Abstract
This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role vis-à-vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution.
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Notes
[Editor’s note. Ferrajoli, like others, distinguishes between a ‘rule-of-law constitutional state’ (stato di diritto costituzionale) from a ‘rule-of-law legislative state’ (stato legislativo di diritto). The latter is normally considered the dominant form of the liberal parliamentary state during the nineteenth and part of the twentieth century; while the former is normally associated to post-war developments and the growing importance of constitutions and judicial review. Whenever Ferrajoli refers generically to stato di diritto, we have rendered it as ‘rule-of-law state’].
Even Kelsen and Bobbio assume that there are ‘requirements’ or ‘pre-conditions’ for democracy—‘conditions’ which are part of its very definition; and substantive limits and constraints to the power of majority, thus contradicting their own formal definitions. As Bobbio says: “even a minimal definition of democracy, such as that which I put forward… needs in addition to universal suffrage and the principle of majority, ‘a third condition’: it is necessary that those who are called to choose or elect those who will have to decide are faced with real alternatives and are placed in a position to choose between one or the other. For this condition to be realized, it is necessary that to those called to decide are granted the so-called rights to liberty: liberty of opinion, liberty of expression of this opinion, liberty of assembly, of association, etc…. The constitutional rules that confer these rights are not really rules of the game: they are indeed preliminary rules that guarantee the very possibility of the game” (Bobbio 1984, p. 6). Similarly, Kelsen: ‘A democracy without public opinion is a contradiction in terms. In so far as public opinion can arise only where intellectual freedom, freedom of speech and press and religion, are guaranteed democracy coincides with political—though not necessarily economic—liberalism.’ (Kelsen 1945, p. 288). Here it is clear that this ‘coincidence’ makes rights to liberty an essential and substantive dimension of democracy.
I have developed the criticism of current definitions of ‘civil liberties’—in which authors from Locke to T. H. Marshall usually include rights to liberty and to private autonomy, and property rights—and discussed the civil dimension of democracy, in a number of other works, including Ferrajoli (1993, pp. 13–30, 2001a, b, pp. 169–185, 2002, pp. 288–297, 2003, pp. 13–29, 2004, pp. 11–24, 2007, I pp. 132–134, pp. 635–638, pp. 744–745, II pp. 83–85, pp. 224–230, pp. 254–266).
A similar argument can be made for the economic dimension of democracy, based on those specific ‘rights-powers’ that constitute civil liberties. Only by limiting these powers, subjecting them to the law, and to fundamental rights, is it possible to protect them, the market, and civil democracy from themselves—i.e. from the excesses of unlimited economic power (Ferrajoli 2001a, b).
I have called this kind of norms ‘thetic’, in opposition to norms that are ‘ipo-thetic’, in the sense that they regulate situations as these are affected by the acts provided for by such norms. On this point, see Ferrajoli (2002, I, pp. 16–17, II, p. 135, and III, p. 383, 2007, I, pp. 419–422, pp. 729–730).
For this formulation see Pace (1996), according to whom a constitution that is not entrenched, but flexible, and from which statute law can derogate, is not a constitution.
According to Norberto Bobbio, ‘a general theory of law is a formal theory of law, studying law in its normative structure, namely in its form independently from the values that the form carries and the contents it embodies’ (Bobbio 1955, p. vi). Bobbio adds that it is evident that the best exponent of such a theory is Kelsen, whose doctrine or ‘pure theory’ is ‘formal’ in the same sense. The same characterization of the theory of law as a ‘formal theory’ is elaborated in Bobbio (1955, pp. 3–7, pp. 34–40, pp. 145–147). I have discussed the ‘formal’ character of the theses of legal theory, in several texts, in relation to my own definition of ‘fundamental rights’; see Ferrajoli (2002, I, pp. 5–9; II, pp. 123–145 and 150–151; III, pp. 279–288, 298–309), and in the Introduction to Ferrajoli (2007). It may be useful to clarify that ‘formal’ in the sense in which it is here intended, as a meta-theoretical predicate of concepts and statements of legal theory, has nothing to do with the meaning of ‘formal’ as a theoretical term, referring to the ‘form’ of ‘formal acts’ (as opposed to the ‘substance’ or ‘meaning’ of the norms thus produced), from which it derives their ‘formal validity’, and the ‘formal’ dimension of democracy—both of which are dependent on the observance of the ‘formal’ norms of production.
[Editor’s note: Kelsen’s term for such a wrong is ‘delict’ which in the Italian translation of his work with ‘illecito’].
I use ‘antinomy’ and ‘gap’ in a more restricted sense than current usage. With these terms, which I regard as central to the theory of constitutional democracy, I only intend to designate the antinomies and lacunae that emerge with respect to supra-ordinate norms. Unlike antinomies and lacunae that emerge between norms at the same levels, those emerging with respect to superior norms can be considered as ‘infringements’ of the latter. Such antinomies and lacunae are ‘vices’ of the legal order, which cannot be solved by the person appointed to interpret the law. If left unsolved, they result in the impossibility of applying the supra-ordained norm; in the case of antinomies, because of the presence of norm at the lower level in contrast with that at a supra-ordinate level; in the case of lacunae, for the absence and non-applicability of statues of implementation. [Editor’s note. The distinction here made between normativity and effectiveness is part of a complex series of distinctions, involving both the validity, force, vigour, efficacy and effectiveness of the law. The point is also made in Chiassone’s contribution to this Symposium].
Figures of deontic logic refer to a series of logical oppositions like that between permitted and prohibited, and to the logical implication of positive expectations and the corresponding obligations. In deontic theory, these are represented in the ‘Deontic Square’, in two separate sets of oppositions, which I have discussed in the first two chapters of Ferrajoli (2007, I, pp.120–124, pp.151–157). [Editor’s note. The ‘Deontic Square’ is the representation of a number of logical categories that are in opposition to each other, by placing each of them in a different corner of a square. The four categories are: ‘Obligatory’, ‘Permissible’, ‘Impermissible, and ‘Omissible’. As Baccelli notices in his contribution to this Symposium, Ferrajoli’s own representation is rather unorthodox in the way in which it inverts the traditional position of these categories, though their logical relations remains unaltered].
Cf. Bobbio (1965, pp. 105–106): “As an approach to the study of law, legal positivism is characterized by a clear distinction between real and ideal law, or with equivalent expressions, between law as fact and law as value, between law as it is and law as it ought to be; and by the conviction that the law that interests the jurist is former and not the latter…. According to this first meaning of legal positivism, positivist is the one who takes a value-free attitude towards the law”.
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Translated by: Paolo Sandro.
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Ferrajoli, L. The Normative Paradigm of Constitutional Democracy. Res Publica 17, 355–367 (2011). https://doi.org/10.1007/s11158-011-9169-8
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DOI: https://doi.org/10.1007/s11158-011-9169-8