Constitution, exceptions and politics

(To Julian Carax)

In spite of ourselves, we are immersed in a latent conflict, forced into massive doses of controversy that rest their ever more solid foundations on self-satisfied ignorance.

No lessons, just a chat if you like, which he doesn't intend to have any coloration, but only the pleasure of not exhaustively exercising the dialectic of doubt; let us therefore leave St. Augustine to his unattainable desire to understand God, together with the equal impossibility of filling a pit with the sea poured out with a shell, and let us turn our gaze only to the most earthly considerations that sprouted in an autumn that was never so hot; let's examine the pensiero to get to evaluate the practice.

So let's start from the surface, the one that sees man as an integral part of the connective tissue of a society now more than ever attracted to thousands of substantial banalities; what escapes like water between your fingers is that, tied to the idea of ​​society, it remains the principle of the everyday life of a right pervasive and present both in the most elementary transactions, such as the purchase of a coffee, and in the often superficially claimed request of respect tout court of rights shaken like a fan on summer days; as you can even just feel the importance of principles such as those underlying a Constitution, if the prevailing interest is directed towards a reality where an unconscious joy of living find the panacea for all problems in pixel of a cell phone? Yet even a moment of reflection could surprise us in terms of ascertaining the effective relevance of concepts given as finite, and yet still useful for interpreting a very intricate reality.

The dynamics triggered by the pandemic have exposed the inconsistencies of a society incompatible with logic; a society that is discovering, at its expense, that particular issues are harbingers of lasting consequences.

Il century short Hobsbawm has not only given us a tormented twentieth century, but also the thought of H. Kelsen and C. Schmitt who, never before, net of their personal events, albeit philosophy of law, they present concrete concepts that are completely alien to impalpable evanescences; democracy, constitution, politics, sovereignty, states of emergency and exception, pass from a purely terminological condition to participate in an arduous debate for those who have preferred to take paths that, privileging unique fashionable thoughts, they do not require the costly merit of study and consistency.

Schmitt and Kelsen generate two parallel conceptual apparatuses but which, in their differences, bring in a nutshell effects that, especially now, it is impossible not to find; systems of thought which obviously do not enjoy the chrism of perfection, but which cannot fail to provide ideas for a clear awareness.

If Kelsen makes the choice to attribute an ideal primacy to the norm, to the attribution of power to the law, his theory can only lead to a nationalization of the law itself, where the control of the state is entrusted to a guardian which can only be a judge, and where certain phenomena, caught in theirs formalities, while producing strong consequences, such as the state of exception, they are not considered.

Kelsen's system, based on voluntary obedience to the laws, hides various intrinsic weaknesses, namely both the faculty granted to democracy to deny itself, because it is entrusted without any protection to the popular will, and of not making it possible to identify the effective holder of power; a power that is expressed in the labyrinth of the Deep State, where a geopolitics is preserved from time to time that can be interpreted according to the actors, and where the concept of country often dissolves.

The relevance of the fundamental norm theorized first by Kant and then by Kelsen and having value only if related to a statutory and effective Constitution because blank authorizing other regulations; nevertheless, assuming the right as an empty box justifies totalitarianism, as happened in Germany, where the insecurity and legal formalism of the Weimar constitutional system provided a democratic guise for the Nazi rise to power; in the same way, the Kelsenian system was unable to avoid the crisis of the various liberal systems before and after constitutional systems, characterized by laws resulting from mediations which, as relative, do not exclude the existence of values ​​that are themselves contrary to them: the quality of a democracy it depends on the quality of the compromises.

For Kelsen, God is the basic norm; for Schmitt, God, the absolute creator, divides good from evil; for Kelsen everything is the norm, for Schmitt it is necessary to find distinctions, differences, inequalities. If Kelsen asks what law is, Schmitt asks what politics is, he makes a new one secular theology, it brings back to Weber's thought, adheres to a conception of law inclusive of political and sociological elements; the sovereign, anticipating legality, it marks the primacy of the political order.

There are two testimonies proving the interest aroused by Schmitt: Hannah Arendt1 which reports, albeit in a symmetrically opposite way, his own themes, as can be seen from the notebooks and notes, as if to indicate the depth of Schmitt's thought; Xie Libin and Haig Patapan2, who in the issue 1/2020 of the International Journal of Constitutional Law, wrote that "China is fascinated by Schmitt".

