Constitutional Violence: Legitimacy, Democracy and Human Rights

Constitutional Violence: Legitimacy, Democracy and Human Rights

Constitutional Violence: Legitimacy, Democracy and Human Rights

Constitutional Violence: Legitimacy, Democracy and Human Rights

Synopsis

If constitutional legitimacy is based on violence, what does this mean for democracy?

Almost every state in the world has a written constitution and, for the great majority, the constitution is the law that controls the organs of the state. But is a constitution the best device to rule a country?

Western political systems tend to be 'constitutional democracies', dividing the system into a domain of politics, where the people rule, and a domain of law, set aside for a trained elite. Legal, political and constitutional practices demonstrate that constitutionalism and democracy seem to be irreconcilable.

Antoni Abat i Ninet strives to resolve these apparently exclusive public and legal sovereignties, using their various avatars across the globe as case studies. He challenges the American constitutional experience that has dominated western constitutional thought as a quasi-religious doctrine. And he argues that human rights and democracy must strive to deactivate the 'invisible' but very real violence embedded in our seemingly sacrosanct constitutions.

Excerpt

Sociologist and legal theorist Max Weber argued that states claimed a monopoly on the legitimate use of violence. The monopoly is most successful, of course, when the overt use of state violence is minimised, acting as a sword of Damocles affecting the behaviour of everyone over which it hangs. Robert Cover sought to bring into view the violence implicit in the routine deployment of law–not merely in the use of police forces to arrest people for what all concede to be arguable violations of existing and uncontroversial law, but in the normative claims that ordinary and constitutional law make, which induce people to believe that whatever contrary views they might hold are somehow illegitimate.

Constitutions often originate in violence, as revolutionaries displace by force regimes they regard as oppressive. Even relatively peaceful revolutions can occur against a background of violence, as dissidents withdraw their assent to the legitimacy of the state’s monopoly of violence, and thereby enable the possibility that some other entities might now claim–and use– violence as a legitimate weapon available to them no less than to the state. Overt violence can sustain constitutions as well, suppressing secession and its predecessor, mere dissent. More interesting, perhaps, are the matters Cover addressed, where violence lies behind state actions, but never appears openly, even as normative communities other than the state find themselves squeezed out of existence.

Antoni Abat I Ninet offers us a wide-ranging re-theorisation of the role of violence in maintaining the constitutional order. He begins from the common observation that constitutionalism and democracy are inevitably in tension. Democracy seems to require that the current policy judgements of today’s majority be implemented, while constitutionalism seems to require that some such judgements be thwarted. Rather than accepting the equally common observation that constitutionalism’s limits on democracy enable greater democratic choice in the long run, an observation captured by the implications of the cynical phrase about elections in new democracies, ‘One person, one vote, one time’, Abat I Ninet argues that constitutionalism prevails over democracy through the regular, albeit sometimes concealed, exercise of violence.

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