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Page 1: Norberto Bobbio - Democracy and Dictatorship - The Nature and Limits of State Power
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Democracy and Dictatorship

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Democracy andDictatorship

The Nature and Limits of StatePower

Norberto Bobbio

Translated by Peter Kennealy

University of Minnesota Press, Minneapolis

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English translationCopyright © 1989 Polity Press

First published as Stato, governo, societa: Per una teoria generatedella politica. Copyright © 1978, 1980, 1981, and, in thecollection, 1985 by Giulio Einaudi editore s.p.a., Torino

All rights reserved. No part of this publicationmay be reproduced, stored in a retrieval system,or transmitted, in any form or by any means,electronic, mechanical, photocopying, recording orotherwise, without the prior written permission ofthe publisher.

Published by the University of Minnesota Press2037 University Avenue Southeast, Minneapolis MN 55414.

Printed in Great Britain by TJ Press Ltd, Padstow

Library of Congress Catalog Card Number 89-051302

The University of Minnesotais an equal-opportunityeducator and employer.

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Contents

Introduction: Democracy and the Decline of theLeft by John Keane viiPreface xxix

1 The Great Dichotomy: Public/Private 1A dichotomous pair 1Corresponding dichotomies 3The evaluative use of the great dichotomy 9The second meaning of the dichotomy 17

2 Civil Society 22The various meanings 22The Marxian interpretation 27The Hegelian system 30The natural law tradition 34Civil society as civilized society 37The current debate 39

3 State, Power and Government 44Towards the study of the state 44The name and the thing 57The state and power 69The foundation of power 81State and law 89The forms of government 100

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vi Contents

Forms of stateThe end of the state

4 Democracy and DictatorshipDemocracy in the theory of governmental formsThe descriptive useThe evaluative useThe historical useModern democracyRepresentative democracy and direct democracyPolitical democracy and social democracyFormal democracy and substantive democracyAncient dictatorshipModern dictatorshipRevolutionary dictatorship

BibliographyIndex

111125

133133135138145149152155157158161163

167172

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Introduction: Democracy andthe Decline of the Left

by John Keane

THE DECLINE OF THE LEFT

What does it mean to be on the Left today? Few questionsare so theoretically and politically significant - and soutterly perplexing. Only the origins of the term 'Left' seemuncontroversial.

It is well known that the idea of the Left is a child ofthe French Revolution - a metaphorical extension of theseating plan of the 1789 French Estates General, whichbecame divided by the heated debates on the royal veto,with the 'third Estate' sitting to the King's left and thenobility to his right. It is also common knowledge that theidea of the Left played a critical role in nineteenth-centurypolitics. It heightened the perception of the body politic asa broken continuum, as permanently divided by competingattitudes towards social change and political order. Inopposition to the foot-dragging conservatism of the Right,with its haughty belief in the need for strict order and socialcontrol, Leftists were progressives. They optimisticallyembraced a faith in science, rationality and industry. Theyproclaimed their love of liberty and equality, and appealedto the essential goodness and sociability of human nature.The Left sympathized with the downtrodden. It despised therich and powerful. It denounced parliamentary democracy as

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a bourgeois institution. It battled for a world freed fromthe evils of capitalism, material scarcity and unhappiness.

Since the First World War, this classical image of theLeft has been crumbling slowly. The Left has become morecautious about modernity. It is less magnetized by themyths of scientific-technical progress and, especially withinits green fringes, it has become openly hostile to industrial-ism; by contrast, it is the Right, from Mussolini toThatcher, which has abandoned its former nostalgia andcircumspection, and pressed home revolutionary or reform-ist policies based on a deep faith in scientific and economicmodernization. In the same period, the levelling image ofthe Left has been damaged badly by its association withthe cruel Stalinist programme of destroying liberty, equalityand solidarity by means of cunning, violence, blood andterror - in Spain, in the Moscow trials, the Hitler-Stalinpact, Katyn and the military invasions of Hungary andCzechoslovakia. In consequence, the Left has becomewidely identified with the mastery of the skills of the lionand the fox, with the passion for political power and thewholesale politicization of personal and social life.

The Left's founding image of international class solidarityand opposition to state violence has also taken a severebeating. The rise of national communist regimes (as inYugoslavia, China and Vietnam) has demonstrated thatLeftism is not synonymous with selfless internationalism.Severe tensions among these regimes - the Maoist denunci-ation of Soviet 'revisionism' as a right-wing betrayal ofcommunism is a dramatic case in point - and the morerecent outbreak of war between these states (as in Indochina)have served to reinforce the image of the Left as a purveyorof self-interested power politics - as a mirror image of itsright-wing opponents.

In recent years, the meaning of the term 'Left' has falleninto deeper disarray, especially in the countries of the West.It has become a muddled label which often obscures morethan it clarifies. The appearance of the New Left at theend of the 1950s is one source of this trend. The willingness

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Introduction by John Keane ix

of many Left governments and parties after 1945 to embracethe 'mixed economy' and their more recent fascination withmarket mechanisms, the profit motive and small businesshas further blurred its distinctively 'left' qualities. Mattershave been worsened by the confused reaction of tradeunions, once considered the 'natural' heartland of Leftsupport, to the failure of Keynesian reflationary policies.This confusion has been multiplied by deindustrialization,the growth of a new underclass and the emergence of more'flexible' technologies, production methods and consumerstyles. The western Left's loss of direction can also be tracedto its nostalgic defence of centralized state bureaucracy andoutdated techniques of management and planning. Theconventional belief on the Left that state planning andfixing of markets plus selective nationalization plus spendingmoney equals socialism has come unstuck. And theconsequent tendency of some parts of the Left to displaymore pride in the past than faith in the future has beenexacerbated by its intellectual torpor - its bad habit ofsubmitting to the hypnotic powers of the Right, of repeatingcliches and making politics through conventional labels.

The writings of Norberto Bobbio, Italy's leading politicalthinker, are an important reaction to this deep impasse ofthe Left. His work is pathbreaking because he sees thedemand for more democracy as the key to a successfulredefinition of the Left. What does democracy mean in thiscontext? Bobbio's unusual 'liberal socialist' understandingof the term has been shaped by his early experiences inthe liberal intellectual milieu of Turin in the 1930s, his deepinvolvement in the anti-Fascist Resistance, his subsequentintellectual and journalistic dialogues with the Italian Left,especially the PCI, and his current role as Life Senatorand independent franc-tireur within Italian parliamentarypolitics.1 Against the backdrop of such experiences, Bobbioinsists - in the face of its twentieth-century vulgarization -that the concept of democracy is not elastic. It is not aword which can be made to mean whatever we choose itto mean. Democracy is understood by him as a system of

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procedural rules which specify who is authorized to makecollective decisions and through which procedures suchdecisions are to be made. In contrast to all forms ofheteronomous government, democracy comprises pro-cedures for arriving at collective decisions in a way whichsecures the fullest possible participation of interested parties.At a minimum, according to Bobbio, democratic proceduresinclude equal and universal adult suffrage; majority ruleand guarantees of minority rights, which ensure thatcollective decisions are approved by a substantial numberof those expected to make them; the rule of law; andconstitutional guarantees of freedom of assembly andexpression and other liberties, which help guarantee thatthose expected to decide or to elect those who decide canchoose among real alternatives.

Democracy in this sense is a method of preventing thosewho govern from permanently appropriating power for theirown ends. Those exercising power are subject to procedureswhich enable others to question, rotate or sack them. Thedistribution of power in democratic systems tends to reflectthe outcomes of political contests framed by permanentdecision-making rules. Conflict and compromise are there-fore institutionalized, and power becomes secular and'disembodied'. It is not permanently consubstantial withany particular individual or group - a monarch, for instance- but is exercised instead by flesh-and-blood mortals whoare subject to removal and are accountable to others, inaccordance with the rules of the democratic game.

Bobbio argues that in general the present-day Left haseither muddled or no clear ideas about the importance andnature of the rules of democracy, and in particular whetherto reform or replace them. This leads him to challengeseveral standard Leftist misconceptions about democracy.For example, Bobbio is adamant that the historical emerg-ence of liberal democratic institutions, such as free elections,competitive party systems and written constitutions, rep-resented a great leap forward in the fight for more

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democracy. Liberal democratic institutions are not necess-arily a device for protecting the class interests of thebourgeoisie. Liberal democracy (to paraphrase Lenin) isnot the best political shell for capitalism. Liberal democraticinstitutions are in fact an indispensable bulwark against theunending arrogance of political actors, a vital mechanismfor limiting the scope and haughtiness of state power. Apost-liberal democracy is thinkable and desirable, but anon-liberal democracy is a contradiction in terms and infact.

Bobbio is also adamant that the friends of democracymust reject the bad 'New Left' habit of calling for thedisappearance of all organization and its replacement byso-called spontaneous action. A democratic polity withoutprocedural rules is not only a contradiction in terms. It isalso a recipe for arbitrary decision-making and misgovern-ment. The friends of democracy must also recognize thatthe full replacement of representative forms of democracyby participatory, direct democracy - which require (in thecase of decisions affecting the whole polity) the publicassembly of millions of citizens - is technically impossiblein large-scale, complex societies. Direct democracy, theparticipation of citizens in the agora, is suited only to smallstates and organizatons in which 'the people find it easy tomeet and in which every citizen can easily get to know allthe others' (Rousseau). More controversially, Bobbio arguesthat the attempt to foist the principle of direct democracyon to representative institutions - for instance, applying abinding mandate to elected parliamentary 'delegates' - isundesirable, since it contradicts the principle, indispensablein any parliamentary democracy, that representatives rep-resent general rather than narrowly sectional interests andtherefore require some powers to negotiate freely and toact independently of those whom they represent.

Bobbio emphasizes the important point that directdemocracy thrives upon consensual decision-making, andthat it therefore works best when there are a limited numberof alternative policy choices - nuclear power or no nuclear

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xii Introduction by John Keane

power, peace or war, or the legalization or criminalizationof abortion. Otherwise, the trust, patience and mutualsupport that are required within self-governing circles areoften overburdened with multiple and conflicting points ofview, the tensions among which cannot be resolved easilywithout the presence of intermediaries - that is, withoutinstitutions of delegated or representative democracy which'filter out' and simplify the kaleidoscope of conflictingopinions.

This is not to say that representative, parliamentarydemocracy is the alpha and omega of political forms.Bobbio recognizes, correctly, that the representative systemis constrained and limited by accumulations of social powerwithin civil society. The vast majority of citizens has nosay in major decisions concerning economic investment,production and growth. Churches, trade unions and manyother institutions of civil society remain insufficientlydemocratic. Exactly how more democracy within the sphereof civil society might be achieved in practice is unclear fromBobbie's account. He refers only to the need to develop,broaden and reinforce all the institutions from whichmodern democracy was born. Priority should be given, inhis view, to the task of supplementing political democracywith 'social democracy' - extending the process of democra-tization from the political sphere (where individuals areregarded as citizens) to the civil sphere, where individualsare regarded variously as men and women, entrepreneursand workers, teachers and students, producers and con-sumers. Struggles over where citizens can vote should begiven as much priority as the struggles in the nineteenthand early twentieth centuries over who can vote.

Bobbio emphasizes that in practice this refinement andextension of democracy - broadening the domains wherecitizens can vote - does not require all individuals to playthe role of fulltime political animals. Too much democracycan kill off democracy. The wholesale politicization of life,the attempt to create a society of fulltime, omnicompetentcitizens, is in fact antithetical to democracy. It would

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produce hellish and unworkable results - everything wouldbe defined as political, private life would be swallowed upby the public sphere, human beings would be transformed,perhaps forcibly, into 'total citizens', despite the fact thatthe growing diversification and complexity of modernsocieties prevents individual citizens from being in the sameplace at the same time to make decisions which affect theirlives directly or indirectly. Free time would become a thingof the past. The life of the fulltime, omnicompetent citizenwould be a nightmare of interminable meetings, endlessnegotiations and late-night telephone calls. Moreover,according to Bobbio, Europeans are heirs of an historicaltradition in which state power is supposed to be limited infavour of non-state spheres, such as religious communities,households, centres of learning and research, and markets.

This historically felt need to limit the scope and powerof the state is a central and distinctive feature of Bobbio'sattempt to redefine the meaning of Left politics. He viewsstate power as necessary and yet corruptible and dangerous,and as therefore in need of preventive measures andeffective defences, such as a plurality of social forces andorganizations which run parallel to the state. In Bobbio'sview, the enormous problem which faces the Left is toknow how to create through its own agency a state apparatuswhich is efficient without being oppressive or, in otherwords, which can function effectively as the agent of civilsociety without at the same time lapsing into a dictatorship.

THE GREAT DICHOTOMIES

This volume of connected essays - a small encyclopaediaof key political terms - is jam-packed with insights whichbear on this problem. Consistent with Bobbio's dislike ofobscure jargon and emotive slogans - his intellectualtemperament is consistently sceptical and democratic andimbued with a sense of the complexity of things - theseessays get down to the serious business of carefully analysing

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classical, medieval and modern traditions of reflection onthe scope and limits of political action. The essays mightbe described as an exercise in historical semantics - as anattempt to reconstruct the changing meaning through timeof certain political keywords. This exercise is evidentlyinfinite in scope. There are always new texts to be readand further illustrations to be developed, and both taskswould in turn modify or amplify the conclusions alreadyreached. Bobbio meets this possible objection by concentrat-ing on a number of key political terms and their opposites- such as the public and the private, civil society and thestate, democracy and dictatorship - which hold the key toresolving the problem of how to limit and control theexercise of state power. His choice of certain pairs ofconcepts ('great dichotomies' Bobbio calls them) revealshis deep attachment to the tradition of modern liberalconstitutionalism, but it is no less unusual and stimulatingfor that. It has the advantage of illuminating the origins,shifting meanings and normative implications of each termby comparing it with its partner. In this way, the structureof any given political .system or historical era can be betterunderstood by knowing what has been said or written aboutit. For example, the differentia specifica of modern timesand its patterns of political thought when compared to itsclassical and medieval counterparts can be better grasped,and the rough and narrow paths of democratic theory canbe better negotiated.

The essays assembled in this volume are invaluable guidesin this adventure. To begin with, Bobbio examines thepublic/private dichotomy. This contrast first entered thehistory of western political thought for the purpose ofdistinguishing between what belongs to a group as acollectivity and what belongs to its single members or lessergroupings like households and enterprises. The public/private dichotomy in turn harbours other important distinc-tions, which Bobbio teases out with skill and patience: forexample, the distinction between associations of equals (asin the polls) and communities of unequals (as in the oikos);

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Introduction by John Keane xv

between the public law which is imposed by politicalauthority and the private law which regulates the interactionof private persons in such matters as property, inheritanceand marriage; and the distinction between the principles ofdistributive justice, which guide public authority in thedistribution of honours and duties, and the principles ofcommutative justice, which cover buying and selling,labour contracts and other private individuals and groupsconsidered to be of equal value.

Bobbio points out that the original distinction betweenthe public and the private was ordered hierarchically, inthat the public was affirmed as supreme in relation to theperipheral powers of the private. An example is the classicdefinition of Cicero of the res publica as an aggregation ofpeople bonded together by the utilitas communione. Thisprimacy of the public over the private was challengedsuccessively, for example, by the diffusion of Roman law,whose principal institutions are property, contracts and thefamily. This trend was reinforced, ironically, by thedevelopment (by Bartolo di Sassoferrato, Jean Bodin andothers) of a systematic body of public law during the firstphases of development of the modern state. This hastenedthe questioning of the primacy of the public over the privateby triggering disputes about whether the people haveforever conceded or only temporarily entrusted power tothe sovereign. During the seventeenth and eighteenthcenturies the opposition of the private sphere to the publicunderwent a thorough 'modernization'. Locke and othersargued for the inviolability of property in the lives, libertiesand other natural rights of individuals. Even theorists ofabsolutism like Hobbes considered as unjust the sovereignwho violated the property of his or her subjects. And priorto the French Revolution the exponents of political economyradically extended this liberal theory of the primacy of theprivate over the public. They emphasized the fundamentaldifference between the sphere of economic relations (under-stood as an ensemble of relationships among formally equalindividuals who are in fact rendered unequal by the division

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of labour) and the sphere of political institutions - adistinction which powerfully reinforced the defence of civilsociety against the state during that period.

The 'great dichotomy' between civil society and the statefeatures prominently in this volume. In today's politicalvocabulary, Bobbio points out, civil society refers to thesphere of social relations - households, communicationsmedia, markets, churches, voluntary organizations andsocial movements - which are not controlled directly bystate institutions. It is widely understood as a definingcharacteristic of modern life. Civil society and the state areseen as two necessarily separate but contiguous andinterdependent aspects of contemporary life. Bobbioemphasizes the novelty of this viewpoint. Well into theeighteenth century, European political thinkers understoodcivil society as a synonym for a type of political associationwhose members are subject to laws which ensure peacefulorder and good government. This meaning of the term istraceable through Cicero's idea of societas civilis to theAristotelean view that civil society (koionia politike) is thatsociety, the polis, which contains and governs all others.According to Bobbio, this old custom of treating civilsociety as coterminous with the state was always underpressure from attempts, recurrent in Christian thought, todistinguish the area of competence of the civil powers fromthe domain of religious power. It was challenged directlyfor the first time by German writers (especially Marx andHegel). For Hegel civil society is a moment in the processof the formation and completion of the State. It includesthe market economy, social classes, corporations, andinstitutions whose transactions are regulated by civil lawand, as such, are not directly dependent upon the politicalstate itself. Marx's interpretation of Hegel's concept of civilsociety is by contrast reductive and ultimately distorted, inBobbio's view. Marx's burgerliche Gesellschaft referred tosociety in the sense of a class society riddled with bourgeoispractices and assumptions. It is a product of an historicalsubject, the bourgeoisie, which legitimated its struggles

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against the absolutist state in the language of the rights ofman and citizen, which in reality serves only the particularinterests of the bourgeoisie.

Bobbie's treatment of the original and subsequentaccounts of modern civil society - including that of Gramsci- arguably places too much emphasis on the German caseand neglects the reticence of German thinkers about itsdemocratic implications.2 Bobbio nevertheless correctlyunderscores the wide range of conflicting meanings of theexpression 'civil society' and its counterpart, the state.Bobbio shows that state institutions have often been viewedfrom a variety of standpoints. They can be treated as anaspect of the history of institutions or treated in terms ofthe history of political ideas or of normative politicalphilosophy. The theme of the state can also be approachedthrough the distinction between sociological and legaldoctrines (a distinction emphasized in Georg Jellinek'sGeneral Doctrine of the State (Allgemeine Staatslehre) 1910);that is, the state can be viewed either as primarily a legallyproduced and legally governed entity or as a form oforganization which cannot be dissociated from the ensembleof underlying social relations which condition or determineits functioning.

The historical appearance of the idea of the state in itsmodern form is attributed by Bobbio to such works asMachiavelli's Prince and Hobbes's Leviathan, where thestate is understood as the supreme institutionalized power- the 'machine state' - that can be exercised over theinhabitants of a given territory. The state is defined as thebearer of the summa potestas; whoever has the exclusivepower or right to use force on a given territory is consideredsovereign. Whether this idea of the state - in contrast tothe idea of the Greek polis and the Roman res publica -was entirely novel is a matter of deep controversy. Accordingto Bobbio, some writers - Max Weber is among the mostimportant - see the reality of the modern state, with itsmonopoly of the means of violence, administration andtaxation, as unprecedented. Other writers - Machiavelli's

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xviii Introduction by John Keane

close reading of Roman history in search of politicalexamples applicable to the states of his time is an example- have been inclined to identify a measure of continuitybetween the systems of the ancient, medieval and modernworlds.

Theories of the state have also been marked by bittercontroversies about the appropriate relationship betweensovereign and subjects, rulers and ruled, the state and itscitizens. This relationship has been defined by most politicalthinkers as a relationship between superiors and inferiors.The history of political thought, Bobbio's analysis shows,has been mainly a history written from above. The dominanttradition that runs from Plato's Statesman and Xenophon'sCyropaedia to Hobbes's Leviathan and Schmitt's DieDiktatur has represented political power from the standpointof the rulers. It has sought to justify the power-holders'right to command and the subjects' duty to obey bydefending various principles of legitimacy. These includethe authority of God; the will of the people; nature (as anoriginal force, kratos, or as the law of reason or modernnatural law); appeals to history; or, as in legal positivism,references to the fact that law is made and enforced byauthorities appointed by the political system itself. Thisdominant tradition has come under fire increasingly inmodern times. The entitlements of the governed - the'hidden side of the moon' of western political thought inBobbio's words - have come ever more sharply in focus.The natural rights of the individual; the liberty, wealth andhappiness of citizens; the right of resistance to unjust laws;the separation of powers; the rule of law; office-holdingand law-making subject to time limits: these and otherprinciples have been invoked in opposition to state-centredtheories of politics.. Such principles are seen to existindependently of political power, which is required both torespect and to protect them. The individual is not seen tobe destined to serve the state. Rather, the state must servethe individual so that, as Spinoza put it, even sovereigns

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who can do anything they want are forced in practice torecognize that they cannot make a table eat grass.

The changing fortunes of the theory of dictatorship,analysed in the last essay in this volume, is an importantexample of the way in which the entitlements of thegoverned becomes an ever more prominent theme inmodern political thought. From ancient to early modernthinkers (up to Rousseau, Babeuf and Buonarrotti) theinstitution of dictatorship was distinguished by its excep-tional and temporary character. 'Dictator' was originallythe name of the Roman magistrate to whom extraordinarypowers were legitimately given in times of war or domesticrevolt. Bobbio points out that the idea that dictatorship isrequired periodically to stabilize an existing order comesunder heavy fire in modern times. In this era of greatrevolutionary upheavals, the concept of dictatorship isextended to include regimes which aim to change the world,to smash the old order, and to establish a brand newregime. The modern idea of dictatorship - Buonarrotti'scommittee of 'wise and enlightened' men who boldly guidethe revolution is an example - is further distinguished fromits classical counterpart by the insistence that not only thepowers of the executive but all state functions should bemobilized in support of dictatorship. During the nineteenthcentury, the originally positive connotations of the termdictatorship were also dissolved. Marx, Engels and othersconsidered every state to be dictatorial. Dictatorship wasdenounced as 'domination', as a necessary and enduringfeature of the exercise of all forms of political power.According to Bobbio, this shift away from a positive to anegative definition of dictatorship is even more markedduring the twentieth century. From the time of the fierydebates about the nature of the Bolshevik and fascistregimes, dictatorship and democracy are seen to beantithetical forms of government. Dictatorship is widelyregarded with suspicion or disdain. It comes to mean allundemocratic ways of wielding power.

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Although Bobbio notes - approvingly - that democracyis today still generally reckoned to be preferable todictatorship, he is not starry-eyed about its merits andadvantages. Certainly, he considers democracy the chiefantidote of dictatorship and violent politics, which arepotentially inherent in the operation of all modern states.In the final analysis, these states rest on a foundation ofarmed force. This means not only that the danger of warand the militarization of civil society is omnipresent in thefield of inter-state relations, but also that the politicalleaders of each nation-state continually have access to itsirreducibly violent potential. Whenever they are challengedor wish to accumulate further power, political leaders canresort to institutions such as the police and the military,which are deeply antithetical to democracy because theythrive on secrecy, cunning, enforced unanimity and, ulti-mately, the shout to arms and the crash of hobnailed bootson the pavement.

By contrast, democratic procedures are based on non-violent, open negotiations and revocable compromises, andfor this reason Bobbio considers them more 'civilized'. Yethis enthusiasm for democracy is controlled. It does nottreat democracy as a synonym for the 'good life' (Lipset).A unique feature of Bobbio's defence of democracy is itshonest concern with the limits of democracy. He emphasizesseveral of these limits. While the democratic method istreated as a precious and vital human invention, he insiststhat it is not always and everywhere a viable mode ofdecision-making. Bobbio does not repeat the oldest (andold hat) arguments against democracy, for instance thatdemocracy always degenerates into lawlessness and licence,so that the father fears his son and 'the master fears andflatters his pupils and the pupils laugh at their masters andteachers' (Plato). Bobbio instead illustrates his thesis aboutthe limits of democracy with reference to periods of crisis,such as war, violent upheaval and domestic 'states ofemergency', in which democratic rules of the game rarelyapply. (Whether they can or should be made to apply is a

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different problem, left untreated by Bobbio.) In suchperiods, social and political outcomes are determined byself-interested calculation and bloody struggles for powerover others. The basic rules of democracy seem to be anunaffordable luxury.

Bobbio also sees the democratic method to be threatenedby a number of irreversible historical trends. For example,the extension of the suffrage and the growth of socialdemands on the liberal democratic state have forced it toexpand its functions and services and - the Weberian rootsof Bobbio's argument are here strongly evident - toadminister these services through a constantly expandingbureaucratic apparatus which is structured hierarchicallyand not democratically. Bobbio further claims that thenumber of problems requiring technical expertise andprofessional solutions is rising, and that this reduces theapplicability of the democratic principle that everyone candecide everything. Inevitably, government by techniciansspreads. Citizens' (potential) sovereignty is whittled awayin favour of qualunquismo, the apathy and indifference ofprivate beings who are interested only in cultivating theirgardens. Finally, Bobbio laments the undemocratic andatomizing impact of the mass media. He points out thatdemocracy presupposes the free and full development ofthe faculties of individual citizens, and yet he claims thatthis requirement is violated daily by the manipulativeappeals of the press and broadcasting media, which diminishthe space reserved for informed judgements by stimulatingconvictions based on either fleeting emotions or the passiveimitation of others - all in the name of 'popular choice'.The abstract principle of popular sovereignty is therebytranslated into reality in debased form.

Bobbio's account of the limits of democracy is arguablyincomplete and less than convincing. There is much evidencethat the 'irreversible' historical trends alleged by Bobbioare in fact highly contingent developments. Bureaucraticorganizations certainly tend to reduce their members andclients to mere objects of administrative control, but they

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also typically stimulate the growth of independent publicspheres by depending on a measure of initiative from theirmembers and by feigning acceptance of the principle ofmediating conflicting interests through controversy, opendiscussion, compromise and consensus. Bobbio's defenceof the principle of government by technicians is alsoquestionable. Complex organizations cannot operate auto-matically, that is, guided only by technical knowledge andprocedures. Human skill, improvisation and collectivejudgements are essential for preventing them from regularlymalfunctioning in unexpected and often dangerous ways.The introduction of the most advanced machine systems(such as computers and robots) into complex organizationsfurther increases the number of open-ended and unstruc-tured problems, which cannot be solved by technicalexpertise alone but only with the co-operation of those whowork directly with these new information technologies. Andthe astonishing capacity of these technologies to alterflexibly both the range of products and rhythms of workcan be managed only through collective human decisionsat the point of production. Finally, the emphasis placed byBobbio on the atomizing and depoliticizing effects of themass media is one-sided. It neglects the serious politicalcontroversies which have erupted in recent decades betweenthe supporters of state-regulated and market-regulated pressand audio-visual media; and it neglects the ways in whichmost citizens - as the remarkable growth of video piracyand the illegal use of descramblers suggest - today retaina native (if undeveloped) capacity to select, reinterpret,criticize, or - like tortoises - shield themselves completelyagainst the appeals of the mass media.3

Bobbio's examination of the limitations of democracy isalso arguably incomplete. There are quite a number ofweaknesses inherent in the democratic method - they rangefrom old doubts about democracy's lack of philosophicalself-confidence to new concerns about the inability ofdemocratic procedures to resolve such dilemmas as thatbetween the growing power of human control over nature

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and the growing need of the human species to giveinstitutional recognition to our fundamental dependenceupon nature itself - and its friends need urgently to discussthem, if only to defend democracy against its harshestcritics. Admittedly, this is a controversial undertaking.Some democrats insist that to interrogate the democraticmethod is to erode its credibility and destroy its self-confidence. This conviction is mistaken. The long-termsurvival of democracy must involve anticipating the objec-tions of its critics, honestly exploring the dilemmas andparadoxes which riddle democratic politics, thereby recog-nizing that democracy cannot achieve certain things.Democratic theory must state issues it knows it cannotresolve; it must attempt to hold up a mirror, admittedlysomewhat clouded, to look at itself in. Bobbio attemptsto do exactly this, and his key point is well taken. Thedemocratic method does indeed have clear limits, whichshould serve as a warning against attempts to build aperfect democracy. Like the behaviour of the daughtersof Pelia, who tried to rejuvenate their aging father byhacking him to pieces, attempts to perfect democracyendanger democracy itself.

And yet even though democracy has endemic limits,Bobbio is adamant that the democratic method generallyremains superior to all other dictatorial methods of decision-making. Why does Bobbio sympathize with this method -despite the fact that in the history of political thoughtdemocracy has had many more enemies than friends? Whydoes he consider the democratization of the Left - itsunconditional embrace of the democratic method - ofparamount importance? In short, why is democracy a goodthing?

Bobbio discusses several types of responses to thesequestions, although his list is less complete and moreconventional than might be expected. For example, Bobbioemphasizes that the most important feature of democraticprocedures is that they enable the approval of decisions ofinterest to the whole collectivity, or at least a majority of

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citizens. This overlooks the key point - still inadequatelyrecognized in democratic theory - that democratic pro-cedures also enable the disapproval and revision of estab-lished agreements, and that for this reason they are uniquelysuited to complex western societies. Democratic proceduresare superior to all other types of decision-making notbecause they guarantee both a consensus and 'good'decisions, but because they provide citizens who are affectedby certain decisions with the possibility of reconsideringtheir judgements about the quality and unintended conse-quences of these decisions. Democratic procedures increasethe level of 'flexibility' and 'reversibility' of decision-making.They encourage incremental learning and trial-and-errormodification (or 'muddling through'), and that is why theyare best suited to the task of publicly monitoring andcontrolling (and sometimes shutting down) complex andtightly coupled 'high-risk' organizations, whose failure (asin Bhopal, Three-Mile Island and Chernobyl) can havecatastrophic ecological and social consequences. Democracyis an unrivalled remedy for technocratic delusions. It is anindispensable means of making accountable those who turna blind eye to the 'normal accidents' which plague high-risk systems, and who seek to define acceptable levels ofrisk by means of technical analyses of probability - orsimply by falling back on the childish solipsism that whateverisn't believed couldn't possibly be harmful.

Only democratic procedures can openly and fairly selectcertain kinds of dangers for public attention, carefullymonitor and bring to heel those responsible for managingrisky organizations, thereby minimizing the possibility oferror and reducing the chances of the big mistake.Unfortunately, Bobbio does not consider this unusual lineof reasoning. He instead examines three more conventionaltypes of arguments for democracy. The first and weakestof these is the utilitarian argument that democracy is superiorto dictatorship because it enables the best interpreters ofinterests - the interested parties themselves - to sift throughvarious options and to decide for themselves. Aside from

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the probability that interested individuals and groupsconfuse their short-term and longer-run interests becausethey often see no further than their own noses, the utilitarianargument mistakenly assumes that the collective interest isonly ever the sum of individual interests. A second andmore convincing type of argument, according to Bobbio,is that democratic procedures maximize freedom in thesense of autonomy. Why autonomy is a good thing isunclear from Bobbio's account; he simply assumes that itis one of those ultimate values which cannot be deducedrationally. If freedom (to paraphrase Rousseau) is obedienceto the laws which citizens formulate and apply to themselvesthen democratic procedures for arriving at collectivedecisions through the fullest possible participation ofinterested parties is a natural ally of autonomy.

