Constituent power was a key notion of much legal and political theorizing during the French Third Republic (1870–1940). It was initially used to protect the Republic from the risks inherent to universal suffrage and mass political participation by entrenching representation and the hierarchy of norms. Slowly, it started to change function and became a tool to contest the undemocratic nature of party politics in Parliament and reclaim a more direct involvement of the people in legislation. This chapter tracks this shift in the theory and practice of constituent power by reconstructing the intellectual and political trajectory of one of the most eminent jurists of the Third Republic, Raymond Carré de Malberg, who directly tied the concept of constituent power to the use of legislative referenda.
During the first decades of the twentieth century, the word “democracy” was rarely used to describe existing political systems. Rather, it was usually employed polemically to criticize European parliamentary regimes for their incapacity to actualize the principle of popular power. Critiques of parliamentarism in the name of democracy were numerous and came from all sides of the political spectrum. This paper analyses them through the lens offered by debates about the use of the referendum. The “direct appeal to the people” was widely discussed at the turn between the nineteenth and twentieth centuries: It was the lowest common denominator of otherwise highly divergent political projects, all of which appealed to democracy to overcome the failures of parliamentarism. Yet their diagnoses of what was wrong with parliamentary regimes differed widely, as did their interpretations of the democratic nature of the referendum. In what follows, I will analyze three different critiques of parliamentarism, and their corresponding theories of democracy, as outlined through debates about the referendum in Europe from 1890 to 1935.
This article explores how late nineteenth-century British socialists theorized the relationship between socialism and democracy through debates about the referendum. At the 1896 London Congress of the Second International, Fabians such as Sidney and Beatrice Webb and George Bernard Shaw defended parliamentary representation, expertise, and leadership as essential to socialist politics. In contrast, radicals in the Social Democratic Federation, and the Independent Labour Party advanced a theory of "real democracy" centered on direct popular legislation. Rejecting parliamentarism as corrupt, they envisioned referenda, mandates, and recall as tools to secure individual sovereignty and to dissolve the dominance of permanent majorities. This model redefined majority rule as transient, issue-specific, and plural, challenging both plebiscitary leadership and technocratic elitism. Although the International ultimately adopted the referendum only for strategic purposes, these debates reveal an original, if forgotten, socialist account of democracy as a form of pluralist, non-electoral majoritarianism.
This article analyzes how direct popular legislation was discussed in France from 1850 to 1852. It is during the Second Republic that the idea of directly involving the people in the law-making process becomes a concrete proposal. It is extensively debated by left republican thinkers such as Ledru-Rollin, Rittinghausen and Considerant to argue, against Proudhon and Blanc, that political representation is, in fact, not democratic. Instead, they claimed that real democracy would require a sharp distinction between legislation and administration and the consequent direct involvement of the people in lawmaking through their participation in local assemblies, tasked with both drafting and approving legislative proposals of general import. These competing understandings of democracy, as theorized through debates about popular legislation in the mid-nineteenth century, foreground some of the fundamental challenges of representative politics and question the role of knowledge and expertise in legitimizing democratic procedures in the age of mass politics.
ConstellationsEarly View BOOK REVIEW Constituent Power in the European Union by Markus PatbergOxford: Oxford University Press, 2020 Constituent Power and the Law by Joel Colon-Rios, Oxford: Oxford University Press, 2020 Lucia Rubinelli, Corresponding Author Lucia Rubinelli [email protected] Department of Political Science, Yale University, New Haven, USA Correspondence Lucia Rubinelli Email: [email protected]Search for more papers by this author Lucia Rubinelli, Corresponding Author Lucia Rubinelli [email protected] Department of Political Science, Yale University, New Haven, USA Correspondence Lucia Rubinelli Email: [email protected]Search for more papers by this author First published: 03 June 2023 https://doi.org/10.1111/1467-8675.12695Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL No abstract is available for this article. Early ViewOnline Version of Record before inclusion in an issue RelatedInformation
The subtitle of Madhav Khosla’s new book, India’s Founding Moment, describes India as a ‘most surprising democracy’. Certainly, much is surprising about Indian politics in the twentieth century, bu...
