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OXFORD CONSTITUTIONAL THEORY
Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker
••
1
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© D. Lee 2016
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First Edition published in 2016
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Acknowledgements
DOI:10.1093/acprof:oso/9780198745167.003.0001
Page 1 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
The problem is this: How is it possible for such a doctrine of unlimited and
absolute sovereignty to be, without contradiction, deployed in a theory intended
to realize a state committed to just the opposite goal, limited government? Is it
even intelligible to argue, as theorists of popular sovereignty endorse, that
limited government can only be secured by postulating an unlimited form of
popular power anterior or exterior to state institutions, precisely what
constitutionalism does not allow? At first glance, it does not seem so. And this,
one might argue, is because the very idea of popular sovereignty appears to
militate directly against the core principle of constitutional limitations on the
public authority it is intended to support.5
Page 2 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
In light of this seemingly unavoidable tension—what has recently been called the
“paradox of constitutionalism”—constitutional theorists have offered various
strategies aimed at resolving this mutual hostility between the competing ideals
of unlimited popular self-rule and constitutionalism.6 One common solution
simply proposes decoupling these two ideals from each other and expunging the
doctrine of popular sovereignty altogether from constitutional inquiry, so that
the modern project of realizing the constitutional state is treated as entirely
independent of populist politics or an extralegal concept of constitution-
authoring peoples.7
(p.3) The suggestion is, of course, an old one and is informed, in part, by a
deep-seated distrust of unstable popular majorities in settling constitutional
questions and, more generally, a skepticism about the feasibility of popular self-
rule. The worry here is that popular majorities can easily undo those very legal
limitations that make limited government possible, especially those entrenched
legal rights that protect unpopular minorities from the democratic tyranny of
majorities.8 If the constitutionalist goal is to limit and regulate the exercise of
public authority, why bother at all, then, with such a troublesome notion as
popular sovereignty, which can potentially undermine that very goal?
Page 3 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
(p.5) The function of “the people” in these theories of popular sovereignty, such
as in Buchanan, Lawson, and Locke, was not so much to create or constitute a
new political order. Rather, it was to provide an Archimedean point to evaluate,
from a critical distance removed from the fray of institutionalized politics, the
legitimacy of an existing political order and, if necessary, to contest and
reconstitute that political order. On this view, popular sovereignty was to be
understood almost as “anti-political.” The people do not govern directly, but
merely create the conditions and the institutions by which others could govern
on their behalf. Here, the sovereignty of the people merely lurks in the shadows
and in the background, as one scholar has described, like a phantom or “ghostly
body politic.”14 The people take no active political role in governing the state,
but rather, a “contestatory” role. Popular sovereignty indeed requires them to be
disengaged from political activity, as the people become silent onlookers
subjecting holders of public authority to an unending panoptical surveillance
from the outside looking in.
Page 4 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
What makes the people, however, the bearers of sovereignty, supreme even over
their constituted government, is the trump card they are always presumed to
hold in reserve, and that is the extralegal capacity of the people to dissolve the
constituted authority, by radical means if necessary. Like a deus ex machina, the
people appear only at discrete “constitutional moments” when the machinery of
the existing legal and political order is in need of repair. Once that task is
completed, they return to a state of constitutional hibernation to become, as
Richard Tuck described it, a sleeping sovereign.15
Page 5 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
(p.7) A major problem arises, however, when the authority of the state itself is
brought into question and when the very legitimacy of the state and its central
institutions can no longer be safely assumed. If the state cannot be regarded as
the site of public authority, who or what is a constitutionalist supposed to bind or
limit? This is, incidentally, a question of central importance to the contemporary
understanding of the crisis surrounding the modern constitutional state in an
age of global politics.20 Given the numerous new challenges to the traditional
authority of the state in an increasingly globalized and pluralistic world, it is no
longer feasible to treat constitutionalism solely in terms of domestic limitations
on constituted structures of public authority defined within the boundaries of the
state.
Page 6 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
Despite its growing contemporary relevance in international law and politics, the
problem is, by no means, a new one. On the contrary, the question of
constituting public authority in the absence of the state was the major question
of constitutional theory prior to the seventeenth century, disagreement over
which yielded not only a steady stream of constitutional and political thought,
but, too often, horrifyingly bloody consequences in terms of religious, civil, and
even “private” feudal wars. The prime reason for this was that there was no
uniform concept of the “state” in the pre-modern context.24 Indeed, the idea (p.
8) of public authority itself was actively contested. There was no settled and
shared understanding of what legitimate public authority was and how it was
constituted.