Finally, and most importantly, Bobbio considers the viewthat democracy is superior because it remains the strongestantidote to the abuse of power. He endorses Montesquieu'smaxim that those who exercise power always want more ofit and for more extended periods. The great advantage ofdemocracy is that it is a type of decision-making procedurewhich monitors itself through its own agency. A baddemocracy is for this reason always better than a gooddictatorship. Democracy is a self-reflexive means of control-ling the exercise of power, and it is for this reason anindispensable weapon in the fight to interrogate, restrictand to dissolve dictatorial power. Democrats are certainlynot exempted from this democratic equation. Democratsseek to alter radically and to equalize the existing distributionof power within and between the state and civil society.They are normally confronted with various acts of sabotageand resistance by their opponents and, hence, facedwith the temptation of overcoming such obstacles byaccumulating ever more power. The lust for power knowsno political affiliation. It is polymorphously perverse. Itrequires constant correction and eternal vigilance.

This rule applies especially to those who considerthemselves as heirs to a socialist version of the classical

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Left project. In capitalist society - according to Marx andothers - the institutional bases of class power and statepower are differentiated. The separation of political andsocial forms of stratification is seen (correctly) to be aunique feature of the modern bourgeois era. The humanspecies is subdivided for the first time into social classes;individuals' legal status is divorced from their socio-economic role within civil society; each individual issundered into both private egoist and public-spirited citizen;and civil society, the realm of private needs and interests,waged labour and private right, is emancipated from politicalcontrol, and becomes the basis and presupposition of thestate. Civil society is also the power base of the leadingclass, the bourgeoisie, which is the first 'non-political' classin human history. Its control of civil society ensures thatpolitical power is normally a secondary or derivativephenomenon; the state is an instrument for protecting andmanaging the political affairs of the bourgeoisie and itsallies.

The socialist project aimed to undo this development byabolishing the social power of the bourgeoisie and, hence,destroying the division between civil society and the state.The problem, according to Bobbio, is that state powertends to become dictatorial whenever it ceases to be subjectto the countervailing powers of civil society. And that isnot the only problem. If socialism means a society in whichownership of the means of production has been transferredfrom private hands into the laps of 'society' - in thetwentieth century that has normally meant the state itself- then the abuses of state power are (and have been) muchmore likely than in a capitalist society. Under socialistconditions, citizens would be exposed constantly to thewhims and calculations of a state which simultaneouslyperformed the functions of policeman, administrator, socialworker and employer.

Bobbio's argument here comes full circle. It emphasizes,rightly, that the demand for socialism in the conventionalsense is undemocratic; and that the demand for democracy

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is much more subversive because it calls into question allheteronomous forms of power. This is why Bobbio insiststhat the democratization of the Left, its militant defenceof the democratic method, is of fundamental contemporaryimportance. He concludes that the Left needs democracyin order to live up to its old promises of greater equalityand solidarity with liberty; and that, in view of the systematicfailure of the Left to keep these promises, its full acceptanceof the democratic method would radically alter the methods,policies and public image of the Left. It would become asynonym for the democratic fight for greater democracy.

While this proposed redefinition of the Left is tentativeand its policy implications sketchy, its deep politicalsignificance should not be underestimated. Once or twicein each century whole political spectrums break up andundergo massive realignment. We are living through oneof these painful and topsy-turvy periods of readjustment,and Bobbio's writings help to explain why. His argumentsexpose several key blindspots and muddles of the Left.They help to clarify the advantages and disadvantages ofthe democratic method. And they deepen our appreciationof the unexpected global upsurge of the democraticrevolution at the end of the twentieth century - in Polandand Hungary, Brazil and Argentina, the Philippines andChina. Bobbio's arguments will nevertheless irritate manyorthodox Leftists, especially those who continue to defendthe primacy of 'socialism' and who consequently fail to seethat the citizen has problems distinct from those of theworker or consumer, and that political and social democracycannot be resolved into economic democracy. For thosewho remain flippant about the advantages of democracy,or who turn a blind eye to the ways in which contemporarywestern democracies are fragile, corruptible and oftencorrupt - those who haven't yet seen that the middle ofthe political road is often a dead end - Bobbio's writingsshould be compulsory reading. And for smug neo-conserva-tives, who pronounce the death of the Left by implosion,

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these writings should serve as a warning that the imaginationof a new democratic Left has begun to stir.

Notes

1 The historical and intellectual context of Bobbio's politicalthinking is well discussed in Perry Anderson, The Affinitiesof Norberto Bobbio', New Left Review 170 (July/August 1988),pp. 3-36, and Richard Bellamy, Modern Italian Social Theory,Cambridge 1987, chapter 8.

2 See my 'Despotism and Democracy. The Origins and Develop-ment of the Distinction Between Civil Society and the State1750-1850', in John Keane (ed.), Civil Society and the State,New European Perspectives, London and New York 1988.

3 These points concerning bureaucracy, new information techno-logies and the mass media are elaborated in my Public Lifeand Late Capitalism, New York and London 1984; CharlesPerrow, Normal Accidents, Living with High-Risk Technolog-ies, New York 1984; and my '"Liberty of the Press" in the1990s', New Formations 8 (Summer 1989), pp. 34-52.

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Preface

Four pieces are brought together in this volume withoutany significant changes from when they were first writtenfor the Encidopedia Einaudi. These are 'Democracy andDictatorship' from Volume IV (1978), 'Public/Private' fromVolume XI (1980), 'Civil Society' and 'State' from VolumeXII (1981). These are closely connected themes and Iapologize to the reader in advance for any inevitablerepetitions. The first and the second are presented directlyin the form of antitheses, while the third and the fourthdeal individually with the terms of another antithesis whichis no less crucial in the history of political thought: civilsociety/state.

One of the guiding principles of the encyclopaedia, theanalysis of certain key terms together with their opposites,was particularly congenial to me. In 1974 I had written anarticle on the classical distinction between private law andpublic law and I called it 'The Great Dichotomy'. Theantithesis democracy/dictatorship reproduces in ordinarylanguage the philosophical contrast between autonomy andheteronomy that goes back through Kelsen to Kant andwhich I have often reproposed. I had already examined theantithesis civil society/state, historically in the works ofHegel, Marx and Gramsci, and analytically in the DizionarioPolitico (published by UTET) under the title 'Civil Society'.

Dealing with antitheses offers the advantage at thedescriptive level of light being thrown on one term by the

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other, and it is often the case that the weak term is definedas the negation of the strong term (private as non-public,for example); evaluatively it allows one to highlight thepositive or negative judgement which, depending on theauthor, falls on one or other of the two terms as, forinstance, in the ancient dispute about whether democracyor autocracy is preferable. In its historical use it can evenbe employed to outline a philosophy of history, for example,in the changeover from an era of the primacy of privatelaw to an era of the primacy of public law.

The longest by far of the four pieces is 'State, Power andGovernment', which is a reprint of 'State'. It summarizesand synthesizes in part the other three. I conceived it asan attempt, I do not know how successful, to cover thevast area of the problems of the state looked at from thelegal and political viewpoints, which are often separated;or, in other words, of the state as a legal system and as asovereign power. In that piece I examined certain ideas,especially regarding power, its various forms and thedifferent criteria of legitimation which I had never beforeexposed with such thoroughness. The other essays, however,are reworkings of earlier or more recent pieces: 'TheGreat Dichotomy: Public/Private/ goes back partly to'Public-Private - introduction to a debate' (1982) and partlyto 'Democracy and Invisible Power' (1980). 'Civil Society'goes back to, as well as the writings already cited, the essay'On the Notion of Civil Society' (1968). 'Democracyand Dictatorship' is taken largely from The Theory ofGovernmental Forms in the History of Political Thought'(1976).

These are themes on which I have often worked in thepast ten years: together they form a fragment of a generaltheory of politics yet to be written.

Norberto Bobbio

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1

The Great Dichotomy:Public/Private

It was in two much commented-on passages of Justinian'sCorpus iuris (Institutiones, 1, 1, 4; Digesto, 1, 1, 1, 2)where public law and private law are denned in an identicalmanner - the first as quod ad statum rei romanae spectat,and the second as quod ad singulorum utilitatem - that thepair of terms 'public' and 'private' first entered the historyof Western political and social thought. Through constantand continuous use, and without any substantial changes,they have since become one of the 'great dichotomies' usedby several disciplines - social and historical sciences as wellas law - to define, represent and order their particularfields of investigation. In this respect the dichotomy can belikened to others playing a similar role in the social sciences:war/peace, democracy/autocracy, society/community, stateof nature/civil society. A great dichotomy may correctly bespoken of when we are confronted with a distinction thatis suitable (a) for dividing a world into two spheres whichtogether are exhaustive in the sense that every element ofthat world is covered, and mutually exclusive in thesense that any element covered by the first term cannotsimultaneously be covered by the second; and (b) forestablishing a division that is not only comprehensive inthe sense that all elements potentially or actually referredto by the discipline are covered by it, but also dominant in

A DICHOTOMOUS PAIR

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that it subsumes other distinctions and makes them second-ary. In legal language, the pre-eminence of the distinctionbetween private and public law over all other distinctions,its unchanging use in different historical periods and itscomprehensiveness were sufficient to make a neo-Kantianphilosophy of law treat the two concepts of private andpublic law as two a priori categories of legal thinking(Radbruch 1932, 122-7).

The terms of a dichotomy can either be defined indepen-dently of each other, or else only one is defined while theother is defined negatively with respect to it (peace as not-war). In this latter case, the first term is said to be thedominant one and the second the weak one. The definitionof public law and private law mentioned above is anexample of the first case, although the first term is strongerin that private is often defined as 'not-public' (privatus quiin magistratu non est, Forcellini), and rarely the other wayaround. In addition, it can be said that the two terms of adichotomy qualify each other in the sense they always occurtogether: in legal language, public law suggests instantly,by contrast, private contract, for example. In ordinarylanguage the public interest is determined with respect toand by contrast with private interest and vice versa. Finally,from the moment that the space defined by the two termsis completely covered (tertium non datur) they arrive at thepoint of mutually defining themselves in the sense that thepublic domain extends only as far as the start of the privatesphere (and the reverse is also true). The size of the areasreferred to by either of the terms can be enlarged orreduced depending on the situation to which the dichotomyis applied. One of the commonplaces of the age-old debateabout the relationship between the public and privatedomains is that increasing the size of the public spherereduces the private sphere and vice versa, an assertionwhich is generally accompanied and complicated by contrast-ing value judgements.

Whatever the origin of the distinction or the moment ofits birth, the classic dichotomy between public and private

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law reflects the situation of a group which distinguishesbetween what belongs to the group as a group and whatbelongs to single members or, more generally, between thesociety as a whole and other incidental, lesser groupings(such as the family) or else between a superior centralpower and inferior peripheral powers which enjoy only arelative autonomy, if any. In fact, the original distinctionbetween public and private was accompanied by an affir-mation of the supremacy of the first over the second, as isshown by one of the fundamental principles which regulatesevery arrangement covered by the great division: theprinciple according to which ius publicum privatorum pactismutari non potest (Digesto, 38, 2, 14) or privatorumconventio iuri publico non derogat (ibid., 45, 50, 17).Notwithstanding the age-old debate provoked by the varietyof criteria which justify - or which are held to justify - thedivision of the two spheres, the fundamental criterionremains that of the different persons and situations to whichthe general notion of utilitas applies. Besides the singulommutilitas of the definition already cited, the celebratedCiceronian definition of the res publica should not beforgotten: a 'thing of the people', when 'people' means notjust an aggregation of individuals but a society held togetherby the utilitatis communione (De re publica, 1, 41, 48) aswell as by legal bonds.

CORRESPONDING DICHOTOMIES

The conceptual, classificatory and evaluative relevance ofthe public/private dichotomy is demonstrated by the factthat it includes other traditional and recurring dichotomiesof the social sciences that both converge in it and fill itout, but which can also replace it.

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Associations of equals and associations of unequals

Since the law is an ordering of social relations the greatpublic/private dichotomy is primarily reflected in thedistinction between two types of social relationships:between equals and between unequals. The state - and anyother organized society with either a total or partial publicsphere - is characterized by relations of subordinationbetween governors and governed, or rather between holdersof the power of command and subjects with the duty ofobedience. These are relationships of inequality. Bothnatural society (as described by natural lawyers) and marketsociety (as idealized by the classical economists in whichthe private sphere is opposed to the public sphere) arecharacterized by relationships of coordination betweenequals. The distinction between an association of equalsand an association of unequals is no less classic than thedistinction between public and private spheres. Thus Vicowrites: Omnis societas omino duplex, inaequalis et aequalis(1720, ch. LX). The family, the state, and the relationsbetween God and man are found amongst the first; amongstthe second are found associations of brothers, kin, friends,citizens, guests and enemies.

It can be seen from examples that the two dichotomiesof public/private and society of equals/society of unequalsdo not completely overlap; conventionally, the familybelongs to the private sphere as opposed to the publicsphere; or rather it is placed in the private sphere whereit is towered over by the more complex organization of thecity (in the Aristotelian sense of the word) or the state (inthe sense of modern political writers). However, withrespect to the difference beteween the two types ofassociation, the family is an association of unequals.Evidence that the family belongs to the private sphere isprovided by the fact that the European public law whichaccompanied the foundation of the modern constitutionalstate placed in the private sphere those patriarchal, paternal-

4

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istic and despotic conceptions of sovereign power whichliken the state to a family writ large or those which attributeto the sovereign the powers of the patriarch, the father orthe master: all positions of different strength in familyassociations. Vico, on the other hand, saw the relationsbetween enemies as relations of equality - correctly,apart from anything else, because international society is,abstractly considered, an association of formally equalentities, so much so that Hobbes and Hegel compare it tothe state of nature - and they usually belong to the realmof public law, if only the external public law governing therelations between states rather than the internal public lawgoverning the relations between ruler and ruled in the samestate.

With the birth of political economy which gave rise tothe differentiation of the sphere of economic relations fromthe sphere of political relations, economic relations weresubstantially understood as relations between unequals (asa result of the division of labour) but formally equal in themarket. The public/private dichotomy reappeared in theform of the distinction between political society (ofunequals) and economic society (of equals). From the pointof view of the agent characteristic of each, a distinctionwas made between the society of the citoyen who attendsto the public interest, and that of the bourgeois who takescare of his or her own private interests in competition orcollaboration with other individuals. Behind the distinctionbetween the economic sphere and the political sphere isthe ancient distinction between the singulorum utilitas andthe status rei publicae, and through it public and privatespheres were differentiated for the first time. Thus, withthe birth of political economy, the natural law distinctionbetween the state of nature and civil society is rehabilitatedin the distinction between economic society and politicalsociety. Soon after that civil society, understood in aHegelian (or better Marxian) way as a system of needs, isdistinguished from the state. It should be noted that theline of separation between the state of nature, the economic

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sphere and civil society on the one hand, and the politicalsphere and the state on the other, is always the line betweenassociations of equals (at least in the formal sense) andassociations of unequals.

Law and contract

The other conceptually and historically important distinctionwhich is involved in the great dichotomy is a distinctionbetween the sources (in the technical, legal sense of theword) of public and private law: law and contract. Ciceroremarks that public law consists of lex, senatus consultusand foedus (international treaty); private law consists ofthe tabulae, the pactum conventum and the stipulatio(Partitiones oratoriae, 37,131). As can be seen, the criterionfor the distinction between public and private law are thedifferent ways in which they come into existence, bothbeing binding rules of conduct: public law is public in virtueof being imposed by political authority and assumes thespecific form, increasingly prevalent with the passing oftime, of 'law' in the modern sense of the word; that is, ofa norm which is binding because it has been imposed bythe supreme power (sovereign) and is habitually enforcedthrough coercion (the exclusive use of which truly belongsto the sovereign). Private law or, more precisely, the lawconcerning private persons, represents the set of normsestablished by individuals to regulate their reciprocalrelations, the most important of which are patrimonialrelations, through bilateral agreements whose force liesprimarily and independently of public regulation on theprinciple of reciprocity (do ut des).

The explanatory force of the superimposition of the twodichotomies private/public and law/contract is revealed inthe modern doctrine of natural law, where contract is thetypical form of how individuals govern their relations inthe state of nature (that is, in the state where a publicpower does not as yet exist); whereas the law, usually

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defined as the highest expression of the sovereign power(voluntas superioris), is the form in which the relationsamongst subjects and between the state and subjects areregulated in civil society: that is, in a society which is heldtogether by an authority that stands above individuals. Thecontrast of the state of nature and civil society as thecontrast between the sphere of free contractual relationsand the sphere of relations regulated by the law was takenover and strengthened by Kant, who brought to itsconclusion the process of the identification of the two greatdichotomies of legal doctrine: private law/public law on oneside and natural law/positive law on the other; private lawis the law that comes from the state of nature and itsfundamental institutions are property and contract, whereaspublic law derives from the state and is constituted at thesuppression of the state of nature and is, therefore, positivelaw in the proper sense of the word: a law whose bindingforce derives from the possibility that the coercive powerof the state belonging exclusively to the sovereign will beexercised on its behalf.

The clearest confirmation of the fact that the contrastbetween private and public law passes through the distinctionbetween contract and law comes from the criticism that thepost-natural-law writers (above all, Hegel) make of naturallaw contractualism; that is, the doctrine which founds thestate on the social contract. For Hegel, an institution ofprivate law, such as contract, cannot be the legitimatefoundation of the state for at least two reasons, closelyconnected to the very nature of contractual obligations asdistinct from obligations that derive from law. In the firstplace the bonds that unite the state to its citizens arepermanent and irrevocable, whereas the contractual bondcan be revoked by the parties; and in the second place,because the state can demand from its citizens - even ifonly in exceptional circumstances - the sacrifice of thegreatest good, life, which is (contractually speaking) unavail-able. It is not by chance that every critic of naturallaw rejects contractualism as an essentially private and

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inadequate conception of the state which for Hegel drawsits legitimacy, and therefore its right to command and beobeyed, either from the simple fact of representing thespirit of the people in a given situation, or from being theincarnation of the man of destiny (the 'hero' or 'man ofuniversal history'), in both cases with a strength thattranscends anything that might derive from the aggregationand agreements of individual wills.

Commutative justice and distributive justice

The third distinction which flows into the public/privatedichotomy and which can both illuminate and be illuminatedby it deals with the two classical forms of justice: distributivejustice and commutative justice. Commutative justicegoverns exchange; its fundamental presumption is that inorder for an exchange to be considered just, the two thingsexchanged must be of equal value. In a buying-and-sellingtransaction the right price corresponds to the value of thething bought; in a work contract, the just wage correspondsto the quality or quantity of the work accomplished; in civillaw, the indemnity which corresponds to the extent ofdamage is the just one; in penal law the just penalty occurswhere there is a correspondence between the malum actionisand the malum passionis. The difference between thesefour typical cases is that in the first two the replacementof one good for another has taken place, whereas in thelast two one evil substitutes another. Distributive justice isthe principle guiding public authority in the distribution ofhonours and duties. Its claim is that everyone is given hisdue on the basis of criteria which can change according tothe diversity of the objective situation or of the point ofview: the most common criteria are 'to each according tohis merit', 'to each according to his needs' and 'to eachaccording to his work'. In other words, commutative justiceis defined as that which takes place between the parts anddistributive justice as that taking place between the wholeand the parts. This new identification of the private sphere

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as the locus of commutative justice on the one hand andthe public sphere as the locus of distributive justice on theother comes about through the mediation of the distinctionalready mentioned between associations of equals andassociations of unequals. A clear example of such amediation is given by Vico, for whom commutative justice,which he calls equatrix, governs an association of equalswhile distributive justice, called rectrix, governs an associ-ation of unequals, like the family and the state (1720, ch.LXIII).

Once again it is necessary to handle all these relationshipswith care because the coincidence of one with another isnever perfect. In this instance as well, the limiting casesare the family and international society: the family is aprivate law institution in so far as it exists within the ambitof the state but it is at the same time an association ofunequals and ruled by distributive justice; internationalsociety, which is, on the contrary, an association of equals(formally) and is governed by commutative justice isgenerally attributed to the public sphere, at least rationesubiecti, in that the subjects of international society, states,are public entities par excellence.

THE EVALUATIVE USE OF THE GREAT DICHOTOMY

Besides the descriptive meaning illustrated in the twopreceding sections, the two terms of the public/privatedichotomy also have an evaluative meaning. We are dealingwith two terms which in descriptive use commonly functionas contradictory terms, in the sense that in the universedefined by them no element can be both public and privatesimultaneously or even neither public nor private. Similarly,the evaluative meaning of one also tends to be opposed tothe other in the sense that, when a positive evaluativemeaning is attributed to one, the second acquires a negativeevaluative meaning and vice versa. This derives from twodifferent conceptions of the relations between public and

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private, the first of which can be defined as the primacy ofthe private over the public, and the second as the primacyof the public over the private.

The primacy of the private

The primacy of private law is affirmed in the diffusion andreception of Roman law in the Western world: the so-calledlaw of the Pandette is for the most part private law, theprincipal institutions of which are the family, property,contracts and inheritance. In the length of its duration andthe universality of its range Roman private law acquires thevalue of the law of reason; that is, of a law whose validityhas come to be recognized independently of the circumstancesof the time and place of its origin and is believed to befounded on the nature of things. This process is not verydifferent from that when, many centuries later, the doctrineof the first economists, later called the classical economists(just like the great jurists of the golden age of Romanjurisprudence), was considered the only economics possiblebecause it discovered, mirrored and described natural relations(that is, relations which were genuinely part of nature'sdomain, or 'physiocracy'). In other words, Roman privatelaw, although originally historical and positive law (codifiedin the Corpus iuris), was transformed through centuries ofwork by jurists, annotators, commentators and systematizersinto natural law, and then with the great codifications at thebeginning of the nineteenth century, especially Napoleon's(1804), was transformed into positive law to which, however,its first commentators attributed an absolute validity, consider-ing it as the law of reason.

For centuries, therefore, private law was law par excel-lence. In Hegel, Recht has still without any doubt themeaning of private law, the 'abstract law' of The Philosophyof Right (1821), while public law is given, at least in thefirst writings, the name of Verfassung, or constitution.Marx, too, when he spoke of law and developed thecriticism (which today would be called ideological) of law

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always referred to private law whose principal institution isa contract between formally (if not substantively) equalelements. The law which Marx identified with bourgeoislaw is essentially private law, while the critique of publiclaw is presented under the form of a critique of not somuch a type of law but more a traditional conception ofthe state and political power. Pasukanis, the first and majortheorist of Soviet law, will say (1924) that 'the most solidnucleus of the legal nebula lies in the field of the relationsof private law', since the fundamental presupposition oflegal regulation (and here 'private' should be added) is 'theantagonism of private interests' which explains why 'Romanlegal thought has preserved its value until our times: itremains the ratio scripta of any society producing goods.'Finally, criticizing as ideological and unscientific the distinc-tion between private and public law, Kelsen observed (1960)that the relations of private law can be defined 'as "legalrelations" tout court, as relations "of law" in the strictestsense of the word, in order to contrast them with relationsof public law as relations of "power".'

Public law as a systematic body of norms came intoexistence much later than private law: actually only in theera of the formation of the modern state, even if itis possible to find its origins in a fourteenth-centurycommentator such as Bartolo di Sassoferrato. However,while works of private law on property and possession andon contract and wills are exclusively legal treatises, thegreat treatises on the state, even when written by lawyers,from the Six Livres de la Republique by Bodin (1576)to Jellinek's General Doctrine of the State (AllgemeineStaatslehre) (1911) were never exclusively legal works. Notthat Roman law had not furnished some authoritativeprinciples for the solution of certain major problems ofEuropean public law beginning with the lex regia de imperio(Digesto, 1, 4y 7), according to which whatever the sovereignestablishes has the force of law (habet legis vigorem] whenthe people have already attributed to their sovereign thispower which originally belongs to the people: thus giving

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rise to the ancient dispute about whether the people havereally transmitted or only conceded power to the sovereign.But with the dissolution of the ancient state and theformation of the German kingdoms, political relationsunderwent a transformation so profound, and in medievalsociety problems were so diverse (for example, the relationsbetween church and state, between the Emperor and thekings, between the kings and the city), that Roman lawcould offer few instruments of interpretation and analysis.It still remains to be noted, however, that the twofundamental categories of European public law, used forcenturies by jurists in the construction of a legal theory ofthe state, were derived from private law: the dominium,understood as the patrimonial power of the monarch overthe territory of the state, and as such distinguished fromthe imperium which stands for the power of command oversubjects; and the pactum in all its varieties (societatis,subiectonis, unionis) which functions as the principle of thelegitimation of power in the contractualistic tradition thatgoes from Hobbes to Kant.

One of the events which best illustrates the persistentprimacy of private over public law is the resistance that thelaw of property puts up against the sovereign's power tointerfere and therefore to the sovereign's right to expropri-ate, for reasons of public utility, the goods of a subject.Even a theorist of absolutism like Bodin considered asunjust the sovereign who violated the property of subjectswithout a just and reasonable motive, seeing it as a violationof the natural law that ruled over all people equally, princeand commoner alike (1576, I, 8). Hobbes, who endowedthe sovereign with unchecked power over the private livesof subjects, recognized that those subjects were free to doeverything that the sovereign had not forbidden and thefirst example which occurs to him is the liberty to buy, selland make other contracts amongst themselves (1651,ch. XXI). With Locke, property becomes a genuine naturalright because it originates from personal effort in the stateof nature before the constitution of political power, and

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therefore the free exercise of this right must be guaranteedby the law of the state (which is the law of the people).Through Locke, the inviolability of property (which includedall other natural rights of the individual such as life andliberty, and which implies that there exists a sphere ofautonomy different from the sphere of public power)became one of the cardinal points of the liberal conceptionof the state, which in this context can be defined as themost conscious, coherent and historically relevant theoryof the primacy of the private over the public. The autonomyof the private sphere of the individual compared to thestate's sphere of competence was taken over by Constantas the symbol of the liberty of the moderns compared tothe ancients within the context of a philosophy of historyin which the esprit de commerce, which motivates individualenergies, is designed to supersede the esprit de conquetewhich motivates the holders of political power; the privatesphere enlarges itself at the expense of the public sphere,if not to the point of eliminating the state then until itsreduction to a minimum. Spencer celebrates this reductionby contrasting military societies of the past and industrialsocieties of the present understood as the contrast of asociety where the public sphere prevails over the privateand vice versa.

The primacy of the public

The primacy of the public has assumed different formsaccording to the various ways in which it has manifesteditself but, above all in the last century, in the reaction tothe liberal conception of the state and the historical if notdefinitive defeat of the minimalist state. It is founded onthe contrast between collective and individual interests, onthe necessary subordination and eventual suppression ofthe second by the first, as well as on the irreducibility ofthe common good to the sum of individual welfare andtherefore on a criticism of one of the recurring theses ofsimple utilitarianism. It assumes various forms according to

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the different ways in which the collective entity is under-stood - nation, class, the community of people - in whosefavour the individual must renounce his or her autonomy.Not that all theories of the primacy of the public can beput historically and politically on the same level, butcommon to all is the idea that they boil down to thefollowing common principle: the whole comes before theparts. We are dealing with an Aristotelian and later aHegelian idea (from a Hegel who explicitly cites Aristotlein this matter), according to which the totality has endswhich cannot be reduced to the sum of the aims of theindividual members that compose it, and that, once thegood of the totality has been achieved, transforms itselfinto the good of its parts; or to put it another way, thegreatest good of the subjects is the effect not of its pursuitthrough personal effort and the antagonism of everyone'sinterests, but of the contribution which each individualtogether with the rest can collectively give to the commongood according to the rules which the whole community,or the group which directs it (apparently or in reality),imposes through its organs, be they autocratic or democratic.

Practically speaking, the primacy of the public means theincrease of state intervention in the coercive regulationof individuals and sub-state groups, a reversal of theemancipation of civil society from state interference whichwas one of the historical consequences of the birth, growthand hegemony of the bourgeois classes (civil society andbourgeois society are the same thing in the Marxianvocabulary and partially so in the Hegelian one). With thecollapse of limits to state action whose ethical foundationswere in the natural law tradition of the moral priority ofthe individual over the group, and in the consequentaffirmation of the natural rights of the individual, the state,little by little, reappropriated the space conquered bybourgeois civil society to the extent of absorbing itcompletely in the extreme example of the totalitarian state(total in the sense that it does not leave any space outsideitself). Hegel's philosophy of law represents at the same

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time both a belated awareness and an unconsciouslyadvanced representation of this reabsorption of civil societyby the state: it is a philosophy of law reflected in aphilosophy of history which judges as decadent an epochin which private law is dominant, such as the imperialRoman age, which moved between the two poles of publicdespotism and the liberty of private property, or such asthe feudal age in which political relations are contractualand where, in fact, the state does not exist. As against this,progressive epochs are, according to Hegel, those in whichpublic law takes revenge on private law: for example, themodern age, which is witness to the rise of the greatterritorial and bureaucratic state.

Two parallel processes

It has already been said above that the public/privatedistinction is duplicated in the politics/economics distinctionwith the consequence that the primacy of the public overthe private has come to be interpreted as the primacy ofpolitics over economics or, in other words, of the orderdirected from above over spontaneous order, of the verticalorganization of society over its horizontal organization.Proof of this lies in the fact that the process, which up tonow seemed irreversible, of the intervention of publicpowers in the regulation of the economy was also termedas the process of 'the publicization of the private'. It is aprocess which politically practical socialist doctrines havefavoured, while the liberals of yesterday and today, not tomention the various strains of liberal socialism, havedeprecated and continue to deprecate as one of the perverseproducts of mass society in which the individual, like theHobbesian slave, requests protection in exchange for liberty;unlike the Hegelian slave destined to become free becauseengaged in the struggle not to save life but for personalrecognition.