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At least since the French Revolution, the idea of constituent power has been used to indicate the power the people have to create legal-political orders.As such, the history of constituent power is deeply tied to the principle of popular power and, through it, to the history of democracy, to its theory and to its practice.Not only does constituent power point to the process through which a democratic polity is instituted via procedures of constitution-making.It also acts as a reminder that the source of constitutional normativity lies in the will of the people.As a result,
The frenzy of sovereign claiming that Neil Walker describes in his enthralling Foreword reveals more about sovereignty’s deficits, and prevailing anxieties about these deficits, than it evinces the expanding range of sovereignty. Sovereignty is clearly not eroding across the board, but it is far more fissured than Walker’s Foreword article suggests, as more and more modes of governmental power perforate, parse and parry it. Sovereignty captures how some things work, some of the time, and a good measure of political rhetoric and aspiration. As a comprehensive or incisive analytic for contemporary power, however, it is inadequate. This Afterword fleshes out this claim by presenting counter-narratives to each of the five dimensions of Walker’s analysis of contemporary mobilizations of sovereignty: decomposition as a counterpoint to Walker’s story of recomposition; routing around in contrast to his account of raising; ransoming rather than rationing; monomania in lieu of reinforcement; and fetishization instead of reduction. Insofar as people are everywhere today grasping for sovereign determinacy, this may reveal more about the exhaustion of sovereignty’s explanatory power than its continuing salience.
From the French Revolution onwards, constituent power has been a key concept for thinking about the principle of popular power, and how it should be realised through the state and its institutions. Tracing the history of constituent power across five key moments - the French Revolution, nineteenth-century French politics, the Weimar Republic, post-WWII constitutionalism, and political philosophy in the 1960s - Lucia Rubinelli reconstructs and examines the history of the principle. She argues that, at any given time, constituent power offered an alternative understanding of the power of the people to those offered by ideas of sovereignty. Constituent Power: A History also examines how, in turn, these competing understandings of popular power resulted in different institutional structures and reflects on why contemporary political thought is so prone to conflating constituent power with sovereignty.
After World War II, the language of constituent power was taken up by constitutionalists Constantino Mortati, Georges Vedel and Ernst-Wolfgang Böckenförde to advocate for popular participation in government. They accused contemporary positivist theories of sovereignty of downplaying the principle of popular power in favour of a purely legal approach to the study of legislation. This, they claimed, had the effect of undermining popular participation in politics and needed to be contrasted by adopting a different approach to the study of the state and its foundations. The language of constituent power offered precisely that, as it brought the role of the people back at the centre of constitutional theory. It indeed indicated the power of the people to establish the fundamental ‘political ideal’ at the origins of the legal political system. This power would not disappear once the constitution entered into force but would remain present alongside the ordinary working of the constitutional system. In addition, Böckenförde, Mortati and Vedel aimed to limit the scope of representation and favoured instances of direct exercise of power by the people instead. They thus promoted practices of direct or semi-direct democracy, such as referenda and constitutional revisions, decentralised and federal structures of power.
In France, throughout the post-revolutionary period, sovereignty was invoked to justify unlimited, absolute and arbitrary exercises of power by the king, parliament and the people. These uses of sovereignty, I maintain, were perceived as politically dangerous by French jurists Jean Denis Lanjuinais, Firmin Laferrière, Felix Berriat Saint Prix and Edouard Laboulaye. On three different occasions, they resorted to constituent power to tame the implications of contemporary appeals to sovereignty. First, during the Restoration it was used to claim that the king could not exercise power unlimitedly, as the constituent power belonged to the people. Second, during the July Monarchy constituent power was used to oppose the Parliament’s claim to be the sovereign and the only legitimate author of the constitution. Last, during the Second Republic, constituent power was used to claim that the power of the republican sovereign amounted to and did not extend beyond authorising the creation of the legal system. Constituent power was thus used to negotiate an understanding of popular power different from that implicit in ideas of sovereignty. While sovereignty allowed for uncontrolled and unlimited exercise of power, pouvoir constituant was used to argue that the supreme authority consisted in the popular institution of the constitutional order.
