Genealogical model

In a lecture delivered in January 1976, Michel Foucault (1994a, pp. 160-174) summarized the two theories which analyze the building of power that had been developed from the eighteenth century.

Methodological considerations 33 equal participants transfer their original power in a constituent act of sovereignty. The second one was the idea of political power as the continuity of a war, politics as the confirmation and the preservation of the unbalanced forces expressed in war.

I have already remarked on the difficulties that arise in identifying the historical conditions of social agreement and the concurrence of the free will of participants. Since Foucault was precisely concerned with history and with delving into the historical facts that surrounded political foundations, he chose to abandon any metaphor regarding the contract and straightforwardly described the relations of power that rule a particular society as the clash of forces historically established through violence.

According to Foucault’s particular ontology, human existence is defined by power relations (1994b; see on Foucault’s view Rosenthal, 2019, p. 246). Identity, morality, and knowledge are the product of a dramatic quest for domination, a process in which is also included the quintessential form of attempting to confer stability to a social system: the law and, for the question that concerns us, the fundamental law. A constitutional framework, viewed from the “genealogical” lens, would be partisan outcomes of social-historical power struggles devoted to marginalizing and to obliterating other notions of identity and justice.

Constitutionalism, as we have seen, was inspired from the very beginning by contractualist theories since both, in the general project of modernity, were devoted to overcoming the accidents of power and history.

History shows us, on the one hand, the weakness of a position integrated by free and equal participants as had been imagined by the social contract theory and, on the other hand, the need to analyze constitutional phenomena through the relations of forces that converged in the creation of the political system, as Foucault does in his “genealogical” approach and I try to export to constitutional analysis focusing on the social forces and the historical intricacies involved in constitutional design.

Such a methodological approach centred on the memory of a traumatic event (Foucault, 1994b, pp. 136-156; on this point see also Oklopcic, 2018, p. 28) would allow us to explore the constitution-making process as a practice whereby the structures of coercion shaped in the previous constitutional period under no democratic conditions find their consolidation and their legitimacy.

The genealogist approach is, however, focused on describing the specific historical avatars that surrounded the creation of a constitutional framework without providing any normative assessment. In this sense, in Foucault’s words, genealogy, “rejects the meta-historical deployment of ideal significations and indefinite teleologies” (1994b, pp. 136-137).

The ontology of violence

The centre of the empirical phenomenon that history shows is, according to the “genealogical approach,” violence. This is, without a doubt, a more tangible benchmark by which to understand the foundation of a constitutional order than any narrative linked to popular mobilization and the consent of the governed. The birth of a legal order is also, in Foucault’s view, the paradigm of a place whereby abstractions have been used in order to cover the detailed structures of domination. Moreover, as Foucault’s remarks, the rules drafted in the beginnings entail the remembrance of the original violence and are effective as long as they update the same framework of coercions while they are applied in the supposed peaceful or stable times (the “constituted moment” or the “ordinary politics,” to use the terms of constitutional theory). So:

Following traditional beliefs, it would be false to think that total war exhausts itself in its own contradictions and ends by renouncing violence and submitting to civil laws. On the contrary, the law is a calculated and relentless pleasure, delight in promised blood, which permits the perpetual instigation of new dominations and the staging of meticulously repeated scenes of violence.

(1994b, p. 145)

The theory of constitutional supremacy would be crippled in its axiological grounds if the supposed social contract that is reflected in the constitutional founding is not inferred through the free will of the participants but shadowed by different sources of submission. Translating the constitutional theory into the terms of the contract theory under the parameters of the civil law, most

Methodological considerations 35 participants’ consent would be pressed by an external force that would distort the real will of the parts and thus the agreement might be null and void.