In fact, the publicization of the private is just one of twoaspects of the evolution of the most industrially advanced

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societies. It is accompanied and complicated by an oppositeprocess which can be called 'the privatization of the public'which is the reverse of what was foreseen by Hegel,according to whom the state as an ethical totality wouldend up by imposing itself on the fragmentation of civilsociety interpreted as an 'atomistic system'. The contractualrelations characteristic of the world of private relationshave not in fact been relegated to the lesser sphere of therelations between individuals or minor groups, but have re-emerged on the higher plane of politically importantrelations under at least two forms: in the relations betweenlarge trade union organizations for the formation andrenewal of collective contracts, and in the relations betweenpolitical parties for the formation of governmental coalitions.The life of a modern state in which civil society is constitutedby increasingly strongly organized groups is criss-crossed bygroup conflicts which renew themselves continuously, inthe face of which the state, together with the organs ofdecision (parliament and government) and of execution(the bureaucratic apparatus), takes on the role of mediatorand guarantor more than the holder of imperial poweraccording to the classical image of sovereignty. Agreementsbetween trade unions and between parties are usuallypreceded by the long negotiations typical of contractualrelations and finish in an agreement which is more like aninternational treaty, with the inevitable rebus sic stantibusclause, than a contract of private law for whose eventualdissolution the law establishes rules. Collective contractsconcerning trade unions and governmental coalitions con-cerning political parties are decisive moments for the lifeof that great organization, or system of systems, thecontemporary state, which is differentiated internally intosemi-sovereign organizations among which are the largeenterprises, trade union organizations and political parties.It is not by chance that those who look on the growth ofthese power centres as an attack on the sovereignty of thestate speak of a new feudalism, understood really as theage in which, to speak as Hegel did, private law is pre-

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eminent over public law and this abuse of the superior bythe inferior sphere highlights the ongoing process of thedegeneration of the state.

Indeed, the two processes - the publicization of theprivate and the privatization of the public - are notincompatible and in fact interpenetrate each other. Thefirst reflects the process of the subordination of privateinterests to collective interests represented by a state whichincreasingly surrounds and invades civil society; the secondrepresents the revenge of private interests through theformation of large organized groups which make use of thepublic apparatus in order to achieve their own aims. Thestate can correctly be seen as the place where these conflictsoccur and re-occur, settle down and flare up through thelegal instrument of a continually remade agreement whichis the modern equivalent of the traditional social contract.

THE SECOND MEANING OF THE DICHOTOMY

Public or secret

One should not confuse the public/private dichotomy thathas been dealt with up to now with the distinctions wherebypublic means 'open to the public', 'performed in front ofspectators', and private, in contrast, is that which is saidor done in a restricted circle of people or, taken to theextreme, in secret. This distinction is also conceptually andhistorically relevant but within a conceptual system andhistorical context different from those in which the greatdichotomy is placed; so different that the great dichotomymaintains its validity intact even when the public sphere,understood as the sphere of competence of political power,does not necessarily coincide with the sphere of the public,understood as the sphere where political power is controlledby the public. Conceptually and historically, the problemof the publicity of power is distinct from the problem ofthe nature of public power (public power, that is, contrasted

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with the power of private individuals). Political power isalways public power in the meaning of the great dichotomyeven when it is not public, does not act in public, is hiddenfrom the public and is not controlled by the public.Conceptually, the problem of the publicity of power isalways used to highlight the difference between two formsof government: the republic, characterized by public controlof power and, in the modern age, the free formation ofpublic opinion; and the monarchy, whose method ofgovernment includes recourse to the arcana imperil, that isto state secrecy, which in the modern constitutional stateis allowed only as an exceptional remedy. Historically,the same problem marks out an epoch of profoundtransformation of the image of the state and of the relationsbetween sovereign and subjects, the epoch of the birth ofthe 'political public' in Habermas's sense, where the publicsphere acquires an institutional influence on governmentthrough the legislative body and acquires that influencebecause 'the exercise of public dominion has been effectivelysubjected to the democratic obligation of publicity' (1964).

Publicity and invisible power

The history of political power understood as power opento the public began with Kant, who considered the principleaccording to which 'all actions affecting the rights of othermen are unjust if their maxim is not reconcilable withpublicity' as the 'transcendental formula of public law'(1796). The meaning of this principle can be clarified bynoting that there are maxims which, once made public,excite such a reaction that their implementation becomesimpossible. What state could declare, when putting itssignature to an international treaty, that it does not regarditself as bound by the norm that the pacts be observed?And even bearing in mind the all-too-common facts, whatofficial could declare on assuming office that he or she willmake use of it for personal gain, or to subsidize clandestinely

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a party, or to corrupt a judge who is hearing the case ofone of the official's relations?

The principle of the publicity of the actions of those whowield public power (public here in the sense of political) isopposed to the theory of the arcana imperil, dominant inthe age of absolute power. This theory states that the powerof the prince is more effective and in keeping with its aimthe more it is hidden from the indiscreet gaze of thepopulace, and the more (like God's) it is invisible. Twomain arguments support this doctrine: one is intrinsic tothe nature of the supreme power whose actions have moresuccess the more rapid and unforeseeable they are: publiccontrol, even of an assembly of notables, slows down thedecision and removes the element of surprise. The otherargument is based on contempt for the public seen as apassive object, like a 'savage beast' that must be domesti-cated, dominated as it is by strong passions which preventit from forming a rational opinion on the common good,short-sightedly egotistic and the ready prey of demagogueswho use it for their own profit.

The invisibility and, consequently, the uncheckability, ofpower were assured, institutionally, by taking politicaldecisions in a place not open to the public (the secretCabinet) and by the non-publicity of those decisions and,psychologically, through the professed and recognizedlicense to simulate and dissimulate: a principle of stateaction which breaks the moral law against lying. These twoexpedients, psychological and institutional, are complemen-tary in the sense that they reinforce each other. The firstallows sovereigns not to make known in advance whichdecisions they will take and not even to make them knownonce taken; the second allows them to hide the decisiontaken or to present it in a different manner. Naturally,where power is invisible so must counterpower also beinvisible: as a consequence, the secrecy of the councilchamber is checked by the palace conspiracy secretly hatchedin the same places where sovereign power is hidden. Along-side the arcana imperil one always finds arcana seditionis.

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While the principality in the classical sense of the word- the monarchy of divine right and the various forms ofdespotism - require and, in different ways, justify invisiblepower, the democratic republic - res publica, not only inthe usual sense of the word but also in the sense of 'shownto the public' - requires that power be visible. The placewhere power is exercised in every form of republic is thecitizens' assembly (direct democracy), where the process ofdecision-making resides by its very nature; for example,the agora of the Greeks. Where the assembly is a meetingof representatives of the people and consequently thedecision would be public for them alone and not all thepeople, the meeting of the assembly must be open to thepublic in such a manner that any citizen can have accessto it. There are some, like Carl Schmitt, who claim to havefound a link between the principle of representation andthe publicity of power, where 'representation can only takeplace in the sphere of publicity' and 'no representation cantake place in secret and privately' so that 'a parliament hasa representative character only insofar as it is believed thatits activity is public' (1928). From this point of view theexercise of various rights of freedom are essential todemocracy, allowing the formation of public opinion andassuring that the actions of the rulers are drawn out of theCabinet room, flushed out from the hidden places to whichthey attempt to flee from the public eye, examined, judgedand criticized when they are made known.

The process of the publicization of the private isaccompanied but never conclusively outflanked by theinverse process of the privatization of the public, and sothe victory of visible over invisible power is never achievedonce and for all. Invisible power resists the advance of thevisible and is always inventing new ways of hiding itselfand of seeing without being seen. The ideal form of poweris the power attributed to God, the invisible all-seer. Thearcana imperil are transformed into state secrecy and, in amodern constitutional state, take the concrete form ofpunishing the publication of reserved acts and documents;

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there is, however, this substantial difference: that as againstthe arcanum, seen as an essential instrument of power andtherefore necessary, state secrecy is legitimate only inexceptional cases provided for by law. Similarly, the practiceof concealment has never entirely disappeared because ofthe influence public power can exercise on the press,because of the monopolization of the means of masscommunication, and above all because of the unscrupulousexercise of ideological power, the function of ideology beingto veil the real motivations which act upon power (a publicand legitimate form of the 'noble lie' of Platonic origin orof the 'permissible lie' of the theorists of raison d'etat}.

On the other hand, if it is true that in a democratic statepower is more open to public scrutiny than in an autocraticstate, it is also true that the use of computers (which arebeing used more and more to store the personal files ofcitizens) allows the holders of power to know more aboutthe public than was possible in past states. The new princecan get to know far more about his subjects than mostabsolute monarchs of the past. Which goes to show that,notwithstanding the profound transformation of relationsbetween rulers and ruled brought about by the developmentof democracy, the process of the publicization of power (andalso in the second sense of the public/private dichotomy) isanything but linear. It remains the case that this dichotomy,whether in the sense of collective/individual (seen in thefirst three sections of this chapter) or in the sense ofmanifest/secret (as seen in this section), constitutes one ofthe fundamental and traditional categories, even withits changing meanings, for conceptual representation ofhistorical comprehension and for the enunciation of valuejudgements, in the vast area covered by the theory ofsociety and of the state.

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2

Civil Society

THE VARIOUS MEANINGS

In today's political vocabulary the term 'civil society' isgenerally used for one of the terms in the great dichotomycivil society/state, which means that it is impossible to fixits meaning and extension without doing the same for theterm 'state'. By civil society is meant, negatively, the realmof social relations not regulated by the state: which isunderstood narrowly and nearly always polemically as thecomplex of apparatuses that exercise coercive power withinan organized social system. The distinction between societascivilis sine imperio and societas civilis cum imperio goesback to August Ludwig von Schloezer (1794) and continuallycomes up in the German literature on the subject. Thesecond expression stands for what is designated by the statein a context, as we shall see, where the contrast betweenstate and society has not yet arisen and one term is enoughto indicate either, albeit with an internal species-distinction.Occurring along with the restrictive notion of the state asan organ of coercive power and allowing the formation of,and accounts for, the persistence of the great dichotomy isthe group of ideas that accompanies the birth of thebourgeois world: the affirmation of natural rights belongingto the individual and to social groups independently of thestate and which limit and restrain political power; thediscovery of a sphere of inter-individual relations - such aseconomic relations - whose regulation does not need theexistence of coercive power because they are self-regulating;

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the general idea so well expressed by Thomas Paine whowas the author of a celebrated piece extolling the rights ofman. He said that society is created by our needs and thestate by our wickedness (1776) because humankind isnaturally good and every society, in order to preserve itselfand prosper, needs to limit the scope of civil laws that areimposed by coercion so as to allow the widest applicationof natural laws which do not need coercion in theirapplication; in other words, the widening of private lawwith which individuals regulate their reciprocal relationsguided by their real interests - of which everyone is indexin causa sua - to the detriment of public and political lawwhere the imperium is exercised which is understood ascommand by a superior who, as index super partes, hasthe right of exercising coercive power. It cannot beoveremphasized that for the use of 'civil society', in thesense of the sphere of social as distinct from politicalrelations, we are indebted to German writers (especiallyMarx and Hegel, as will be seen later) working in alanguage where burgerliche Gesellschaft means both civil andbourgeois society; and that, in legal language which wasfully asserting itself at the end of the eighteenth century,civil law as distinct from penal law included matterstraditionally belonging to private law (the Code civil is thecode of private law, burgerliches Recht in German).

It is precisely because the expression 'civil society' in itseighteenth-century and contemporary meaning derives fromthe contrast which was unknown to tradition, between apolitical and a non-political sphere, that it is easier to comeup with a negative rather than a positive definition: themore so because in treatises of public law and generaldoctrine of the state (the allgemeine Staatslehre of theGerman academic tradition from Georg Jellinek to FelixErmacora) a positive definition of the state is never lacking.Civil society is the complex of relations not regulated bythe state and consequently is the residue once the realm inwhich state power is exercised has been well defined. Buteven with such a vague notion it is possible to distinguish

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various emphases depending on whether the identificationof the non-state with the pre-state, the anti-state or thepost-state prevails. When one speaks of civil society in thefirst of these uses it means to say, whether in conscious orunconscious agreement with natural law doctrine, thatbefore the state there were various forms of associationformed by individuals among themselves for the satisfactionof their different interests and on which the state wasimposed in order to regulate them but not to hamper theirfurther development or prevent their continued renewal;one can talk in this case, although not in a strictly Marxistway, of civil society as an infrastructure and the state as asuperstructure. In the second usage, civil society acquiresa positive value connotation and indicates the placewhere all changes in the relations of domination manifestthemselves, where groups form to fight for emancipationfrom political power and where so-called countervailingpower gains strength. However, it is also possible to assigna negative value if the state's viewpoint is taken and theferments of renewal of which civil society is the bearer areseen as the germs of disintegration. In the third usage, civilsociety has a meaning that is both chronological like thefirst and evaluative like the second: it represents the idealof a society without a state which will spring from thedissolution of political power. This usage is present in thethought of Gramsci where the characteristic ideal of allMarxist thought on the extinction of the state is describedas the 'reabsorption of political society into civil society'(1930-2a), as the civil society liberated from political societywhere hegemony, as opposed to domination, is practised.In the three different usages the non-state assumes threedifferent guises: as the pre-condition of the state or, inother words, that which is not-yet-state in the first; as theantithesis of the state or else as that which poses as analternative to the state in the second: and of the dissolutionand end of the state in the third.

It is difficult to provide a positive definition of 'civilsociety' because it is a question of listing everything that

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has been left over after limiting the sphere of the state. Itis enough to note that in many contexts the contrast betweencivil society and political institutions is a reformulation ofthe old contrast between real nation and legal nation. Whatis the real nation? What is civil society? As a firstapproximation we can say that civil society is the placewhere economic, social, ideological and religious conflictsoriginate and occur and that state institutions have the taskof solving them either by mediating or preventing orrepressing them. The agents of these conflicts and thereforeof civil society proper, in so far as it is contrasted with thestate, are social classes (or, more broadly, the groups,movements, associations and organizations that representthem or declare themselves their representatives); as wellas class organizations there are interest groups, associationsof various types with social and indirectly political ends,ethnic emancipation movements, civil rights groups,women's liberation, youth movements and so on. Partieshave one foot in civil society and the other in institutions;so much so that it has been proposed to enrich thedichotomous conceptual scheme by inserting the conceptof political society between the two concepts of civil societyand state in order to encompass the phenomenon of partieswhich in reality do not entirely belong either in civil societyor the state. In fact, one of the most frequent ways ofdefining political parties is to show that they perform thefunctions of selecting, aggregating and transmitting demandsoriginating in civil society and which will become objectsof political decision. In the most recent system-theories ofsociety as a whole, civil society occupies the space reservedfor the formation of demands (input) aimed at the politicalsystem and to which the political system has the task ofsupplying answers (output): the contrast between civilsociety and state therefore is posed as the contrast betweenthe quantity and quality of demands and the capacity ofinstitutions to give rapid and adequate answers.

The much-discussed contemporary problem of the govern-ability of complex societies can also be interpreted in terms

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of the classic dichotomy between civil society and the state:a society becomes more ungovernable the greater thedemands of civil society and the lack of a correspondingcapacity of institutions to respond to them. In fact, thecapacity of the state to respond may have reached absolutelimits (hence the argument, for example, about 'fiscalcrisis'). The question of legitimacy is closely linked to thetheme of ungovernability: ungovernability generates thecrisis of legitimacy. This question can also be translatedinto the dichotomy's terms. Institutions represent legitimatepower in the Weberian sense of the word: that is, powerwhose decisions are accepted and realized in so far as theyemanate from an authority recognized as having the rightto make binding decisions for the whole collectivity.Civil society is the place where, especially in periods ofinstitutional crisis, de facto powers are formed that aim atobtaining their own legitimacy even at the expense oflegitimate power; where, in other words, the processes ofdelegitimation and relegitimation take place. This formsthe basis of the frequent assertion that the solution of agrave crisis threatening the survival of a political systemmust be sought first and foremost in civil society where itis possible to find new sources of legitimation and thereforenew sources of consensus. Finally, the sphere of civil societyis generally taken to include the phenomenon of publicopinion (understood as the public expression of agreementor dissent concerning institutions) which circulates throughthe press, radio, television and so on. Moreover, publicopinion and social movements develop together and influ-ence each other. Without public opinion - meaning, moreconcretely, without the channels of transmission of publicopinion which becomes 'public' in so far as it is transmittedto the public - the sphere of civil society loses its typicalfunction and disappears. At the extreme, the totalitarianstate, which is a state that has entirely absorbed civilsociety, is a state without public opinion (that is, with onlyofficial opinion).

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THE MARXIAN INTERPRETATION

The actual use of the expression 'civil society' as a termindissolubly linked to the state or political system, is ofMarxian and, before Marx, Hegelian origin even if, as shallbe seen, the Marxian use is more reductive than Hegel's.The frequency with which the expression 'civil society' isused even in everyday language is a result of the influenceof Marxist literature on contemporary Italian politicaldebate. Proof of this lies in the fact that in other linguisticcontexts the expression 'civil society' is replaced in the samedichotomy by the term 'society': in Germany, for example,a full and learned debate has recently taken place on Staatund Gesellschaft (cf. Bockenforde 1976), where the termGesellschaft, society, includes everything we mean by 'civilsociety'. The traditional locus classicus for the origin of themeaning of 'civil society' is Marx's preface to A Critiqueof Political Economy (1859), where he writes that throughstudying Hegel he arrived at the conclusion that legal andpolitical institutions have their roots in the material relationsof existence, 'the complex of which were embraced byHegel under the term "civil society'", and he derived theconsequence that 'the anatomy of civil society was to befound in political economy.' It does not matter that in thispassage Marx gives a reductive and ultimately distortedview of Hegel's concept of 'civil society' as we shall seeshortly; it is important to highlight that to the extent Marxmakes civil society the site of economic relations, or ratherthe relations that constitute 'the real base on which a legaland political superstructure is elevated', 'civil society' comesto mean the complex of inter-individual relations that areoutside or antecedent to the state: the same pre-state spherewhich natural law writers and, to some extent in their wake,the first economists starting with the physiocrats, called thestate of nature or natural society. The eventual substitutionin Marxian language of the expression 'civil society' for'natural society' is evidenced in a passage from an early

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work, The Holy Family (Marx and Engels 1845), whereone reads: 'The modern State has civil society as a naturalbase (repeat, "natural"), the man of civil society, that isindependent man, is united to other men through privateinterest and unconscious natural necessity.' Even moresurprising is the fact that the specific character of civilsociety so defined coincides at every point with Hobbes'sstate of nature which, as is well known, is the war of allagainst all: 'All of civil society is really this war [of managainst man], one against the other of every individual eachisolated from the other by their individuality and it is thegeneral, unrestrained movement of the elemental powersof life freed from the chains of privilege' (ibid.). This issurprising because in the natural law tradition (cf. 4) 'civilsociety' is what today would be called the state, theantithesis of the state of nature.

This transposition of the traditional meaning of theexpression 'the state of nature' to meaning the expressionto which it is traditionally contrasted, civil society, couldnot be explained without taking account once again thatMarx's civil society is the burgerliche Gesellschaft which,especially after Hegel and the interpretation of Hegel'stexts by the Left Hegelians, acquired the meaning of'bourgeois society' in the sense of class society, and thatbourgeois society in Marx has the bourgeoisie as a historicalsubject, a class that achieved its political emancipation byliberating itself from the shackles of the absolute state andby opposing to the traditional state the rights of humankindand citizens which are in reality the rights that must, fromthen on, protect their particular class interests. A passagefrom the early The Jewish Problem (1843) makes clearerthan any argument the transformation of the picture of thehypothetical state of nature into the historic reality ofbourgeois society: 'Political emancipation at one time meantthe emancipation of bourgeois society [which in this contextcould not translate meaningfully as 'civil'], from politics,from even the appearance of a universal content. Feudalsociety was dissolved into its fundamental element, man.

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But the man that constituted that foundation was egoisticman.' The state of nature of natural law and Marx'sbourgeois society share 'egoistic man' as a subject. Andfrom egoistic man only an anarchic - or despotic - societycan be born.

Notwithstanding the dominant influence of the Marxistnotion of 'civil society' on the use of the expression, itcannot be said that the use has been consistent even withinthe Marxist tradition. The importance of the dichotomybetween civil society and the state in Gramsci's thoughthas often been recognized. It would be wrong to believe,as many do, that Gramsci's dichotomy faithfully reproducesMarx's. While in Marx the moment of civil society concideswith the material base (as opposed to the superstructure ofideologies and institutions), for Gramsci the moment ofcivil society is itself superstructural. In his notes on theintellectuals one reads: 'It is possible now to determine twoimportant superstructural "levels": one which can be called"civil society", that is the group of organisms popularlycalled "private", and the other "political society or State";they correspond to the functions of "hegemony" which thedominant group exercises throughout society and "directdomination" which manifests itself in the State and "legal"government' (1932).

To clarify this definition it is useful to bear in mind thehistorical example used by Gramsci when contrastinghegemony with direct domination: the example of theCatholic Church, understood as 'the apparatus of hegemonyof the ruling group, which did not have its own apparatus,that is, did not have its own cultural and intellectualorganization but felt the universal ecclesiastical organisationto be as such' (1930-2b). Gramsci, like Marx, considersideologies part of the superstructure; but whereas Marxsaw civil society as the complex of economic relationsconstituting the material base, Gramsci saw civil society asthe sphere where ideological apparatuses operate and whosetask it is to exercise hegemony and through hegemony toobtain consensus. It is not the case that Gramsci abandons

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the base/superstructure dichotomy and replaces it with thecivil society/state dichotomy. He adds the second to thefirst, thereby making his conceptual scheme more complex.In order to represent the contrast between the structuralmoment and the superstructural moment he regularlymakes use of these pairs: economic moment/political-ethicalmoment, necessity/liberty, objectivity/subjectivity. To rep-resent the contrast between, civil society and the statehe uses other pairs: consensus/force, persuasion/coercion,morality/politics, hegemony/dictatorship, leadership/domi-nation. It should be noted that in the first dichotomy theeconomic moment is contrasted with the political-ethicalmoment. Yet the second dichotomy can be considered asthe resolution of the duality implicit in the second momentof the first: civil society represents the moment of 'morality'through which the dominant class obtains consensus andacquires legitimacy, to employ a modern expression notused by Gramsci; the state represents the political moment,strictly speaking, and exercises the force that is no lessnecessary than consensus for the maintenance of power: atleast as long as power is exercised by a restricted and nota universal class (which exercises it through its party, thetrue protagonist of hegemony). It can be observed, at thisstage, that Gramsci has unwittingly recovered the naturallaw meaning of civil society as a society founded onconsensus. However, there is this difference: according tonatural law, where the legitimacy of power depends on itsbeing grounded on the social contract, the society ofconsensus par excellence is the state, while according toGramsci the society of consensus is what will rise out ofthe extinction of the state.

THE HEGELIAN SYSTEM

When Marx writes that he had arrived at the discovery ofcivil society underlying political institutions through studyingHegel and identifies civil society with the sphere of economic

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relations, he is giving a partial interpretation of the Hegeliancategory of civil society and passing it on to the entireHegelian-Marxist tradition. The Hegelian category of civilsociety, whose clear formulation and denomination Hegelonly arrived at in the last stages of his thought (Outlinesof the Philosophy of Law, 1821) is very much more complexand, on account of this, much more difficult to interpret.As an intermediate moment of ethicity, situated betweenthe family and the state, it allows the construction of atriadic scheme which can be contrasted with two precedingdyadic models: the Aristotelian, based on the dichotomybetween family and state (societas domesticalsocietas civilis,where civilis, from civitas, corresponds exactly to politikos,from polis) and the natural law model based on thedichotomy of state of nature/civil society. Compared to thefamily it is already an incomplete form of state, the 'stateof the intellect'; compared to the state, it is not yet thestate in its essence and in its full historical realization. Inthe Berlin lectures, civil society is divided into threemoments: the system of needs, the administration of justiceand the police (together with the corporation): the area ofeconomic relations is covered only by the first while thesecond and the third moments include parts of the traditionaldoctrine of the state.

Looking for the anatomy of Hegel's civil society inpolitical economy is partial and wayward in relation to atrue understanding of Hegel's thought. What exactly Hegel'strue thoughts might have been about the division of civilsociety is controversial: some believe that it was conceivedas a kind of residual category and after many attempts,lasting 20 years, to systematize the traditional material ofpractical philosophy, Hegel ended up by placing thereeverything that he could not fit into the well-definedcategories of the family and the state. The greatest difficultywith this interpretation lies in the fact that the larger partof the section is not dedicated to an analysis of politicaleconomy but to two important items in the doctrine ofthe state regarding respectively - to use contemporary

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vocabulary - the judicial and the administrative functions(under the name then current of police state). How couldHegel, who was concluding his dissection of ethicity in thestate, precede it with a section in which he deals with twoareas of such importance for the delineation of the state as awhole as the administration of justice and the administrativestate? Hegel's division, although continuing to be difficultto render intelligible in the light of preceding and succeedingtraditions, can be understood, or at least made less singular,if we bear in mind that in German societas civilis becomesburgerliche Gesellschaft which for centuries (and certainlyuntil Hegel) meant the state in contrast to the family inthe Aristotelian tradition and to the state of nature in thenatural law tradition. What differentiates Hegel's civilsociety from its predecessors is not its retreat towards pre-state society - a retreat that only comes with Marx - somuch as its identification as an imperfect state-form. Insteadof being, as some have interpreted, the moment precedingthe formation of the state, Hegel's civil society representsthe first stage of the formation of the state - thelegal-administrative state with the task of regulating externalrelations while the state, strictly speaking, represents theethical/political moment whose job is to realize the inwardadhesion of citizens to the whole of which they are a part- to the extent that the state can be called internal orinterior (Gentile's state in interiore homine). The Hegeliandistinction between civil society and the state, rather thanbeing a sequence in the pre-state and state forms of ethicity,represents the distinction between an inferior and a superiorstate. While the superior state is characterized by aconstitution and constitutional powers (monarchical power,legislative power and governmental power), the lesser stateworks through two subordinate legal powers: judicial powerand administrative power. The mainly negative job of thefirst is to settle conflicts of interest and repress offencesagainst established law; of the second, to provide for thecommon interest, intervening in the supervision of morals,the distribution of work, education, the care of the poor:

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that is, in all the activities that distinguish the Wohlfahrt-Staat, the state that looks after the external well-being ofits subjects.

It can be further shown that going back to the traditionalsocietas civilis for a clearer understanding of Hegel's civilsociety is not arbitrary from the meaning that this momenthas in the development of Objective Spirit in the Hegeliansystem. Hegelian categories always have a historical dimen-sion as well as a systematic role: they are at the same timeinterconnected parts of a global conception of reality andhistorical figures. Think of the state of law (Rechtszustand)of the Phenomenology of Spirit (Phaenomenologie desGeistes, 1807) which represents conceptually the conditionwhere relations of private law are exalted and which is,historically, the Roman empire. Moreover, that civil societyis a historical figure in Hegel's system was more than onceconfirmed by him when he said that ancient states - whetherthe despotic ones of the static Orient or the Greek cities -did not possess civil societies and that the 'discovery of civilsociety belongs to the modern world' (1821). For Hegel theerror of those who had discovered civil society - and inthis rebuke lies the argumentative significance of thelocation of this figure, not at the end of the process ofObjective Spirit but in a position subordinate to the statein its entirety - lies in having believed that it exhausted theessence of the state. Therefore, civil society is not just alesser form of the state in the complex of the system, butit also represents the concept of the state at which precedingpolitical writers and jurists of public law had stopped, whichcan be called privatistic in the sense that its principal taskis to settle conflicts of interest which have their origins inprivate relations by means of the administration of justiceand subsequently to take care of the well-being of citizensby protecting them from the damage that comes from givingfree rein to the egoistic particularism of individuals.

Behind this vision of civil society, which is narrowcompared to a fully-developed state, it is possible to seean allusion to either Locke's theory of the state whose sole

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raison d'etre is to prevent the private justice of the stateof nature where there is no uninvolved and impartial judgeand to protect property, understood as a natural right; orthe eudemonistic state of the supporters of enlightenedabsolutism which also takes on the job of providing for thewell-being of its subjects but which never rises above anindividualist conception of social relations. Hegel was notignorant of the fact that the eudemonistic state had alreadybeen criticized by Kant who, however, rejected it in thename of the state of law whose scope of action was limitedto the guarantee of individual liberty in a manner thatfollowed Locke's and did not anticipate the organicconception that alone could raise the state to the sphere ofethicity. Finally, the reason why Hegel placed his conceptof the state above the concept at which his predecessorsstopped must be sought in the necessity of explaining whythe right of the state is recognized to request of citizensthe sacrifice of their goods (through taxation) and of theirlives (when it declares war); an explanation it is useless toseek in the contractualistic doctrine, where the state is bornof an agreement which the contractors can dissolve whenthey like, or in the eudemonistic doctrine, where thesupreme aim of the state is the well-being of its subjects.In the last instance what characterizes the state comparedto civil society are the relations that the state alone andnot civil society undertakes with other states so that it istrue that the state and not civil society is the subject ofuniversal history which concludes the development ofObjective Spirit.

THE NATURAL LAW TRADITION

Hegel's use of civil society for the state, even if only aninferior form of state, corresponds to the traditional meaningof sodetas civilis where civilis from civitas is synonymouswith politikos from polis and is an exact translation of theexpression koinonia politike. Aristotle uses it at the

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beginning of the Politics to indicate the polls or city whosecharacter as an independent and self-sufficient communitybased on a constitution (pollteld) was considered forcenturies as the origin or historical precedent of the statein the modern sense of the word, even with two differentmeanings, depending on whether it is contrasted on thebasis of the Aristotelian model, according to which thestate is the natural successor to family society, to domesticor family society, or on the basis of the Hobbesian model(or natural law), for which the state is the anthithesis ofthe state of nature, to the societas naturalls constituted byhypothetically free and equal individuals. The differencelies in the fact that while the societas civilis of theAristotelian model is still a natural society - in the sensethat it corresponds perfectly to humankind's social nature(politikdn zoori) - the same societas civilis, in Hobbes'smodel (in so far as it is the antithesis of the state of natureand is constituted through the agreement of individualswho decide to get out of the state of nature), is an institutedor artificial society (homo artlficlalls or machlnamachlnarurri).

Nothing proves better the vitality and longevity of thisexpression than its consistent use in other contexts in whichthe opposite term is the family and contexts where theopposite term is the state of nature. The first usage onefinds in Bodin, a typical representative of the Aristoteliantradition for whom the state is a natural fact: 'The State[republlque or res publica] is the civil society that can existon its own without associations and other bodies, but itcannot do so without the family' (1576, III, 7). For thesecond take Kant, another authoritative and representativeexample of the natural law model: 'Man must leave thestate of nature, in which everyone follows the caprices ofhis own imagination and unite with all others . . . submittinghimself to an external and publicly legal constraint . . .:which is to say that everyone must, above all else, enterinto a civil state' (1797). However through the persistenceof the natural law model in the modern age, from Hobbes

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to Kant, the contrasting of civil society to natural societyended up making the expression 'civil society' meanprevalently 'artificial society', so much so that a traditionalauthor like Haller, who sees the state along the lines ofthe Aristotelian model as a natural society on a level withthe family - 'the highest rank of natural or private society'(1816) - claims that 'the distinction, always reproduced incurrently accepted texts of doctrine, between civil societyand other natural societies, is without foundation', so that'it is desirable that the expression civil society (societascivilis] that has crept into our language from the Romansshould be entirely banned as soon as possible' (Haller1816). An assertion of this kind cannot be explained unless,through the natural law use of 'civil society', the expressionhas assumed the exclusive meaning of state as an entityinstituted by people on top of natural relations, even asthe voluntary regulation of natural relations, in short as anartificial society, while in its original Aristotelian meaning,civil society, koinonia politike, is a natural society on alevel with the family. In reality, what Haller wanted toabandon was not so much the word but the meaning theword took on for those, like natural lawyers, who sawstates (to use Haller's own polemical expression) as'arbitrarily formed associations, distinct from all others byvirtue of their origins and their aims' (Haller 1816).