Discussions of the role and legitimacy of elites in democratic societies have rarely taken the shape of debates about the internal organization and working of political parties. In this article, I purport to look at the party as a battling ground for competing accounts of the role elites should play in modern democratic societies. However, I will not focus on theoretical analyses of the party. Rather, I will look at how political actors discussed the party in the context of the constituent debates at the Italian Constituent Assembly of 1946–1947. These debates do not explicitly deal with the role elites should play in democratic society. Instead, they center on whether and how the constitution should regulate political parties. Yet while discussing details of legal regulation, the constituents offered contrasting understandings of modern democracy, competing accounts of the role of the masses as well as of the elites, and creative attempts to create stable compromises between the two in a changing society. It is through the reconstruction of these rather practical debates that I aim to uncover how one of the main questions of modern democracy—the relation between elites and masses—has been dealt with politically. This, I suggest, is not only interesting for political or historiographical reasons, but also has theoretical relevance. Not only it directly speaks to recent debates about partisanship and intraparty deliberation, but it is also by looking at political institutions and the reasoning behind their creation that one can recover complex political thinking.11 Here I am mostly referring to a variety of recent publications in political theory such as Wolkenstein (2019a, b), Invernizzi Accetti, and Wolkenstein (2017), Ypi, and White (2016), and Bonotti (2017). This, I believe, is made particularly interesting by the fact that it results from long and complicated processes of negotiation of contrasting values as well as from the translation of political ideals into working institutional structures. Reconstructing these processes of negotiation and translation is what I plan to do in this article. The relationship between elites, parties, and democracy changed greatly in the years between the end of the 19th century and the first decades of the 20th. This period of Italian history is marked by a series of attempts to make traditional legal theory fit with the fast-changing political reality, which in turn fed into attempts to regulate politics, the state, and its legal system.22 For a more detailed historical overview of the relationship between Italian legal theory and the party see Gregorio (2008) but also A.V. “Tra parte e tutto: il partito e le sue radici”, Special Section of Nomos, 2014. One of the main figures in this context is legal theorist Vittorio Emanuele Orlando (1860–1952), who inaugurated the Italian “formalist school.”33 For an overview of Orlando's work, see Gregorio (2017). This represented the dominant approach to the study of the state and its relationship to the people from the turn of the century up until the fascist regime, but its influence was felt also during the works of the Constituent Assembly. One of the key tenets of the formalist school was its account of the state. Far from being a political actor, the state is a legal structure, a legal persona: it is above all political struggles, as it is identified with the legal system in its neutrality, abstractness, and impartiality.44 This approach, it should be noted, is not particularly original to Italian legal theory. Rather, one can see similar theories flourishing in Germany at around the same time. According to this view, the state is the ultimate source of authority—it is the bearer of sovereignty—and from it descends the power of all other institutional bodies (Fioravanti, 1990). The key institution of the state is the “gabinetto,” the cabinet. This is not a partisan political office, but rather mediates between the people as represented in parliament, on the one side, and the political will of the king expressed through the royal prerogative, on the other. The mediation between these two poles, as operated by the cabinet, implies that state legislation is the product of no specific political will (Orlando, 1889). Consequently, political parties are completely bracketed off. The legitimacy of the cabinet derives from the parliament but also, crucially, from the monarch. Hence, parties only have a limited influence in shaping the cabinet's decisions. Moreover, parliamentary actors are not mandataries of the people. Even less so, they are not representatives of group interests. By contrast, they have been selected to interpret and shape the will of the nation. To do so, they must remain free from mandates and partisan affiliations. The representative process, according to Orlando, is thus, only functional insofar as it allows for the selection of the best candidates, the elite, and has no connection to the representation of interests or the composition of society. As many other liberal theorists in the 18th century, Orlando and his school attributed no role to political parties: the state had a juridical personality of its own, and its representatives were an elite of likeminded notables with no commitment to partisanship. This made the party irrelevant, both as a political actor