To be clear, this is not to suggest that there were no theories of public authority
in pre-modern thought at all. If anything, the problem was just the opposite:
there were too many theories of public authority in the later medieval and early
modern context, none of which commanded uniform obligation or generated
universal acceptance.25 Indeed, this diversity and proliferation of opinions on
notions of public authority, much of which lacked the clarity and precision of
modern analysis in public law, was precisely the problem: there was no
consensus on the structure of public authority and, more importantly, what made
it legitimate. Until such a uniform theory of public authority could be settled and
recognized in common, set beyond the scope of active contestation, the project
of constitutionalism—limiting and regulating the exercise of public authority by
law—would have to remain fundamentally incomplete.
The problem was that, despite this apparent flourishing of constitutional ideas,
they were actually not all that well suited to the task of limiting authority. Part of
the reason for this is that there was no conceptual space in medieval
constitutional thought for a robust and stable notion of institutional checks, (p.
9) balances, and safeguards to enforce limitations on authority.27 Medieval
theorists, of course, identified higher law norms which were thought to regulate
the conduct of princes, such as natural law, divine law, and fundamental law, as
well as general principles of equitable rule such as the utilitas publica or, in the
case of the Papal monarchy, the status ecclesiae.28 But without a formal
mechanism for control in cases where such norms were violated, the best
medieval theorists could do was entreat rulers to subject themselves to the
law.29
Page 7 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
But there was a more compelling reason for the difficulties, and ultimate failure,
of medieval constitutionalism. Without a notion of the state as the uncontested
center of public authority carving out a space for politics, constitutional
theorists were faced with a constantly moving target. Indeed, supposing that
constitutionalism was a theory of limiting authority, the problem here was that it
was still not clear who—or what—was supposed to be limited. This was
especially problematic in medieval thought, where concepts of authority were
commingled together with notions of private right, so much so, that a princely
ruler might licitly treat his right to rule as part of his private patrimony.
Authority, in medieval legal thought, was in this sense “privatized” or
“personalized,” treated just as if public power were any other object of private
property.
Page 8 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
The argument of this book is that the doctrine of popular sovereignty was
crafted as a constitutive theory, the chief task of which was to elucidate, against
this medieval background, the constitution of public authority in the modern
form of the unitary state. In this respect, popular sovereignty was “invented” not
so much as a regulative doctrine of opposition or resistance, designed to limit or
“regulate” some existing public authority, but rather as a constitutive doctrine of
legitimation, designed to show, in a world without states, what properly
constitutes such public authority in the first place.33 On this view, the doctrine of
popular sovereignty played a unique role in early modern constitutional theory,
by presenting a distinctive solution to the background problem of pluralistic,
overlapping, and conflicting sites of authorities, which plagued later medieval
legal thought.34
Page 9 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
Page 10 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
Page 11 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
How could such an unstable, constantly changing body serve as the permanent,
unchanging source for the public authority of the state?
The simple answer is that it most likely could not. But that is only true if the
“people” can be conceptualized as nothing other than a multitude or aggregate
of individuals—or, as writers have variously suggested, a fickle mob, a crowd, a
throng, and even a “many-headed monster” [bellua multorum capitum] (p.14)
and a “madman” [furiosus].43 Indeed, what this early modern criticism of
popular sovereignty seems to ignore, perhaps willfully, is that the very word
—“people”—had a built-in ambiguity, a “double-signification” once recognized by
Hobbes as indicating not only an aggregate of individuals but also a collective
agent.44
But even if we grant the internal coherence of the notion of a sovereign people
as something more than simply a disordered crowd, by application of a juridical
casuistry, why might this be the best way to formulate the constitutive doctrine
undergirding the unity—or, indeed, the “personality”—of the state?45 Why
ground the state’s authority on a theory of popular sovereignty, rather than, say,
princely sovereignty?
Page 12 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
In this respect, then, we might see the original purpose of popular sovereignty
as being not so much to show, as a positive argument, to whom sovereignty
should belong (whether the prince or the people or someone else), but rather, as
a negative argument, to show to whom sovereignty should not belong. This
negative argument, as we shall see, targeted inter alia the controversial idea
that sovereign rights actually belonged personally to princes, such that
sovereignty could even be treated legally as if it were patrimony or property,
falling under the category of what jurists called dominium. The origins of (p.15)
this criticism, as we shall see, can be traced to the critiques of medieval feudal
jurisdiction in the scholarship of sixteenth-century legal humanists, who denied
that feudal tenure implicitly conferred corresponding private rights of
jurisdiction, a notion that I explore in Chapter 3. But it became something even
more radical when jurists, using the analysis of the humanists, turned their
attention to the legal rights of kings, including the right to exercise the
constitutive higher-order functions of sovereignty. No king, they argued, could
claim sovereignty personally as his own, and that is because, according to the
argument for an impersonal concept of rulership, sovereignty, by its very nature,
simply was not the sort of thing over which any individual, even a king, could
assert a personal right of dominium. It is indeed a sort of category mistake to
treat sovereignty as one’s personal property, a thought that would become
foundational for modern public law.
