PHILOSOPHY OF LAW Writtenby EL OUARRAK Iman Presented to Professor VAN DER WALT JohanWillem Gous Chosen Language: English”The people is the source of law and law isthe expression of the will of the people”Write an essay on this theme with reference to thelegal theories of Carl Schmitt and Hans Kelsen InWestern societies, democracy as a form of government has become a stablenotion. Democracy was born in Greece, and as known, its meaning is « the rule of thepeople » and it is a system in which thesovereignty is exercised, indirectly or directly, by the people.
As time wentby, the idea of democracy got restricted and absolute monarchs took power. Theyear 1789, however, changed the course of historical events: the FrenchRevolution happened. This revolutionary riot allowed the French, and later on,Europeans to erase the concept of “absolutism” and dive in the idea of”freedom”, “sovereignty of the people” by suffocating the idea of “L’état c’estmoi”.
The “moi”, who was Louis XIV in France, became “l’état c’est le peuple”.History, however, is a cycle and democracy,as a human creation, in a certain historical moment, was meant to be demolishedas the totalitarianism of the 20th century approached. It is in thishistoric and political scenario, that two of the most important protagonists ofjuridical-political thinking can be situated: Kelsen and Carl Schmitt. Theirtheories are essential in order to categorize the importance of theConstitution and of democracy and they can be advantageous to resonate on thisstatement: “The people is the source of law and lawis the expression of the will of the people.” Philosophers in this political scenario, whowitnessed the downfall of the WeimarerRepublik followed by the well-known devastating epilogue, had thepossibility of meditating on serious themes, such as, for instance, democracy.Kelsen and Schmitt reflected on the concept of democracy, and both were able toadvance two different conceptions, that, although matured in the samehistorical and political period, came to different conclusions that are anywise,opposite. It is in this opposition, anyhow, that a certain irreconcilableunilaterality might be observed.Democracy certainly flourished during the 20th.
It is in this time that the ideas of political and economic liberalism beganplaying a major role, but it is also in this time, that democracy witness itsnotorious wilting due to the establishment of communist and Nazi regimes. Thedemocratic form of government, being compared to the totalitarianisms of the 20thcentury, presents already a clear-cut differentiation between the theory ofKelsen and of Schmitt. For the former, visualizing the constructive elements ofthe democratic ideas, is a tool able to render concrete a doctrinal answer tothe representative crisis of the parliamentary modalities, that are indicatedas being the most indicated for the functioning of democracy1.For the latter, the task is visualizing and taking into account the limitspresent inside of parliamentary system, the forms of consent and the expressionof political participation in order to define a concept of democracy that canremain standing even without the previous aspects stated, also by including theidea of an authoritarian turn. Both philosophers, nevertheless, share a commonproblem: founding a theoretical basis of the political form of democracy as anabstract doctrinal model able to have a conceptual and realistic elaboration. Kelsen explainswhat democracy deals with and also articulates its weaknesses. He criticizesthe ideology by putting in place two different concepts: ideal democracy andreal democracy2.The Austrian author strongly recognizes the differences between these two ideasand consider that one must not be confused with the other and that idealthinking and real thinking do not coincide.
He visualizes the organic momentsof a possible idea of democracy, freedom and formal equality by alsoillustrating the process of modification needed in order to go from an idealunderstating of democracy, to a real understanding of democracy. It is clearlya cogent analysis aimed to reflect on democracy. He bears in mind the notion of”people” and “popular government”, thecontraposition between forms of direct and indirect democracy, the relativeproblem of political representation, the characterization of the parliament andthe relation between majority and minority, the role of political parties, theform of production of law and the expression of consensus and politicalparticipation. Synthetically,Kelsen considers that there is no common agreement among the people, but only aplurality of values in conflict.
“The rule of the majority, so characteristicof democracy, is distinguished from ever sort of rule in that is not only –according to its innermost essence—conceptually requires an opposition, theminority, but also recognizes and protects it politically through basic rightsand the principle of proportionality”3.Bythese means, a democratic model is visualized and as a form of government, itincludes particular political contents indifferently by their specificity. A form of government with rules andprocedures that establish how decisions must be taken, more than wanting toestablish which decisions have to be taken and what decisions do not have to betaken, and that anyways considers of being able to include its own dialecticpolitical form, as well as sustaining itself as a form of democracy, andentrusting to the function and to the procedural mechanism. Theaim is not to constitute a limit to the political form that needs to representthe political dimension and its Weltaschauung4:political relativism and gnoseological relativism of modern thinking unite.