The expression 'civil society', still with the meaning ofpolitical state as distinct from every form of non-politicalstate, was commonly adopted to distinguish the area ofcompetence of the state or civil power from the area ofcompetence of church or religious power, in the dichotomycivil society/religious society which is added to the traditionaldomestic society/civil society. Unknown to classicalantiquity, the distinction is a recurring one in Christianthought. Take a Catholic writer like Antonio Rosmini-Serbati. In the Philosophy of Law, the part dedicated tosocial law examines three types of association necessary tothe 'perfect organisation of human kind' (1841-3). Thesethree associations are: religious or theocratic society,

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domestic society and civil society. This tripartite divisionobviously derives from combining the dichotomy family/state, which is the point of departure of the Aristotelianmodel, with the dichotomy church/state which is fundamen-tal in the tradition of Christian thought.

The two meanings of 'civil society' as political society orstate - and as such a society distinct from religious society- are enshrined in two articles of the Encyclopedic dedicatedrespectively to Societe civile (Anon. 1765b) and to Societe(1765a). In the first one comes across this definition: 'civilsociety means the political body that men of the samenation, the same state, of the same town or other place,form together, and the political links that attaches one tothe others' (1765b). The second is dedicated almostexclusively to the problem of the relations between civilsociety and religious society with the aim of rigorouslydetermining their respective spheres of influence.

ClVIL SOCIETY AS CIVILIZED SOCIETY

A much-repeated contemporary opinion on Hegel's intellec-tual sources claims that the notion of burgerliche Gesellschaftwas inspired by Adam Ferguson's Essay on the History ofCivil Society (1767) which was translated into German in1768 by Christian Garve and which Hegel certainly knew.However, it is one thing to claim that Ferguson (togetherwith Adam Smith) might have been one of Hegel's sourcesas regards the section on civil society that deals with thesystem of needs and, more generally, political economyand another, on the basis of comparisons between Hegel'sand Ferguson's texts, to say that the burgerliche Gesellschaftof the latter has anything to do with the civil society of theformer. Just because Hegel may have taken some pointersfrom Ferguson for dealing with some elements of politicaleconomy that form part of the analysis of civil society doesnot mean to say that the civil society in Ferguson has thesame meaning as in Hegel. In fact civil society has a

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different meaning for Ferguson and the other Scots: civilisis no longer the adjective of civitas but of civilitas. Civilsociety also means civilized society (Smith, in fact, will usethe term civilized) and has a near synonym in 'polished'.Ferguson's work, which describes the passage from primitiveto evolved society, is a history of progress: humanity haspassed and continues to pass from the savage condition ofhunter peoples without property and without a state to thebarbaric condition of people that take to agriculture andintroduce the first germs of property, to a civilized conditioncharacterized by the institution of property, by exchangeand by the state. It cannot at all be excluded that in boththe societas civilis of the natural lawyers and burgerlicheGesellschaft is hidden civil society in Ferguson's and theScots' meaning: it is sufficient to think of Hobbes's famouscontrast between the state of nature and civil society, wherebarbaries appear among the characteristics of the first andelegantia of the second (1642, X, I), or of Hegel's repeatedassertion that ancient states, whether despotic or Greekrepublic, did not have a civil society (a formation character-istic of the modern age). But it is still the case thatFerguson's civil society is civil not because it is differentfrom domestic or natural society, but because it is incontrast to primitive society.

It is only by taking account of this meaning that one canfully understand Rousseau's societe civile. In the Discourseon the Origin and Grounds of Inequality among Men (1754)Rousseau describes first of all the state of nature, thecondition of natural man who does not yet live in societybecause it is not necessary to him since bountiful natureprovides him with the satisfaction of his essential needs,and because he is happy in this condition; next he describesthe state of corruption into which natural man falls followingon the institution of private property that stimulates,exacerbates and perverts egoistic instincts, and on theinvention of agriculture and metallurgy (that which todayone would call techniques for increasing his power overnature which become transformed into instruments of the

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domination of man over man by the more able and thestronger). Rousseau called the state of corruption societecivile where the adjective civile clearly means 'civilized', eventhough with a negative connotation that distinguishes hisposition on 'civility' from the majority of the writers of histime and in general from the Enlightenment ideology ofprogress. However, just as it is the majority of writers forwhom civil society has principally the meaning of politicalsociety and the meaning of civilized society is not excluded,so in Rousseau the prevalent meaning of civil society ascivilized society does not exclude that this society might bea political society in embryo unlike the state of nature -although in the corrupt form of the domination of the weakby the strong, the poor by the rich, the cunning over thesimple-minded - a form of political society which man mustleave in order to establish a republic based on the socialcontract: that is, on the unanimous agreement of each withall: just as in the natural law hypothesis, which starts froma reversed judgement of the two terms, man must leave thestate of nature.

THE CURRENT DEBATE

This historical excursus has shown the variety of the oftencontrasting meanings for which the expression 'civil society'has been used. Summing up, the prevalent meaning was thatof a political society or state used, however, in differentcontexts depending on whether civil or political societywas distinguished from domestic society, natural society orreligious society. Along with this the other tradition-al meaning that appears in the sequence savagesociety-barbarism-civilization which, starting with thewriters of the eighteenth century, constitutes a classicalscheme for outlining human progress (with the exception ofRousseau for whom civil society, although having the mean-ing of civilized society, represents a negative moment inhistoric development). A completely different story starts

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with Hegel for whom for the first time civil society nolonger includes the state in its entirety but represents amoment in the process of the formation of the state. He isfollowed by Marx who, concentrating his attention on thesystem of needs which constitutes only the first moment ofHegel's civil society, includes in the sphere of civilsociety exclusively material and economic relations, therebyaccomplishing an almost complete inversion of the tra-ditional meaning, and not only separates civil society fromthe state but makes it both its antithetical and foundationalmoment. Finally Gramsci, although maintaining the distinc-tion between civil society and the state, moved the formerfrom the sphere of the material base to the superstructureand made it the locus of formation of ideological power,as distinct from political power strictly understood, and ofthe process of the legitimation of the ruling class.

In the current debate, as was said at the beginning, thecontrast remains. The idea that civil society is the antecedent(or antithesis) of the state has so entered into everydaypractice that it now takes an effort to convince oneself thatfor centuries the same expression was used to designatethat collection of institutions which, as a rule, todayconstitute the state and which nobody would call civil societywithout running the risk of a complete misunderstanding.Naturally this has not occurred by chance or on account ofthe whims of political writers. One should not forget thatsocietas civilis translates Aristotle's koinonia politike, anexpression that designates the city as a form of communitydifferent from and superior to the family, an organizationof living together having the characteristics of self-sufficiencyand independence which will later be characteristics of thestate in all its historical forms but which was not distinguishedor was never knowingly distinct from underlying economicsociety, economic activity being an attribute of the family(whence the name of economic for the management of thehouse). That the state might be defined as a form ofsociety could be considered correct during the centuries ofcontroversy between state and church about the determi-

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nation of their respective borders, a controversy that wasseen from both sides as a conflict between the two societies,the societas civium and the societas fidelium; and not at allinappropriately when in the natural law doctrine andcontractualism the state was seen above all as a voluntaryassociation in defence of some pre-eminent interests suchas the defence of life, property or liberty. It is not to beexcluded that the traditional identification of the state as aform of society might have contributed to delaying theperception of the distinction between the social systemas a whole and the political institutions through whichdomination is exercised (Herrschaft in the Weberian sense);a distinction that has been accentuated in the modernage with the development of economic relations beyondhousehold management, on the one hand, and the develop-ment of the apparatus of public power on the other.

However, starting with Machiavelli - and this is onereason for considering him one of the founders of modernpolitical science - the state can no longer in any way beassimilated to a form of society, and only for scholasticreasons can it still be defined as societas civilis. WhenMachiavelli spoke of the state he meant to speak of thegreatest power that can be exercised over the inhabitantsof a given territory and of the apparatus which certainindividuals and groups use in order to acquire and maintainthis power. The state thus understood is not the societystate but the machine state. After Machiavelli, the statecan still be defined as societas civilis, but the definitionappears more and more incongruous and wayward. Thecontrast between society and the state which starts with thebirth of bourgeois society is the natural consequence of adifferentiation that occurred in things and, together with aconscious and increasingly necessary division of tasks,between those who occupy themselves with the 'wealth ofnations' and those who deal with the political institutions,between political economy originally and then sociology onthe one hand, and the science of the state and all its relateddisciplines, the Polizeiwissenschaft, statistics (in the original

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sense of the term), the science of administration and so on,on the other.

In the last few years the question has been asked whetherthe distinction between civil society and state that has lastedfor two centuries still possesses a raison d'etre. It has beensaid that the process of the emancipation of society fromthe state has been followed by the reverse process of thereappropriation of society by the state, that the state intransforming itself from the Rechtsstaat (constitutional state)into the social state (to use the term popularized aboveall by German lawyers and political scientists) is badlydistinguished precisely because it is social from the underly-ing society that it pervades particularly through the regu-lation of economic relations. However, it has been notedthat, along with the process of the state's colonization ofsociety, there has been a reverse but no less significantprocess of society's colonization of the state through thedevelopment of the various forms of participation in politicalchoice, the growth of mass organizations that directly orindirectly exercise political power: so that the expression'social state' can be understood not only in the sense of astate that has permeated society but also in the sense of astate that has been permeated by society.

These remarks are correct and yet the contrast betweencivil society and state is still used: a sign that it reflects areal situation. Starting from the consideration that the twoprocesses of the state-making-society and society-making-state are contradictory, because the completion of the firstwould lead to a state without society - the totalitarian state- and the accomplishment of the second to society withoutthe state - the extinction of the state - the two processesare anything but accomplished, and are unaccomplishablesimply because of their cohabitation and contradictoriness.These two processes are well represented by the two imagesof the participating citizen and the protected citizen, whoare in conflict among themselves, sometimes in the sameperson: the citizen who through active participation alwaysasks for greater protection from the state and through the

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request for protection strengthens the state which the citizenwants to control but which ends up becoming his or hermaster. Under this aspect society and state act as twonecessary moments, separate but contiguous, distinct butinterdependent, internal articulations of the social systemas a whole.

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State, Power and Government

TOWARDS THE STUDY OF THE STATE

Historical disciplines

The two principal sources for the study of the state are thehistory of political institutions and the history of politicaldoctrine. The fact that the history of institutions can betraced in terms of the history of doctrines should not allowthe two kinds of history to be confused. The history ofEuropean parliaments is one thing, the history of writerson parliaments quite another. There is no doubt as to theimportance of Aristotle's political works for the study ofinstitutions in the Greek cities, or of the importance of theSixth Book of Polybius' Histories for the study of theconstitution of republican Rome. But nobody wishing toacquire a knowledge of the structure of the first largeterritorial states of the modern age would read Hobbes,and neither would they read Rousseau to learn about thestructure of modern democracies. On the other hand, ifthe study of the works of Aristotle and the histories ofPolybius is important both for a knowledge of the Greekcities and of the Roman republic, then other sources,literary or otherwise, from ancient to modern times, arerequired for a thorough knowledge of the mechanismthrough which power relations in a political system areinstituted or modified. For obvious reasons, but essentially

3

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due to the difficulty of the availability of sources, thehistory of institutions developed later than the history ofdoctrines. Thus the structure of a given political system isknown through the reconstruction and sometimes theidealization or distortion of those who have written aboutthem. Hobbes has been identified with the absolute state,Locke with parliamentary monarchy, Montesquieu withthe limited state, Rousseau with democracy, Hegel withconstitutional monarchy and so on. The first source forthe study of institutions, independent of doctrines, isconstituted by historians: Machiavelli reconstructs thehistory and structure of the institutions of the Romanrepublic by commenting on Livy. Vico, in order toreconstruct the civil history of nations from their savageorigins until the great states of his time, denounces thehaughtiness of scholars who 'would like what they know tobe as old as the world itself (1744) and for his own researchintends to 'give an account as if there had never been booksin the world' (Vico 1744).

After the historical studies came the study of the lawswhich regulate relations between the ruled and the rulers:the complex of norms that make up public law (itself adoctrinal category). The first histories of institutions werehistories of law written by jurists who often had directpractical experience of affairs of state. Today, the historyof institutions is not only free of doctrinal theory, but hasenlarged the study of civil structures beyond the legal formswhich shape them. It includes a concrete analysis of thefunctioning of a particular institution during a given periodusing written documents as well as the testimony of authorsand the opinions of contemporaries. These proceed fromthe study of a fundamental institution (such as parliamentand its fate in other countries) to the study of particularinstitutions (such as the office of secretary of state,superintendent or the secret Cabinet). In this way thepassage of the feudal state to absolute monarchy, or thegradual formation of the administrative apparatus and henceof the contemporary state, can be traced.

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Philosophy and political science

The state, apart from its historical development, comes tobe studied both as a complex system in itself- its structures,functions, constitutive elements, mechanisms, organs andso on - and in its relations with contiguous systems. Today,this immense field of study is conventionally dividedbetween two disciplines which are didactically distinct:political philosophy and political science. Like all artificialdistinctions, this one is both tenuous and questionable.When Hobbes called the sum of analyses of humankind intheir social relations philosophia civilis he was including aseries of matters which today would belong to politicalscience; Hegel, on the other hand, gave to his Outline ofa Philosophy of Right (1821) the subtitle of Staatswissenschaftim Grundrisse (Outline of a Science of the State). Politicalphilosophy involves three types of research. These are: (a)the best form of government or the best republic; (b) thefoundations of the state or political power, with theconsequent justification or denial of political obligation;and (c) the essence of the political ('politicalness') and theimportant dispute on the distinction between ethics andpolitics. These three forms of political philosophy areperfectly represented at the beginning of the modern ageby three works which have left indelible marks on thehistory of political thought. More's Utopia (1516) offereda blueprint of the ideal republic. Hobbes's Leviathan(1651) claimed to give a rational, and therefore universal,justification for the existence of the state as well as providingreasons why its commands should be obeyed. Machiavelli'sThe Prince (1513), which, at least according to oneinterpretation, is the only one to give rise to an '-ism'(Machiavellianism), identifies the specific character ofpolitical action and how it can be distinguished from moralaction.

By political science is meant research into that area ofpolitical life which satisfies three conditions: (a) the

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principle of verification or falsification as a criterion of theacceptability of its results; (b) the use of scientific techniqueswhich allow a strong or weak causal explanation of thephenomenon investigated; (c) an absence of, or abstentionfrom, value judgements ('value freedom'). Looking at thesethree forms of political philosophy described above, we cansee how each one lacks at least one of the characteristicsof science. Political philosophy, as research into the bestform of republic, does not have a value-free character. Asresearch into the ultimate foundations of power it does notmean to explain the phenomenon of power but to justifyit, an operation which has as its aim the characterizationof behaviour as either permitted or forbidden. This cannotbe done without recourse to values. As an investigationinto the essence of politics it withdraws from any empiricalverification or falsification, because what is presumptuouslycalled 'the essence of polities' derives from a nominaldefinition and as such is neither true nor false.

Legal and sociological perspectives

The theme of the state can be approached from points ofview other than those conventionally entitled 'politicalphilosophy' and 'political science'. For a long time afterGeorg Jellinek wrote his General Doctrine of the State(1911), the distinction between sociological and legaldoctrines became necessary after public law became techni-cal and the characterization of the state as a legal personwhich resulted from it. The fact that public law becametechnical was, in its turn, the natural consequence of theconception of state as a lRechtsstaat\ as a state conceivedprimarily as a legally-produced entity and in general as alegal structure. This reconstruction of the state as a legalstructure, however, should not allow us to forget that thestate, through law, is also a form of social organization andas such cannot be dissociated from society and fromunderlying social relations. The necessity then arises ofdistinguishing between the legal perspective (the prerogative

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of lawyers, who for centuries had been the principal writersof treatises on the state), and the sociological perspective(which makes use of the contributions of sociologists,ethnologists and students of various forms of social organiz-ation), a distinction which could not have occurred beforethe arrival on the scene of sociology as a general theoryincorporating a theory of the state.

It was Weber who recognized the importance of Jellinek'sdistinction and who, taking a hint from the General Doctrineof the State, maintained the need to distinguish betweenlegal and sociological perspectives. Jellinek had stated thatthe social doctrine of the state 'had for its content theobjective, historical or natural existence of the State',whereas legal doctrine was concerned with 'legal normswhich in that real existence must manifest themselves'(1911) and founded the distinction on the opposition -destined to find favour - between the spheres of the 'is'and the 'ought'. Weber, now considered one of the foundersof the sociological approach to jurisprudence, stated that'when we speak of law, legal order and legal norms, it isnecessary to separate rigorously the legal point of viewfrom the sociological' (Weber 1908-20): a distinction whichhe rooted in the difference between ideal validity, withwhich jurists are concerned, and empirical validity, withwhich sociologists are concerned. For Weber, this was anindispensable premise in order to make it clear that hewould be concerned with the state of the sociologist andnot the jurist. This approach becomes a chapter in thedevelopment of the theory of social groups of which onetype is the political group which in their turn become states(that is, a modern state) when they possess an administrativeapparatus which advances its claim to the monopoly offorce in a given territory. Only with Kelsen (1922), whocriticized the double perspective of Jellinek (which he calledZweiseitentheorie), was the state turned completely into alegal structure and as a consequence it disappeared as anentity different from the law which regulates the productionand implementation of legal norms. Of all Kelsen's theses,

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the radical reduction of the state to its legal structure isthe one that has fared worst. With the transformation ofthe pure state of law into the social state, the exclusivelylegal theory of the state was condemned as formalistic byjurists, whereas studies by political sociologists which seethe state as a complex form of social organization (of whichthe law is but one constitutive element), have flourished.

Functionalism and Marxism

Among sociological theories of the state, two in particularhave been predominant in recent years. Often the two havebeen in contention with one another, but more often theyhave ignored each other, proceeding along their respectivepaths as if oblivious of the other's existence. Marxist theoryand functionalism, the latter dominant in American politicalscience and with great influence in Europe, were acceptedfor years as political sciences par excellence. There aredifferences between the two theories, both with regard totheir general conception of science and methodology. Theessential difference, however, concerns the location of thestate within the social system as a whole. The Marxianconception distinguishes in each society, at least at certainmoments of economic development, between two elementswhich do not possess the same determining power orcapacity to influence the development of the system andthe transition from one system to another. These are theeconomic base and the superstructure. Political institutions,in a word the state, belong to the second moment. Theunderlying moment includes economic relations, which arecharacterized in any era by a given mode of production,and is the determining moment even if not always dominant,according to some interpretations. The functionalist concep-tion, which derives from Parsons, views the complexglobal system as divided into four sub-systems (patternmaintenance, goal attainment, adaptation and integration),each of which is equally essential for the maintenance ofsocial equilibrium and, to that extent, they are reciprocally

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interdependent. The function of goal attainment is attributedto the political sub-system. This is the same as sayingthat the political function exercised by the collection ofinstitutions which constitute the state is one of the fourfundamental functions of every social system.

It may be true that in the Marxian conception the relationbetween economic base and political superstructure is oneof reciprocal action; nevertheless, the idea that the economicbase is always what in the last instance determines remainsan unshakeable one. To remove that idea is to remove oneof the essential characteristics of Marxist theory. Infunctionalist theory there is no distinction of levels betweenthe various functions which any social system cannot dowithout. If a pre-eminent function were to be attributed toany of the sub-systems it would be to the cultural, not tothe economic, sub-system because the cohesiveness of anysocial group depends on adhesion to values and stabilizednorms through which the processes of socialization (theinternationalization of social values) on the one hand, andsocial control (observance of norms which regulate generalbehaviour) on the other, take place.

These two different, sometimes even opposed, concep-tions can be reduced to the fundamental problems whichthey pose and which they mean to resolve. Whereasfunctionalist theory, especially in its Parsonian version, isobsessed with the Hobbesian theme of order, Marxist theoryis obsessed with that of the collapse of order. This collapseis seen as the transition from one mode of production toanother through the explosion of internal contradictionswithin the system, particularly contradictions between theforces of production and the relations of production.Whereas the first is concerned with the idea of socialcontinuity, the second is essentially concerned with socialchange. On the one hand the changes that interestfunctionalist theory are those which occur within the systemand which the system has the capacity to absorb throughinternal adjustments foreseen by the system itself. Marxand his followers, on the other hand, have always believed

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in the big change, which with a qualitative leap throws asystem into crisis and creates a new one out of it. It iscommonplace, but no less correct for all that, to say thatthe great division is between systems which favour themoment of cohesion and those which favour the momentof conflict: so-called integrationist versus so-called conflic-tualist systems. It would be difficult in the history ofsociological thought to find two stronger archetypes of thisdichotomy than Marxism and functionalism. It should beadded that the functionalist system is, in some respects,analogous to the one against which Marx fought a majortheoretical battle. This is the conception of the classicaleconomists according to which civil society, notwithstandingits conflicts, obeys a kind of pre-established order, andenjoys the advantage of a mechanism, the market, whichmaintains equilibrium by continually adjusting competinginterests.

In the past few years, the point of view that has prevailedin the characterization of the state is the systems-perspectivethat derives with some variations and without too muchvigour from the theory of systems (above all, David Eastonand Gabriel Almond). The relation between politicalinstitutions and the social system as a whole is representedas a questions-and-answer relation (input-output). Thefunction of political institutions is to respond to demandsoriginating from the social environment or, according toone current terminology, to convert questions into answers.The responses of political institutions are given in the formof collective decisions which are binding on the wholesociety. These responses in their turn affect changes in thesocietal environment. Due to the way answers are given,new demands are created in a process of continual change.This can be gradual, as when a correspondence existsbetween demands and responses, or abrupt when, due toan excess of demands over responses, the flow of feedbackis interrupted. Thus existing political institutions, in failingto provide satisfactory responses, undergo a process ofchange which can result in their complete transformation.

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The systems representation of the state is perfectly compat-ible with both the general theories of society discussedabove. Notwithstanding the different interpretations of thefunction of the state in society, its systemic representationis meant to propose a conceptual scheme for analysing howpolitical institutions function, and how they exercise theirspecific function, whatever the various interpretations maybe.

State and society

What has changed, in fact completely reversed, in thecourse of centuries of reflection on the problem of the stateis the relation between state and society. For centuries thepolitical organization was the object par excellence of allreflection on the social life of humankind, on man as asocial animal, as politikon zoon where politikon includeswithout differentiation the two contemporary meanings of'social' and 'political'. This does not mean to say thatancient thought did not highlight the existence of otherforms of human association, but the family was consideredby Aristotle as the embryonic and imperfect form of thepolls and he deals with it right at the beginning of thePolitics. As for other forms of society or koinoniai whichare constituted through agreement or necessity amongindividuals with the intention of achieving particular aims,these are dealt with by Aristotle in the chapter of theNicomachean Ethics devoted to friendship. In so far asthey are formed for the achievement of particular ends,navigation by navigators, victory in war by armies, pleasureor amusement by those who come together in banquets,they are subordinated to political society, which does notaim at a particular or momentary good, but at the generalgood involving the entire life of man (1160a). The relationbetween political society, which alone is the societasperfecta,and particular societies is the relation between the wholeand its parts, with an all-encompassing polls encircling thefamily and other associations. In all political writers, up toand including Hegel, this relation between the state

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and lesser, or partial, associations remained constant. InHobbes's Leviathan (1651), besides the chapter on thefamily and patriarchical society, which is common totreatises of the period, there is also a chapter on partialassociations (called in a Greek manner 'systems') with manyexamples and an accompanying typology which today wouldbe one of the principal chapters in a sociological treatise.

The political theory of Hegel as propounded in PartThree of The Philosophy of Right (1821) is a theory of thestate as the culminating moment of objective spirit,culminating in the sense that it resolves and surpasses thepreceding moments of the family and civil society. It ishere that we find, among other things, the treatment ofcorporations which are typical partial associations withparticular ends, in the traditional sense. With the emanci-pation of bourgeois society (from the Marxian pointof view), or industrial society (in the Saint-Simonianperspective), from the state, the relations between politicalinstitutions and society are inverted. Little by little society,in its various articulations, becomes the whole. The state,by contrast, narrowly seen as the coercive apparatus withwhich one sector of society exercises power over another,is reduced to a part. Up to now the course of humanityhas been seen as a development from lesser societies suchas the family to the state; now finally with the discoveryon the one side of economic laws which allow people tolive in harmony together with minimum need of a coerciveapparatus and therefore of political power (Adam Smith),and on the other with the development of industrialorganization together with scientists and industrialists whocan do without Caesar's sword (Saint-Simon), we reach thestage when a reverse process will occur: the developmentaway from an oppressive state towards a free society. Fromthis inversion emerges one of the dominant ideas of thenineteenth century, one which is equally common toscientific and Utopian socialism, to the various forms oflibertarian thought as well as liberal thought in its mostradical expression: the inevitable extinction of the state, or

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at least its reduction to a minimum. As for approaches tothe state, these became increasingly specialized comparedto general approaches to society. A few years after thedeath of Hegel, Comte's Cours de philosophic positiveappeared (1830-42), and in it culminated the general theoryof society or sociology with the theme of the stateconstituting only a part. In Hegel's Germany, in the workof Lorenz von Stein, the general science of the state(gesamte Staatswisssenschaff) disappears and becomesmerely Staatswissenschaft (as opposed to Gesellschaftswis-senschaft, the science of society), increasingly restricted inits range and reduced to dealing with the state as distinctfrom global society. Today political sociology is a part ofgeneral sociology, and political science is one of the socialsciences. The state as a political system is now a sub-systemin relation to the social system.

Rulers and ruled

Along with the many ways of looking at the problem ofthe state - so far examined from the point of view of theobject, of the method and of the conception of the socialsystem - we should mention a generally neglected conflictwhich divides political doctrines into two opposing campsmore than any other dichotomy: this refers to the oppositionwhich originates in the different positions taken by writerson the fundamental political relation of rulers and ruled,or sovereign and subjects, or state and citizens, a relationshipgenerally considered as a relation between superiors andinferiors. The exception is the radical democratic theory inwhich rulers and ruled are identified, at least ideally, asthe same so that government becomes self-government.Looking at the political relation as a specific relationbetween two agents where one has the right to commandand the other the duty to obey, the problem of the statecan be seen from the point of view of either the ruler orof the ruled: ex parte principis or ex pane populi.

In fact, in the long tradition that goes from Plato's

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Statesman to Machiavelli's Prince, from Xenophon's Cyro-paedia to Erasmus's Princeps Christianas, political writershave envisaged the state chiefly from the point of view ofthe rulers. The essential themes of this tradition are: theart of good government; the virtues, capacities or abilitiesneeded for good government: the various forms of govern-ment; the distinction between good and bad government;the phenomenology of tyranny in all its various forms; therights, duties and prerogatives of rulers; the differentfunctions of the state and the powers needed to dischargethem adequately; the various branches of administration;fundamental concepts such as dominium, imperium,maiestas, auctoritas, potestas and summa potestas, all ofwhich refer to just one half of the relationship (tothe higher part which becomes the real subject of therelationship), the former becoming passive, matter ratherthan form. It was certainly not the case that the otherperspective - political society seen from below, from thepoint of view of the interests, needs and rights, of therecipients of the benefits (or evils, according to the case)of government - was completely absent. However, thepersistent use of certain metaphors - the shepherd whichpresupposes a flock, the captain (in the original sense ofhelmsman) which presupposes a crew, the parent whichpresupposes children needful of protection, the masterwhich presupposes servants - shows more than any longanalysis the prevalent meaning and direction of centuriesof political discourse. Even the metaphor adopted by Plato(in the Statesman) of the ruler-weaver - 'the aim of thecloth of political action is a good weave' (31 Ib) - does notescape from this perspective: the art of the weaver is to'tell everyone which works are to be carried through to theend' (308e).

The beginning of the modern age saw a completeturnabout, with the discovery of the other side of the moonwhich up until then had remained hidden; to wit, newdoctrines concerning the natural rights of the individual.These rights precede the formation of any political society

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and therefore of any structure of power that it might cometo possess. Unlike the family or aristocratic society, politicalsociety begins to be understood predominantly (althoughthere were precedents in the classical age) as the voluntaryproduct of individuals, who decide in mutual agreement tolive in society and set up a government. Johannes Althusius,one of the greatest architects of this new way of seeingthings, defined politics in this manner: 'Politics is the artthrough which men join together with the aim of beginning,cultivating and maintaining between themselves, social life.For this reason it is defined as symbiotic' (1603,1). Althusiustakes his point of departure from 'men' and proceedsthrough the work of men to the description of the politicalcommunity. Aristotle's point of departure, and he was thestandard authority for centuries, was exactly the opposite:'It is evident', he wrote, 'that the State exists naturally [andas such is not established by men] but is anterior to eachindividual' (Politics, 1253a, 25).

What did this reversal of the starting-point involve, evenif Althusius failed to follow through all of its consequences?It consisted in the importance attached to political problemsother than those dealt with by writers who placed themselvesex parte principis: the liberty of citizens (in fact or in law,civil or political, negative or positive) rather than the powersof government, the well-being, prosperity and the happinesssof individuals taken one by one rather than the power ofthe state; the right of resistance to unjust laws rather thansimply the duty of obedience (active or passive); politicalsociety seen as being composed of contrasting parts (partiesnot judged only as factions tearing the fabric of the state)rather than as a compact unity; the division, and thehorizontal and vertical opposition, of the various centresof power as opposed to concentrated and centralized power;the merit of a government judged by the quantity of rightsenjoyed by the individual rather than the degree of powerof the rulers. For Locke the purpose of civil governmentis to guarantee property which he sees as an individualright preceding the birth of the state; for Spinoza and

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Rousseau it is liberty, not the libertas which Hobbes readon the walls of fortified cities and interpreted correctly asindependence from other cities (the self-sufficiency spokenof by Aristotle). The highest and most concrete expressionsof this turnabout are the American and French Declarationsof Rights, solemnly announcing the principle that govern-ment is for the individual and not the individual for thegovernment: a principle which has influenced not just alllater constitutions, but also thinking about the state andwhich has become, at least ideally, irreversible.