and as an object of scholarly enquiry.55 Another version of this formalist approach was developed in the same years by Oreste Ranelletti (1868–1956), who saw in state administration the main source of legislation. Also in this case, no space is left for political parties: the state expresses its rationale and will through the production of administrative law, which is delegated to bureaucrats acting in the interest of the state machinery. These bureaucrats are experts in administrative law and able to act above and beyond partisan political considerations (Fioravanti, 1990; Gregorio, 2008). However, the formalist school started to be challenged after the end of World War I. As was the case around Europe, Italy was shaken by the irruption of the masses into politics. This put the traditional liberal state, with its emphasis on the elitist dimension of parliament and cabinet neutrality, under relevant pressure and led to an exacerbation of social conflict, which in turn fed into theoretical analyses. Scholars, such as Santi Romano (1875–1947), relied on German and French institutionalism to emphasize the plurality of competing forces present in society and the inherent normativity of social facts (Lanchester, 1990). Law does not arise from the neutral workings of the state, but results from the juridical character of society, which expresses itself through the groups composing it. Yet this attention to social pluralism did not translate into a reassessment of the status of the party. Instead of recognizing the party as the representative of society's pluralism, Romano turned to the theory of corporations. These were the basic units of social organization and had to be represented politically. In addition, for all their interest in pluralism, Romano and his colleagues never went beyond the liberal formalist dogma of state sovereignty (Gregorio, 2008). The state remained the source of all political authority, even though social facts had normative juridical character. The emphasis on corporations as connected to state sovereignty thus helped challenge liberal formalist orthodoxy, but did not assign any specific role to the political party, which remained in the background (Gregorio, 2008). This situation changed toward the end of the 1920s, when two events made understanding and theorizing the party, its elite and the relationship to the masses an inescapable priority. First, in 1929 parliament passed an internal regulation recognizing parliamentary groups as official political actors. It also deliberated that seats within parliamentary groups had to be distributed proportionally to the number of votes received by each party. As a result, parliament stopped being comprised of individual figures, freely interacting and deliberating. By contrast, the institutionalization of parliamentary groups made the party protagonist in parliament. Second, toward the end of the ‘20s the Partito Nazionale Fascista became increasingly more prominent. This sparked debate about the role, function, and nature of political parties in general and of the PNF in particular. While initially supported by Orlando and the liberal formalists as a means to restore the sovereignty of the state against the irruption of the masses, the PNF soon raised an array of unexpected questions. Far from being the means to restore the supremacy of the legal state, the PNF started acting according to its own—very political—logic. Not only it attacked the royal prerogative, thus, dismantling one of the key features of liberal parliamentarism, but it also imprinted a clear political direction onto the Italian state. This became evident in the moment the PNF started deploying a narrative of revolution, thus, hinting at its role as interpreter of the people's will in a new constituent phase (Fioravanti, 1990). Sergio Panunzio (1886–1944) and Carlo Costamagna (1880–1965) analyzed the changes underwent by the Italian state in the ‘20s and early ‘30s. Their focus was on the role and function of government in the modern state, which had passed from one of mediation between king and parliament to one of prominence over both institutions. With Mussolini, government was no longer Orlando's neutral cabinet, but a highly political office, tightly connected to the PNF. The party thus became, for the first time, object of extensive investigation. It was studied as the bearer of a generalized vision of politics capable of creating political unity. This unity derived from the party's capacity to organize the various groups composing society into corporations. By organizing society along corporativist lines, the party would indeed unite the population into a whole, working to pursue a shared set of political goals. These would then be reflected and endorsed by an increasingly more powerful, centralized, and personalized government. The result, according to the so-called “jurists of the regime,” was a close entwinement between party and government aimed at organizing social pluralism into unity and giving rise to the fourth function of the state: the “corporative function.”66 For extensive analyses of the “jurists of the regime,” see Fioravanti (1990), Lanchester (1990), Abbamonte (2011), and Gregorio (2008). By the time Panunzio had theorized the corporative function of the state, it was evident that Orlando's liberal state was no