In this argument, then, the notion of the sovereign people emerges not only to
displace kings from their regalia, or principes from their imperium, but more
importantly, to act as a conceptual placeholder for kingship in the modern mind,
by playing the constitutional role of the imagined fictive bearer of a
depersonalized sovereignty. But how can this actually be said to be a concept of
sovereignty? Isn’t this depersonalized notion of popular sovereignty, as De
Maistre once mocked, really just an absurdity, implying “a sovereign that cannot
exercise its sovereignty”?46
Page 13 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
Given its profound cultural and intellectual significance, Roman law played a
central role in the development of the theory of sovereignty, so much so, that it
is not too much to say that sovereignty and Roman law were inextricably tied to
each other as mutually supporting.50 It was indeed an indispensable tool in the
early modern project of statecraft by offering a pristine model of what a
complete, orderly, and rational legal system might look like. Legal reform and
modernization, especially beginning in the “elegant” legal science of sixteenth-
century humanist jurists, thus took a decidedly Romanist turn through attempts
at the formal reception, incorporation, and assimilation of Roman legal rules in
emerging legally unitary national states.51
Page 14 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
The puzzle for us, as it was for Leibniz, is to understand the origins of this
“mania.” Why was the analysis of sovereignty originally framed in this juridical
language of Roman law in the first place?
One reason for this was simply that the historical experience of the Roman
Empire provided an attractive classical model of sovereignty that might
potentially be imitated and reproduced in modern post-classical states, claiming
a similar sort of sovereign or imperial authority—or imperium—as Rome. Indeed,
among the most famous texts of Roman law were extracts concerning the legal—
or indeed, extralegal—authority of the princeps, or emperor, whom Roman
jurisconsults described as being “unbound by the laws” [legibus solutus] and, for
that very reason, having the full power of imperium, the unlimited discretionary
authority to issue commands by decree or edict carrying the fully binding
statutory force of law [legis vigor].55 Even more significant were the reasons
given in the Roman law texts explaining why the emperor was thought to have
such a legally absolute power in the first place. It is only because the Roman
people—the populus Romanus—conferred their original authority (p.18) upon
the emperor and, thus, empowered him to rule the Empire with full sovereignty.
As we shall see, these statements concerning imperium had a profound influence
on later medieval legal thought, by likening the authority of monarchies,
principalities, and even those of independent cities, to the imperium of the
Roman princeps.
Page 15 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
But as important as these analogies with Roman public law were, they reveal
only a relatively small part of the story.56 Even though Justinian’s codification
contained some limited statements concerning the public or constitutional law of
the Roman state and its administrative organs, it nevertheless remains the case
that Roman law was fundamentally a body of private law. It was, as the classical
Roman jurist, Gaius, famously declared in his Institutes, a system of law
ultimately concerning either “persons, things, or actions.”57 Of course, the
Romans clearly understood the difference between public and private law:
Ulpian, for example, makes this very distinction between public law [ius
publicum] and private law [ius privatum] in his Institutes.58 But as most of the
legal rules that would comprise the equivalent of Roman public law remained
customary and unwritten, the predominant focus of the Roman law codified by
Justinian in the texts of the Corpus Iuris Civilis and, consequently, of Western
legal science in the tradition of the civil law, was conceived “first and foremost
as a private law legal science,” touching upon matters such as contracts,
property, commercial transactions, and enforcing performance of legal
obligations.59
Here, then, is the problem. If Roman law was primarily a system of private law,
then how could it possibly have influenced the development of what was perhaps
the central concept of public law, the concept of sovereignty? The answer is that
Roman law provided a uniform conceptual grammar and vocabulary—a
“language”—for framing the analysis of sovereignty in the terms of private law,
expressed as actionable rights and obligations.60 Despite its deafening silence on
most matters of public law, the textual authorities comprising Roman law
nevertheless offered technically sophisticated treatments on matters of private
law concerning jural relations and actionable rights between persons. While
these sources were originally intended to apply only to the rights and obligations
of private persons, enterprising jurists carefully widened the scope of application
such that the civil law might function (p.19) equivalently as a language in
framing the rights and obligations of public persons, the sovereign state and its
agents, as well.61
Page 16 of 31
Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law
But there is a danger in viewing Roman law almost exclusively in terms of its
function as a discursive medium or language for normative political theory,
locked, as Walter Ullmann once put it, inside “the arena of political conflicts.”66
This is because the “civilians”—that is, the practitioners and scholars of the civil
law—saw their craft as something more than simply an ideologically bound (p.