In political thought, at least since the French Revolutiononwards, the greatest and most significant shift concernsthe idea of change (in the sense used in Book V ofAristotle's Politics), from one form of government toanother. Generally considered an evil (the logical conclusionof a political doctrine which for centuries esteemed andexalted stability and considered civil war the worst of evils),this passage came to acquire a positive value for therevolutionary movements which saw in change the beginningof a new era. But indeed, civil war represented the crisisof the state seen ex parte principis, whereas revolution,interpreted positively, represented the crisis of the stateseen ex parte populi.

THE NAME AND THE THING

Origin of the name

It is undeniable that the word 'state' achieved its positionthrough the diffusion and prestige of Machiavelli's ThePrince. As is well known, the work begins as follows: 'Allstates and dominions which hold or have held sway overmankind are either republics or monarchies' (1513). Thisdoes not mean that the word was introduced by Machiavelli.Painstaking and wide-ranging research on the use of theword 'state' in fifteenth- and sixteenth-century languageshows that the shift in the accepted meaning of the term

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status, from 'situation' to 'state' in the modern sense of theword, had already come about through the isolation of thefirst term of the classical expression status rei publicae.Machiavelli himself could not have used that phrase at thevery beginning of his work if the word had not already hadthat current use.

Undoubtedly, it was through the author of The Princethat the term 'state' came gradually to substitute for thetraditional term which had previously denoted the highestorganization of a group of individuals on a territorypossessed of the power of command: civitas, which corre-sponded to the Greek polls, and res publica, which Romanauthors used to designate the totality of Roman politicalinstitutions. The length of this process is demonstrated bythe fact that, even at the end of the sixteenth century, JeanBodin could entitle his political treatise De la republique(1576), although it deals with all forms of the state and notonly republics. In the seventeenth century, Hobbes usuallyused the terms civitas (in his Latin works) and 'com-monwealth' (in his English works) where the word statewould appear today. Not that the Romans did not knowand use the term regnum to refer to a system differentfrom the civitas (ruled by the power of only one person).However, no matter how clear the distinction betweengovernment by one and government by a collective body,there was never a word used to describe the genus of whichres publica and regnum, in the strict sense, were the species.Res publica continued to be used both for species andgenus: Cum penes unum est omnium summa rerum, regemilium unum vocamus et regnum eius rei publicae status ('andso when the supreme authority is in the hands of one manwe call him a king and the form of his state a kingship',Cicero, De re publica, I, 26, 42). The same Roman historianoffered an extremely significant and apt example of theshift from one political regime to another; the transitionfrom regnum to res publica and from res publica toprincipatus. During the reign of Caesar when Cicero wrote,'we retain only the form of the commonwealth but the

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thing itself we have long since lost' (ibid., v, 1, 2), heshowed himself perfectly aware of the ambiguous meaningof the term res publica. Clearly, in his mind, the distinctionbetween 'republic' as a specific form of government (theform of government of 'republican' Rome) and otherpossible forms of government was very much to the fore.The one generic word known by the ancients for indicatingthe various forms of government was civitas.

However, in Machiavelli's time this must have seemedincreasingly inadequate, especially to those speaking thevernacular. It failed to represent the reality of those politicalsystems whose territory extended far beyond the walls ofthe city, including those republics which derived their namefrom a city. The republic of Venice is one example. Theneed for having a generic term more appropriate in theobjective situation must have been stronger than the bondsof a long and authoritative tradition. From there the term'state' underwent as yet unclear changes. It had the genericmeaning of 'situation', and was beginning to refer to thecondition of permanent and exclusive possession of aterritory, and command of its inhabitants. This appears inthe same piece by Machiavelli where the term 'state', barelyintroduced, is rapidly assimilated to the term dominion.While it is important to note the novelty of the use of theword 'state' as a generic term and 'republic' as a speciesterm, and the consequent influence on current usage, itshould be noted that even Machiavelli did not abandon thetraditional meanings of these terms and their use continuedto be widespread as can be seen in the passage from theDiscourses where Machiavelli, taking Polybius for his guide,introduces the discourse on the forms of government: Tagree with those who wrote of republics saying that theycould be one of three states, called by them Principality,Aristocratic and Popular; and any group of people choosingan order for a city must turn to one of these, according towhat seems to them the most appropriate' (1513-19).

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Arguments in favour of discontinuity

The problem of the term 'state' would be less important ifthe introduction of the new term at the threshold of themodern age were not the occasion for claiming that itcorresponded not only to the exigencies of lexical clarity,but also served the need to find a new name for a newreality: the reality of the modern state considered as a typeof system quite different from those preceding it, and forwhich the old names were no longer suitable. It is a widely-held opinion of historians, lawyers and political writers thatwith Machiavelli there began not just the success of a wordbut also theorizing about a reality unknown to ancientwriters, and of which the new word is a sign. Therefore itwould be opportune only to speak of the state whenreferring to the political formation that originated inthe crisis of medieval society, and not for precedingarrangements. In other words, the term 'state' should beused with caution for political organizations that existedbefore that system which was first called the 'state'. Thenew name is the name for a new entity. The debate hasoften assumed the form of replies to questions of this type:'Did there exist a political society which could be called a"state" before the large territorial states with which thehistory of the modern State begins?'; or: Ts the adjective"modern" necessary for distinguishing a reality that beginswith the name "state" and for which, therefore, any otherspecification is useless?'; or: 'What is added to the meaningof "state" by the adjective "modern" that was not alreadyimplicit in the word's use by the ancients?'

Questions of this kind are linked to a much vasterproblem, the range of answers to which is infinitely wideand radically contrasting: the problem of the origin of thestate. There is a tendency among those historians who havedescribed the formation of the large territorial states interms of the dissolution and transformation of medievalsociety to identify a degree of discontinuity between the

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systems of the ancient world, or the Middle Ages, andthose of the modern world. Consequently they see the stateas a historical formation that has not always existed buthas originated in a relatively recent epoch. There is noshortage of arguments in favour of this thesis. The strongestposits an inexorable process concentrating the power ofcommand over a vast territory which is brought about bythe monopolization of certain essential functions relatingto the maintenance of internal and external order; forexample, the production of law by whoever holds sovereignpower (which is not custom but an emanation of thesovereign's will), and the coetcive apparatus necessary forthe enforcement of the law against unwilling persons, as wellas through the reorganization of the imposition and collectionof taxes necessary for the effective exercise of these augmentedpowers. Max Weber, who described this phenomenon withextraordinary lucidity, saw in the formation of the modernstate the phenomenon of the expropriation of the means ofservice, such as weapons, on the part of public power whichproceeds at the same rate as the expropriation from artisansof the means of production by those who possess capital. Itis from this observation that the now commonplace Weberianconception derives, the definition of the modern state interms of two necessary constitutive elements: the presence ofan administrative apparatus which has the function of takingcare of the provision of public services, and the legitimatemonopoly of force.

Whatever the arguments might be for or against thecontinuity of a society's political organization, the questionof whether the state has always existed, or whether it onlyemerged during a certain era, depends entirely on thedefinition of the state. The choice of definition depends onpragmatic criteria rather than truth. It is known that thegreater the number of connotations attached to a concept,the narrower is the range which it denotes (its extension).Whoever claims as the constitutive elements of the state acertain administrative apparatus and the implementation ofcertain functions which only the modern state undertakes,

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must necessarily claim that the Greek polis is not a state,that feudal society did not have a state, and so on. Thereal problem which those interested in understanding thephenomenon of political systems must confront is not thatthe state has only existed since the modern age, but thatif there are analogies and differences between the so-calledmodern state and previous systems then which of theseshould be highlighted whatever name you wish to give tothe different systems. Those who claim that it is onlypossible to speak of the state when speaking of the politicalsystem dealt with by Bodin, Hobbes and Hegel do sobecause they see more discontinuity than continuity, moredifferences than analogies. Those who make no distinctionbetween Bodin's 'state' and the Greek polis see moreanalogies than differences, more continuity than disconti-nuity. Putting the question in these terms means goingbeyond dictionary definitions and describing the changesthat have occurred in the shift from one system to another.This means looking at what has remained and what haschanged, the elements of continuity and of discontinuity,without being blinded by the appearance of a new name.

Arguments in favour of continuity

The arguments in favour of continuity are as strong as thosein favour of discontinuity. Above all there is the claim thata political treatise such as Aristotle's, dedicated to theanalysis of the Greek city, has lost none of its descriptiveand explanatory power when confronted with the politicalsystems that follow it. One thinks of the typology ofgovernmental forms which has come down to us, and whichwas adopted, albeit with corrections and adaptations, bythose political writers who were interested in the modernstate. Equally one thinks of Aristotle's definition of'constitution' (politeia) as an arrangement of the magistra-ture, which constitutes the organization of the city, thedistribution of the tasks and the distinction of functions,which permits an illuminating comparative analysis with

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modern political systems. Furthermore one thinks of theanalysis of change, the various modes of transition fromone form of government to another to which Book V isdedicated, which is as useful as ever for contemporarypolitical analysis. This is borne out by the fact that therelations between the Greek cities, characterized by war,reprisals, truces and peace treaties, could reproduce them-selves on a quantitively higher but not qualitatively differentlevel in the relations between states in the modern age. Ifyou read Grotius's De iure belli ac pads libri tres (1625)you should not be surprised when you confront a myriadof examples of ius genituum taken from the ancient worldwhen modern states - in the sense modernists have giventhis expression - did not yet exist. Thucydides' Historiesdoes for external relations what Aristotle's Politics does forinternal relations. They remain inexhaustible sources ofinstruction and of points of reference and comparison.Machiavelli himself read and commented on Roman historynot as a historian but as a student of politics looking forexamples to apply to the states of his time. The study ofRoman history through the great historians, from Livy toTacitus, has always been one of the principal sources forthose political treatises which accompanied the formationand growth of the modern state. Even Montesquieu wrotehis Considerations sur les causes de la grandeur des Romainset de leur decadence (1734). Rousseau dedicated the lastpart of The Social Contract (1762) to an examination ofRoman dictatorship and the censor not in order to showoff facile and useless learning but to demonstrate itsperennial vitality. This continued reflection on ancienthistory and institutions would be difficult to explain hadthere been, at a certain moment in historical development,a shift leading to a wholly new type of political and socialorganization so incomparable with the past as alone tomerit the name of 'state'.

The same argument can be made, and has been made,for that long period of history from the fall of the RomanEmpire to the birth of the large territorial states. The

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question of continuity is particularly interesting in thiscontext, whether at the beginning with regard to the societyand the economic and social institutions of the latter daysof the Empire which raises the question: 'Does the lowempire already contain symptoms of the Middle Ages, ordid the High Middle Ages preserve remains of classicantiquity?'; or at the end in the process of the ever-increasing concentration of power from which originatesthe idea of the state that has lasted until today. Nothingdemonstrates the relativity of the notion of continuity morethan the dispute about that long age of transition andsupposed decadence (Vico's 'barbarism returned') whichconstitutes the Middle Ages. But continuity of what:continuity of political institutions such as the organizationof central power or of economic institutions such as thegreat landed properties and the mode of cultivating theearth? Is there any continuity between Roman cities andmedieval ones, between the collegia and the corporations?Above all, then, with regard to political organization, is itreally possible to talk of the 'state', implying as it does theidea of unity of power on a given territory, in thefractionalized and multi-centred societies of the first medi-eval centuries, the time of barbarian rulers when theprincipal functions now usually attributed to the state(and used to connote it) were performed by peripheralpowers?

In such societies there was no distinction either at thehighest or the lowest levels between genuinely politicalpower and economic power. Equally, relations of publiclaw were regulated by typically private legal institutionsincluding the contract which is a relationship of do ut des.Personal relations prevailed over territorial ones, accordingto the noted distinction between Personen Verbandstaat andthe Institutioneller Flaechenstaat. Here, too, the abstractidea of the state, so well named in the Latin res publica,disappeared and was identified more and more with thepersonal power of an individual, invested by divine will ofGod with command over others. Nevertheless, even at theheight of the Middle Ages the idea of regnum and imperium

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did not disappear: that is, of a power which alone isauthorized to exercise force in the last instance, becauseits supreme purpose is the maintenance of peace and theexercise of justice (rex a recte regendo), two functions whichcould not possibly be fulfilled without the possession ofsuperior and legitimate coercive power; and really becauseas such, as Marc Bloch observed, it preserved for centuriesa vigour which went beyond the feudal social system andbecame one of the principles on which approaches to thestate are based to this day.

Nevertheless, it was during the Middle Ages that juristselaborated a legalistic conception of the state which wasnot unlike Roman political theory (one remembers thecoetus multitudinis iuris consensu of Cicero). The firstcommentators on the Corpus iuris elaborated the relationbetween lex and rex, the theory of sovereignty as indepen-dence (superiorem non recognoscens) and therefore as thepower to dictate laws without authorization (the city sibiprinceps which reproduces the meaning of the Greekautokrates} and which, through the different interpretationsof the lex regia de imperio, brought into discussion theproblem of the foundation of power. The distinctionbetween monarch and tyrant belongs to the medievalapproach, and through it the problem of good governmentbecomes one of the enduring themes of political theory. Itis one of the principal themes of John of Salisbury'sPolycraticus (twelfth century), followed by one of the bestknown tracts of Bartolo di Sassoferrato (Tractatus deregimine civitatis, fourteenth century) and Coluccio Salutati(De tyranno, late fourteenth century) with which one arrivesat the dawn of the modern age. Finally, it is through thedebate on the foundation of power (posed in legal terms)that the ideas of the social contract and the contractof submission were born, which were to inspire thecontractualistic doctrines which played a great part in thedebate on the origin and foundation of the state in themodern age. These doctrines were rejected during thenineteenth century but today they have become of greatrelevance because they serve to explain the mediating

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function of the contemporary state in great social conflicts,more so than the organic theories of the state in whosename contractualism was abandoned.

When was the state born?

Those who hold that the concept of the state and theassociated theory must be sufficiently broad to includepolitical arrangements different and antecedent to themodern state have no difficulty in dissociating the origin ofthe name from the origin of the thing. However, theycannot avoid the problem of whether the state has alwaysexisted or whether it is a historical phenomenon thatappears at a certain moment in human evolution. Arecurring thesis runs with extraordinary continuity throughthe whole history of political thought: the state, understoodas the political system of a community, is born with thedissolution of the primitive community based on kinshipties and from the formation of larger communities, derivedfrom the union of family groups for reasons of internalsurvival (nourishment) and external survival (defence).While for some contemporary historians, as has been notedabove, the birth of the state signals the beginning of themodern age, according to this older and more commoninterpretation the birth of the state marks the passage fromthe primitive age, divided into savagery and barbarism, tothe civil age where civil stands for both 'civic' and 'civilized'(Adam Ferguson). In the entire natural law tradition, thestate of nature which precedes civil society is alwaysrepresented as a purely hypothetical state of isolation or asa state in which primitive people would have lived andsavage people still live in the wild. In both cases it is notaccidental that the condition in which people lived beforethe appearance of the state is called, in antithesis to thestate of nature, societas civilis (where civil means both not-natural and not-savage). For Vico the first form of the statein the proper sense of the word is preceded by the savage

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condition (asocial) and by the state of families, which is asocial but not a political condition, and is a consequenceof the revolt of the servants when the heads of familieswere forced to unite and breathe life into the first form ofthe state, the aristocratic republic.

A noted variation is provided in the thesis of the firstanthropologists, such as Charles Morgan, and taken up andpopularized by Engels, who transplanted it to the Marxisttheory of the state as an instrument of class domination.For Engels, too, the state originates in the dissolution ofaristocratic society founded on family bonds, and the birthof the state marks the passage from barbarism to civility.In this context, the word 'civil' is used as Rousseau usedit, with a negative connotation. Engels's differs from allpreceding interpretations of the state, including Morgan's,by offering an exclusively economic interpretation. It bringsto mind Rousseau's imaginative reconstruction which laysthe foundation of civil society in the act of the first personto enclose an estate saying: 'This is mine': that is, from theinstitution of private property. For Engels, in the primitivecommunity, whether it is the gens of the Romans or theIroquoi tribe, the regime of collective property is in force.With the birth of private property the division of labour isborn. With the division of labour, society divides itself intoclasses: the class of proprietors and the class of owners ofnothing. From this division into classes political power isborn. The state's essential function is to maintain thedominance of one class over the other, even to the extentof using force, preventing a class-divided society fromturning into a state of permanent anarchy.

Agreeing with and following this tradition of thought,the problem of the origin of the state in primitive societiesis one of the great debates in cultural anthropology: wereprimitive societies acquainted with systems of living togetherthat might be called states, or should they be consideredmore as 'societies without states' or, in the polemic wordsof Clastres, as a 'society against the state'? This debate,too, is to a large extent nominalist in that it depends on

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the multiplicity of meanings of the term 'state'. A solutionwhich is adopted more and more by anthropologists is toavoid speaking of the state. The term is too compromisedby the use made of it to designate the modern state.Instead, we can speak of political organization or politicalsystem (as in the fundamental work in this field by Evans-Pritchard and Fortes, 1940). This is only an apparentsolution as it does not get round the task of delimiting anddefining the concept of the political. This is no lessambiguous than the concept of the state, even if it offersthe advantage of traditionally and conventionally possessinga wider connotation; the Greek polls need not enter intothe definition of the state but it would not be possible toleave it out of the definition of the political system.

The choice between the statements, 'there are primitivesocieties without a state in so far as they do not have apolitical organization', and 'there are primitive societieswhich, although they are not states, have a politicalorganization' depends on an initial agreement on themeaning of terms like 'political' and 'state'. Once again,what matters is the analysis of the similarities and differencesbetween different forms of social organization, how onechanges into another, and when one is confronted with aformation which presents sufficiently different characteristicsfrom the preceding one as to warrant the attribution of adifferent name or a different specification of the samename. For example, when a scholar distinguishes betweenthree types of stateless societies which are called, respect-ively, 'society with minimal government', 'with diffusegovernment' and 'with expanding government', it is notexcluded that these societies can be considered politicalsocieties as the use of the term 'government' makesunderstood (La Mair). At this point the following problemis posed: are there primitive societies which are not politicalorganizations in even the widest sense of the term? To giveanother example, those who distinguish leaderless societiesfrom those with a leader see the former as non-politicalbecause their criterion is a certain concentration of power

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and the need for guidance at the top. If, by contrast, theyidentify the state mainly with centralized power but thenintroduce an ulterior distinction between coercive power,using force to make itself felt, and the power of words, ofgestures and/or of symbols, it is possible to claim that onlythe first are political societies.

THE STATE AND POWER

Theories of power

Before the appearance and the current use of the term'state', the problem of the distinction between politicalsystems and state was not even posed. But the identificationof the political sphere with the sphere of the state continuedwell beyond the introduction of the term 'state'. From thePolitica methodice digesta of Johannes Althusius (1603) toHeinrich von Treitschke's Politik (1894-6) until Croce'sPolitica in nuce (1925), the approach to the subject of thestate continued to be described as politics, originally derivedfrom that particular form of political system which is thepolis. In the last few years, moreover, students of politicalphenomena have abandoned the term'state and substitutedfor it the more comprehensive term 'political system'. Oneof the advantages of this expression is that it has a moreneutral value than the word state which, on the one hand,reflects a deification and, on the other, a demonizationby conservatives and revolutionaries respectively of theconcentrated systems of power which have been called bythat name ever since Machiavelli coined it.

'State' and 'political' have it in common (and it is thereason for their interchangeability) that they refer tophenomena of power. From the Greek krdtos (strength,power) and arke (authority) come the names of theancient forms of government: 'aristocracy', 'democracy','ochlocracy', 'monarchy', 'oligarchy' and all the words whichwere gradually moulded to indicate forms of power:

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'physiocracy', 'bureaucracy', 'party rule', 'polyarchy', 'exar-chy', and so on. There is no political theory which doesnot start either directly or indirectly from a definition ofpower and from an analysis of the phenomenon of power.By long tradition the state is defined as the bearer ofsumma potestas; and the analysis of the state almostcompletely turns into the study of the various 'powers' thatbelong to the sovereign. The theory of the state revolvesaround the theory of the three powers (legislative, executiveand judiciary) and of their relations. In a classical text ofour times, Power and Society by Lasswell and Kaplan(1952), the political process is defined as the 'formation,distribution and exercise of power'. If the theory of thestate can be considered as a part of political theory, politicaltheory can, in turn, be considered as part of the theory ofpower.

In political philosophy the problem of power is presentedfrom three points of view on the basis of which threefundamental theories of power can be distinguished: substan-tialist, subjective and relational. In the substantialist theory,power is thought of as something which can be possessedand used like any other good. Hobbes's theory is typicalof this approach according to which 'the power of a man. . . is his present means to obtain some future apparentgood' (1651). Whether these means are natural endowments,such as strength and intelligence, or whether they areacquired, like wealth, does not change the chief sense ofpower understood as something which is used to achieve theobject of desire. Bertrand Russell's well-known definition,according to which power consists in 'the production ofdesired effects', is analogous (1938) and by the terms ofthis definition can assume three forms. Physical andconstrictive power, which has its most concrete visibleexpression in military terms; psychological power based onthreats of punishment or promises of reward, which mainlyexist in the economic field; and mental power, which isexercised through persuasion or dissuasion and which is, inits elementary form, present in education in all societies.

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A typical subjectivistic interpretation of power is Locke's(1694, II, xxi), whose understanding of power is not assomething used to achieve aims but the capacity of thesubject to obtain certain effects. To say that 'fire has thepower to melt metals' is the same as to say that sovereignshave the power to make laws and in so doing to influencethe conduct of their subjects. This way of interpretingpower is that adopted by lawyers to define subjective right:to say that subjects have a subjective right is to say thatthe legal system has given them the power to obtain certaineffects. However, the most widespread interpretation incontemporary political discourse is the third, which goesback to the relational concept of power, whereby powermeans a relation between two subjects/agents in which thefirst obtains from the second behaviour that otherwisewould not have occurred. The most noted and the mostsynthetic of relational definitions is Robert Dahl's (1963):'Influence [a broader concept which the concept of powerenters into] is a relation between actors in which one actorinduces other actors to behave in a manner in whichotherwise they would not behave.' Defined in this manneras the relation between two agents, power is closely linkedto freedom so that the definition of one is the negation ofthe other: 'The power of A implies the non-freedom of B';'the freedom of A implies the non-power of B.'

The forms of power and political power

Once the concept of the state has been reduced to that ofthe political and the concept of politics to that of power,the problem becomes one of distinguishing political powerfrom all other power relations. Political theory has beenperennially concerned with this theme with infinite vari-ations. The classical typology handed down for centurieshas been Aristotle's, whereby three types of power aredistinguished on the basis of the sphere in which it isexercised: the power of parents over their children, of themaster over his slaves and of the rulers over the ruled.

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Aristotle adds that it is possible to distinguish between thethree forms of power on the basis of who gains fromexercising it. Parental power is exercised in the interest ofthe children; the master's, or despotic power, is in theinterest of the master; political power is in the interests ofthose who govern and those who are governed (so that thecorrupt form of political regime is where the ruler, havingbecome a tyrant, rules only in his or her own interest).This typology has political relevance because it has beenused to propose two schemes of reference for definingcorrupt forms of government. The first is paternalistic orpatriarchal government, whereby the sovereign behaves likea father towards his subjects and where the subjects arealways treated like minors. The most celebrated criticismof this form of government was made by Locke in thesecond of his two Treatises on Government (1690) in hispolemic against Robert Filmer's Patriarcha (1680). This wastaken up by Kant in his criticism of the eudemonologicalstate which is concerned with the happiness of its subjectsinstead of limiting itself to guaranteeing their liberty. Thesecond form is despotic government, where the sovereigntreats his or her subjects like slaves whose rights are notrecognized. This form of government was already clearlypointed out by Aristotle, who considered it suitable forpeoples that were naturally slavish like Orientals and bar-barians, who tolerate oppressive power without complaintor rebellion and which received full recognition (againreferring to Oriental peoples) in Hegel and Montesquieu.

The tripartite division of forms of power into parental,despotic and civil is one of the topoi of both classical andmodern political power. Hobbes, in his political works,deals with family and patriarchal government before dealingwith civil power. Locke begins the Second Treatise by aproposal to distinguish between the power of a father overhis sons and that of a galley captain over the galley slaves(which is the modern form of slavery) from civil government.But Locke's approach can be distinguished from Aristotle'sby the different criterion of distinction which have to do

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with the different foundation of the three types of powers.Today one would say the different principles of legitimacy:paternal power has a natural foundation in that it originatesin reproduction; despotic power is a consequence of theright to punish those held guilty of a grave crime andtherefore open to an equally grave punishment such asslavery. Civil power, alone among the other forms of power,is founded on the express or tacit consent of those at whomit is directed. As everyone can see, it is a question of thethree classical forms of the foundation of every obligation:ex natura, ex delicto and ex contractu.

This classical division, notwithstanding its success, doesnot allow one to distinguish political from other forms ofpower. The two criteria - the Aristotelian, based on interest,and the Lockian, based on the principle of legitimacy - areevaluative and not analytic in so far as they serve todistinguish political power as it should be and not as it is;the good forms from the corrupt forms. Both Aristotle andLocke must recognize that there are governments in whichpower is exercised in one of the other two forms. A realistictheory of political power as a form of power distinct fromevery other form of power can be constructed, accordingto the medieval jurists, in the elaboration of the conceptof sovereignty or summa potestas. While ancient societyonly recognized one perfect association - the state whichembraced all other lesser associations - medieval societyrecognised two: the state and the church. The age-olddispute about the pre-eminence of one or the other requireda delimitation of the competence and therefore of dominionof the two spheres, and consequently of the specificcharacteristics of the twopotestates.-The distinction betweenthe vis directiva, which is the prerogative of the church,and the vis coactiva, which is the prerogative of the state,became communis opinio. In contrast to the spiritual potestaand its claims, the defenders and holders of potesta temporaletended to attribute to the state the right and exclusivepower of exercising physical force over the inhabitants ofa given territory, leaving to the church the right and the

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power to teach the true religion and moral precepts and todirect consciences towards spiritual things, above all thesalvation of the soul. Political power became so identifiedwith the exercise of force that it was defined as that powerwhich, in order to obtain the desired results (taking theHobbesian definition), has the right to make use, if onlyin the last instance, of force. Here the criterion fordistinguishing between political power and religious poweris again the means adopted for imposing it: spiritual powerprincipally uses psychological means even when it employsthe threat of punishment or the promise of other-worldlyrewards; political power makes use of physical means suchas the use of arms.

Physical force is a necessary but not a sufficient conditionin the definition of political power. According to thedoctrine confirmed in the great controversy between stateand church, the state is distinguished from the church bythe exercise of force. However, another no less decisivecontroversy for defining political power is the apparentopposition of the regna to universal empire, civitates to theregna. Here we have another problem. It is not a questionof the right to use force but the exclusivity of this right ona given territory. The sovereign is the one with the exclusiveright to use force on a given territory. Whoever has theexclusive power to use force on given territory is thesovereign. Given that force is the most resolute way forone person to exercise dominion over another, whoeverretains the use of these means to the exclusion of everyoneelse within certain borders possesses sovereignty in thesense of summa potestas, of supreme power: summa in thesense of superiorem non recognoscens, supreme in the sensethat if force is a necessary condition of political power thenits exclusive use is a sufficient condition. There areanticipatory forms of the concept of sovereignty (whichbecame, in the use of modern writers, the fundamentalconcept for the definition of the state) in the distinctionbetween the civitates superiorem recognoscentes and super-iorem non recognoscentes of medieval lawyers who defended

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the legal and therefore political autonomy of the cities, andthe principle rex in regno suo imperator, asserted by theFrench lawyers, who defended the sovereignty of the kingin France against the claims of the emperor.

Jean Bodin, considered the theorist of sovereignty (inreality he is more than just the theorist: he is theauthoritative expounder of a concept that has a long andsolid tradition behind it), defines the state as 'the lawfulrule by sovereign power of many families and of what iscommon to them' and sovereign power as 'absolute andenduring power' (1576) where 'absolute' means that it issubject to no laws but the natural and divine and 'enduring'that it succeeds in consistently getting its orders obeyed,thanks also to its monopoly of coercive power. The themeof the exclusivity of force as the characteristic of politicalpower is the Hobbesian theme par excellence. The changefrom the state of nature to the state means the change froma condition in which everyone uses force indiscriminatelyagainst everyone else to the condition in which the right touse force belongs only to the sovereign. Beginning withHobbes, political power takes on a connotation that remainsconstant until today. When Hegel, in his youthful TheConstitution of Germany (1799-1802), complains that Ger-many is no longer a state, he begins by saying that 'a groupof men can only call themselves a state if they unite forthe common defence of everything that is their property',and later repeats: 'for a group of men to form a state it isnecessary that they set up a common military apparatusand a state power.' Weber, using the language of economics,defines the state as the possessor of the monopoly oflegitimate physical coercion. For Kelsen, the state is acoercive order, in particular: 'The state is a politicalorganisation because it is a system which regulates the useof force and because it monopolises the use of force'(1945). In a widely used manual of political science onereads: 'We agree with Max Weber that legitimate physicalforce is the thread that runs through the action of the politicalsystem' (Almond and Powell 1966).

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The three forms of power

From the point of view of the various criteria that havebeen adopted to distinguish between the various forms ofpower, the definition of political power as that type ofpower which can, in the last instance, have recourse toforce (and is capable of doing so because it has a monopolyof it), is a definition that looks to the means used by thoseholding power to obtain the desired effects. The criterionof the means is the most widely used because it allows theconstruction of a typology that is at the same time bothsimple and illuminating: the so-called typology of the threepowers, economic, ideological and political or, in otherwords, of wealth, knowledge and force. Economic powermakes use of the possession of certain goods that arenecessary or seen as such, in a condition of scarcity, inorder to induce non-possessors to behave in a certainmanner (generally the performance of useful work). Thereresides, in the possession of the means of production, anenormous source of power on the part of those who possessthem over non-possessors, precisely in the specific sense ofthe capacity to determine the behaviour of others. In anysociety where there are proprietors and non-proprietors,the power of the proprietors derives from their ability tomake non-proprietors (or those possessing only their ownlabour power) work for the proprietors in the conditionsthey stipulate. Ideological power is that which avails itselfof the possession of certain forms of knowledge or doctrine,or even of information or codes of conduct in order toexercise an influence on the behaviour of others and toinduce the members of a group to perform or not performan action. The social importance of those who know derivesfrom this type of conditioning - whether they be the priestsof traditional societies or the scientists, technicians or so-called 'intellectuals' of secular societies - because it isthrough the knowledge that they diffuse or the values thatthey preach and inculcate that the socialization needed by

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every social group to stick together takes place. What thesethree forms of power have in common is that they jointlycontribute to the institution and maintenance of a societyof unequals: divided into weak and strong on the basis ofthe first, rich and poor on the basis of the second, anderudite and ignorant on the basis of the third; generically,between superiors and inferiors.

