. As pointed out before, Bobbio never lost sight of the unbalances and tensions between these valuable commodities, but above all, he never forgot the real (and historically experienced) possibility of its simultaneous eclipse. Moreover, in this dramatic sense, power, in its most unlimited version, (and I dare say, most savage), is behind his legal and political convictions. In his own words: “fascism was a two-faced monster: an anti-liberal one and an anti-socialist one, and therefore it should be repelled fought against on both fronts with the same energy”.53 To defeat it in theory and in practice, it was necessary to build a model that would combine the denied values (freedoms from the liberal tradition and the democratic tradition and material equality from the socialist tradition) and this was only possible with the postwar liberal/social/democratic “long Constitutions”.54 Confronted with fascism, as confronted with Nazism and the totalitarianism of real communism, we only have the coin that combines constitutional laws with democratic power. In spite of the fallacy of expertise: this is a lesson learned from a Classic.
Notes
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute of the UNAM.
1 Cited by Ruiz Miguel, A., Política, historia y derecho en Norberto Bobbio, Mexico, Fontamara, 2000, p. 51.
2 Cfr. Bobbio, N., Teoria generale della politica, Turin, Einaudi, 1999.
3 Bovero himself makes this calculation. He informs us in the bibliography of the webpage dedicated to Bobbio for the Centro di Studi Piero Gobetti that there are 3134 works by this author. Cfr. Bovero, M., “Norberto Bobbio. Percorsi nel laberinto delle opera”, Quaderni Fiorentini per la storia del pensiero giuridico moderno, Milan, No. 32, 2003, p. 7.
4 On the idea of Bobbian work as a labyrinth in itself, Cfr. Fernández Santillán, J., “Estudio Preliminar”, Norberto Bobbio: el filósofo y la política (antología), Mexico, Fondo de Cultura Economica, 1996, pp. 27-52; Cfr. also Bovero, M., Bovero, M., “Norberto Bobbio. Percorsi nel laberinto delle opera”, Quaderni Fiorentini per la storia del pensiero giuridico moderno, cit. note 3, pp. 7-23.
5 Thanks to Michelangelo Bovero, we know of an unedited version of this reflection (contained in a letter Bobbio wrote to the director and his colleagues at the School of Political Science at the University of Turin): “I have always thought of the sphere of law and that of politics to use a metaphor I am familiar with, two sides of a same coin. The world of rules and the world of power. Power creates the rules and the rules that transform power in fact in a power of law”. Cfr. Bovero, M., “Norberto Bobbio. Percorsi nel laberinto delle opera”, Quaderni Fiorentini per la storia del pensiero giuridico moderno, cit., note 3, p. 10.
6 “Norberto Bobbio. Percorsi nel laberinto delle opera”, Quaderni Fiorentini per la storia del pensiero giuridico moderno, cit., note 3, p. 177.
7 Ibidem, p. 183.
8 This thesis fully coincides with the Kelsian school of thought. Indeed, Kelsen thought that a body of laws only creates norms, but cannot apply them (that it does not have the capacity to exercise coercion) is not a legal body of laws. Kelsen, H., La doctrina pura del derecho (I quote from the Italian edition: La doctrina pura del diritto, Turin, Einaudi, 1966, p. 61).
9 Rousseau had already said this: the powerful becomes a governor when he “transforms strength into right and obedience into duty”. Rousseau, J. J., Social Contract (I cite from the Italian edition, Il contratto sociale, Turin, Einaudi, 1999, p. 14). Although it is true that there are other factors that contribute to the legitimacy of law, such as its own compliance by the addressees, which is no less important.
10 Cfr. Ruiz Miguel, A., op. cit., note 1, p. 61. Ruiz Miguel himself refers to the work of Maria Angeles Barrere Unzueta, La escuela de Bobbio. Reglas y normas en la Escuela de Filosofía italiana de inspiración analítica, Madrid, Tecnos, 1990.