20) discursive language game. Civil law was different from politics. It was, as
they saw it, a “science”—even a Kuhnian “normal science”—in its own right.67
Indeed, it was the science of right [scientia iuris], or, as even modern German
jurists call it, Rechtswissenschaft. And as a science, it called for a special kind of
analytical reasoning, which jurists recorded in the form of glosses,
commentaries, consilia, and treatises on specific points of law.68 This
understanding of the civil law as an autonomous science, insulated from the
vicissitudes of politics, helped to cultivate learned law as the exclusive domain of
its “priests,” the legal profession as a whole.69 But more important, it reinforced
the notion that certain topics or conceptual puzzles ought to be “depoliticized”
and properly treated by jurists as a matter of methodical scientific inquiry,
rather than as a matter of normative argumentation.
Page 17 of 31
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Language: Finnish
Kirj.
SISÄLLYS:
Miisu.
Kuin kihloissa.
"Kullervon" ero.
Raukka.
Pikku Aaro.
Muukalaista verta.
He olivat lapsia.
Junankulettaja.
Seitsemän kirjettä.
Elna.
Kylmä yö.
Rouvan paketti.
Kevätpäivä Penttisen talossa.
Eerikki.
Junnu Juntunen.
Maksettu asia.
Miisu.
Kova kuumuus rasitti Miisua, niin että hänellä oli paha elämä. Ei
sen tähden voinut syödäkään, ja imu ei riittänyt nälkäisille pennuille.
Eivätkä pennut itse osanneet vielä mitään hankkia. Söivät, kun
syötettiin, ja joivat, kun juotettiin. Sen olivat oppineet, että ruoka-
astialleen osasivat mennä. Vaan useasti siinä ei ollut mitään, ja
turhaan he sitä nuoleksivat. Niin kuin nytkin. Ja silloin he emoaan
ahdistamaan.
Miisu läksi kävelemään metsään päin. Vaan kun pikku sikjot juosta
tepersivät jälessä, otti Miisu kiivaita hyppyjä, ja niin sai pennut
itsestään haihdutetuiksi.
Siellä oli metsässä lintuja paljokin. Koko metsä oli lintujen laulua ja
viserrystä täynnä. Miisu ei siitä mitään välittänyt, jos ne ylhäällä
puissa visertivät, vaan kun kuului jostakin aivan läheltä puun oksalta
sirkutusta, silloin hän tarkisti huomiotaan, seisahtui ja katseli, oliko
sirkuttaja saavutettavissa.
Kun oli päässyt jotenkin lähelle, noin parin kolmen sylen päähän
linnusta, silloin vasta oikein alkoi tuo kissalle omituinen, kavalan
taidokas väijyminen. Ei niin matalaa mätästä, jonka taakse ei olisi
voinut lymytä. Niin lyyhistyneenä maata vasten hiihatti hän itseään
eteen päin kuin jalaton olisi ollut. Tarpeen mukaan sujuttausi hän
milloin hyvin hienoksi, pitkäksi loikareeksi mättäiden lomiin, milloin
taas vetäytyi kokoon pieneen sykkyrään. Ja silmät paloivat
lakkaamatta lintuun päin. Kun lintu oli päin, silloin hän kärsivällisesti
oli mahallaan aivan liikkumatonna eikä näyttänyt hengittävänkään.
Antoi kärpäsenkin aivan rauhassa purra korvansa sisustaa,
luimistihan vaan vähäsen kärsivätä ruumiin osaansa. Vaan kun
linnun silmä vähänkin vältti, teki hän taidokasta lähestymistään.
Nyt oli Miisulla kaksi lintua, kaksi paistia kahdelle pojalle, yksi
kummallekin. Ensi saamansa oli hän jo hampaillaan rutaissut
kuoliaaksi, ja nyt toinen hampaissa potki ja sirkutti ja räpytti siipiään
niin rajusti, että oli siinä hallitsemista. Vaan Miisu nurisi ja terävillä
hampaillaan ruhjoi senkin hengettömäksi.
Kuin kihloissa.
He näyttävät olevan kuin kihloissa, vaikka ovat olleet naimisissa jo
monta vuotta.
Kun tulen kotiini yöllä tai iltasella myöhään, näen aina himmeän
punertavan valon heidän makuuhuoneensa ikkunasta. Se on
yölampun valo. Jään aina siihen katsomaan. Ajattelen, mikä onni
tuolla asuu ja vallitsee, ja minusta tuntuu kuin hyvät hengettäret
olisivat siellä valvomassa ja vartioimassa heidän vuoteillaan. Ja
minulle itselleni tulee aina syvä kaiho ja kaipaus…