longer in existence. The fascist attempt to bring together masses and governmental elites via the PNF demonstrated that the state was not a neutral legal actor. This had a long-lasting impact on subsequent legal thought. It is indeed in the late ‘30s and early ‘40s that a new generation of scholars made the government's political prominence the corner stone of Italian state theory. This new generation included thinkers, such as Vezio Crisafulli (1910–1986), Piero Calamandrei (1889–1956), and Costantino Mortati (1891–1985), all of whom were educated during the Fascist ventennio but played pivotal roles in the constituent phase and in the subsequent transition to the republican regime. They differed from Orlando's liberals in that they did not assume the state to be neutral, and rejected the dualism of king and parliament typical of the 19th century liberal state. By contrast, and similarly to the jurists of the regime, they emphasized the prominence of politics in directing state action. Yet, differently from Panunzio and his colleagues, they did not believe this to derive from the corporative function of the state. On the contrary, Mortati argued that the latter was but a peculiarity of the fascist regime, which in turn was but a transitory phase in the development of the modern state (1940). The core feature of the modern state was the political function of government: its capacity to have a unitary political agenda.77 For Mortati's relationship to fascist legal theory, see Staff (1991, 1994), La Torre (2003), Della Cananea (2003). For Mortati's relationship to Crisafulli, see Frosini (2007). For a summary of the above, see Rubinelli (2019). Yet government would be powerless without the background work of the political party. The latter translated society's competing political visions into political programs. It thus assumed a quasi-normative function, as whatever it set to be its political goal could become the object of governmental action and the source of state legislation. And, it is precisely the central role played by parties in setting the governmental agenda that became the focus of the constituent debates in 1946 and 1947. These offered the stage for old and new understandings of the party to compete and shape the relationship between masses and parliamentary elites in the newly founded Italian republic. The period preceding the election of the Constituent Assembly in June 1946 saw the role and public perception of political parties vary substantially. When Mussolini's dictatorship fell, the temporary head of government Pietro Badoglio forbad the creation of parties and constituted a government of experts. In his view, the proliferation of political parties threatened national unity and was not compatible with the national interest (Gregorio, 2008). Yet this decision was not to last, as the parties’ role in the resistance had made their presence and influence on the territory too widespread to be dispensed with. Although banned until the end of the war, parties formed the Comitato di Liberazione Nazionale (National Liberation Committee), orchestrated strategies of partisan warfare and interacted with the allies. As a result, they became protagonists of postwar politics and, soon after the liberation of southern Italy, a new government was formed with the participation of all six major political parties involved in the resistance. This was followed by a “government of transition” to manage the process of regime change and facilitate the installation of the Constituent Assembly. Yet notwithstanding the parties’ prominence on the political scene, when the time came to debate their role and function in the new Italian constitution several tensions came to the fore. As the following paragraphs will discuss, the assembly was divided along different lines of fracture that became visible when discussing whether the party should be constitutionally regulated. What was at stake, I argue, was not just the regulation of the party, but also how masses and elites would interact in the newly established republic. The first signs of tensions surfaced when representatives of all elected parties met in the First Subcommission of the Commission for the Constitution to discuss the general structure of the constitutional project. The tension crystallized in November 1946, when the commission debated whether the political party should figure in the constitution and, in case, how. Most deputies took it for granted that, given the prominence of mass parties, these should be the object of a specific set of constitutional norms. However, this did not appear equally self-evident to proponents of Orlando's liberal parliamentary state. Deputy Ottavio Mastrojanni voiced scepticism.88 Mastrojanni had been elected among the ranks of the Fronte Liberale Democratico dell'Uomo Qualunque (Liberal Democratic Front of the Everyday Man), which was part of the Liberal group in the Assembly. As he made repeatedly clear, making the party an object of constitutional regulation meant attributing it functions, roles and responsibilities traditionally assigned to the state. This would, in turn, give to the largest parties in parliament—the mass parties—means to control and “permanently exert their influence on all organs of national life” (ACa, p. 411). Partisan control of state apparatuses had