The “no victims rule”

The absolute factual concept ofconstitution is a descriptive concept. It encompasses the historical intricacies across the founding of a constitutional order which enables us to explain, in the field of facts, the functioning of the system and its transformations.

Violence in the origins of all kinds of political power was already described by Giorgio Agamben in introducing his ideas on the concept of sovereignty. Agamben argued that the sovereign power is a power of death expressed in the sovereign’s capacity of disposing of homo sneer’s life. Homo sneer’s life, called by Agamben the “naked life” (in English sometimes translated as the “bare life”) is the human life that can be killed without being a murder, since the deed happens while fundamental rules are suspended, because they are being created or transformed (on the concept see Brogan, 2011).

the sovereign is the point of indifference between violence and law, the threshold at which violence becomes law and law becomes violence.

(Agamben, 2005, p. 38)

In that sense, my approach regarding the absolute factual concept of constitution has been centred in translating Agamben’s ideas on sovereignty and the homo sneer’s original death to the foundations of constitutional systems in liberal democracies.

Of course, my suggestions, from this descriptive point of view, might require additional empirical research to be applied to every particular constitutional experience. But, under the theoretical parameters that I have presented, the developments of the mentioned empirical research might be oriented by the following statement: search for the violence, or still more specifically, search for the death, and you will find the decision on the allocation of power and thus, the constitutional principles of that particular system (rightly according to my previous observations: search for the death and you will find the constitution).

Paradoxically, maybe resulting rather from an almost religious trust against resignation, from the (descriptive) absolute factual concept of constitution might arise an absolute normative principle notwithstanding the evidence that such a normative principle might be placed beyond the human political experience of creating constitutional orders. The absolute normative principle, that I call the “no victims rule,” might state as follows:

No human shall be killed for political reasons during the creation of a constitutional order, in none of its stages.

It would be necessary, thus, to observe only one death perpetrated in the origins to assess that a given constitutional system is more related to violence than to democracy (it may be objected, why should we focus on death and not on other forms of violence from which death does not result, but we find it more clear analytically to speak about deaths since they are empirically easier to verify and, either way they encompass most, if not all, the episodes of constitutional founding).

The no victims rule, similar to a Kantian categorical imperative, brings idealism to its peak (and thus, a lack of touch with reality) but at least entails analytical advantages in order to minimize the impact of evaluations focused on the democratic theory on the constituent power.

As I have suggested, determining the legitimacy and practice of constitutional founding through the participation, the deliberation, and the consent of the People (as the bulk of the constitutional legal theorists are devoted to do) seems historically chimerical and theoretically labyrinthine. Under which conditions, thus, may it be appreciated that participation, deliberation, and consent have been given? Which historical processes fulfilled such conditions? Are the current democratic developments within an established constitutional framework enough

Constituent power and the constitution 87 to confirm, for instance and beyond all the underlined aporias, the democratic character of the constituent power? Under my insight, instead, I require a simpler condition: no mortal victims, no sacrifice of a human life.

In fact, some theories on secession, which is a form of revolutionary act leading to a constitutional foundation (Bossacoma, 2020, p. XIV) have already explored a kind of minimal moral constraint even though they depart from a political realist theoretical background (see, for instance, Pavkovic’s proposal of a “no irreparable harm principle” regarding any secessionist or anti-secessionist claim, Pavkovic, 2011, p. 451).

The topic should be rather focused on determining if there was any coercion, at least to the sacrifice of a single human life, in the creation of the political body and the configuration of its basic legal framework. Such remarks would be applicable to the construction of any normative theory devoted to the assessment of the legitimacy of future constituent processes, which instead of asking primarily about the value of citizen participation, or other values such as pluralism, inclusion, publicity, fairness, or compromise, should at least wonder if someone has died to make such a constitutional state of things possible. Under a normative perspective the no victims rule, nevertheless, would not be incompatible with assessing a constitution-making process through judgements grounded on political participation, mobilization, democracy, equality, and inclusiveness. In my account, the zero deaths mandate, while founding a constitutional order, would be enshrined as a necessary condition that would have to be fulfilled before examining the other parameters of evaluation.

But it is time now to be a little more precise in the historical exploration and, thus, I must turn my attention again to the experiences of the past, centring my concerns on the origins of the two most influential pillars of the current vision of constitutionalism: the United States Federal Constitution and the German Basic Law.