Constitutional Violence: Legitimacy, Democracy and Human Rights

By Antoni Abat I Ninet | Go to book overview

Afterword

The first conclusion that I want to emphasise is the understanding of human rights as a democratic feature. As Chapter 3 concludes, democracy, as a system, cannot be limited to a simple election method cloistered within borders. Democracy must be interpreted and enforced with a human rights baseline.

The five examples of legal violence expounded in this book demonstrate that constitutional enforcement is violent because it is illegitimate. In this sense, state or constitutional illegitimate force is plain violence. My point is that we cannot assume the legitimacy of the state (Schmitt) or constitutional violence (Kelsen) based on theological theories. Twenty-first-century society needs to overcome political theology as a source of constitutional legitimacy.1 Kantorowicz, Taubes, Brecht, Schmitt and Cover, too, defined the depth of theological influence in political and legal theory. This influence is clear in constitutions and constitutionalism.

It is important to note that violence may be considered legitimate and necessary, but not every sort of violence is acceptable. Regardless of where the violence originates, it must respect democracy and human rights in a broad sense. There is no contradiction between democracy and human rights, because the two issues are related in several ways. The interrelation is summarised in three connections.2 International legal commitments are now increasingly made by governments that can be held accountable for their commitments by their own people.3

International human rights and democracy are not only connected, but they act symbiotically–they are mutually dependent. In other words, there is no democracy without human rights or human rights without democracy.

In this regard, Risse et al.’s theory of socialisation of human rights norms affirms that human rights norms have constitutive effects, because good human rights performance is a crucial identifier of a member of the community of liberal states. Human rights norms help to define a category of states as ‘liberal democratic states’.4 Risse et al. note that in some cases these liberal ‘clubs’ are quite specific: in the case of the European Union, for example, formal and informal rules and norms specify that only democratic states with good human rights records can join the club.5 In the case of the Organization of American States, members declare ‘the need to consolidate,

-171-

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Constitutional Violence: Legitimacy, Democracy and Human Rights
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1- Introduction 1
  • 2- Sovereignty and Constitution 8
  • 3- Democracy 40
  • 4- Legal Violence 90
  • 5- Comparing Constitutional Violence 114
  • Afterword 171
  • Bibliography 179
  • Index 190
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