In a different vein, the genealogical approach would confront the formal vision of the positivist theories, centring its discourse not in the analysis of the norms and the functioning of the legal system but on the facts that lie behind the approval of the norms and, regarding the approval of a constitution, the cluster of power relations from which the constitutional framework emerged. Even from other traditions of political philosophy, some authors would share with the “genealogist” approach the idea according to which questions concerning the character of an existing pre-constitutional rule, as well as the probability or propriety of a change to it, necessarily demand reference to the social organizations, the customs and practices, and the history of that group of human beings who are to live under the system of law which that rule is to define (see for instance Kay, 1998, p. 61). The genealogist project would, accordingly, explore the space silenced by positivism since the constituent power would encompass the place which positivist knowledge does not enter. After all, for a genealogist, positivism would belong to the group of idealizations devoted to eluding the explanation of the confrontation of powers developed under the mantle of legal concepts. As Foucault remarked in an observation which would be applicable to such a critique of positivism:

The history of power struggles, that is the actual conditions of its exercise and its maintenance, remains almost entirely submerged.

(1994c, pp. 224-225)

Outlining such specific power struggles may allow us to challenge some of the deficiencies that afflict the positivist analysis as the explanation on the effectiveness of the ultimate rules and the obedience of the social body. To reformulate the methodological concerns in Foucault’s terms one might say that the premise would consist in eluding the central position of the constitution and its attributes (such as supremacy) in the configuration of power. On the contrary, the genealogist method would insist on describing the constitutional framework as the formal receptacle of the existing network of coercions and relations of domination and, at the same time, the veil which covers the violent competition for the power among the national, social, military, and economical groups. From this point of view, in the constitutional framing the historical hegemony consolidated by some elites upon its competitors through different ways of coercion would crystallize. In fact, as Foucault himself describes in his famous book La volonte de savoir (the first contribution to his history of sexuality) the building of the European Modern State upon the theory of the sovereignty of the king, represented the first attempt to condense, in legal terms, the plurality of forces that had clashed in violent convulsions from the Middle Ages. The idea of sovereignty was a device to encompass such a network of coercions in order to consolidate and reproduce them (Foucault, 1976, pp. 114-115). The scheme alluded to would,

thus, gain in abstraction when the theory of the King's sovereignty was replaced through the liberal and the democratic revolutions by the theory of the people's sovereignty and the legitimacy of the basic norms rooted in the consent of the demos. The regime had formally changed by changing the holders, but the web of coercions would persist or even, as long as the industrial revolution improved the techniques of domination, would be reinforced.

The genealogical mode of analysis, thus, would be interested in the distillation of the lines of continuity of the specific structures of domination through acts of violence, exploitation, and promotion of economic inequalities that had been prevailing despite the change of regime. In the same way that the building of the King's sovereignty did not mute the effects of the fragmentation of power that featured in the Middle Ages, constitutional supremacy did not displace the network of domination apparatuses developed in the previous centuries but incorporated it in its aim of organizing the political power of the State in comprehensive terms. Is not uncommon, thus, that even from the times of the first liberal revolutions, a substantial part of the European tradition of political thinkers was concerned in underlining these lines of continuity that pre-existed to the constitutional State and found their sources deep under the Ancient Regime or even before the centralization of public power in the hands of the King. Such ideas were embraced by philosophers that lived within a context of transition to modern constitutionalism, as prominently represented in the figure of Edmund Burke regarding the evolution of British constitutionalism but would be also recognized in the writings of thinkers that depict the coming of constitutional regimes from a revolutionary process, as notably is shown by Alexis de Tocqueville (1955) and his remarks on the background of some French revolutionary processes.

As I announced in the introduction of this book the concept of violence that I handle in my analysis on the constituent power conducted by the genealogical approach is eminently factual. It is related to the one referred by Zizek as the “subjective violence” (2008, pp. 1-2): direct violence that has death as a result. The methodological advantage of using that narrow idea of violence is that it constrains the measurability of its influence in the creation of constitutional orders.