11 In 1955, for instance, he published a book entitled Politica e cultura [Politics and Culture] in which we find mainly political essays such as the one on the celebrated analysis of the “two freedoms”. I owe this observation to Michelangelo Bovero.
12 Cfr. Ferrajoli, L., “Norberto Bobbio. De la teoría general del derecho a la teoría de la democracia”, Cordova, L. and Salazar, P. (coords.), Política y derecho. (Re)pensar a Bobbio, Mexico, Siglo XXI Editores-UNAM, Instituto de Investigaciones Jurídicas, 2005. On the interpretation Guastini makes of Bobbio’s works, Cfr. Guastini, R., Distinguendo, Turin, G. Giappichelli editore, 1996, pp. 41-56.
13 Cfr. Bobbio, N., Il positivismo giuridico, Turin, 1961; Bobbio, N., Giusnaturalismo e positivismo giuridico, Milan, 1965.
14 Bobbio never abandoned the basic principles of positivism, but he outlined some theories, such as those I have tried to recover, than have been reinterpreted and used by so-called “neo-constitutionalists” from Dworkin to Robert Alexy, Gustavo Zagrebelsky and, to a certain extent, by Ferrajoli himself.
15 Contrary to popular belief, it was Bobbio, and not H. L. A. Hart, who proposed that the legal nature of a norm depended on its belonging to a legal body of laws and not to its content or structure. Cfr. Bobbio, N., Contributi ad un dizionario giuridico; Bobbio, N., Studi per una teoria generale del diritto, Turin, 1970.
16 According to Guastini, Bobbio proposed this theory in his book entitled Teoria dell’ordinamento giuridico (Turin) in 1960 and not by Hart in his well-known work The Concept of Law (Oxford) in 1961. Cfr. R. Guastini, op. cit., note 12, p. 52.
17 From the vast work of Luigi Ferrajoli, I limit myself to make reference to his work entitled Diritto e ragione. Teoria del garantismo penale, Roma-Bari, Laterza, 1989.
18 On neo-constitutionalism, its characteristics, variations and some objections, Cfr. Comanducci, P., “Formas de (neo)constitucionalismo: un análisis metateorético”, Isonomia 16, 2002; Pozzolo, S., Neoconstituzionalismo e positivismo giuridico, Turin, Giappichelli Editori, 2001.
19 Cfr. note 13. The first of these essays and other interesting works on this subject can be found in the book edited by Carbonell, M., Neoconstitucionalismo(s), Madrid, Trotta, 2003.
20 In order to be precise, it is fitting to point out that Bobbio had taught legal philosophy since 1936 (first at the University of Camerino, then at Sienna, later at Padova and finally at Turin). Furthermore, it should be reiterated that the “leap of subject” of one professorship to another does not imply Bobbio’s initiation in political studies. In fact, as a professor of legal philosophy, Bobbio had devoted several courses to the topic of “Law and Power” in which his interest and knowledge of basic authors of political philosophy (Hobbes, Locke, Kant, and Hegel, among others) was tangible.
21 Cfr. Ferrajoli, L., op. cit., note 12.
22 Cfr. Fernández, J., op. cit., note 4, p. 91. In Teoria generale della politica, cit., note 2, reference is found on p. 70.
23 Cfr. Bovero, M., “Introduzione” to Teoria generale della politica, cit., note 2, p. XXIV.
24 Cfr. Bovero, M., op. cit., note 3, p. 12. The textual quote, as Bovero points out, is found in Bobbio’s prolog to a book by Greppi, Andrea, Teoría e ideología en el pensamiento político de Norberto Bobbio, Marcial Pons, Madrid-Barcelona, 1998.
25 Cfr. Max Weber e il diritto, Franco Angeli, Milan, 1981, pp. 135-154. The work is also included in an anthology edited by J. Fernández Santillán (op. cit., note 4, pp. 115-131).