two consequences: first, it would have emptied all parliamentary functions of their relevance and purpose. Parties would substitute themselves for parliamentary and administrative organs, thus, forcing deputies “to become employees of their party, as they would have to be accountable to the latter in the exercise of their mandate” (ACa, p. 411). Second, this substitution would “dig up the fascist system, where government's representatives were constrained in the exercise of their functions by the Fascist Federation” (ACa, p. 411). This line of argument, it should be noted, is a reiteration of the traditional formalist critique of party politics: while the parliament should be a space for deliberation among an elite of notables, the intromission of parties would shift the balance towards the masses, thus, forcing deputies to respond to the requests of the extraparliamentary party and its members. Yet Mastrojanni was not alone in his defense of the elitist model of parliamentary politics. His colleagues working at the first draft of the first article of the constitution publicly maintained that sovereignty could only belong to the state, understood as a legal persona. This not only went hand in hand with the denial of constitutional recognition for the party, but it was also reflected in the liberal party's decision to run for elections without a program. This followed in the footsteps of a series of publications by various liberal thinkers, among whom Benedetto Croce, who defended the formalist understanding of the party as a “preparty”: an informal grouping of notables who, when elected to parliament, would deliberate freely and independently of all partisan mandates (Gregorio, 2008). The liberal party thus decided not to give itself a central organization and did not make any promise to the electorate, the idea being that representatives should be chosen because of their personal capacity to understand the interest of the country and not on the basis of partisan—and hence partial—affiliations. This approach was clearly underpinned by the same 19th century's vision of parliamentarism that informed Mastrojanni's intervention in the First Subcommission and his colleagues’ defense of state sovereignty. In the first months of the Constituent Assembly, liberal deputies were thus fundamentally at odds with ideas of popular sovereignty, mass parties, and party competition.99 Nonetheless, they managed to obtain slightly more that 6% of the votes, which translated into 41 seats for, among others, Vittorio Emanuele Orlando, who will greatly contribute to the subsequent constituent debates on the role and constitutional status of the party. However, the majoritarian view in the assembly embraced the principle of popular sovereignty and assumed the overarching presence of parties as the defining feature of modern democracy in general, and of the new Italian republic in particular. This view was supported by members of all mass parties: Christian Democrats, Communists, and Socialists alike. As a prominent member the latter group, deputy Lelio Basso was tasked with drafting a first version of the article recognizing constitutional dignity to the party. This was meant to offer a starting point for debates about the role of the party and read as follows: “all citizens have the right to freely and democratically organize themselves in political parties, with the aim of concurring to shaping the political life of the country.”1010 Before Basso, also Mancini and Merlin proposed a similar article. Yet these were immediately put aside and discussions focused on Basso's proposal (ACb, p. 402). Basso explained the need to constitutionally recognize the party as part of a wider “process of transformation of our democratic institutions, whereby parliamentary democracy, not being able to respond to contemporary challenges, is being substituted by the democracy of parties” (ACa, p. 409). This process of transformation necessarily passes through the constitutional recognition and regulation of the party, as this alone can guarantee the evolution from the “purely individualist forces of the old regime” to the “new conception of party democracy” (ACa, p. 409). To strengthen the point, Christian Democrat Dossetti added that the very survival of democracy was intimately tied to the constituents’ capacity to discipline and consolidate “this new democratic reality” (ACa, p. 411). Needless to say, Dossetti was referring to the irruption of the masses into politics, which could only be managed through the mediation of political parties, whose fundamental role had to be recognized and disciplined in the constitution. Even Palmiro Togliatti, the leader of the Communist Party, joined the chorus of voices defending the relevance of political parties for modern democracy. While stressing the importance of including the masses, he praised Basso's initiative, arguing that it invited citizens to organize politically. More specifically, he maintained that the constitutional recognition of the party helped “to lift large masses from the state of disorder they currently find themselves in, thus, raising the democratic life of the country to a higher level” (ACa, p. 410). As these few quotes suggest, all the deputies who supported the constitutional recognition of the party did so out of awareness that society