ForSchmitt, also, the bitterness of his time took him to define a renovated modelof democracy that is able to create a dialogue with new social assortment. Heagrees that there cannot be common good in a reality of heterogeneous masses,in which values transform in instruments to political battles.AsKelsen, he analyzes the democratic form and traces out its characterizingelements. He points out the problem of its foundation and its consequences: hesets the mechanisms through which democracy lives and manifests itself, thepolitical subjectivity that it embodies by finally claiming that there is a wayto conjugate the authentic form of democracy, with the state of the 20thcentury, yet in a different way from Kelsen. Kelsenclearly underlines the importance of freedom and equality in a democraticsystem, for for Schmitt it is only substantial equality that is essential. Theidea of democracy, in this schmittian case, is substantial. Schmitt gives anessential role to politics, and he reveals that it is crucial the choice of a precise politicalcontent that animates the democratic form and identifies the collectiveappartenance, excluding at the same time anyone who does not identify with thisentity. Kelsen underlines that there is this relation of majority and minority,but for Schmitt, that minority might be the enemy, and therefore must bedestroyed.
In “Concept of the Political”, Schmitt createsa distinction between friend and enemy. The political represents an antagonist,an extreme one. The enemy is not an entity that is fought against on aneconomic elevel, for instance, or somebody that we deeply hate.
The enemy ispublic. The political enemy is the “other”, the foreign, with whom there can beconflicts, but this does not mean that the political sphere coincides with war:in many case, this eneminity can be solved by the political. The State is a decisiveentity because the “jus belli” belongs to it: it is only this factor that candetermine the enemy, promote war etc. The State is, therefore, superior to anyother political or social entity, so that classes or social groups that praythe role of the antagonists can exist until they become a threat to establishedthe legal order. The primary function of the State, is not to express in wagingwar or controlling people’s private life, but more in establishing peace, orderand security.
In extreme cases, it is also this State entity that decides whichis the enemy and declare that a determined phenomenon or group is the threat tothe existence of the State. However, interestingly, Schmitt considers that whenthe conflict friend-enemy becomes an armed conflict, the State is not adecisive political entity anymore, and a civil war follows up and it is in thisscenario that each group makes its enemy-friend distinction stronger. In somekind of way, it is more or less what Hegel thinks.
He also gives this importanceto the State and considers it the expression of God’s will put on Earth. TheState in Hegel’s philosophy determines everything, however, Hegel gives a majorimportance to war, as he considers it to be that one element that saveshumanity from putrefaction. Schmitt, also, considers that it is essential tohave one political entity that embodies the State and is able to keep peace andorder. Of course, this is a conception developed in the scenario of the WeimarRepublic, but it is thanks to this aspect, that Schmitt sees as inevitable tohave a person that establishes order, order that did not exist in the WeimarRepublic. Kelsen, therefore,alienates himself from the idea of identification with a principle and arelative subjectivity, whereas, Schmitt identify a form of government thatworks in function of a political unity, expressed by a sovereign power. TheAustrian author creates a procedural democracy that aims at realizing itsprinciples, such as freedom and equality, and the concrete modalities for theirrealization, due also to the dialectic minority-majority. He concludes that thedemocratic structure can only articulate itself when there is general consent.
Schmitt,anyhow, does not consider the idea of freedom, and equality, because, maybe, tooidealistic. He is more radical, but at the same time, more concrete. His modelof democracy finds the basis in the principle of substantial equality, whichbecomes its only constitutive moment,and which, at the the same time, can live without the principle of freedom andrecognizes the individual, only as a part of a political collective identity. Tothe idea of democracy constitution is associated. Jurists and constitutionalstudies considered that the top of every democratic jurisdictional order thereis the constitution.Kelsenand Schmitt definitely register the association present between constitutionand democratic government, and in this case, once more, a development ofdifferent opposed conceptions is present.
Kelsenreckons the existence of two different kinds of constitutions5: the first one is linked to the principles that regulate the system and thelegislative procedures, whereas the second is referred to the fundamentalrights of individuals.Theconstitution has a double soul in this case: procedural soul and andsubstantial soul. The result of this constitution is a modifiable constitutionthat can be adjusted under precise procedures foreseen by the constitutionitself.Schmittreflects on the elaboration of the concept of constitution, more precisely, bythe positive concept of constitution andhe does so by criticizing the new modern state and its representativemodalities. In consequence, he ends up highlighting the political elementspresent in every constitution and finds it inevitable to find a link betweenconstitution intended as “form of the forms”, which is the original form of the legal system andthe substantial dimension, political of the State and therefore, to the extentthat a democratic constitution will never be able to base itself on a politicaldetermination. The democracy of substantial identity is firmly established inits constitution and the political choice of the sovereign people underminesthe entire legal order of the democratic state, starting from its fundamentalnorm.Thekind of perspective that distinguished the reading of the democratic form, withits relative consequence, seems to be proposed once again: Kelsen, whenanalyzing the democratic form, privileges the procedural dimension rather thanthe substantial one and he designs a constitutional model that prefers itsabstract purity in regards to the politicity of democracy.