The law is decision, the fundamental rule is of a political nature: the custody of the Constitution, a means by which the abstraction of the state enters in reality3, is entrusted to a politician, and the primacy of politics is highlighted in the decision of the state of exception as evidence of the inherent parliamentary weakness and an insecure certainty of the law; not by chance, according to Schmitt, to guarantee the security of the State, it is necessary both to ask oneself within what limits it is possible to proceed with the suspension of the Constitution, which cannot be neutral towards the political values ​​it represents, and above all who has the right to decide it, forget the temporary nature of the suspensive measures which, if they were not, would disrupt the very existence of the rule of law.

There is no doubt that it is the lack of ethics that pushes the politician to make the exception the rule; it is no coincidence that Schmitt, with regard to the state of exception, provides an evaluation which is still relevant in the essay The dictatorship (1921). Never before does it therefore seem necessary to be able to count on a real one guardian of the Constitution, which finds meaning in the independence provided either by a parliamentary elected person, which however becomes an expression of the political coalition at the moment of the majority, or, as suggested by Schmitt, by a politician chosen in a democratic-plebiscite way by the electoral body, and with skills aimed at "to generate a party neutral position, due to its immediate connection with the state totality".

Of Figure guardian it therefore remains within the sphere of a neutral political power, which operates together and not above the other Powers, in order to be guardian and not master of the Constitution, effective defender and not a side figure; the role of the Constitutional Court, in this sense, can be excluded, both because there is a concrete possibility of introducing changes to the Constitution, for which the Court is in the same way as the ordinary judge with respect to the legislator, and because it is suitable to intervene only against violations of constitutional provisions.

What is relevant is the distinction between a state of emergency4 and state of exception, even if from a legal point of view there is no logical basis for it, since the law cannot legitimize its subversion; the emergency is conservative, the exception is innovative, but nevertheless with identical effects, since both result in the same interruption of the constitutional guarantees.

It is impossible to legally review the decision, given that the right it comes only when it is necessary to formalize the agreement in and especially with the parliament; in Italy the problem arose when an analysis of the source of the emergency powers of the Prime Minister was carried out which, during the pandemic, referred to the Civil Protection Code, which allowed for resolutions without approval parliamentary.

The problem was that the distinction between a state of emergency and a state of exception has been completely lost, and the government has resorted to emergency powers, or necessary, identified by the aforementioned code, transforming them into full, or powers that have distorted the role and function of the known Dpcm, anticipators of a new balance between executive and legislative, functional balance to change the state of emergency into a state of exception.

In fact, the parliamentary institutions, losing the opportunity to reform the legislation on the subject, have allowed both the paradoxical normalization of the exceptional, and the invocation of the precautionary principle to obtain not emergency powers, but the prohibited special powers. Much more wisely, it would have been opportune to avoid the consolidation of a permanent state of emergency, proceeding rather according to the usual ordinary legislative ways.

Law is a means, and as such it is functional in relation to the abilities of regulators; of course, setting it aside only because those who should know how to do it, in reality, are unaware of the fundamentals, especially if it itself is the result of political compromises, is ridiculous and unacceptable. It should also be remembered that it is inappropriate to limit constitutional freedoms by means of administrative acts, clumsily opposing the right to health and personal freedoms and ignoring the principle of the reservation of law.5, given that the Dpcm, equal to the standardization of war, they are removed from both the parliamentary political control and the legitimacy of the Council; all this complex of acts leads to one power customization of an authoritarian nature that refers to what Schmitt stated, so "sovereign is who decides on the state of exception”, Which has a meaning similar to that of the miracle for theology, since unlimited sovereignty involves the denial of the rule of law.

The conclusions are manifold; first of all it is necessary to take note of the apparent banality according to which the juridification of politics is impossible, given that law and politics remain in an unsolvable tension; secondly, it must be borne in mind that it is equally possible neither to dismiss Kelsen as a pure formalist of law, nor Schmitt for his brief contact with Nazism which, however, in its crudeness, failed to understand it.

1 She was a German naturalized American political scientist, philosopher and historian following the withdrawal of German citizenship in 1937.

2 Xie Libin, professor at the Sino-German Institute of Law at the China University of Political Science and Law. Haig Patapan Director of the Center for Governance and Public Policy, as well as Professor at the School of Government and International Relations, Griffith University.

3 Hegel

4 A de facto condition for which, firm constitutional guarantees and the sovereignty of Parliament, the government can resort to "shortcuts" to organize aid

5 Inserted in the Constitution, it provides that the discipline of a given subject is regulated by primary law and not by secondary sources

Photo: Presidency of the Council of Ministers