had changed, and politics with it. The old elitist model of the liberal parliamentary state could no longer work in postwar societies. The latter, by contrast, needed to find ways to integrate the masses into politics and the party was the designated means to that end. As such, it played a prominent role in postwar politics, and demanded respect as well as recognition. The deputies thus decided to approve a slightly modified version of the article proposed by Basso and send it over for discussion to the plenary meeting of the Constituent Assembly.1111 The new version read as follows: “all citizens have the right to freely organise themselves in political parties, and to concur with democratic method to the definition of the political life of the country.” This, as it will become clear in the following paragraphs, opened a can of worms. Although the constitutional recognition of the party was by then widely accepted, deputies disagreed on the specific terms and implications of the recognition. As soon as the draft of article 47 arrived at the plenary meeting of the Assembly, the deputies immediately focused on the second half of the article, which recited “and to concur with democratic method to determining the political life of the country.” The bone of contention was the reference to the democratic method. The members of the First Subcommission had purposefully chosen vague terms, to leave the task of specifying the meaning and purpose of such a delicate passage to the Assembly. And indeed, the deputies spent most of their time debating the suitability of including references to democracy in an article on political parties. The main question was what “democratic method” could mean, in the specific context of the article. Would it refer to the process of formation of the party? To its method of action in relation to other parties and the state? Or to its internal working? While the discussion raged, Christian Democrat and constitutional theorist Costantino Mortati developed an amendment to article 47. It read as follows “All citizens have the right to freely gather in political parties, which should align to the democratic method in their internal organization as well as in all actions aimed at influencing national politics.” The idea behind the article was to clarify the ambiguity of the initial draft and offer some fixed points from which to develop a more structured debate in the Assembly. But before going into the details, it might be necessary to examine his understanding of the party, as this helps illuminating the reasoning behind his proposed amendment. Mortati was born in 1891 in the south of Italy, studied law, philosophy, and political science in Rome under the guide of Panunzio, the fascist theorist of the state's corporative function. During the war, he made contacts with eminent members of the Christian Democracy, among whose ranks he was elected at the Constituent Assembly. He was a well-respected member of Assembly, and contributed to writing large parts of the constitution. Much of his influence derived from his reputation as a fine constitutional thinker, and his career exemplifies how Italian legal theory had changed from Orlando's liberal formalism, through the experience of fascism to the postwar focus on the normativity of society and the importance of political parties.1212 On Mortati's life and career, see Lanchester (1990, 1994). For an overview of Mortati's constitutional thought, see Rubinelli (2019). It was indeed his 1940 book Costituzione in senso materiale (Constitution in the material sense) that set the standard for thinking about the role of the masses in modern politics and contributed to informing debates at the Constituent Assembly. Following onto the footsteps of scholars active in the ‘30s, such as Panunzio and Romano, Mortati believed neither in the separation between law and politics, nor in the formalist account of the state as a legal persona. By contrast, he built on the work of Romano to argue that society is the source of all normativity including legal normativity.1313 Much of what follows is a reconstruction of Mortati's general theory of the constitution and the party. His constitutional thinking was mostly spelled out in the 1940 book La costituzione in senso material (1998), the sources of his work on the party are scattered around several texts and interventions. While the main ideas are already there in La costituzione in senso materiale, he further developed them in two texts published after June 1946 but that are believed to have been written during the works of the Constituent Assembly. These are “Concetto e funzione dei partiti politici” (2015), first published in 1949 and La costituente. La teoria. La storia. Il problema italiano, 1945. In what follows, I will draw from these three texts. According to Mortati, all constitutions have a formal and a material aspect. Starting with the first, the “formal sense” of the constitution is the text and wording of the legal document. It regulates the working of state institutions but has no normative value of itself. It only describes the mode of existence of the legal-political order, but has no capacity to bring it into existence, let alone to justify its content or enforce obedience. By contrast, the sources of normativity are found in the material constitution, away