Above all, the definition of political power as the powerwhose specific means is force helps to explain why it isalways looked upon as the ultimate power, the power whosepossession indicates the dominant group in any society.Coercive power, in fact, is the power every social groupneeds to defend itself from external attacks or to preventits own internal disintegration. In the relations betweenmembers of the same social group, not forgetting the state ofsubordination that expropriation of the means of productionbrings about in the expropriated, and notwithstanding thepassive adhesion to handed-down values by the addresseesof communications coming from the ruling class, only theuse of physical force serves to prevent insubordination andto suppress every form of disobedience. In the relationsbetween social groups, quite apart from the pressure exer-cised by the threat or execution of economic sanctions inorder to induce the enemy group to desist from a course ofaction claimed to be harmful or offensive (in the relationsbetween groups the effects of ideological conditioning countfor less), the decisive instrument for the imposition of willis force: that is, war.

This distinction between three principal types of socialpower, although expressed in different ways, is an almostconstant fact in contemporary social theories in which thesocial system as a whole is, directly or indirectly, articulatedinto three sub-systems: the organization of productiveforces, the organization of consensus and the organizationof coercive power. Even Marxist theory can be interpretedin this sense: the real base consists of the economic systemwhile the superstructure, divided into two distinct moments,

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consists of the ideological system and the legal-politicalsystem (to which Marx, it should not be forgotten, attributesthe repressive aspect, highlighting especially the coerciveapparatus). The Gramscian system is more obviouslytripartite as the superstructural moment divides into twomoments: the moment of hegemony or of consensus whichis called civil society, and the moment of domination or offorce (called the state). Moreover, for centuries politicalwriters have distinguished spiritual power (which todaywould be called ideological) from temporal power, and theyhave always interpreted temporal power as being constitutedby the conjunction of dominium, the power over thingsconstituted by economic power, with the imperium, whichis the power of command over others and which isconstituted by political power in the strict sense.

Both in the traditional dichotomy and in the Marxianone, three forms of power are found because the secondterm is correctly interpreted as being made up of twomoments. The essential difference lies in the fact that intraditional theory the principal power is represented byideological power in the sense that politico-economic poweris conceived as being dependent on the spiritual, while inMarxian theory the principal power is economic in so faras ideologies and political institutions have the function ofguaranteeing the continued existence of definite relations ofproduction (at least until the point where the contradictionsexplode at a certain moment of development and producechange). At the beginning of the modern age is Hobbes'sexemplary De Cive (1642) which is divided into three parts:libertas, potestas and religio which correspond respectivelyto the sphere of natural liberty where exchange relationstake place and in which political power should interveneas little as possible (some, like MacPherson, see in Hobbes'sstate of nature a prefiguration of market society). Thesecond corresponds to political power which possesses thetwo swords of justice and of war, and the third to spiritualpower whose task is essentially teaching. For Hobbes,political power is power par excellence which, legitimated

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by a specific delegation of isolated and terrorized individuals,driven by necessity out of the state of nature, controls bothspiritual and economic power. In this aspect as well, Hobbescan be considered the first and greatest theorist of the state:that is to say of the state whose formation is accompaniedby the persistent idea of the primacy of the political.

The primacy of the political

The different relations between the three powers and thedifferent ways of arranging them hierarchically are amongstthe most persistent traits of the main currents of politicaltheory and philosophy of history. The primacy of politics,which marks out modern political theory from Machiavellito Hegel, is opposed both to the primacy of spiritualpower which distinguishes the medieval age of the greatcontroversies between state and church and which theRoman church and other churches have never given up,and the primacy of economic power whose discoverycoincides with the birth of the bourgeois world and thebeginning of theorizing on the capitalist mode of production.

Strictly connected to the ideal of the primacy of thepolitical is the doctrine of raison d'etat which, not coinciden-tally, was born and developed alongside the theory of themodern state. One of the forms in which the primacy ofthe political manifests itself is the independence of politicalfrom moral judgement, or even the superiority of the firstover the second: that there exists a raison d'etat separatefrom the reasoning of individuals means that the state, ormore concretely the politician, is free to pursue aims withouthaving to take into account the moral precepts which bindany individual in his or her relations with others. Thesubordination of political action to moral laws which arethe precepts of the dominant religion reflects the primacyof the spiritual: a subordination which is reflected in thefigure of the Christian prince. To the conception of theprimacy of the political corresponds, instead, the doctrineof necessary immorality or amorality of political action

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which must aim at its own purposes, the salus rei publicae,without feeling itself bound and encumbered by obstaclesof another nature: a primacy reflected in the figure of theMachiavellian prince whose means used to win and conquerthe state are always, no matter what they are, 'judgedhonourable and praised by all' (The Prince, 1513, ch. 18).In Hegel's Philosophy of Right (which completes, just asHobbes initiated, the theory of the modern state), the ulti-mate moment of the Objective Spirit, which covers thetraditional territory of practical philosophy, is not moralitybut ethics, of which the supreme figure is the state.Confronting the classical theme of the distinction betweenmorality and politics (that is, raison d'etat), Hegel expresseswith maximum force the idea of the primacy of the secondover the first in a passage which with good reason couldbe considered the quintessence of this idea and whichcontains the principal argument for its justification: Thegood of the State has a completely different right from thegood of an individual', because the state which is the'ethical substance' 'has its existence (that is, its law),immediately, in a concrete and not an abstract existence. . . and only this concrete existence, and not one of thegeneral propositions taken for moral precepts, can be theprinciple of its action and behaviour' (The Philosophy ofRight, 1821, 337a). What does this passage mean? It meansthat the principle of action of the state must be sought inthe same necessity of being, of an existence which is thesame condition of existence (and not just of the existencebut also of the liberty and well-being) of individuals. Thismay be proven by the fact that the tribunal which judgesthe action of the state is not the external one instituted bythe state itself in order to judge the actions of its subjectsor that which each individual erects in his or her own mind- conscience or God - but the tribunal of universal History,the subjects of which are not individuals but states.

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THE FOUNDATION OF POWER

The problem of legitimacy

Alongside the problem of the definition of political powerand of the characteristics which distinguish it from otherforms of power there is also the question of its justification.The problem of the justification of power stems from thequestion: 'Given that political power is the power thatdeploys the exclusive use of force within a definite socialgroup, is force enough to make it accepted by those onwhom it is exercised, to induce its addressees to obey it?'A question like this can have, and has had, two answersdepending on whether it is interpreted as a question aboutwhat power actually is or what it ought to be. As oftenhappens in the study of political problems even these twoanswers are confused, so that it is not possible to saywhether the question is one of the relationship betweenpower and force, or of the problem of the mere effectiveness(in the sense that a power founded on force alone cannotlast) or also a problem of legitimacy (in the sense that apower founded on force alone may be considered effectivebut not legitimate). It is one thing to assert that politicalpower cannot be just strength alone in the sense that it isnot possible, another that it cannot be strength alone inthe sense that it is not right. From the point of view of theaddressees of power the same problem is posed as theproblem of political obligation. But the problem of politicalobligation can be posed as the problem of the reasons whythe commands of holders of a certain type of power shouldbe obeyed or as the determination of the cases in whichthey have to be obeyed from those in which disobedienceor passive obedience is correct.

As has already been said above, classical political theory,taking as its task the posing of the problem of the foundationof power, tended to deny that a power which is only strong,independently of the fact that it might be capable of lasting,

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could be justified. Whence comes the distinction, which isno longer analytical but evaluative, between legitimate andillegitimate power based on the customary argument, 'ifpower is founded exclusively on force then how can wedistinguish political power from that of a band of robbers?'

This problem was stated concisely by St Augustine ina celebrated passage which has provoked innumerablecommentaries: 'Without justice what in reality wouldkingdoms be but bands of robbers?' This passage is followedby the no less celebrated exchange of jokes between Alex-ander and the pirate: 'Having asked him why he infested thesea the pirate replied to the king: "for the same reason thatyou infest the earth; but because I do so with a little fleetI am called a pirate, while you, because you do it with a largefleet, you are called an emperor"' (De civitate Dei, IV, 4,1-15). Two of the most famous books of political theory,Plato's Republic and Rousseau's Social Contract, begin witha debate on the relation between justice and force in whichSocrates and Rousseau each reject the thesis that 'might isright'. Rousseau, too, uses the example of the brigand: 'Ifa brigand surprises me in the middle of a forest I would notonly be forced to give him my purse but would I also beobliged in conscience to give it to him if I could hide it?Because, in the end, even the pistol he has in his hand is aform of power' (1762). When Bodin has to define the statehe defines it as 'the lawful [in French droit, in Latin legitimus]rule which is exercised' (1576). Hobbes affirmed that for thesecurity of its subjects, which is the supreme end of the stateand therefore of the institution of political power, it isnecessary that someone, whether an actual person or anassembly 'legitimately retains the ultimate power in the State'(1642). Moreover, it is on this basis of the attribution of anethical or legal character to power that the distinctionbetween good political power and bad political power,between sovereign and tyrant (where tyrant signifies theusurpation of power and not bad government as in classicalantiquity) has existed for centuries: a distinction which hasimportant consequences for the problem of political obli-

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gation so that Hobbes, the theorist of absolute obedience,affirms that the usurper (that is, the illegitimate prince) mustbe treated as an enemy.

The fact that supreme power (that is, political power)must have an ethical justification (or, which is the samething, a legal foundation) has given rise to various principlesof legitimacy: that is, of the various ways in which it issought to provide a justification for the power-holder's rightto command and for the subject's duty to obey; that whichGaetano Mosca called in the useful expression 'the politicalformula', explaining that:

it has happened in the limited number of societies arrived at acertain level of culture, that the political class does not exclusivelyjustify its power solely on the grounds of possessing it but seeksto give it a moral and legal basis, making it originate as a necessaryconsequence of doctrines and beliefs generally recognised andaccepted in the society that it directs. (1896)

Mosca only recognized two political formulas: one whichderives power from the authority of God and another whichderives it from the power of the people. Although consideringthem mere fictions he thought that they corresponded to areal need, the need to govern and to feel oneself governed'not on the basis of material and intellectual force alone, butalso on the grounds of a moral principle' (Mosca 1896).

The various principles of legitimacy

In reality there have been historically more principles oflegitimacy adopted than the two mentioned by Mosca.Without any claim to be comprehensive we can distinguishbetween at least six which can be grouped together asantithetical pairs of the three great unifying principles, will,nature and history. The two principles of legitimacy whichare connected to a superior will are those mentioned byMosca: the governors receive their power from the will ofGod or of the people. The classic formula for this type of

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legitimation is Hobbes's: 'Authority and not Reason makesthe Law.' But what is the ultimate source of authority? Ina pyramidal conception of authority the ultimate authorityis the will of God. In an ascending conception where powerproceeds from the base to the apex, authority is ultimatelythe will of the people. However, the two principles, althoughantithetical, become in some versions mutually reinforcing:vox populi vox Dei. Naturalistic doctrines which originatein the various forms of natural law have always beenopposed to voluntaristic doctrines. These have also beenpresented in apparently antithetical forms: nature as krdtos,the original force according to the prevalent classicalconception of power, and nature as rational order wherethe law of nature is identified with the law of reasonaccording to the prevalent interpretation of modern naturallaw. To appeal to nature as the basis of power in the firstversion means that the right to command of one and theduty to obey of the others derives from the ineluctable factthat there are naturally, and therefore independently ofhuman will, weak and strong, knowing and ignorant; or,in other words, individuals and even peoples suited tocommand and individuals and peoples capable only ofobeying. Appealing to nature as a rational order meansinstead justifying power on the ability of the sovereign toidentify and apply natural laws which are the laws of reason.For Locke the main duty of government is to make possible,through the exercise of coercive power, the observation ofthe laws of nature; which would have been respectedwithout government had it not been that all people are notreasonable. Because people are not rational, Locke needsconsensus to found the state, but that same consensus - orrather the agreement necessary to leave the state of natureand set up civil government - is, all the same, a rationalact. There is no need for consensus when the prince himselfis rational and governs according to the laws of nature asrevealed to him by those qualified to know; at this pointthe rule of nature, physiocracy, substitutes entirely for therule of men.

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The appeal to history has two dimensions depending onwhether it is past or future history from whose authorityone is trying to derive the legitimation of power. Therecourse to the past installs the force of tradition as aprinciple of legitimation and is the basis therefore oftraditionalistic theories of power according to which thelegitimate sovereign is one who has exercised power sincetime immemorial. The power to command can also beacquired, on the basis of a general principle of law:protracted use over time just as in the acquisition ofproperty or other rights. In his Reflections on the Revolutionin France (1790) Edmund Burke laid out the theory ofhistorical prescription that justifies the power of monarchs(which gives rise to the claims to legitimacy of dethronedmonarchs) against the subversive claims of revolutionaries.While reference to past history constitutes one of the criteriafor the legitimation of existing (constituted) power, thereference to future history is one of the criteria for thelegitimation of aspirant (constituting) power. The new orderwhich the revolutionary imposes after discarding the oldcan be justified in so far as it represents a new stage in thecourse of history, a necessary and inevitable step and anadvance on the preceding stage. An order which does notexist yet can only find the source of its legitimacy postfactum. The conservative has a static view of history: whatlasts is good. The revolutionary has a dynamic conception:the good is what corresponds to the predetermined move-ment of historic progress. Both claim to be in history(representing two historical positions), but the first respectsit by accepting it, the second by anticipating it (and perhapsencouraging it).

The debate on criteria of legitimacy does not just havedoctrinal value: the problem of legitimacy is closelyconnected to political obligation because obedience is owedonly to the commands of legitimate power. Where theobligation to obey the law ends (obedience can either beactive or passive) the right to resistance begins (which caneither be active or passive as well). The limits of obedience

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and the right to resist depend on the criterion of legitimacyassumed. A power which on the grounds of one criterionwould be considered legitimate would, on the grounds ofanother, be considered illegitimate. Of the six criteria listedabove some are more favourable to the maintenance of thestatus quo (that is to say, they are ex parte principis); othersare more favourable to change, (that is to say, they are exparte populi). On one side is the theocratic principle, theappeal to nature as the source of strength, and tradition; onthe other, the democratic principle of consent, the appealto ideal nature, and historical progress. Whoever looks atresistance movements, in the widest sense of the word, ofthe world today will not fail to realize the persistence of thesecriteria; against a despotic government, against a colonial orimperialist power, against a political or economic system seenas unjust and oppressive, the right to resist or revolt isjustified by sometimes referring to the oppressed popularwill and therefore to the necessity of a new social contract,sometimes to the right of self-determination which is validnot only for individuals but also for groups, and sometimesto the necessity of overthrowing what has been condemnedby history and of putting oneself in the flow of historicalbecoming which proceeds inexorably towards new and morejust forms of society.

Legitimacy and effectiveness

The arrival of legal positivism completely reversed theproblem of legitimacy. While according to the foregoingtheories power must be supported by some ethical justifi-cation in order to survive, therefore making legitimacynecessary for effectiveness, in the positivist theory one findsthe thesis that only effective power is legitimate: effectivein the sense of the principle of effectiveness in internationallaw according to which, in the words of Kelsen who wasone of its most authoritative supporters: 'A de factoconstituted authority is the legitimate government, the

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coercive order of that government is a legal system, andthe community constituted by such a system is a State inthe sense of international law insofar as that system isgenerally effective' (1945). From this point of view legit-imacy is purely and simply a matter of fact. This does notmean to say that a legal system, which is legitimate in sofar as it is effective and recognized as such by theinternational order, cannot be subjected to value judgementsabout its legitimacy which could bring about non-observanceof the rules of the system (more or less quickly) andtherefore to a process of the delegitimization of the system.It remains the case, however, that on the basis of theprinciple of effectiveness a regime remains legitimate untilits ineffectiveness has reached the point of making probableor foreseeable the effectiveness of an alternative regime.

In the ambit of legal positivism (that is, of a conceptionin which law is considered law only if made by authoritiesappointed by the system itself and enforced by otherauthorities also appointed by the system), the theme oflegitimacy has taken another direction: no longer ofevaluative criteria but of the reasons for the efficacy fromwhich legitimacy derives. In this area arose the famousWeberian theory of the three forms of legitimate power.Weber posed himself the problem not just of listing thedifferent ways in which every political class has sought tojustify its power, but of individuating and describing thehistoric forms of legitimate power, defined as legitimatepower (Herrschaft) as distinct from mere force (Macht), asthe power that succeeds in conditioning the behaviour ofthe members of a social group, and issuing orders whichare habitually obeyed inasmuch as their content is assumedas maxims of action. According to Weber the three pureor ideal types of legitimate power are traditional power,legal-rational power and charismatic power.

In decribing these three types of legitimate power Weberdid not mean to present political formulas in Mosca's senseof the word, but instead he meant to understand what werethe different reasons why there came to be formed in a

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given society the stable and enduring relation of obedience/command which marked out political power. The threetypes of power represent three different types of motivation:in traditional power the motive for obedience (or, which isthe same, the reason why the command is successful) is thebelief in the sacredness of the person of the sovereign, asacredness which belongs to what has lasted for a longtime, to what has always existed, and because it has alwaysexisted there is no reason to change it; in rational power,the motive for obeying lies in the belief in the rationalityof behaviour conforming to the law (that is, to general andabstract norms which institute an impersonal relationbetween ruler and ruled); in charismatic power, the beliefin the extraordinary gifts of the leader. In other words, inthe theory of the three types of legitimate power Weberwanted to show what were until then, historically speaking,the real and not the supposed or declared grounds ofpolitical power. This does not exclude the possibility ofthere being a relation between these two approaches andit is difficult to establish where one finishes and the otherstarts. In the perspective from which one looks not at theevaluative criteria but at the real process of legitimation(and delegitimation) in a given historical context we canlocate the recent debate in Niklas Luhmann's theory, whichsays that in complex societies that have brought to aconclusion the process of positivization of law, legitimacyis the result not of reference to values but of the applicationof certain procedures (Legitimitat durch Verfahren) institutedto produce binding decisions: for example, political elections,legislative and judicial procedures. Where the same subjectsparticipate in the proceedings within the limits of the estab-lished rules, legitimacy is reckoned as a performance of thesystem itself (1972).

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STATE AND LAW

The constitutive elements of the state

Alongside the problem of the foundation of power theclassical doctrine of the state has always been occupied withthe problem of the limits of power, a problem generallyposed as a problem of the relations between law and power(or law and state).

Ever since lawyers have taken in hand the problem ofthe state, it has been defined in terms of the threeconstitutive elements of people, territory and sovereignty(a legal concept par excellence, formulated by legalists anduniversally adopted by writers on public law). To cite anauthoritative and current definition, the state is 'a legalarrangement of general ends exercising sovereign power overa given territory to which are subordinated in a necessarymanner the subjects belonging to it' (Mortati 1969). InKelsen's rigorous reduction of the state to the legal system,sovereign power becomes the power to create and apply law(that is, binding norms) in a territory and over a people, apower which derives its validity from the fundamental normand from the capacity in the last instance to use force, andtherefore from the fact of being not only legitimate but alsoeffective (legitimacy and efficacy involve each other); theterritory becomes the limit of the geographical validity of thelaw of the state, in the sense that legal norms originatingin sovereign power are only valid within definite boundaries;the people become the limit of the personal validity of thelaw of the state in the sense that the same legal norms arevalid only, except in certain exceptional cases, for givensubjects who thereby constitute the citizens of the state.Definitions of this sort shy away from the purpose or thepurposes of the state. For Weber,

it is not possible to define a political group - and not even the'State' - by pointing out the aim of its collective action. Thereare no aims which political groups have not at some time proposed- from the attempt to provide sustenance to the protection of

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art; and there is none which they have not all pursued from theguarantee of personal security to law-making. (1908-20)

In Kelsen's terminology, the state (in so far as it is acoercive arrangement) is a technique of social organization:and thus it can be adopted for the most diverse ends. Adefinition of this type echoes a famous passage of the Spiritof the Laws where Montesquieu, wishing to exalt the nationwhich has political liberty as the aim of its constitution(England), adds: 'All States have in general the same aimof preserving themselves but each one can have a particularaim as well', and he gives some curious examples: 'Expansionwas the aim of Rome; war, of Sparta; religion of theHebrews; trade, of the people of Marseilles, etc.' (1748).Formal definitions and instrumental conceptions of the statego hand-in-hand.

From the point of view of a formal and instrumentaldefinition the necessary and sufficient conditions for theexistence of a state are that on a given territory there beformed a power capable of taking decisions and issuingcorresponding commands binding on all who inhabit thatterritory, and effectively executed by the greater part of theaddressees in the greater number of cases for which obedienceis requested, whatever those decisions might be. This is notto say that state power has no limits. Quite correctly Kelsentakes into account two other types of limit besides the limitsof geographical and personal validity which redefine in legalterms the two constitutive terms of territory and people:limits of time, according to which any norm has a validitylimited in the time between the moment of its issue (exceptfor cases of retroactive laws) and the time of its abrogation,and the limits of material validity, viz. materials that are notobjectively subject to just any regulation. The old sayingsprings to mind that the English parliament can do anythingexcept change a man into a woman (an example which is,to tell the truth, no longer appropriate), as does Spinoza'sassertion that even sovereigns who can do anything they wantcannot make a table eat grass. Second, matters that are

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rendered unassailable by the system itself as, for example,in those regimes in which the protection of some liberty isguaranteed, represented by civil rights in which the statepower cannot interfere and a norm although validly issuedwhich violates them can be considered illegitimate by aprocedure foreseen by the constitution.

The government of laws

Since antiquity the problem of the relationship between lawand power has been posed with this question: 'Which isbetter, the rule of law or the rule of men?' Plato, distinguish-ing between good and bad government, says: 'For whereverin a state the law is subservient and impotent, over that stateI see ruin impending; but wherever the law is Lord over themagistrates, and the magistrates are servants to the law, thereI descry salvation and all the blessings that the Gods bestowon states' (Laws, 715d). Aristotle, raising the subject of thedifferent monarchical constitutions, poses the problem ofwhether it might be 'more convenient to be governed by thebest men or by the best laws' (1286a, 9). In favour of thesecond he pronounces a maxim which was to last: 'The lawlacks the passions which necessarily are met with in everyhuman heart' (ibid., 20). The supremacy of the law comparedto the individual j udgements of the ruler (the Platonic gubern-ator, who rescues his companions from the worst crises, 'doesnot write laws but offers his skill as law'; see Politics, 291 a)lies in its generality and its constancy, in not being subjectedto the change of passions: this contrast between the passionsof human beings and dispassionate law leads to the no lessclassical topos of law being identified with the voice ofreason. One of the pivots of medieval political doctrine is thesubordination of the prince to the law according to Bracton'saphoristic principle: Rex non debet esse sub homine, sedsub Deo ed sub lege, quia lex facit regem (De legibus etconsuetudinibus Angliae, 1,8,5). In the English legal traditionthe principle of the subordination of the monarch to the law

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leads to the doctrine of the rule of law, the foundationof the state of law understood in its most restricted senseas the state whose powers are exercised according to lawsalready laid down. For St Thomas, the regimen politicumis distinguished from the regimen regale by the fact thatthe latter is characterized by the plenaria potestas ofthe ruler, while the former occurs 'quando ille quipraeest habet potestatem coarctatam secundum aliquasleges civitatis (In octo libros Politicorum Aristotelis exposi-tio, I, 13).

Naturally such a reply raises a fundamental question:given that laws are generally passed by those who holdpower, then where do the laws originate that should beobeyed by the ruler? The Ancients supplied two answersto this question, the first being that, besides the laws passedby the rulers, there exist other laws which do not dependon their will and these are either natural laws deriving fromthe nature of human beings living in society or laws whosebinding force derives from being rooted in some tradition.They are 'unwritten' laws or 'common laws' like those thatAntigone obeyed when she violated the tyrant's order, orSocrates when he refused to flee from prison in order toavoid punishment. The second answer is that at thebeginning of every good system of laws there is a 'wiseman', the great legislator who has given to his people aconstitution to which future rulers must carefully conform.This notion of a good legislator who precedes the rulers bothtemporally and axiologically finds its exemplar in the legendof Lycurgus who, once the state was organized, announcedto the people gathered in assembly that he had to leaveSparta to question the oracle and advised them not to changethe laws established by him until he got back; but he nevercame back. Both these paths have been taken in the historyof political theory: the rulers who, though being the makersof positive law, are expected to respect laws superior topositive law such as natural law which in medieval thoughtare also God's laws (Jus naturale est quod in lege et Evangeliocontinetur: the Decretum Gratiani, I, i, in Migne, Patrologia

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latina, CLXXXVII, col. 29): or else the laws of the country,the common law of English lawyers which is seen as a lawof reason to which even sovereigns are subject. When theidea of natural law becomes exhausted, Rousseau takes upagain the myth of the great lawgiver, of the 'extraordinaryman' whose function is exceptional because 'it has nothingin common with human authority' and who must establishthe conditions of a wise and long-lasting rule (1762). All theoriginal written constitutions, the American just as much asthe French, have their origins in the extraordinary historicmission of those that inaugurate with a new body of laws therule of reason interpreting the laws of nature and transfor-ming them into positive law with a constitution which issueswhole out of the mind of the wise.

Internal limits

The recurring idea of the government of laws being superiorto the government of men appears to contrast with theprinciple according to which the princeps is legibus solutus.Such a principle, derived from a passage in Ulpian (Digesto,I, 3, 31), inspired and guided the conduct of sovereigns ofthe absolute monarchies of continental Europe.

The principle does not mean, as later liberal writersbelieved (either for polemical reasons or by mistake), thatthe power of the prince was without limits. The laws to whichthe principle refers are positive laws: that is laws posed bythe will of the sovereign who is not subject to the laws heor she has established because nobody can give a law untohim- or herself. This does not at all exclude that the sovereignmight be subject, like all people, to natural and divine laws.Thus Bodin: 'As for natural and divine laws, all the princesof the earth are subjected to them and it is not in their powerto transgress them unless they want to make themselvesguilty of divine lese majeste' (1576). He and other supportersof absolute monarchy go further: the power of the prince islimited not only by natural and divine laws but also by the

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fundamental laws of the kingdom: for example, by the lawregulating the succession, which are laws handed down,customary laws, and as such positive. The problem of funda-mental laws and their binding force is a theme that appearsin the treatises of all those jurists who are concerned withfixing by means of clear and certain norms the power of themonarch: they are the norms of that unwritten constitutionwhich governs the relations between rulers and ruled. Theruler who violates natural and divine law becomes a tyrantex pane exercitii; the ruler who violates the fundamentalnorms is a usurper, a tyrant ex defectu tituli. Finally there isa third limit that more than any other distinguishes a propermonarchy from a despotic one: the power of the ruler doesnot extend to invading the sphere of private law (which isconsidered a natural right) except in cases of reasonable andjustified necessity. Bodin, arguing against the doctrine of thecommunism of goods proposed by Plato, asserted that 'wherethere is nothing private then there is nothing public either',and that states were arranged by God 'so that everything thatis public goes to the State and to every individual that whichis his private property' (Bodin 1576).

The dispute between the supporters of absolute monarchy,such as Bodin and Hobbes, and the supporters of limited ormoderate or temperate or regulated monarchy is of a differentnature. The latter includes English writers who defend consti-tutional monarchy by bringing up the ideal model of mixedgovernment, and the French writers who support the resist-ance of the states against the process of the concentrationand centralization of all state power in the hands of thesovereign, interpreting the French monarchy as mixedgovernment. For both, the power of the monarch must belimited not only by the existence of indisputable superiorlaws but also by the existence of legitimate power-centres -the clergy, the nobility and the cities with their collegialorgans - which claim to have the right to decide on determi-nate matters such as fiscal imposition. It is a question of alimit that stems from the composition and organization of thesociety and where the estates are victorious (as in England) it

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is much stronger than the limit set but not imposed bysuperior laws. On the other hand, even where the re-sistance of the orders has been broken up, as in France(which is the prototype of absolute states) - while thestate of estates survives above all in the small Germanstates - and the monarch governs exclusively throughfunctionaries and commissioners, the process of trans-formation is never entirely accomplished and nevercompletely obscures the ideal of a monarchy checked bythe presence of intermediate bodies, which Montesquieu,looking at England, held to be necessary for his owncountry also. If the respect for superior laws serves todistinguish the kingdom from the tyranny, the presenceof intermediate bodies distinguishes monarchy fromdespotism. There is no supporter of absolutism that doesnot know how to distinguish monarchical from tyrannicalpower on the one hand, and despotic power on theother.

Another phase in the process of the legal limitation ofpolitical power is found in the theory and practice of theseparation of powers. While the dispute between the estatesand the prince concerns the process of the centralizationof power that gives rise to the large modern territorialstates, the argument about the divisibility or indivisibilityof power concerns the parallel process of the concentrationof the characteristic functions which belong to whoeverholds supreme power in a given territory: the power tomake laws, to execute them, and to judge between justiceand injustice on their basis. Although the two processesrun a parallel course they should be held well distinctbecause the first has its greatest realization in the divisionof legislative power between the sovereign and parliamentas happened primarily in English constitutional history; thesecond occurs in the separation and mutual independenceof the three powers - legislative, executive and judicial -which has its greatest statement in the written constitutionof the United States of America. It is not by chance that,besides the celebrated exposition of the doctrine of the

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separation of powers made by Montesquieu ('in order thatpower may not be abused it is necessary that in thearrangement of things power acts as a brake on power'),the clearest and most accomplished exposition of thedoctrine is found in certain letters of The Federalist,attributed to Madison, where one reads that The accumu-lation of all powers, legislative, executive, and judiciary, inthe same hands, whether of one, a few, or many . . . mayjustly be pronounced the very definition of tyranny'(Hamilton, Jay and Madison 1787-8). Contrary to the thencurrent opinion which the authors of The Federalist set outto refute, the separation of powers means not that the threepowers must be mutually independent but that it mustexclude that whoever possesses all the powers of one givensector also possesses all the powers in another in such away as to subvert the principle on which a democraticconstitution is based; it is necessary to have a certainindependence amongst the three powers so that each actsas a constitutional check on the others.

The last battle for the limitation of state power is foughton the terrain of the fundamental rights of the individualand the citizen starting with the personal rights already laiddown in King John's Magna Charta (1215) and going onto the various rights of liberty of religion, of political opinion,of the press, of assembly and association which constitutethe heart of the Bill of Rights of the American States andof the Declaration of the Rights of Man and the Citizenwhich emerged from the French Revolution. Whatever mightbe considered the foundation of the rights of man - God,nature, history or popular consent - they are seen as rightsthat man possesses qua man independently of being affirmedby political power, and consequently political power mustnot only respect but also protect them. In Kelsen's termin-ology they constitute limits to the material validity of thestate. As such they differ from the other limits consideredbecause they concern the extension of power rather than itsquantity. Only their full recognition gives birth to that formof limited state par excellence which is the liberal state,

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and to all later forms which, as well as recognizing otherfundamental rights such as political rights and social rights,have not neglected the right of liberty. It is appropriate tocajl 'constitutionalism' the theory and practice of the limitsof power: and therefore constitutionalism finds its fullestexpression in the constitution that establishes not just formalbut also material limits to political power which are wellrepresented by the barrier which fundamental rights - oncerecognized and legally protected - raise against the claimsand presumptions of the holder of sovereign power to regulateevery action of individuals or groups.