Counting the deaths

Jean-Francois Lyotard, in a very famous essay which in fact gave name to the philosophical movement, La Condition Postmoderne (1979), wrote a report on epistemology which was an enquiry on the forms of conferring legitimacy to knowledge. According to Lyotard, while scientific knowledge is grounded in empirical evidence and data accumulation, the ways of approaching reality displayed by humanities and social sciences are subjected to narrative archetypes. Following such ideas regarding our concerns, any description of a constitutional order's foundation and the justifications of institutions such as, let's say, constitutional supremacy, would be inextricably involved with a narrative. Hence different theories on the constitution would be nothing but a competition

Methodological considerations 37 between tales in order to ascertain which is the most convincing in order to claim for legitimacy.

Ackerman himself, when displaying his theory on constitutional dualism and the description of the constituent moments by contrast with ordinary politics admits that his vision of North America's constitutional history (and its consequences for legal interpretation) is a “narrative” more or less convincing if we compare it with the other constitutional narratives proposed by other authors (1993, p. 36). Constitutional issues might be specially concerned by Lyotard's insights since “narrative” is not only a function in conferring legitimacy to knowledge on constitutional rules but, as a discourse on constitution-founding, it is involved in the operation of conferring legitimacy to the constitution itself and to assert its role in the credibility of a given political system.

The narrative knowledge regarding constitutionalism, and particularly concerning the question of constituent power, places itself far from scientific pragmatics, since the description of the facts is always intertwined with discourses on values, either the values supposedly involved within the context of passing a constitution or the prescriptive judgements that according to each author must be taken into account in a constituent process, assuming a normative theory on political participation in order to assess the democratic and the inclusive character of a constitution.

In other words, the discourse on the origins of a constitution is blurred by the pretensions of justice that, either to justify the system in force or to criticize it, the author of the judgement is committed to. Certainly, it is difficult to evaluate, for instance, to what extent popular sovereignty gave itself a constitutional framework, or which historical facts might allow us to state that individuals concurred in a more or less equal condition to deliberate and reach an agreement on a constitution. Such circumstances only might be pointed out by a subject previously endorsed by a set of values and oriented by an ideal. The determination of political participation, fair and equal treatment among participants, or consent during constitution-making processes is also a matter of an intersubjective story more or less shared by the individuals of a particular community. The discourse on democracy and its capacity to confer legitimacy or not to a legal product as a constitution depends on a meaning created among people through a common network of stories. It is, in the same way that Oakeshott (1999, p. 131) qualified another classic of constitutionalism, namely, ”the rule of law” a

human invention that purports to declare the conditions of a human relationship.

However, my approach would be closer to scientific pragmatism than to narrative since it might be grounded in verifiable and indisputable fact: human death caused by human political action. Far from evaluating a constitutional process in supposed liberal democracies on the parameters of popular participation, deliberation, and consent, my research would be guided by a simpler remark: how many died while creating a constitution? How many died not only in drafting

the constitution but in forming the political entity that the constitutional rules regulate? How many gave their lives when constitutional rules, once approved, were enforced?

Violence and counting the death have their methodological advantages, since they are more linked with concrete facts than discourses on democracy and people's sovereignty. Counting the death would indeed represent my particular ontology as an essential truth from which to build the accumulative scientific knowledge. Such data would represent the “quantities of information” in Lyotard's terms, which allow knowledge to become operational. Human death, thus, would emerge as “primary evidence,” as a fundamental principle in order to recognize the conditions of the truth.

Constitutional language would be a paradigm of the construction of narratives which aim to have some kind of scientific validity. In fact, the pragmatic success or the defeat of a constitutional regime (or at least the validation of such success in terms of endurance or stability) depends mostly on the ability to create narratives that link generations over time (Jackson, 2008, p. 1280). The mere idea of authority attached to a set of rules named as a constitution results from an interaction of current values and the current perception of historical events (Kay, 2011, p. 716). In other words, the statements around the authority of a constitution and its validity are imbricated with a story that is believed.

