Normativism versus Realism: Three Contemporary Cases, Luiss Presentation

Normativism vs. Realism: Three Contemporary Cases

Luiss Libera Università Internazionale degli Studi Sociali Guido Carli NORMATIVISM v. REALISM Three Contemporary Cases Prof. Filiberto E. Brozzetti LUISSWhen and how is a new legal order established?

Normativism and Institutionalism

Normativism

• . law as a cultural fact: from human volition objectified in a set of products (the norms = linguistic statements with a certain meaning)
• law is a linguistic phenomenon aimed at organizing behavior

Institutionalism

• law is an organized social fact that arises and transforms throughout history (not just a linguistic rule that qualifies and organizes behaviors)
• law makes use of rules, but cannot be reduced to them
• . it is the very life of a community which, organizing itself-even spontaneously-becomes an "order" and establishes norms to give social actions identity and regularity LUISS

The Case of Catalonia

2The Case of Catalonia k · Spanish Regionalism · organic law n. 6/2006: new Statute of Regional Autonomy, alsp approved by the Spanish Parliament and a referendum · the will of the sovereign? · the people is the sovereign / but according to the forms and limits of the Constitution . Kelsen: the sovereign is such because it is qualified by a norm that establishes and grants it power · constituent power of the sovereign people v. Constitution · ruling n. 31 del 28 giugno 2010 of the Spanish Constitutional Tribunal: invalid since it mines the very identity of the Spanish nation · meaning of «nation» and «citizenship») · validity of the legal source LUISSThe Case of Catalonia . Santi Romano: the legal order arises from facts, from the living history of a community, from the spontaneous shaping of behaviors into an institutional form. Law is not a norm that regulates facts, but a fact that asserts itself through its normative force · plurality of legal orders: the State is just one among others · pluralism · possibility of conflict between orders . if the sovereign will may be checked by a constitutional tribunal, «the Leviathan is in chains» · impossible normativist validity the new revolutionary order · recognition: Hart v. Kelsen · order and exception · who is entitled of the supreme check of legitimacy?

The Case of Chile

LUISSThe Case of Chile · 9/11 1973 · from Allende to Pinochet · dictadura or dictablanda? · the cabinet of the «Chicago Boys» · suspension of the Constitution of 1925 LUISS

Chile's 1980 Constitution and Transition

5The Case of Chile · Constitution of 1980 · Jaime Guzman · liberism · subsidiarity of the State · corporativism · christan-conservatism · transition during the '90s · amendments · Chapter XV LUISS

Chile's Social Outburst and Constitutional Process

6The Case of Chile · 2019 «social outburst» · lack of public policies · socio-economic inequalities · high cost of living · declaration of the state of emergency · «nueva agenda social» · agreement between the majority of the political parties · civic consultation (20% - 92.2%) · plebiscite 2020 (51% - 78.7%) LUISS

Chile's Constitutional Convention and Rejection

7The Case of Chile · Constitutional Convention: 155 members · left-wing majority · 8 Mapuches · the President · issues · social rights and social justice · political system · economical system · environment and technological development LUISS

CONVENCIÓN CONSTITUCIONAL 8The Case of Chile · September 4, 2022: national plebiscite rejects the new project ofConstitution (62% majority) · too radical · not representative · skepticism for · «Plurinational and Intercultural State» . «pre-existing indigenous peoples and nations, as well as their members, are entitled to the full exercise of their collective and individual rights by virtue of their self-determination» 60 70 >80% Reject Approve LUISS

Chile's Subsequent Constitutional Attempts

9The Case of Chile 60 70 x80% A favor En contra · Agreement for Chile . 50 directly-elected constitutional advisors will draft the constitution based on a preliminary draft prepared by a commission of 24 experts appointed by Congress; additionally, a 14-member body appointed by Congress will ensure that the proposed text aligns with the 12 institutional and fundamental principles outlined in the agreement . Election of the Constitutional Council and appointment of the Expert Commission . December 17, 2023: referendum rejects a newer project of Constitution (55% majority) · no new attempts LUISS

The Case of Israel

Israel's Basic Laws and Lack of Codified Constitution

10The Case of Israel · Basic Laws of Israel . 14 quasi-constitutional laws (some of which can only be changed by a supermajority vote in the Knesset, with varying requirements for different Basic Laws and sections) adopted between 1958 and 2018 · formation and role of the principal institutions of the State · relations between the State's authorities · protection of the country's civil rights (together with common law enacted by the Supreme Court) · why not a codified Constitution? · inability of different groups in Israeli society to agree on the purpose of the state, on the state's identity, and on a long-term vision . Ben Gurion objection against a formal written constitution that would allow the Israeli Supreme Court to overrule Government's policies LUISS

Judicial Review in Israel

11The Case of Israel 0) 50 משפט בישראל · Judicial Review · not before 1992 . in 1992-1995 (Constitutional Revolution) the Knesset passed the first two Basic Laws that related to human rights: "Basic Law: Human Dignity and Liberty" and "Basic Law: Freedom of Occupation> · limitation clauses prohibiting the violation of the rights they enumerate, «except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required» . substantive and procedural entrenchment against amendment: previously, the Knesset could repeal even Basic Laws simply through passing conflicting statutes, by virtue of parliamentary sovereignty · giving the Supreme Court the authority to disqualify any law contradicting them, as well as protection from Emergency Regulations LUISS

Proposed Judicial System Changes in Israel

12The Case of Israel · 2018-2022 political instability · January 2023: proposal of five changes to the judicial system and the balance of powers 1. Judicial selection - seeks to change the composition of the committee which is responsible for recommending the appointment of judges, giving a majority of votes to the government and thus giving the government control over the selection and dismissal of all judges, including of the Supreme Court 2. Judicial review - seeks to curb judicial review over legislation, including by explicitly legislating against the Supreme Court's exercise of judicial review of Basic Laws, and requiring a full bench of Supreme Court justices to preside over any case in which the legality of regular legislation passed by the Knesset is evaluated, and 80% of them to rule for invalidation of such legislation 3. Knesset override - seeks to allow the Knesset to overrule a decision by the Supreme Court on the legality of legislation, where the Knesset votes with a majority (of 61, out of 120 Knesset members) against the court decision 4. Legal advisers to government ministries - seeks to reclassify ministry legal advisers from independent authorities to politically selected counsel whose opinions are explicitly non-binding upon the government 5. Reasonableness - seeks to preclude the courts from hearing petitions or appeals against governmental and administrative decisions on the basis that such decisions are 'unreasonable' · protests • notices of the Directors of the security services

Topics at Stake

13Topics at Stake · facts v. forms · legitimacy v. legality · on sovereignty · on the guardian of the constitution · constituent power v. constituted powers · nòmos v. grundnorm LUISS

Further Considerations

14Moreover ... · legitimacy to fix the time · authenticity of the Constitution · demos v. ethnos · representativity of the Constitution · majoritarian principle · clash · classes · cultures · generations LUISS

Historical Perspectives on Constitutional Review

15Moreover French Constitution of 1793 «28. A people has always the right to review, to reform, and to alter its constitution. One generation cannot subject to its law the future generations.» To James Madison from Thomas Jefferson, 6 September 1789 «On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. But persons & property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course, with those who gave them being. This could preserve that being till it ceased to be itself, & no longer. Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right. It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly & without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general Tinterpos of theinmanstituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.»