External limits

No state is alone. Every state exists alongside others in asociety of states. Contemporary states are just like theGreek cities were. Every form of cohabitation - even thestate of nature without laws - implies some limits on theconduct of every neighbour: limits of fact which eachindividual faces concerning every other individual in thestate of nature, where everyone has as much right as power(as Spinoza says, 1670, ch. XVI), but no one except Godis omnipotent; or legal limits like those posed by law whichhas regulated since time immemorial the relations betweensovereign states, or ius gentium, limits deriving fromtradition that have become binding (international custom),or reciprocal agreement (international treaties). Sovereigntyhas two faces, one turned inwards, the other towards theoutside. Correspondingly, there are two types of limits:those deriving from the relations between rulers and ruledwhich are internal limits, and those deriving from therelations between states, and these are external limits.There is a certain degree of correspondence between thetwo in the sense that the stronger the state and thereforeless limited internally, the stronger it is and less limitedexternally. But there corresponds to the process of internalunification a process of emancipation towards the outside.

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The more a state succeeds in binding its own subjectsthe more it succeeds in becoming independent of otherstates.

This is what has happened in the formation of the modernstate: the process of unification of the diffuse powers thatwere in conflict amongst themselves that characterizedmedieval society went hand in hand with the liberation ofpower thus unified from the two summae potestates of thechurch and the empire. The fewer limits power facedinternally - which is to say the more unified it was - thefreer, more independent it found itself towards the outside.The formula used by French jurists of the thirteenth centuryto justify the claims of the sovereign - rex in regno suoimperator - expresses the double process well: at themoment in which the king is emperor in his own kingdom,the emperor is no longer king in anyone's kingdom. Kingand emperor exchange places: what the king gains, theemperor loses (a good example of the theory that seespower as a zero-sum relation). The end of the empire as apower that is a true and genuinely unifying universal statecoincides with the rebirth of international law (rebirth, notbirth or origin as is often said, because where there arestates and independent or self-sufficient powers there hasalways been recognized the existence of a law to regulatetheir relations). When Pufendorf (one of the revivers, afterAlberico Gentili and Hugo Grotius, of international law)posed the problem of the status imperil germanici - that is,if the German empire were still a state in the full sense ofthe word - he defined it as a res publica irregularis, meaningto say that it is no longer a state in the proper sense of theword - and at the same time it is something different froma simple confederation of states (1672, VII, 5, 15). Over acentury later, Hegel began his youthful work on theconstitution of Germany with the melancholy statement'Germany [meaning the German Empire] is no longer aState' (1799-1802).

The process of the gradual dissolution of the empire andthe formation of territorial and national states was opposed

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by the reverse process of the gradual unification of smallstates into larger unions starting with confederations,in which every state preserved its own independencenotwithstanding its perpetual union with other states (asoriginally in Switzerland), until for the first time we havethe new and original formation of a federal state with thesetting-up of the United States of America (1787). Whilethe dissolution of the empire involves a ceding of power tothe new states, the formation of a larger state from theunion of smaller states represents a reinforcing of the powerof the former over the latter: what they gain in strengthvis-a-vis the outside by uniting with others, they losein internal independence. This was well observed byMontesquieu, to whose authority the authors of TheFederalist appealed when he eulogized about the 'federalrepublic' which, 'capable of resisting foreign powers, canmaintain its greatness without internal corruption' (1748).Only through federal union can a republic - considered forcenturies after the end of the Roman republic the form ofgovernment most adapted to small states - become theform of government of a large state like the United Statesof America. This was understood by Mably when he praisedthe American Federal Republic in his Observations sur legouvernement et les lois des Etats-Unis d'Amerique (1784).The suggestive force of the Federal idea - that is, of themodel of a large republic formed out of the aggregation ofsmall states - is sufficient to make plausible the idea of auniversal federal republic embracing all existing states,making possible again the universalistic ideal of the empire,albeit with a reversed process: that is, no longer descendingfrom high to low but ascending from below to above. Theuniversal republic of confederated states, proposed by Kantin his Pace Perpetua (Zum ewigen Frieden, 1796), representsa genuine alternative, which can be called democratic onaccount of its inspiration and its potential development, tothe medieval idea of the universal empire. The League ofNations after the First World War and the United Nationsafter the Second were developments, albeit partial, of this

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universal republic as opposed to the universal empire: evenin the chosen formula of 'United Nations', the states whichjoined in this new confederation revealed which precedentsthey were inspired by (the United Provinces, the UnitedStates).

From the point of view of their external relations, thehistory of European (and not only European) states is acontinuous process of decomposition and recomposition,and therefore of the tying and untying of legal limits. Theformation of independent and national states in the pasttwo centuries - first in the United States of America, thenin Latin America, then again in Europe and finally in thecountries of the Third World through the process ofdecolonization - came about sometimes through the break-up of larger states and sometimes through the regroupingof small states. But regrouping always tends to reinforceinternal limits and decomposition to loosen external limits.The present tendency towards the formation of bigger andbigger states or constellations of states (the so-calledsuperpowers) means an increase of the external limits ofthe states that are absorbed into the larger area (satellitestates) and a fall in the external limits of the superstate. Ifwe ever arrive at the formation of a universal state it willbe only limited internally and not externally.

THE FORMS OF GOVERNMENT

Classical typologies

In the general theory of the state - even if the line ofdemarcation is not clear - forms of government aredistinguished from types of state. In a typology of the formsof government more attention is paid to the structure ofpower and to the relations between the different organswhich according to the constitution exercise power; in atypology of types of states more attention is paid to relationsof class, to the relation between the power system and society,

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to ideologies and goals, and to historical and sociologicalcharacteristics.

There are three classical typologies of the forms ofgovernment: Aristotle's, Machiavelli's and Montesquieu's.Going back to Aristotle, in particular to Book III and IVof the Politics, one finds the ancestor of the time-honouredclassification of constitutions based on the number of rulers:monarchy in the case of one, aristocracy in the case of afew and democracy or the rule of the many along with adoubling up of the corrupt forms of these where monarchydegenerates into tyranny, aristocracy into oligarchy and thepoliteia (which is the name that Aristotle gave to the goodform of the rule of the many) into democracy. In ThePrince Machiavelli reduces these to two, monarchy andrepublic, the latter including both aristocracy and democracyon the grounds that the essential difference is between thegovernment of one - a physical person - and the governmentof an assembly, a collective body; the difference betweenan assembly of patricians and a popular assembly beingseen to be less relevant because both, in contrast to themonarchy where the will of one alone is law, must adoptsome rule such as the principle of the majority to arrive atthe formation of a collective will. Montesquieu returns toa trichotomy of monarchy, republic and despotism, but itis different from Aristotle's. It is different in the sense thatit combines the analytic distinction of Machiavelli with thataxiological tradition in so far as it defines despotism as thegovernment of one alone but 'without law or restraint': inother words as the degenerate form of monarchy. Moreover,Montesquieu adds another criterion based on the variousmotivations by which subjects are induced to obey (ressorts):honour in the case of the monarchy, virtue in the republicand fear in despotism. This criterion brings to mind thedifferent forms of legitimate power as in Weber. LikeMontesquieu, Weber (without being directly influenced)identifies the various types of power by distinguishingbetween the various possible types of behaviour of therulers towards the ruled: the difference between them is

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that Montesquieu was concerned with the functioning ofthe state machinery and Weber with the capacity of therulers and their apparatuses to obtain obedience. Comparedto the others the novelty of Montesquieu's typology dependson the introduction of the category of despotism madenecessary by the exigency of making a wider space for theoriental world, for which the category of despotism hadbeen designed by the ancients.

In the nineteenth century Montesquieu's typology hadthe good luck to be taken up by Hegel, who adopted it tooutline the historic development of humanity which passedfrom a primitive phase of despotism, corresponding to thebirth of the great oriental states, through the epoch of therepublics, democratic in Greece and aristocratic in Rome,and finishing with the Christian-Germanic monarchies whichcharacterized the modern age. The traditional typology,notwithstanding later corrections and innovations, neverlost its prestige and was taken up again in the treatises onpublic law, if not as the point of arrival then as theobligatory point of departure of every discussion of thetheme (for example, in Schmitt's Verfassungslehre, 1928).

Kelsen's is the only interesting innovation. Starting fromthe definition of the state as a legal system, it criticized theAristotelian typology as superficial for being based on anextrinsic element such as number, and claimed that the onlyrigorous way to distinguish between forms of governmentconsisted in identifying the ways in which a constitutionregulates the production of the legal system. There are twoand not three modes: the legal system can be created (andcontinually modified) either from the top or from thebottom: from the top when the addressees of the norms donot participate in their creation and from the bottom whenthey do. Kelsen, drawing on the Kantian distinction betweenautonomous and heteronomous norms, calls the firstform of norm production heteronomous and the secondautonomous. Corresponding to these two forms .of pro-duction are two pure or ideal forms of government:autocracy and democracy. It was seen previously how

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Machiavelli had reduced the classical forms of governmentto two. The Machiavellian typology is a result of unitingaristocracy and democracy in the form of the republic whilethe Kelsenian is a result of uniting monarchy and aristocracyinto autocracy. Naturally, Kelsen takes care to point outthat autocracy and democracy are pure forms and noexisting state corresponds perfectly to either of the twodefinitions. Only ideological expressions of the one or theother can correspond exactly: when Hegel defines Orientaldespotism as a regime in which only one person (the despot)is free, he is giving a correct definition of the autocraticform of government in Kelsen's sense; in the same way,Rousseau's republic, where the principle of a self-rulingpeople is realized through the general will, corresponds tothe democratic form.

Monarchy and republic

The most time-honoured distinction, even if in our daysomewhat attenuated, is the Machiavellian distinctionbetween monarchy and republic. Increasingly attenuatedbecause, with the fall of most monarchical governmentsafter the First and Second World Wars it has been lessrelevant to historical reality. In the last 50 years thetraditional relations between monarchy and republic havebeen completely reversed: the large modern territorial stateis born, grows and consolidates itself as monarchical state;it is the regnum contrasted not to the res publica but tothe civitas. The great political writers, who with theirtheorizing sought to give body to a genuine doctrine of thestate, were for the most part supporters of monarchy -from Bodin to Hobbes, from Vico to Montesquieu, fromKant to Hegel. In writers such as Vico, Montesquieu andHegel who construct their philosophy of history and theirtheory of progress on the replacement of one form ofgovernment by another, the monarchy stands for the formof government of the moderns, the republic that of theancients or in the modern age the form of government

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suitable for small states alone. The United States ofAmerica, the first republic after Rome to be founded on alarge territory, gave itself a constitution seen as the imageand likeness of a monarchical constitution in which thehead of state is not hereditary but elected. Also, for anotherconceptual and not historical reason, the distinction betweenmonarchy and republic gradually loses all relevance, and itloses it because it loses its original meaning. Originally amonarchy was the government of one alone, and a republic,in the Machiavellian sense of the word, the government ofmany (and more precisely of an assembly). Now, little bylittle, starting with the British case, as the weight of powerstarted to shift from the monarch to parliament, themonarchy became first constitutional and then parliamentaryand was transformed into a form of government quitedifferent from the one for which the word was coined andused for centuries: it is a mixed form, half monarchy andhalf republic. It is not by chance that Hegel saw in theconstitutional monarchy of his own day the new incarnationof the mixed government of the ancients. At this point thedistinction between monarchy and republic became soevanescent that the treatises of constitutional law that stilladopted it were hard-pushed to find a convincing criterionof distinction between one and the other. When Machiavelliwrote that every state was either a principality or a republic,he was making an assertion that corresponded perfectly tothe reality of this time and he was distinguishing betweenthings that were really different: the monarchy of Francefrom the Venetian Republic. The same distinction repeatedtoday would force reality into an inadequate if not actuallydistorting framework because it would distinguish thingsthat are not easily distinguishable: the British monarchyfrom the Italian Republic, for example.

Once governments characterized by the separationbetween the power of government, strictly speaking,and legislative power became more widespread, the onlyadequate criterion of distinction was one which highlightedthe different relations between the two powers independent

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of the fact that the holder of one of the two powers mighteither be a monarch or the president of a republic. Kanthad already called republican that form of governmentwhere the principle of the separation of powers operatedeven if the holder of executive power was a monarch. Inthis manner 'republic' acquired a new meaning: it no longermeans a state, generally speaking, or even government byassembly contrasted with government by one individual,but instead a form of government possessing a certaininternal structure compatible even with the existence of amonarch. The different relation between the two formsconstituted the criterion for the distinction betweenpresidential and parliamentary government; in the first aclean-cut separation between the power of government andthe power of making laws operates, a separation which isbased on the direct election of a president of the republic(who is also the head of government and to whom, ratherthan the parliament, the components of government areresponsible); in the second, rather than a separation, thereis a network of reciprocal powers between government andparliament, based on the distinction between the head ofstate and the head of government, on the indirect electionof the head of state by parliament, and on the responsibilityof the government to parliament which is expressed in avote of confidence (or no confidence). Between these twopure forms there are many intermediate ones: it is enoughto think of the Fifth French Republic, established in 1958,a presidential republic sui generis which kept separate theoffices of the president of the council and president of therepublic. But there is no need to describe them in detailbecause the distinction between presidential governmentand parliamentary government, on account of being purelyformal and constructed on mechanisms with which thesystem of constitutional powers should function rather thanon their effective functioning, was little by little supplantedby typologies paying more attention to real, if informal,powers.

The greater quantity of real political power, even if not

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formally recognized, has been accumulated in moderndemocracies and states by political parties as an effect bothof the process of democratization * which made necessarythe aggregation of demands originating in civil society, andof the formation of mass society where only parties, oreven one party alone, can succeed in expressing one willand one political programme. Today no typology can ignorethe party system: that is, the way in which the politicalforces, from which government draws its life, are disposedand arranged. The party system influences the formalconstitution to the point of changing its structure. Duvergerhad already observed how the party system particularlyinfluences the separation of powers. A perfect two-partysystem, such as the British one (which has two main partieswhich tend to alternate in government and where generallythe leader of a party becomes the head of government ifthat party wins the election), brings the parliamentary formof government closer to the presidential in that the primeminister is elected, albeit indirectly, by the citizens whochoose a prime minister indirectly at the same time as theychoose a party. A one-party system, no matter what theformal constitution says, gives rise to a form of governmentin which the greatest power is concentrated in the committeeof the party (and its secretary) to the detriment of all thecollegial and popular organs provided for in the constitution;so much so that the traditional distinction between despotismand democracy coincides with the distinction between one-party and more-than-one-party systems (whether two- ormulti-party systems). There are also differences betweentwo-party and multi-party systems depending on whetherthe multi-party system is polarized (with two extreme anti-system parties on the right and left) or not: that is to say,with many pro-system parties. Here too there are manyvariations and it is not possible (and perhaps not especiallyuseful in this context) to take account of them all.

To show how the classic distinction of forms of governmentbecame overlaid by the distinction between party systemswe will limit ourselves to citing the typology proposed by

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a constitutionalist aware of the necessity of not seeinglegal problems in a rigidly formalistic way: rigid two-partyparliamentary government, moderate multi-party parliamen-tary government, extreme multi-party parliamentary govern-ment and presidential government (Elia 1970, p. 642) whichcould be respectively exemplified by British parliamentarygovernment, by the governments of the so-called 'smalldemocracies' except for Switzerland (such as the Scandinavian,Dutch and Belgian monarchies and the Austrian Republic),by the Italian Republic and by the government of the UnitedStates. Switzerland is unique with its directorial form ofgovernment characterized by a federal council elected byparliament but not responsible to it and made up of sevenmembers who remain in charge for four years, of which eachone in turn is president for a year.

Other typologies

If one takes as the distinguishing element not the party butthe political class understood, according to Gaetano Mosca,as the group of persons who effectively wield political poweror, according to the expression introduced and madepopular by Wright Mills, as the power elite, it is possibleto construct new typologies different from both traditionalones and those current in public law. Once it is admitted,as Mosca asserts, that the government in every politicalsystem belongs to a minority, the forms of government canno longer be distinguished on the basis of the old criterionof the number of governors; from this point of view allgovernments are oligarchies. However, that does not implythat one may not be distinguished from another. Acceptingthe principle of the necessity of a political class, the variousforms of government can be distinguished on the basis ofeither the formation or organization of the political class.Concerning formation Mosca distinguished between openand closed classes, and concerning organization betweenautocratic classes where power comes from the top anddemocratic classes where power comes from below. The

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combination of the two distinctions generates four formsof government: aristocratic in formation and democratic inorganization, and so on. According to the notion of a powerelite, however, there is Schumpeter's distinction betweendemocratic governments, in which there is more thanone elite competing amongst themselves for access togovernment, and autocratic governments in which one elitepossesses the monopoly of government.

If the political system rather than the political class istaken as the point of reference (the political systemunderstood as the ensemble of interdependent relationsbetween the various elements which together contribute tothe performance of the functions of conflict mediation, ofgroup cohesion and of defence from other groups), then itis possible to construct other typologies. One of the mostnoted, proposed by Almond and Powell (1966), distinguishesbetween sub-systems by, using two criteria: the differen-tiation of roles and the autonomy of political systems.Putting together the two characteristics on a scale goingfrom high to low, four ideal types of political system canbe picked out: (a) low differentiation of roles and lowautonomy of sub-systems, as in primitive societies; (b) lowdifferentiation of roles along with high autonomy of sub-systems, as in feudal societies; (c) high autonomy of sub-systems and low differentiation of roles, as in the largemonarchies born of the dissolution of feudal societies; (d)high differentiation of roles and high autonomy of sub-systems, as in modern democratic states.

Mixed government

Nothing demonstrates the vitality of traditional typologiesmore than the continuity of the theory of mixed govern-ments, according to which the best forms of governmentresult from a combination of the two or three (dependingon the typology) forms of pure government. In the LawsPlato, after declaring that monarchies and democracies arethe precursors of all other forms of government, adds: 'the

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participation of both is obligatory and necessary if there isto be liberty and intelligent agreement' (693d). Aristotlecites the opinion which says that 'the best constitution mustbe a combination of all constitutions', and thus praises theSpartan constitution because its ruling authority constitutesthe monarchical element, the oligarchic element is rep-resented by the 'elders' and the democratic element by the'ephors' (magistrates) in so far as they come from thepeople (Politics, 1265b, 35). When he puts forward his owntheory of governmental forms he describes the politeia, thegood form of popular government, as 'a mixture of oligarchyand democracy' (1293f, 35). The most accomplished theoryof mixed government is that laid out by Polybius in theHistories, where his account of the events of the SecondPunic War are interrupted by an exposition of the Romanconstitution interpreted as the most authoritative exampleof mixed government: the consuls represent the monarchicalprinciple, the senate the oligarchical element and the comitiaof the people the democratic one. According to Polybiusthe reason why mixed government is superior to all otherslies in the fact that 'each organ can either obstruct orcollaborate with the others' and 'no part exceeds itscompetence and goes over the limit' (VI, 18): an argumentwhich anticipated by centuries the celebrated theory of thebalance of powers which was to be one of the principalarguments of the supporters of constitutional monarchyagainst the defenders of absolute monarchy. Cicero, too, inDe re publica (I, 29, 45) asserts that of all the forms ofgovernment the best is the moderatum et permixtum. In themodern age the doctrine of mixed government is used tohighlight the excellence of the British constitution as opposedto the French monarchy, and in general any governmentwhich one wants to commend: the republic of Venice or therepublic of Florence have in turn been described as mixedgovernments by those who propose one or the other as theideal form of government, or at least as the form to imitateabove all others.

Theorists of absolutism (that is, of a state which neither

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knows nor recognizes intermediate elements), such as Bodinand Hobbes, criticize the doctrine of mixed government forthe same reason that its supporters advance it: thedistribution of sovereign power between different anddistinct organs causes the worst disadvantage that can affecta state: instability; exactly the same instability that Polybiusconsidered as common among pure forms which werecontinually replacing each other, and which only a combi-nation of the three forms could prevent.

Through Montesquieu's idealization of the English monar-chy, which he believed realized the principle of the separationof powers - although with a shift in the real meaning of thedoctrine in so far as the mixture of the three forms ofgovernment is one thing and the separation of powers isanother - constitutional monarchy became the universalmodel of the state for at least a century after the FrenchRevolution. It is significant that Hegel, after having high-lighted the inadequacy of the three ancient forms for anunderstanding of modern monarchy, affirmed that 'they aredowngraded to moments of constitutional monarchy: themonarch is one; the few participate in the governing powerand the majority is present in the legislative power' (1821).Again, after the First World War, one of the greatest periodsof constitutional transformations known in history, CarlSchmitt claimed that the constitutions of the modern bour-geois state were mixed because different elements and prin-ciples (democratic, monarchical and aristocratic) were unitedand mixed in them thereby confirming an ancient traditionaccording to which the ideal public arrangement rested ona union and mixture (Verbindung und Mischung) of differentpolitical principles (1928). The theory of mixed governmentoccupied an important position in the work of GaetanoMosca who, in the conclusion to his Storia delle dottrinepolitiche (History of Political Doctrines, 1933) where he givesthe final version of his theory of the forms of government,writes that the objective study of history shows that the bestregimes (and by 'best regimes' he means those that lastlongest: once again the value of a constitution resides in its

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stability) are mixed governments; by 'mixed government' hemeans not just those forms where the different principles areadopted but also where religious power is separate fromsecular power and economic power from political power.

Historical forms

There are so many elements to take into account whendistinguishing between forms of state - especially therelations between political organization and society or elsethe different ends pursued by organized political power indifferent historical epochs and different societies - and theresulting typologies of the forms of state are so numerousthat it would be difficult and perhaps useless to attempttheir complete exposition. To bring a little order into suchrich and controversial material two main criteria can beused to distinguish between different state forms: a historicalcriterion and a criterion taking account of the greater orlesser expansion of the state with respect to society (acriterion that includes those based on different ideologies).

On the basis of the historical criterion, the typology thatis most widespread and accepted amongst historians ofinstitutions proposes the following sequence: feudal state,corporate state (involving the various estates), absolutestate, representative state. The presence of a corporatestate between the feudal state and the absolute state goesback to Otto von Gierke and Max Weber, and after Weberwas taken up mostly by German historians of institutions.In Mosca's Elementi di scienza politico (1896), two idealtypes of the state stand out, the feudal one on the one handcharacterized by the accumulative exercise of the differentdirective functions by the same people and the fragmentationof central power into small social aggregates and thebureaucratic state, on the other characterized by a progressive

FORMS OF STATE

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centralization and at the same time progressive specializationof the functions of government. By a corporate state(Standestaai) [in the original Italian Stato di ceto, whichmeans literally 'class-' or 'rank state' - translator's note] ismeant a political system where collegial organs have beenformed - the Stande or estates - which bring together peopleof the same social position, enjoying rights and privilegeswhich count against the holder of sovereign power throughdeliberative asssemblies such as parliaments. To Otto Hinzeis chiefly owed the distinction between states with twoassemblies such as Britain, where the House of Lords includesthe clergy and the nobility and the House of Commons thebourgeoisie, and corporate states, such as France, with threedistinct bodies, respectively the clergy, the nobility and thebourgeoisie.

However, the formation of institutions representative ofcategory-interests acting to counterbalance the power ofthe prince is common to all European states. The disputebetween the estates and the prince, especially aboutestablishing who has the right to impose taxes, constitutesa large part of the history and development of the modernstate in the passage from the extensive type to theintensive type of political management (another of Hinze'sdistinctions) between the end of the .medieval and the startof the modern age. But even where the corporate state wasnot directly transformed into a parliamentary state (as inBritain) or did not survive the French Revolution and afteras in the German states (Hegel's constitutional monarch isan idealization of it), with the exception of Prussia, it isnever easy to trace a clear line of demarcation between thecorporate state and absolute monarchy. No monarchybecomes so absolute, as has more than once been observed,as to suppress every form of intermediate power (theabsolute state is not a totalitarian state). The idea of amoderate monarchy has a lo*hg life. The supporters of areglee monarchy, like Claude de Seysell at the start of thesixteenth century, were representative of the idea of amonarchy controlled by the power of the estates. Thus in

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Montesquieu's theory of the forms of government, monarchyis distinct from despotism because monarchical power iscounterbalanced by intermediate bodies. For Hegel, too,while the despot exercises power without intermediaries,'he cannot personally exercise all the powers of governmentbut entrusts some part of the exercise of particular powersto the colleges or classes of the kingdom' (1808-12). As anintermediate form between the feudal state and the absolutestate, the corporate state is distinguished first by a gradualinstitutionalization of counterbalancing powers and also bythe transformation of the person-to-person relations of thefeudal system into relations between institutions (on theone side the assemblies of the estates and, on the other,the monarchs with their apparatus of officials which, gettingthe upper hand, gave rise to the bureaucratic statecharacteristic of the absolute monarchy); second, by thepresence of counterbalancing powers in continual conflictamongst themselves which the advent of the absolutemonarchy tended to suppress.

The formation of the absolute state came about throughparallel processes of the concentration and centralizationof power over a given territory: by concentration is meantthe process whereby the powers through which sovereigntyis exercised, the power to dictate valid laws for the entiresociety (to the point that customs are considered valid bymeans of a legal fiction which presumes that they aretolerated by the monarch as long as he or she has notexpressly abrogated them), the power of jurisdiction, theexclusive power to use internal and external force, andfinally the power to impose tribute, are attributed de jure tothe sovereign by the lawyers and exercised de facto by themonarch and by functionaries directly dependent on him orher. By centralization is meant the process of the eliminationor removal of the authority of lesser legal entities such as thecity, the corporation and specialized associations which nolonger survive as primary and autonomous systems but asarrangements derived from the authorization or tolerance ofthe central power. In a usually neglected chapter of Hobbes's

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Leviathan (1651) dedicated to partial societies one reads that,of regular systems, the only ones that are absolute andindependent - that is, not subject to anyone but their rep-resentatives - are states; all the rest, from the cities tocommercial societies, are dependent on (that is to say,subordinate to) sovereign power, and legitimate only in sofar as recognized by it.

The representative state

With the advent of the representative state, first as aconstitutional and then as a parliamentary monarchy inEngland after the Great Rebellion, and in the rest ofEurope after the French Revolution, and in the form of apresidential republic in the United States of America afterthe revolt of the 13 colonies, the fourth phase of thetransformation of the state began, and still continues. Whilein England the representative state was born almost withoutproblems of continuity from the feudal state and thecorporate state through the civil war and the 'GloriousRevolution' of 1688, in continental Europe it was born outof the ruins of absolute monarchy. Like the corporate state,the representative state was the result of a compromisebetween the power of the prince whose principle oflegitimacy was tradition, and the power of the representativeof the people (where by people is meant, at least to beginwith, the bourgeois class) whose principle of legitimacy isagreement. The difference between the corporate state andthe representative state lies in the fact that representationby category or corporation (nowadays one would saythe representation of interests) is substituted by therepresentation of individuals (at one time just the pro-prietors) whose political rights are recognized. Between thecorporate state and the absolute state on the one hand andthe representative state on the other, whose sovereignsubjects are no longer princes invested by God or thepeople as an undifferentiated and collective subject (a merelegal fiction of Roman and medieval jurists), there is the

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discovery and affirmation of the natural rights of theindividual, of the rights that each individual has by natureand that, precisely because they are innate and not acquired,can be made to count against the state by the individualeven having recourse to the extreme remedy of civildisobedience and resistance. The recognition of the rightsof individuals and citizens, at the beginning only in adoctrinal manner by natural lawyers and then later practi-cally and politically in the first declarations of rights,represents a genuine Copernican revolution in the evolutionof the relationship between rulers and ruled; the state nolonger considered ex parte principis but exparte populi. Theindividual is not for the state but the state for the individual.The parts are prior to the whole and not the whole prior tothe parts (as in Aristotle and Hegel). The ethical presuppo-sition of the representation of individuals qua individuals isthe natural equality of human beings. Every person countsas that person and not as a result of belonging to this or thatparticular group.

That the natural equality of individuals might have beenthe ethical postulate of representative democracies (calledatomistic by its detractors) does not mean that representativestates recognized this from the start. The development ofthe representative state coincides with successive phases ofenlargement of political rights right down to the recognitionof universal male and female suffrage. Amongst other thingsthis made organized parties necessary and profoundly alteredthe structure of the representative state to the point ofbringing about a fundamental change in the system of rep-resentation itself (which is no longer representation by singleindividuals but is filtered through powerful associations thatorganize elections and receive a blank proxy from the elector-ate). While in a representative political system with restrictedsuffrage it is individuals who elect individuals (especially inelections conducted with single-member constituencies) andparties form inside parliament, in a representative politicalsystem with universal suffrage parties develop outside parlia-ment and the electorate chooses a party rather than a person

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(especially with a proportional system). This alterationof the system of representation has transformed therepresentative state into a state of parties in which, likethe corporate state, the relevant political actors are nolonger individuals but organized groups, although nolonger organized on the basis of category of corporateinterests but of class or more general interests. MaxWeber had already noticed that, where group interestsconfront each other, the normal procedure for reachingcollective decisions is compromise between the partiesand not majority rule (which is the golden rule forcollective decisions in bodies constituted by subjectsconsidered at least partially equal). Weber made thisobservation about the corporate state. Now everyone cansee how valid this description is for actual party systemsin which collective decisions are the fruit of negotiationand agreements between groups which represent socialforces (unions) and political forces (parties) rather thanan assembly where majority voting operates. These votestake place, in fact, so as to adhere to the constitutionalprinciple of the modern representative state, which saysthat individuals and not groups are politically relevant(and where there are organs capable of taking bindingdecisions the procedure for the formation of the collectivewill is majority rule); but they end up possessing thepurely formal value of ratifying decisions reached in otherplaces by the process of negotiation.

On a game-theory basis, a majority decision is theoutcome of a zero-sum game; a decision reached throughan agreement between parties is the outcome of a positivesum game. In the first, what the majority wins the minorityloses; in the second both parts gain something (compromiseis only possible when the both partners believe, looking atthe pros and cons, that each has something to gain). In ourpluralist societies composed of large organized groups inconflict amongst themselves, the negotiation procedureserves to keep the social system in balance, more thanmajority rule which, by dividing contestants into winners

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and losers, allows the reweighting of the system only whenthe minority becomes in its turn the majority.