from the formalism of the legal text and closer to the spontaneity of society. The material constitution is made of two aspects: the essential content and the normative material elements. Starting with the former, the normative essential content of the constitution is a fine politico, or “political goal.” This is a principle of unification and coordination of social and political life and, as such, shines through the formal legal text and gives it validity.1414 It is “a political idea, whose working entails a certain degree of political homogeneity, able to create a superior unity comprising the majority and the minority of the population and able to give shape to all the prerequisites necessary for the existence of a consistent and harmonious state will” (Mortati, 1998, p. 55) Yet for its existence, this political goal necessarily depends on the presence of “normative material elements.” These are the concrete configuration of socioeconomic relations, which in turn is “the community itself, yet no longer considered as an undistinguished whole, but as organized according to a minimum level of organizational elements that are necessary to conceive of society as capable of action” (Mortati, 1998, p. 74). Society is thus the source of normativity for the constitutional formal text, as it is from it that the fine politico arises and it is through it that it maintains its prescriptive validity. The material aspects of the constitution precede and inform its formal legality. The duality between formal and material constitution is thus meant to highlight the importance of society in shaping the political life of a country. Yet society is not a uniform actor with a homogeneous will, as this would be a nonexistent abstract entity. In the same way, also the sum of isolated individuals could not add up to form “society” as an entity capable of action. On the contrary, and this is where the party becomes relevant, society is always comprised of a plurality of social groupings—the normative material elements—, which Mortati later called comunità intermedie or “intermediate communities” (Mortati, 1959; see Pupo, 2015). The party is indeed the institutional arm of the intermediate community. It translates the community's unarticulated preferences into systems of values and presents them not just as the “expression of a purely existential entity, but rather as a deontological one” (Mortati, 1998, p. 89). In other words, it is thanks to the party that the plurality of communities comprising society express their normative potential. The party turns their values into a fine politico, and competes for its affirmation as the source of constitutional normativity. Although social normativity always finds ways to impose itself on the ruling elite, the characterizing feature of democratic modernity is that it does so through the party. Yet this can no longer be organized according to the 19th century model. Rather, it must adapt to the “new numerical entity of the electors as well as to the increased heterogeneity of their composition” (Mortati, 2015, p. 8). To do so, the party must play a double role: on the one hand, it should open itself up to
Hannah Arendt disapproved of all conceptualisations of popular power in terms of sovereignty. This abolished human plurality by prioritising the need to represent the people as a unitary body having a unitary will. By contrast, politics for Arendt had to be structured around a radically different conceptualisation of popular power, and constituent power served precisely that purpose. Arendt thus aimed to rescue the democratic principle of popular authority by presenting constituent power as a radical alternative to the notion of sovereignty. The former was not a conceptualisation of popular power but its practical instantiation. It did not find its origins in the canon of Western philosophy but in the historical practice of people promising and acting together in the public space. By showcasing the plurality inherent to politics, constituent power testified that popular power does not have to disappear once the political order is created, but must be continuously exercised through the state’s institutional structure. This had to be republican, as the exercise of power would be devolved, via federal structures, to local assemblies. In addition, the state’s foundations would be constantly augmented through procedures of collective constitutional revision and amendment. Constituent power thus ends up being, once more, an alternative to sovereignty.
Early twentieth-century German reflections on the intersection between law and politics have been the object of extensive historical analysis. Especially Schmitt's realism and Kelsen's positivism have often been taken to instantiate two irreconcilable epistemological poles. Yet little attention has been paid to thinkers who, being at the crossroad of different intellectual traditions, operated within this dichotomy while trying to avoid its most caricatural features. One of these figures is the Italian constitutional theorist Costantino Mortati. While introducing his life and oeuvre to the Anglophone public, this article argues that his work should be read as an attempt to make sense of law's relationship to politics that, although similar to Schmitt's realism, avoids its more pernicious outcomes.