However, it isremarkable that there is no “choice of democracy” atmanifests itself in the full assumption of its own democratic politicalcontent, in the lack of awareness that the form dies without a minimum of consubstantialcontent. On the other hand, the Schmittian model, expresses a more radicalconscience on the link between formal and material and he comprehends thenecessary substantial declination that the constitution needs to have, ifdemocratic, but on the other side the focus on the political linked to theconstitution seems to be excessive. In kelsen there is a lack of a choice ofidentity, but on the other hand, in Schmitt this excessive identity betweenpolitics and constitution gives no space to the autonomy of the constitution.
Inthe case of the democratic principle, the constitution is firmly bound to thatmodel of democracy of identity, of substantial homogeneity, which in the endentails a significant compression of the role of mediation of law betweendifferentiated instances, with the lack of individual recognition. dualparticipation in politics also in terms of dissent, in an authoritarian driftthat will come to contradict the same principle of democratic identity.Therehas been talk of a “guarantee constitution” and also of a”tolerant constitution” regarding Kelsen, and of “orderconstitution” and”absoluteconstitution”. For Schmitt In the contrast between the characterization ofguarantee and that of order seems to express the difficulties of thepost-liberal constitutional state to continue to represent and allow the unityof civil society and, at the same time, the internal dialectic of theconfrontation of the instances and different social subjects, in the face ofthe profound changes resulting from the advent of mass society. Onthe splitting of these two elements Kelsen and Schmitt operate: the former isthe bearer of an idea of ??constitution thatessentially guarantees the free play of the social and political parties, whichshuns any material definition of the common good and takes care to define thelogic of the rules and the consequent rational normative structure; the second as a witness to an inexhaustible need for acommon collective project, which allows us to go beyond the simpleacknowledgment of social and political differentiation, which is more and moreirrelevant, but seeks to overcome it in the unity of a new political order. Andit is always in this split that the limit of both models is consumed. Theconstitution of guarantee is not able, given its characterization, to containand overcome the increasingly pressing impetus of the internal conflicts withinsociety and indeed, precisely because it is a formal framework, welcomes andtolerates, with equal possibilities of expression, even those politicalsubjects declared to be enemies, ending up by disintegrating from within andfailing, therefore, precisely in the fulfillment of its priority task ofguaranteeing freedom and pluralism.
The order constitution, on the other hand,is at the service of the project of political recomposition of society,favoring identification with a certain political content and tending to excludethe rest, in a process of ever more accentuated political totalization thatsolves the problem of pluralism and heterogeneity simply because it deniesthem. Asexplained, for Schmitt, the constitution is more than an ensemble of laws,because it determines the political order, and it is that element thatdetermines the specific form of the political order, which can be communist,monarchic or democratic. No constitution, as a matter of fact, can be neutralto the principles and values it represents. The constitution, therefore, doesnot derive from a legal normativity, but from the political decision of thosewho have the power. The constitution is not something we can violate: not evena legal majority has the authority to transform it in another type of politicalorder. There must be a neutral force that garantees a certain equilibrium,above the enemy-friend conflict, that represents the totality of the Germanpeople and that is the protector of the constitution.
This is the politicalauthority of the president of the Republic, nominated by the people, and soindependent from the parliamentarian majorities. Kelsen, however, considers that there shouldbe “a theoryof the law”,but Schmitt rejects this, because the “Norm” is not something original because normativism expectsthe existence of already put-in-place norms by an authority, who imposes thenorms by imposing its own will under decision. Inconclusion, Kelsen considers that there is a gap that needs to be filled whenit comes to Law, and this opening cannot be filled. Schmitt tried to fill it bystating that the people is the source oflaw and by assuming the real existence of the people as parts of sociallife. Kelsen disapproved of this idea, and considers that the people is not thesource of law, but it is the law that isthe source of the people, because we cannot think the people as a unitedentity. We must assume that the law assumed by a country as its law, is not theproduct of the people, but is the source of the people because only once thatlaw is applied, we will be able to understand who are the people. The rule thatreveals who are the people, does not exist, but if Law is a real “construction de l’esprit”, then it is allowed tosuppose the existence of a norm, although it does not exist materially.
This isthe Grundnorm, and it is thanks to this norm that all other rules are valided.The Grundnorm is not validated by something, because it is not real and it isthe highest form of norm. Therefore, since Kelsen rejects sociology, we canalso state that society, or people are just the product of an assumption. It isthe product of an assumption of a rule that tells us who we are. 123Hans Kelsen, “On the essence and value of democracy” , page 108 4106 5