26 Cfr. ibidem, p. 129.
27 Other references to Kelsenian and Weberian concepts of the State and its relationship to law can be found in Bobbio, N., Stato, governo, societá, Turin, Einaudi, 1985, pp. 84-92.
28 Bobbio, N., op. cit., note 2, p. 194.
29 Regarding this, cfr. the book (edited by M. Bovero), Bobbio, N., Dal fascismo alla democrazia, Italia, Baldini & Castoldi, 1997, in addition to Teoria generale della politica and Il futuro della democracia (Turin, Einaudi, 1984).
30 Bobbio, N., op. cit., note 2, p. 194.
31 Cfr. Bobbio, N., L’etá dei diritti, Turin, Einaudi, 1990.
32 Cfr., Bobbio, N., Liberalismo e democrazia, Milan, Franco Angeli Libri, 1985.
33 On this issue, I refer to my book La democracia constitucional. Una radiografía teórica, Mexico, Fondo de Cultura Economica, UNAM, Instituto de Investigaciones Juridicas.
34 Cfr. Pozzolo, S., “Un constitucionalismo ambiguo”, in Carbonell, M. (ed.), Neoconstitucionalismo(s), cit., note 19, pp. 187-210.
35 Cfr. Matteucci, N., “Positivismo giuridico e costituzionalismo”, Revista Trimestrale di Diritto e Procedura Civile, 1963, pp. 985-1000. Reference to this is found in Pozzolo, “Un constitucionalismo ambiguo”, in Carbonell, M. (ed.), Neoconstitucionalismo(s), cit., note 19, p. 206.
36 Cfr. Margiotta, C., “Bobbio e Matteucci su costituzionalismo e positivismo giuridico. Con una letrera di Norberto Bobbio a Nicola Matteucci”, Materiali per un storia Della cultura giuridica 2, 2000. Reference and the quote transcribed here are found in Pozzolo, “Un constitucionalismo ambiguo”, in Carbonell, M. (ed.), Neoconstitucionalismo(s), cit., note 19, p. 207.
37 As to this, cfr. Ferrajoli, L., Diritti fondamentali, Rome-Bari, Laterza, 2001, in addition to the works already mentioned.
38 Margiotta, C., op. cit., note 36, p. 424. It is important to inform the reader that although I consulted the direct source, in this instance, I also went back to the quote in Sussana Pozzolo’s text (“Un constitucionalismo ambiguo”, in Carbonell, M. (ed.), Neoconstitucionalismo(s), cit., note 19, p. 210) because she adds all the notes and questions in parenthesis to the original text and that, in my opinion, makes it possible to fully appreciate the tremendous current importance of Bobbian considerations in their full magnitude.
39 On this distinction between different legal paradigms, cfr. Ferrajoli, L., “Pasado y futuro del Estado de derecho”, in “Un constitucionalismo ambiguo”, in Carbonell, M. (ed.), Neoconstitucionalismo(s), cit., note 19, pp. 13-29; Ferrajoli, L., Epistemología jurídica y garantismo, Mexico, Fontamara, 2004.
40 Bobbio, N., “Una nuova stagione della politica internazionale”, Letrera Internazionale, XV, No. 62, pp. 8-9. On the relationship that exists in Bobbio’s theory among different basic rights, cfr., among others, Bobbio, N., Il futuro della democrazia, cit., note 29, p. 6. Also recommended for an ulterior development on the argument is the book by Bovero, M., Contro il governo dei peggiori. Una grammatica della democracia, Rome-Bari, Laterza, 2000.
41 Bobbio, N., op. cit., note 32, p. 48.
42 Idem.
43 Bobbio, N., op. cit., note 29, p. 4.
44 Cfr. Bobbio, N., op. cit., note 6, p. 381. In the same sense, although with a few more or less relevant differences, other authors, like Giovanni Sartori or Robert Dahl, have listed the rules and/or institutions that, from their perspective, characterize modern democracy. Cfr. Sartori, G., Partidos y sistemas de partidos, Madrid, Alianza, 1988; Dahl, R., Los dilemas del pluralismo democrático, autonomía versus control, Mexico, CONACULTA-Alianza Editorial, 1991.