Yet with the “counting the death” approach that I propose in analyzing constitution-making processes we are moving closer to an “objective reality” than to an “intersubjective” story, although the two have something in common. Deaths are also involved in the narrative of the creation of human political and legal entities such as constitutions. And, furthermore, a narrative is needed to attribute a human death caused by another human to a political motivation. But isolating the fact of what we may call some “narrative interferences,” the point is that human death is an objective reality that does not depend on personal beliefs and feelings nor depend on a history shared by different individuals either.

All in all, the objective realm is more intense when the approach focuses on the ones that have lost their lives in the process of creating a constitutional order than when the approach is mainly concerned with individual political participation; basically because in order to define the normative conditions of the constitution­making you need to rely on a great deal of narratives concerning democracy, liberalism, human rights, political equality, human dignity, etcetera. Instead, the “counting the death” approach, let alone the easier factual determination of the human death, is committed with less intersubjective stories: only the intersubjective understanding of linking such death to the process of founding the political entity. Killing a person is indisputable as an empirical fact (in the realm of facts other things may be more arguable, such as, for instance, if the person was killed or if he instead had died from natural reasons, but the point here is that the fact of a person being murdered by another could be empirically established).

Counting, gathering information, and managing data, have become the main sources of obtaining legitimate knowledge both in the life sciences and in

Methodological considerations 39 social sciences. Oklopcic, in the political theory field, for instance, speaks about “algorithms” in developing discourse on popular sovereignty and constituent power, self-determination, or constitutional self-government (2018, p. 26). But while data processing in describing the decision-making structures that relate to the people's involvement and decision with the constitution-making lead to contradictory conclusions (see Ginsburg, Blount, and Elkins, 2008, p. 382); the “counting the death” perspective suits better with the purpose of tracing objective causalities by simplifying the data in motion. It is interesting to note how much constitutional changes occurring around the world have provided impressive databases⁷ and some of such databases have been used for the literature both to examine and to assess public involvement in constitutional development. However, the factual circumstances that surround such constitutional changes are hardly included in the mentioned databases. The relationship between constitution creation and violence or, to put it another way, the costs that constitutional transformation have provided in terms of deaths are likely to be eluded in such struggles, eager to compute every constitutional movement.

Constitutionalism and forgotten time

Perhaps the victory of the constitutional democracies over their adversaries such as, over time, absolute monarchies, fascist dictatorships, or Communist States consisted mainly in the ability of the former to conceal the victims of the violence that led to the erection of the constitutional system. In fact, some theories regarding the struggle to confer legitimacy to liberal democratic orders insist on the idea of looking forward to the developments of the constitutional system in order to calibrate if the evolution of the constitutional structure has become more inclusive in spite of the circumstance that the origins were marked by unacceptable discriminations and convulsions.

Data processing centred on violence may lead to the dissolution of the intersubjective stories around democracy that are told in order to justify constitutional supremacy of constitutional systems in force. Thus, the authority of such systems would not be provided by the original participation of the individuals in agreeing on the basic constitutional arrangements but rather on the capacity of the constitutional rules to ensure a space of peace and security in which the original acts of violence are reproduced. Similar to the conclusions envisaged by Hobbes, according to which covenants “being but words and breath have no force to oblige, contain or constrain any man.. but what it has from the publique Sword” (1965, p. 135) we might infer that constitutional democracies do not find their authority in democratic variables but rather in their capacity of ending with internal destructive conflicts. The latter would mean, nevertheless, that the supposed frame of communication among free and equal individuals established by the constitutional rules is not really fair since the communication is shortcut by the terror that had burst out in the beginning. Such terror also distorts the communication among the members of the political community during ordinary politics, explains the stability of the system, and is being remembered in

any act of constitutional enforcement. The remembrance of the ones that were sacrificed in the beginning, which arises from the depth of any constitutional controversy, would be, according to the genealogical approach, the point from which constitutional authority is derived.