Conclusions
The main thesis of this book is that political orders are founded on violence and that constitutions, including those establishing liberal democracies, are the legal translation of this seminal coercion.
In spite of the huge literature that has in recent times exploded around the constitution-making processes, the factor of violence has been scarcely considered in the assessment on the appearance of a brand-new constitutional framework. Instead, as had been developed by constitutionalism since the American and French eighteenth-century transitions, scholars have been more centred in observing the public involvement in the drafting of fundamental rules and, thus, associating popular mobilization and deliberation with constitutional legitimacy. Struggles were focused in building a narrative able to justify why a constitution enjoys supremacy over other popular representative institutions. To put it in a very reductive way: “if a constitution prevails over other norms adopted by the People's representatives, that happened because the constitution was not passed by the representatives but by the People itself.” Here is, in a nutshell, the popular narrative on which constitutional legitimacy is grounded. But, as a historical analysis reveals, it has been violence, and not a collective action of “the People,” which usually (or always) has surrounded the formation of a constitution and ensured its effectiveness.Taking this premise, and though my approach is mainly descriptive, I have suggested a normative background to evaluate the interaction between the claims on popular participation and the influence of violence in constitutionmaking processes. My idea is that, if instead of focusing on the devices of popular participation (elections to a constituent assembly, constitutional conventions, round-tables, or referenda) we pay attention to the coercions involved in such processes, we should conclude that wars, genocides, killings, or massive infringements of basic human rights cancel any narrative on the democratic grounds of fundamental laws.
The normative statement that I propose might be summarized in the principle that I have called the “no victims rule.” It may be formulated as follows: “democratic participation is relevant in assessing the democratic foundation of a constitution as long as there has not been any mortal victim in the whole process.” The “no victims rule” would in that sense work as a minimal moral constraint. It would not be incompatible with assessing a constitution-making process through judgements grounded on political participation, mobilization, democracy, equality, or inclusiveness but it would be enshrined as a necessary condition that would have to be fulfilled before examining the other parameters of evaluation.
In the description of “the victim” that lies behind the constituent foundation I have taken the figure identified in Giorgio Agamben's works and known as the homo sacer. In my analysis, furthermore, I have considered “the whole process” of constitutional creation in a wide sense: not only the constitution-making phase stricto sensu but also the creation of the political entity. The latter has been motivated by the idea that a constitution is the legal extension of the events displayed during the creation of the State.
Constitutionalism has been shown as an ideology concerned with the limitation of power, but in these pages, we have rather seen its role as a device used to confirm the power previously gained by violence. That has induced me to outline a concept of constitution related to the fundamental decisions given in a society about the allocation of power. In spite of the fact that the narrative of constitutionalism offers the idealized picture of a mobilized people united around the creation of a political body regulated through constitutional rules, historical experience points out that a constitution is an outcome spreading from profoundly divided societies. And it is precisely the annihilatory violence between groups and the triumph of one constellation of powers over others that are the factors that made possible the erection of a political order grounded on the fiction of political unity which legalized the outcome of the conflict.
In this vein, a constitution-making moment is only given when the existing decisions on the holding of power are reviewed in their entirety. I have described the latter movement as “constitutional transformations” in opposition to a mere “constitutional amendment” which is developed not at the level of the existential decisions on power but through the channel of the so-called “constitutional laws” (formal constitutional changes that do not touch the core of a regime described as the established network of forces).Other consequences of the reasoning displayed here stress the difficulty of handling the discussions on the fundamental decisions about power with the language of democracy and the rule of law. On the rule of law, it might be stated that implementing a constitutional system that breaks with the previous establishment requires also a break of the chain of legality and, particularly, on the formal ways that the previous system provides for amendment (remembering that violence is predictable when the bounds of the pre-constitutional legal order are at stake). Such is the space in which the theory of the constituent power moved from the French eighteenth-century transitions and their theorization by Sieyes, according to whom the constituent power had no previous legal bounds.
But conflicts about the creation of a political body and the constitutional rules that are going to regulate it are also hardly compatible with democratic procedures of negotiation and deliberation. Debate or conflict about the most fundamental characteristics of a given society makes it difficult to have such discussions in a calm and sober way. As recent experiences on constitution-making processes have suggested, if the constitutional change is only constrained to the level of “constitutional laws” without concerning the essence of the structure of power, the public involvement is weak and the constituent struggle will tend to fade. But if the reform challenges the pillars and the existential decisions about the nature of the society as a whole, popular mobilization (usually boosted by that part of the society that had been excluded from the previous reconfiguration of power) is likely to act through revolution and arbitrariness and, in sum, through the force of the facts.
We have seen with some detail to what extent violence has dominated the process of constitutional creation of two of the major constitutional traditions of our times, the American and the German one, although their foundational experiences took place in different ages and circumstances. Both were the outcome of great bloody confrontations, and despite their day-to-day functioning under the parameters of rule of law, free elections, or human rights, their foundations were developed in a context in which some of these principles (or all of them) were infringed.
A constitution represents the remnants of the coercions given in the beginning and is obeyed as long as such remnants persist in the ordinary times of the constituted power. As we have seen in the American experience, constitutional transformations, even though they have not been reflected in the replacement of one constitution by another, lead to a significant change of the regime accompanied by onslaught and destruction. In fact, as notoriously happens with the American Civil War or the so-called Civil Rights Revolution, it is violence that allows us to identify the moments in which we are witnessing a constitutional transformation.
Another thing might be said regarding the case of the Federal Republic of Germany which, although having the experience of reunification in 1990, since no violence concurred and the system was still marked by the violence given during the World War, no constitutional transformations had really taken place.
Finally, my exploration has been focused on recent constitution-making experiences from the beginning of the twenty-first century. We have seen that in the Western space, renovated devices (such as random citizen constituent assemblies, partial referenda...) have been introduced while debating and drafting a constitution. However, in such countries where the “no victims rule” has been respected and democratic procedures have been scrupulously followed a constitutional transformation (a reconfiguration of the power allocation among groups) and, thus, a total constitutional revision, has not been achieved.
On the contrary, as some experiences in Latin America or in the Middle East express, within the context of divided societies and harsh conflicts with a lot of victims, at least new constitutions dismantling the old order have been adopted (disregarding the question about whether such new constitutional systems have persisted or they have themselves sunk in a subsequent whirlwind of confrontations, carnage, counterrevolutions, or authoritarianism).
My analysis would need a great deal of empirical data to accompany it, regarding the violence committed in different historical developments and its particular influence in the determination of constitutional arrangements. A detailed approach of this kind would make the research closer to the statements of science (after all, a murder is a fact empirically verifiable) than to the building of intersubjective narratives. However, my proposal still belongs to the realm of such intersubjective reality created by the stories that people tell each other. In a world of competing interpretations that surround history, sociology, political philosophy, or law, the narrative on the original violence embedding constitutional provisions and ensuring their force through the memories of devastation is likely to be more convincing than the mobilization and deliberation of free and equal individuals who decide to give themselves a set of fundamental rules.
Although being a narrative dependent on the empirical data, research centring on the violent backgrounds witnessed during the forging of constitutional regimes at least simplifies normative discourses and aspirations to tame constituent power: under my perspective one political death is enough to invalidate the whole constituent struggle.
Will we see constitutional experiences, constitutional transformations as I defined them, without deaths in the future? To do so, a radical change in the idea about the State is probably required: indeed a radical change in the ways that human beings organize society is probably required, if not a radical change about human nature itself.