45 I will not break off at this time to discuss the multiple theoretical and practical implications that derive from this sixth and last rule nor on the debates that continue to arise among Bobbian scholars. Regarding this, I refer to the collaborations of M. Bovero and the author of this article that are found in: Cordova, L. and Salazar, P. (coords.), Política y derecho. (Re)pensar a Bobbio, cit., note 12.
46 Cfr. Bobbio, N., “El ideal de la paz perpetua”, Norberto Bobbio: el filósofo y la política, cit., note 4, pp. 325-328. Kant’s quote (which Bobbio quotes in a 1985 Italian edition and which is translated in J. Fernandez Santillan’s text) is found on page 327. On the subject of peace and democracy in Bobbio’s work, reference must be made to these texts: “Democrazia e sistema internazionale” included in the above mentioned book Il futuro della democrazia, cit., note 29, pp. 195-220 and especially the book “Il terzo assente. Saggi e discorsi sulla pace e sulla guerra” (Turin, Sonda, 1989), which collects various articles by Norberto Bobbio on pacifism written between 1961 and 1988. Likewise, on peace and war in Bobbio and in other classical and contemporary authors, I recommend the book by Vitale, E., Derechos y paz. Destinos individuales y colectivos, Mexico, Fontamara, 2004. As to the elements of the theoretical and practical limitations of these “Bobbio-Kantian” theories, I recommend the excellent text by V. Paze that forms part of the book Politica y derecho. (Re)pensar a Bobbio, cit., note 12.
47 Indeed, Bobbio always found (legal and political) institutions to be the (only?) ideal means to achieve peace. Without abandoning the prudence of his “unsatisfied realism” (cfr. Ruiz Miguel, A., cit., note 21; Bobbio, N., De senectute, Turin, Einaudi, 1996; Bovero, M., Il realismo di Bobbio, Reset, October 2002), Bobbio defended the meaning and the potential of international bodies (like the UN) and pointed at the expansion of democracy in the world as the ideal ways towards peace (to fulfill the Kantian Weltrepublik it would be necessary to build a ‘universal state’ and this would require the materialization of “two parallel processes, the democratization of all the States in the world and the democratization of government bodies in the global State”, Bobbio, N., “Una nuova stagione della politica internazionale”, Lettera Internazionale, cit., note 40).
48 On the topic of war and basic rights, cfr. Bovero, M., “L’intransigenza nell’etá dei diritti”, Teoria politica, Milan, Year XV, No. 2-3. The text, translated to Spanish, was published in the Isonomia magazine, No. 13, 2000.
49 Ferrajoli, L., “Norberto Bobbio. De la teoría general del derecho a la teoría de la democracia”, Política y derecho. (Re)pensar a Bobbio, cit., note 12.
50 Idem.
51 Bobbio, N., op. cit., note 2, pp. 303-305.
52 On Bobbio the “liberal-socialist” (or “socialist-liberal”), cfr. Bovero, M., “Proseguire su quell ponte. Il liberalsocialismo per Bobbio e per noi” (Introduzione agli Scritti di Bobbio per il Ponte), original provided by the author.
53 Bobbio, N., Dal fascismo alla democrazia, cit., note 29, pp. 116 and 117 (quoted by M. Bovero in “Proseguire su quell ponte. Il liberalsocialismo per Bobbio e per noi”, cit., note 52).
54 In the case of the Italian Constitution and its undeniable anti-fascist nature, I widely recommend the sixth chapter (on the Origine e caratteri della Costituzione) in the book Dal fascismo alla democrazia referred to above. In this text, Bobbio, among other things, recaptures the meaning of the political “commitment” that lies behind the constitutional norms and their institutions.
