Thursday, July 7

The work of our needs

The thinker Thomas Paine was one of the Founding Fathers often referred to in the constitutional literature of the United States of America. At the beginning of your pamphlet, Common Sense, published anonymously shortly before the revolution of the thirteen colonies against British rule, declared: “Society is the work of our needs, and government, of our perversion […]. The former is a boss, the latter an executioner. “The mistrust and even the terror expressed here towards the idea of ​​government – of every government – and, by extension, towards the entire state apparatus that serves as its basis, can today. Paine was a republican. But his ideas, like those of other thinkers in the same tradition, ended up being transformed in the whirlpool of early liberalism. The theses that politics is a Necessary evil and that the power of the State must be limited have been present with greater or less intensity in all versions of liberal doctrine throughout the twentieth and early twenty-first centuries, oscillating between a liberalism with social sensitivity or flanged and a liberalism untied or neoliberalism. And yet, liberalism, whose main concern was and continues to be the preservation of a space, materially and legally assured, for the exercise of economic freedom and the expansive dynamics of capitalism, contributed decisively to the elaboration of the State of law and, over time, especially after the Second World War, he would come to admit without ambiguity the idea that the rule of law is the precise and complementary instrument for a regime of full democracy.

Contemporary liberal political theory supports the idea that the rule of law is a construction that makes the rule of law prevail (rule of law). Positive law appears here, as it already did in the German doctrine of the Rechtsstaat, as the mortar of the state building and as the main justification mechanism for political decision-making. In its strict terms, this thesis is opposed to the fundamental idea of ​​the republican tradition according to which the source of fundamental legitimacy resides in popular sovereignty. In this sense, Declaration of the rights of man and of the citizen of 1789 it already made clear, in its sixth article, that the law is the expression of the general will. To the extent that it includes elements of both traditions, a democratic rule of law should consider both criteria of legitimacy as equally determining and even mutually implicated. In other words: a democratic rule of law should do justice to the request for protection of the rights and freedoms of individuals, when they are understood as private subjects, and to their demands for collective self-determination, when they are understood as citizens. At the dawn of the contemporary world, Rousseau and Kant, from different points of view, offered a guideline for this through the concept of autonomy. In the same way that the individual can self-determine using his reason without the guidance of another – which coincides, according to Kant, with his coming of age – a political community is autonomous when the authors of the law by which it is governed are, at the same time, its recipients.

But this seemingly simple reasoning becomes less clear as the demos and life in common, the pluralism of values ​​is spread, broader mechanisms of democratic participation are implemented, capitalism develops – expanding the possibilities of wealth for some and reducing those of many others – powerful state or parastatal agencies emerge with great economic and political influence, relationships between people in multiple sectors of social life are legalized, the media gain prominence as vectors of public opinion and, what is no less important, time passes. By focusing only on the problem that opens the last point, it is not evident that the validity of the collective self-determination pact by means of which a political community decides to endow itself with a supreme norm remains in force after two, three or four generations. In any case, it is the language of law, not that of politics, that becomes the privileged means for the expression of its validity and it is precisely in that same language that the State expresses itself. That its voice is that of the law means that its power cannot be arbitrary. Despite the fact that the State tries to monopolize violence within a territory, appearing as an institution that can be imposed by force, both this violence and this imposition must be legitimized.

In general terms, the supporters of liberalism, socioliberalism and social democracy coincide in granting the law the key to deciphering not only the structure of the State, but also the relations it maintains with the political community that it has at its base. Legal reflection appears here as an adequate instrument for clarifying the terms of the opposition between, say, the power of law and the law of popular powerBut it also emerges as a civilized and rational means to resolve the tensions between the two. The law has come to play a role of transformer of the various lexicons faced in contemporary societies. Hence, it has been agreed that the possible conflict is reduced to a conflict between types rights: subjective rights that guarantee the freedom of citizens versus rights that guarantee the political participation of citizens. A democratic rule of law must ensure scrupulous respect for both types of rights; If it does not do so, then it faces two alternative dangers: either appearing heeled towards a legal rigorism disconnected from social dynamics or subscribing to a democratic voluntarism with the capacity to make tailor-made laws. It is easy to assume that, in crisis situations, these two dangers can become more pressing. In such cases, citizens can better tolerate the rigors of a juridiscist technocratism and / or find attractive the promises of solution offered by supposedly charismatic leaders who want to give the word back to the forgotten people.

Contemporary Western societies find themselves in a position where such threats are clearly present. Explaining the causes of this would be lengthy, but, among them, one could mention the disastrous legacy of more than forty years of neoliberalism, the way in which transnational institutions and state actors have wanted to adjust globalization to that model, the destruction of the basic pact that gave meaning and operability to social democracy in the national framework and the displacement of the main sources of world production, distribution and consumption towards China and the Pacific Ocean basin. The economist Dani Rodrik has described the quagmire in an exemplary way through what he has called the political trilemma of the world economy: “We cannot have hyperglobalization, democracy and national self-determination all at once. We can have at most two of the three. If we want hyperglobalization and democracy, we have to renounce the nation-state. If we are to maintain the nation-state and we also want hyperglobalization, we will have to forget about democracy. And if we want to combine democracy with a nation-state, goodbye to deep globalization. ”

If Rodrik is right, then my answer to the trilemma is that deep globalization is worth saying goodbye, especially if, by such, you mean the kind of disastrous dynamics observed in recent decades: casino economy, irresponsible financial speculation, investors who turn to the risk of a lucrative opportunity and leave once profit rates fall, leaving the local population in the gutter, erosion of democratic states, maintenance of buoyant tax havens and economic models that work with masses of exploited workers and without rights, as in China, or with large already structural quotas of job insecurity, as in Europe. My answer is, then, that it is worth preserving the nation-state -or the states of law- and democracy, that is, preserving the democratic state of law and, if possible, extending this model to supranational institutions, which, as we know since the failure of the various reference To validate the European Constitution, it remains an important pending task.

What would be the reasons for this choice? The first, and main, is that the rule of law is the only great historical institution whose reason for being is the defense of human rights. The second reason is that, in the idea of ​​the democratic rule of law, a procedure for the elaboration of laws is contemplated that is open to free popular participation. For the liberal paradigm, democracy cannot define itself, but it is the law that must. But if the democratic rule of law must be faithful to its republican heritage, then one might wonder if it is not ultimately popular sovereignty that ultimately defines the law that, in turn, defines democracy. The third reason is the centrality of the rule of law, which establishes a rational, public and debatable measure not only for the regulation of coexistence, but also for the organization and control of the State. And the fourth reason is that this is not understood as a single and monolithic structure, but divided into different powers, whose primacy is held by the legislative, which, unlike the executive or the judicial, gives full expression to popular participation in the elaboration of the laws.

Now, if we leave the orbit of theory and pay attention to the sociological and historical reality of the democratic rule of law, it is possible to detect that it suffers from serious problems. Still, as Ronald Dworkin might have said, the democratic rule of law continues to be a promising trump card. Only a democratic rule of law that is not understood as a final result, but as a changing scheme of historical struggles for a better protection of freedoms and fundamental rights of individuals, which serves as a project for the creation and regulation of transnational political structures from the bases of democratic participation, it could end up turning the lapidary phrase of Paine with which we began this article. Because the long and painful predominance of neoliberal disorder has taught us that a deregulated society can perfectly be the terrain of perversion and that the government of a democratic rule of law could be, instead, the authentic work of our needs, even of those that we have as priorities, so much so that we consider them the most inseparable from our condition, so much so that we have enforced them in the form of inalienable rights.