Socialist states

The last phase of the historical sequence just described byno means exhausts the phenomenon of existing forms ofthe state. In fact, the majority of states in today'sinternational community are not included, although morefor de facto than de jure reasons. Military dictatorships,despotic states governed by leaders responsible to no one,recently-formed states dominated by restricted oligarchiesthat are not democratically controlled; all these renderhomage to representative democracy and justify their ownpower as temporarily necessary in order to restore orderor get over a transitory period of anarchy; as with aprovisional government in a state of emergency andtherefore not as a refutation of the democratic system butas its temporary suspension until the return of normality,or as the imperfect application of principles sanctioned bya solemnly approved constitution but too rapidly taken upby a ruling class formed in the West and imposed on acountry with no tradition of self-government and of politicalcontest regulated by the recognition of civil rights. Therepresentative state that formed in Europe over the past300 years is still today the ideal model for writtenconstitutions that have been affirmed in the last decade,even where they have been suspended or badly applied(the bad application of a constitution is not especially avice of the Third World).

The states which are not included even in principle arethe socialist states, beginning with the pioneer state, theSoviet Union. But what form of state they represent is noteasy to say, the gap being too large between officialproclamations of the constitution and the facts, betweenthe formal and the substantive constitutions. There is nocommonly accepted definition among lawyers and politicalscientists of the form of state of the Soviet Union after the

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dictatorship of the proletariat, which was at least anhistorically and doctrinally relevant formula. The definitionof the republic of councils becomes increasingly unaccept-able and remains in name alone as a reminder of a nowremote origin.

Lacking an official definition current characterizationsare, for the most part, attempts to isolate the predominantelement or elements. To point out some of them: inthe wake of Weber's analysis of the process of formalrationalization (not always accompanied by the process ofsubstantive rationalization) that characterizes the modernstate and has as a consequence the growth of depersonalizedbureaucratic apparatuses and the transformation of thetraditional state into the legal-rational state, and fromWeber's own catastrophic vision of the ineluctable comingof a bureaucratic state in a collectivized world, one of themost common interpretations of the Soviet state adoptedduring the years of Stalin's incontestable domination,authoritatively confirmed by Trockij, sees it as a bureaucraticstate dominated by an oligarchy which renews itself bycooption.

However, a bureaucracy administers and does not govern.The interpretation of the Soviet state as a bureaucratic statemust be weighed against the claim that in a world of partystates that have come about through mass suffrage andmass society, the essential difference between representativedemocracies and the socialist states lies in the contrastbetween multi-party systems and one-party systems (likethe Soviet Union in principle and other popular democraciesin fact). The domination of one party introduces into thepolitical system the monocratic principle of monarchicalgovernment of the past, and perhaps constitutes the genuinecharacteristic element of socialist states of direct or indirectLeninist inspiration, compared with the poly archie systemsof Western democracies. The immovable motor of thesystem is the party, this collective prince which is theholder of political and ideological power and consequentlyrecognizes no distinction between regnum and sacerdotium;

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a sovereign whose legitimacy derives from considering itselfas the only authentic interpreter of doctrine (a principle oflegitimacy more appropriate to churches than to states andwhich, in fact, was not amongst the principles discussedabove).

The analysis of states with one all-pervading and omnip-otent party has given rise to the image of the total ortotalitarian state which, besides the historically incorrectpolemical arguments equating fascist and communist states,offers the most faithful representation of a political organiz-ation in which the distinct line of demarcation betweenstate and church has disappeared on the one hand (whereby 'church' is meant not just the sphere of religious life butalso contemplative life in the classical sense of the termand spiritual life in the modern and secular sense) andbetween state and society on the other (where 'civil society'has the Marxist sense of economic relations); and whichtherefore extends its control over all human behaviour,leaving no interstices where individual and group initiativescan legitimately develop. Finally, the definition of theSoviet state as oriental despotism (Wittfogel) should notbe forgotten, although it is grounded on a historicalreconstruction rather than a structural analysis. It shouldbe remembered that despotism has always been understood,at least since Aristotle onwards, as that form of governmentin which rulers rule over their subjects like owners overtheir slaves or, in Machiavelli's graphic expression, 'one aprince and all the rest slaves' as in Turkey (1513).

State and non-state

This reference to the category of the totalitarian and itsdefinition allows us to pass on to the second criterion ofclassification of forms of states mentioned on p. 111. Intotalitarian states all society is resolved in the state, in theorganization of political power that unites in itself ideologicaland economic power. There is no space for the non-state.The totalitarian state represents an extreme case since even

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the state in its widest meaning (including the Greek polls]always found itself confronted with the non-state in boththe religious sphere (in the largest sense of the word) andthe economic sphere. Even in the ideal Aristotelian model,in which people are political animals, the economic spherebreaks down into the 'household management' and exchangerelations and does not belong to the state; the contemplativelife whose superiority Aristotle claimed over the active lifebelongs to the wise. The Hobbesian state, althoughsubordinating church to state and giving itself the power toprohibit seditious theories and claiming the monopoly ofideological power, leaves the fullest economic liberty to itssubjects. In the opposite way Hegel's ethical state, ofteninterpreted as the all-state, is the final moment of objectivespirit beyond which there is absolute spirit which includesthe highest expressions of spiritual life: art, religion andphilosophy. The presence of the non-state in both or eitherof its two forms has always constituted a limit to theexpansion of the state in fact and in principle, in objectivereality and in the speculations of political writers. Thisboundary varies from state to state; the highlighting ofthese variations constitutes therefore a potentially usefulcriterion for distinguishing between historical forms of thestate. However, one should not confuse the limit the stateis faced with, from the more or less strong presence of thenon-state, with the legal limits of political power discussedin the section on state and law. These are the limits ofpolitical power; in the next two paragraphs are found thelimits to political power.

With the advent of Christianity as a universal religioncrossing the boundaries of single states, the problems ofthe relations between religious society and political societybecame a permanent problem of European history. In theclassical world the non-state in, for example, the universalrepublic of the Stoics is an ideal of life and not an institution,whereas with the diffusion of Christianity the non-statebecomes an institution with which the state has to dealcontinually, a genuine power that proclaims from the start

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its supremacy over terrestrial power with the principleimperator intra ecclesiam, non supra ecclesiam (St Ambrose,Sermo contra Auxentium, 36). According to the Gelasiandoctrine (named after Pope Gelasio I): Duo sunt quibusprincipaliter mundus hie regitur: auctoritas sacrata pontificumet regalis potestas (Epistulae, XII, 2). The potestas regalis,too, gets its real investiture from God (nulla potestas nisi aDeo, St Paul, Letter to the Romans, 13:1), but its purposein this world is peace on earth, whether internal or external,and as such is subordinate to the aim of auctoritas sacratapontificum, which is the preaching and realization of adoctrine of salvation. It is up to the prince to eradicate eviland exterminate heretics, but it is the privilege of the churchto establish what is good and what is evil, who is a hereticand who not.

For our own purposes it is interesting to note that, in adoctrine of the primacy of non-state, the state turns intothe possession and legitimate exercise of coercive power, amerely instrumental power in that its services are indispen-sable but by their nature of an inferior rank to a powerordained from on high. This annotation is interestingbecause the same instrumental representation of the stateoccurs when the non-state that makes these claims ofsuperiority against the state is the bourgeois civil society.In feudal society political and economic power wereinseparable from each other and, moreover, the imperiumcould not exist without some form of dominium (dominiumeminens at least): a confusion that remained until aspecifically patrimonial right such as hereditary successioncontinued to be valid not just for goods but also for thetransmission of political power and state functions. Withthe formation of the bourgeois class which fought againstfeudal bonds for its own emancipation, civil society as arealm of economic relations obeying natural laws superiorto positive law (according to the Physiocratic doctrine) orregulated by a superior rationality (the market or Smith'sinvisible hand) claimed to detach itself from the mortalembrace of the state: economic power becomes clearly

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distinct from political power and, at the end of this processs,the non-state affirmed itself as superior to the state bothin the classical economic doctrine and Marxist doctrinealbeit with opposed values. The chief consequence of theprimacy of the non-state over the state is once again amerely instrumental notion of the state, and its reductionto the element that characterizes it: coercive power, whoseexercise in the service of the holders of economic powershould be to guarantee the autonomous development ofcivil society and transform the state into a genuine 'seculararm' of the dominant economic class.

Maximalist and minimalist state

The Christian state and the bourgeois state are two extremecases. They are the configurations of the state, expressingthe point of view of the non-state, to which reality doesnot always correspond. From the point of view of the state,relations with the non-state vary according to the greateror lesser expansion of the former over the latter. From thisperspective as well, two ideal types can be distinguished:the state that takes on tasks which the non-state, in itssuperiority, claims for itself; and the indifferent or neutralstate.

In the religious sphere these two approaches give rise tothe two images of the confessional state and the lay state;in the economic sphere the interventionist state, whichtakes on various historical forms (the most persistent ofwhich is the Wohlfart Staat of the eighteenth century rebornin the contemporary Welfare State), and the abstentioniststate. Like the confessional state which, in assuming a givenreligion as the state religion, busies itself with the religiousbehaviour of its subjects and to this end controls theirexternal acts, opinions and writings, preventing any demon-stration of dissent and persecuting dissidents, the state thatconsiders its own the manner in which economic relationstake place, takes on a given economic doctrine (mercantal-

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ism in the eighteenth century and Keynesianism in the last50 years), claims for itself the overall right of regulatingthe production of goods or the distribution of riches,facilitates some activities and impedes others and stampsits character on the economic activity of the country. Boththe confessional state and the interventionist state can beseen in the eighteenth-century eudemonic state, which hadas its goal the happiness of its subjects (happiness beingunderstood as the possibility of pursuing, besides thegreatest earthly goods, the other-worldly good that onlytrue religion can provide). The liberal state, diametricallyopposed to the eudemonic state, is both lay as regards thereligious sphere and abstentionist as regards the economicsphere (it is not by accident that it is often described inreligious terms: agnostic). It is also defined as the state oflaw (according to one of the many meanings of thisexpression), having no external aims that originate in thenon-state, and no purpose other than legally guaranteeingthe most autonomous development of the two borderingspheres; in other words, the widest possible expression ofreligious liberty and the widest possible expansion ofeconomic liberty.

The process of secularization, or the emancipation of thestate from religious affairs, and the process of liberalization,or the emancipation of the state from economic affairs,advanced hand-in-hand in the modern age. Both are theeffect of a crisis in the paternalistic conception -of powerand of the Enlightenment which has been defined sinceKant as the coming of age of man. Emphatically anddiametrically opposed to the Welfare State is the custodianor 'gendarme' state. This double process can be describedas the process on the part of the state of the demonopoliz-ation of ideological power on the one side, and thedemonopolization of economic power on the other. Themonopoly of violence remains with the state and will staywith it as long as it remains a state, ensuring the freecirculation of ideas (and therefore the end of all orthodoxy)and the free circulation of goods (and therefore the end of

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every form of protectionism). In reality, however, theprocess was not so linear as liberals of the last centurybelieved. The confessional state reappeared in the form ofthe doctrinal state which tolerates one doctrine alone(for example, Marxist-Leninism), giving rise again to thedistinction between the orthodox and the heretical (orrenegades, which is a typical expression of religiouslanguage), and which emerges moreover in countries wheresecularization never took place (such as Islamic states) orwas imposed by force. The state which takes on itself thetask of directing the economy has reappeared as the socialiststate and, even if in a blander form with regard to thedistributive system alone and not the productive one, inthe so-called Sozialstaat - social state - or state of justiceproposed by social-democratic parties.

Two interpretations can be given to this depending onwhether they judge favourably or not the changes wroughtin the liberal state (internally liberal even if protectionisttowards the outside): that called by well-disposedinterpreters the state of social justice which corrects someof the distortions of the capitalist state for the benefit ofthe less advantaged classes is, for the left-wing critics whohave not renounced the ideal of socialism or communism,'the state of capital', or, in the less recent expression, the'state of organised capitalism' (Hilferding); a system ofpower which the capitalist system makes use of to surviveand to prosper, the pre-condition of 'exploitation' in asociety where the strength of the antagonists (the worker'smovement) has grown enormously thanks to democraticpower structures. To judge from the actual state of thedebate, left-wing criticism has had the effect not of openingup the way to a deeper transformation of the state -disparagingly called 'assistential' - into a state of greatersocialist content, but of reawakening neo-liberal nostalgiaand hope.

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THE END OF THE STATE

The positive conception of the state

Engels's thesis is well known: the state, just as it had anorigin, will also have an end and it will finish when thecauses that produced it disappear. Just as much as theorigin of the state the end of the state is a recurring theme.However, it is above all necessary to distinguish the problemof the end of the state from the problem of the crisis ofthe state, about which so much has been said in recenttimes with reference either to the theme of growing intricacyand consequent ungovernability of complex society, or to thephenomenon of diffuse power which makes it increasinglydifficult to bring about the decisional unity that hascharacterized the state since its birth. By the crisis is meant,by conservative writers, a crisis of the democratic stateunable to deal with the demands from civil society whichhave been provoked by itself; by socialist or Marxist writers,a crisis of the capitalist state which no longer succeeds incontrolling the power of competing interest groups. Thecrisis of the state means for both the crisis of a particularsort of state and not the end of the state. Proof of this liesin the return to the agenda of the new 'social contract' inorder to give life to a new form of state, different fromboth the capitalist or unjust state and the socialist or unfreestate.

The theme of the end of the state is closely connectedto positive and negative value judgements that have beenmade and that continue to be made on this maximumconcentration of power's having the right of life and deathover individuals who rely on it or who suffer it passively.The entire history of political thought is shot through bythe opposition between positive and negative conceptionsof the state. The negative conception is a necessary but notsufficient condition of the ideal of the end of the state.Whoever makes a positive judgement on the state, whoever

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believes that the state might be, if not the greatest good,at least an institution favourable to the development ofhuman faculties, to civil progress, civil society in theeighteenth-century use of the term, will tend not to celebratethe end of the state but applaud the gradual extension ofstate institutions (in primis, the monopoly of violence aslong as it is controlled by democratic institutions) until auniversal state is formed. In fact the Utopia of the universalstate has had no fewer supporters than the end of the state.

The positive conception of the state has as its ancestoraccording to a well-established tradition the eu zen (thebonum vivere] of Aristotle taken up by scholastic philosophyfollowing the translation into Latin of the Politics (in thesecond half of the thirteenth century): the polis exists to'make a happy life possible' (Politics, 1252b, 30). But itculminates in the rational conception of the state that goesfrom Hobbes through Spinoza and Rousseau to Hegel:rational, because it is dominated by the idea that outsidethe state there is a world of unleashed passions orantagonistic and irreconcilable interests, and individuals canonly realize their true lives as people of reason under theprotection of the state. Naturally there corresponds to thepositive conception of the state a negative conception ofthe non-state in two principal and reinforcing visions: thewild state from Lucretius to Vico, which goes from thesavage state of primitive peoples to a version of the stateof anarchy, understood by Hobbes as the war of all againstall. The two versions differ in this: for the first, the non-state is a superable phase of human history and, in fact, inmany nations it has been overcome, whereas the secondstate is one into which humankind can always fall back (ashappens when a civil war occurs).

Discussions about the best republic are linked to thepositive conception of the state, which presupposes thatexisting states are imperfect but perfectable, and thereforethe state as an organized attempt at civilized cohabitationis not to be destroyed but to be brought to a full realizationof its proper essence. The extreme form of the outlining

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of the optimum republic can be found in the sketches ofideal republics, of republics that have never existed andwill never be realized in any place (or are located inimaginary places) and are proposed as limiting ideals of aperfectly rational arrangement whereby every sort ofbehaviour is rigorously foreseen and rigidly regulated. FromPlato's Republic to Tommaso Campanella's Citta del Sole,ideal republics have always been models of hyper-statization,of a genuine overgrowth of the function of the regulationof civil life from which the need for political life wouldoriginate, and consequently they are representationsinspired by a highly positive conception of the state (whosecounterfigure is the negative Utopia of Orwell, which is aresponse to the real or foreseeable abuses of the totalstate).

The state as a necessary evil

There are two negative conceptions of the state, one weakand one strong: the state as a necessary evil and the stateas an unnecessary evil. Only the second leads to the ideaof the end of the state.

The negative conception of the state as a necessary evilhas presented itself in the history of political theory in twodifferent forms depending on whether the state is judgedfrom the point of view of the church-non-state or the civilsociety-non-state.

In the first form characteristic of early Christian thoughtthe state was necessary as a remedium peccati because themasses are wicked and must be held back by fear (that fearwhich, for Montesquieu, will be the principle of despotismand, for Robespierre, connected to virtue, the principle ofrevolutionary government): In gentibus principes regesqueelecti sunt ut terrore suo populos a malo coercerent atquead recte vivendum legibus subderent (Isidore of Seville,Sententiae, III, 477, in Migne, Patriologia latina, LXXXIII,col. 717). Abandoned by scholastic thought which, underthe influence of the classical doctrine, rediscovered the

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thesis of the positive function of civil government, thenegative doctrine of the state was taken up again by Lutherwith a vehemence equalled only by the doctrine that willjustify state terrorism in the celebrated letter to Christianprinces, On secular authority (1523), where one reads thattrue Christians being few,

God has imposed on others besides . . . the rule of God, anotherregime and he has placed them under the sword so that even ifthey wanted to they could not exercise their wickedness and whenthey do it is not without fear or with peace and happiness; likeone ties a savage and fierce beast with shackles and chains sothat it cannot bite or attack in accordance with its instinct, evenif it could do so voluntarily.

Beyond every religious vision the negative conception ofthe state appears in the stream of realistic political thoughtgrounded on a pessimistic anthropology; from some famoussayings of Machiavelli, the image of the 'devilish face' ofpower has derived. But the connection between a pessimisticanthropology and a negative conception of the state is notnecessary. Hobbes has a pessimistic vision of individualswho, left to their own devices, are as wolves to otherpeople; however, Leviathan is the beneficial monsteropposed to Behemoth, the evil monster of civil war.While admitting that the state is a necessary evil, none ofthese doctrines does away with the ideal of the end of thestate. In the Christian vision of the world beyond (evenabove) the state there is a church which makes use of thestate for good and therefore needs it even if it considers itan imperfect instrument. The negativity of the state is notwithout redemption in its subordination to the church (whilein the realistic conception of the state there is no redemptionexcept in the power that is the ultimate aim of the prince).For this reason, even in its negativity the state must survive:Et licet peccatum humanae originis per baptismi gratiamcunctis fidelibus dimissum sit, tamen aequus deus ideodiscrevit hominibus vitam, alias servos constituens, aliosdominos, ut licentia male agendi a servorum potestate

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dominantium restringatur (Isidore of Seville, Sententiae, III,47, i, in Migne, Patrologia latina, LXXXIII, col.717).

When civil society in the form of free market societyadvances the claim to restrict the powers of the state tothe minimum necessary, the state as a necessary evilbecomes the minimal state, an image that becomes commonin liberal theory. For Adam Smith the state must confineitself to providing external defence and internal order aswell as the execution of public works. Nobody has expressedthe idea of the minimal state more incisively than ThomasPaine. Right at the beginning of Common Sense he writes:

Society is produced by our wants and government by ourwickedness; the former promotes our happiness positively byuniting our affections, the latter negatively by restraining our vices.The one encourages intercourse, the other creates distinctions. Thefirst is a patron, the last a punisher. Society in every state is ablessing, but government even in its best state is but a necessaryevil, in its worst state an intolerable one. (1776)

From William von Humboldt to Benjamin Constant, fromJ.S. Mill to Herbert Spencer, the theory that the best stateis the one that governs least dominates as bourgeois societyexpands and - to tell the truth more in theory than practice- as the idea of the free internal and international markets'(freedom of exchange) triumphs. But even in this case theminimal state does not mean society without the state. Thetheory of the minimal state does not coincide with any ofthe forms that anarchism assumed in the same century. Abook that has recently had such great success as to becompared to J.S. Mill's On Liberty (1859) is Robert Nozick'sAnarchy, State and Utopia (1974), which sets itself the taskof defending the minimalist state both against the anarchistnegation of the state and against the state of justice,especially against John Rawls' (1971) much-discussed thesis,arguing subtly and at length in favour of the thesis that'the minimalist State is the most extended State it is possibleto justify' (Nozick 1974).

A variation on the theory of the minimalist state,

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bordering on the theory of the end of the state, is theAnglo-Saxon doctrine of guild socialism which elaboratesa genuine theory of the pluralistic society founded on thedistinction between functional decentralization of groupsand territorial decentralization, and on the thesis that thestate should restrict its role to that of the supremecoordinator of functional, economic and cultural groups.Georges Gurvitch's La declaration des droits sociaux (1944)can be considered the manifesto of social and legal pluralismwhich has its distant origins in Proudhon: the individualmust be taken into account not as an abstract entity but asa producer, consumer, citizen; to each activity mustcorrespond some associational function and the state, as asupra-functional entity, has the job of coordination and notdomination.

The state as an unnecessary evil

And what if the state were an evil and not even a necessaryone? A positive answer to this question has inspired varioustheories of the end of the state. It should be mentionedthat in all these theories the state is understood as theholder of the monopoly of force and the only power on agiven territory that has the means to restrain reprobatesand recalcitrants even to the point of using coercion in thelast instance. The end of the state, therefore, means thebirth of a society that can survive and prosper without acoercive apparatus. Beyond the minimalist state which hasliberated itself, first from the monopolization of ideologicalpower, allowing the expression of the most diverse religiousbeliefs and political opinions, then from the monopolizationof economic power, allowing the free possession andtransmission of goods, there is the final emancipation ofthe non-state from the state, society without the state whichhas also been liberated from the need for coercive power.The ideal of a society without the state is a universalisticideal: the 'republic of wise men' aspired to by the Stoicswho, however, thought the state necessary for the masses,

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or the monastery life which does not spurn, when necessary,the protection of the powerful of this world, can both beinterpreted as prefigurations of a society without a state,but these alone do not prove its realizability.

The most popular of the theories that supports therealizability and even the necessary advent of a societywithout a state is Marx's, or rather Engels's on the reasoningwhich, reduced to its barest, can be laid out like this: thestate develops from the division of society into classesopposed (because of the division of labour), with theintention of allowing the class on top to dominate the classbelow; when, following the conquest of power by theuniversal class (the dictatorship of the proletariat), class-divided society will disappear, so will the necessity of thestate. This is perhaps the most ingenious theory amongstthose that defend the ideal of society without the state butit is no less debatable for that. Neither the major premissof the syllogism (the state is an instrument of classdomination) nor the minor premiss (the universal class isdestined to destroy class society) have resisted that formi-dable argument which is, as Hegel would have said, 'theharsh reply of history'.

The Marx-Engels theory of the end of the state iscertainly one of the most popular but it is not the onlyone. At least three others can be pointed to without makingany claim at being comprehensive. Above all there is theancient and continually recurring religious aspiration to asociety without a state common to many heretical Christiansects which, preaching a return to evangelical sources, toa religion of non-violence and universal brotherhood,refuse obedience to the laws of the state, do not recognizeits two essential institutions (the army and the courts),and declare that a community living in conformity withevangelical precepts will not need political institutions. Atthe opposite extreme the ideal of the end of politicalsociety, and of the political class that draws an unfairadvantage from it, was preached by a conception of thestate that today would be called technocratic, like that

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proposed by St Simon according to which in industrialsociety the protagonists are no longer the warriors andlawyers but the scientists and producers, and there will nolonger be need of 'Caesar's sword'. This technocratic ideal,in St Simon, is accompanied by a strong religious fervour(the nouveau Christianisme), almost suggesting the ideathat the leap out of history that is a society without a stateis not conceivable outside the messianic idea. At the sametime, the technocratic model has exercised a strong influenceon some Marxist theorists. Just think of what has beencalled Bucharin's 'reve mathematique\ expressed so clearlyin some propositions of the ABC of Communism, accordingto which, once the revolution has come, 'the centraldirection [in communist society] will be entrusted tovarious accounting and statistical offices' (Bukharin andPreobrazenskij 1919).

Finally, the idea of a society without a state has givenrise to a genuine current of political thought and to variouscorresponding movements which, since the end of theeighteenth century, have not ceased to fuel political debateor invite deeds appropriate for the ideal fought for:anarchism. Taking to extremes the ideal of the liberationof humankind from every form of authority - religious,political and economic - and seeing the state as the greatestform of oppression of person over person, anarchism aspiresto a society without state or laws founded on a spontaneousand voluntary cooperation of associated individuals, freeand equal amongst themselves. Despite all its variations -whether because of philosophical presuppositions or choiceof means (persuasion or violence) or all the differentpolitical and economic reforms it promotes - anarchismrepresents an ever-recurring ideal of a society withoutoppressors or oppressed. It is founded more on an optimisticnotion of humankind rather than religious conviction ortheoretical scientific claims, diametrically opposed to thatconception which invokes the state to calm the 'savagebeast'.

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Democracy and Dictatorship

DEMOCRACY IN THE THEORY OF GOVERNMENTAL FORMS

Since the classical age, the term 'democracy' has alwaysbeen used to designate one of the forms of government, orrather one of the various ways in which political power canbe exercised. Specifically, it designates that form ofgovernment in which political power is exercised by thepeople. In the history of political theory, a discussion ofthe characteristics, the merits and the defects of democracyis to be found in the theory and typology of governmentalforms. Consequently, no account of democracy can avoidstating the relationship between democracy and other formsof government, because only in this way can its specificcharacter be described. In other words, as the concept ofdemocracy belongs to a system of concepts constituting thetheory of governmental forms, it can only be understoodin relation to the other concepts of the system which ithelps to define and is in turn defined by. A division ofapproaches to the concept of democracy can be made byplacing it in the larger conceptual network of the theory ofgovernmental forms and noting the various uses to whichthis has been put at different times and by differentauthors. The following three uses exist: the descriptive (orsystematic), the evaluative (or axiological) and the historical.In its descriptive or systematic use, a theory of governmentalforms consists of the classification and typology of histori-cally existing forms of government carried out on the basisof shared and distinguished characteristics, similar to the

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operation in botany which classifies plants and in zoologywhich classifies animals. In its evaluative or axiological use,a theory of governmental forms consists of a series of valuejudgements in which different constitutions are not merelycompared to each other, but ranked as one is judged goodand the other bad, one excellent and the other terrible,one better than, or not so bad, as the other, and so on.Finally, it is possible to speak of a historical use of thetheory of governmental forms when it serves not just toclassify different constitutions, and not only to recommendone over another, but also to describe the different stagesof historical development as a series of necessary transitionsfrom one form to another. When, as often happens, theevaluative and historical uses are joined together, thedescription of the different historical stages becomes atheory of progress or decline, depending on whether thebest form is at the beginning or end of the cycle.

Starting from this premise the first part of this chapteris devoted to illustrating the various ways in whichdemocracy has been treated in the most important historicaltypologies (see the following section), and taking accountof the opposed evaluations it has been subjected to indifferent times and by different authors (in the thirdsection). Finally, it gives an indication of the placedemocracy has been assigned in some of the main philosoph-ies of history that have used the transition from one formof government to another to mark stages of historicaldevelopment (discussed in the fourth section). It is hardlynecessary to warn that the three uses are rarely completelyseparate and that the same typology often contains amixture of all three. A classical example is the celebratedtheory of governmental forms contained in the eighthbook of Plato's Republic, which describes the specificcharacteristics of different constitutions and, at the sametime, ranks them from best to worst: a hierarchical orderingthat corresponds to their chronological ordering fromancient to more recent times.

After this first part, in which democracy appears as an

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element in a conceptual network, the second part will bedevoted to the analysis of democracy in its variousinterpretations and historical manifestations: in particular,to the distinctions between ancient and modern democracy,representative and direct democracy, political and socialdemocracy and formal and substantive democracy.

In the third part, different interpretations of dictatorshipwill be compared to these various forms of democracy:specifically, the dictatorship of the ancients, which iscontrasted with modern dictatorship and, especially, revol-utionary dictatorship.

THE DESCRIPTIVE USE

In its descriptive meaning, according to the classicaltradition, democracy is one of three possible governmentalforms in the typology which classifies such- forms dependingon the different numbers of rulers; more precisely, it is thatform of government in which power is exercised by all thepeople, or by the greater part, or by the masses. As suchit is distinguished from monarchy and from aristocracy inwhich power is exercised either by one or by few. In Plato'sThe Statesman the celebrated tripartite division is introducedin the following manner:Monarchy is one of the forms of political power, is it not?Yes.And after monarchy we can, I believe, locate the rule of the few.Why not?And is not the third form of government the power of themultitude and is it not called by the name of democracy? (291d)

Distinctions between forms of government according to thenumber of rulers are taken up again by Aristotle with thesewords: 'It is necesssary that sovereign power be exercisedby one alone, by the few or by the many' (Politics, 1279a).Aristotle places classification on the basis of numberalongside the one based on the various ways of governing(for the common good or for the good of those whogovern), from which he derives the no less famous distinction

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between good and bad forms. He reserves the term'democracy' for the bad form, while the good form is giventhe more general name which means constitution, politeia.In the third fundamental text of the classical tradition, apassage from the sixth book of Polybius' Histories, thetheory of governmental forms is introduced thus: Themajority of those who have dealt with these argumentsteach us that there exist three forms of government calledrespectively kingship, aristocracy and democracy' (VI, 3).The term 'democracy' reverts to describing the governmentby the many in its positive aspect: 'ochlocracy' is the termassigned by Polybius to its bad form. It remains clear thatin a classical typology, which uses the number of rulers todistinguish between various constitutions, there is a formof government, which may or may not be called democracy,which differs from the others in being the government bythe many rather than the few, or by the more rather thanthe less, or by the majority rather than the minority or arestricted group of persons (even one alone).

As handed down to us, therefore, the ancient concept ofdemocracy is both extremely simple and constant. To citejust some of the classics of political philosophy, this meaningof democracy, involving the tripartite division of the formsof government and based on number, is found in Marsiliusof Padua's Defensor Pads, in Machiavelli's Discourses, inBodin's De la republique, in the political works of Hobbes,in Spinoza, Locke, Vico and, with particular emphasis noton the possession but on the exercise of sovereign power,in Rousseau's Contrat Social.

Despite its prevalence the threefold division is sometimesreplaced by a twofold one. Two different manoeuvres caneffect this rearrangement: either by regrouping democracyand aristocracy together and opposing them to monarchy,or by regrouping monarchy and aristocracy and opposingthem to democracy. Machiavelli brought about the firstrealignment in the opening lines of The Prince, where itcan be read that 'all states and dominions which hold orhave held sway over mankind are either republics or

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monarchies' (1513). The second realignment has prevailedin modern political theory where the classical tripartitedivision has been universally replaced by the primary andfundamental distinction between democracy and autocracy.One of the authors who contributed to the diffusion andconsolidation of this distinction was Kelsen. In his GeneralTheory of the Law and State (1945), after noting thesuperficiality of the traditional division based on number,he adopts the distinctive criterion of greater or less politicalliberty, and concludes that 'it is now more precise todistinguish between two types of constitution, instead ofthree: democracy and autocracy.'

The Machiavellian distinction (taken up again by Montes-quieu who, however, returned to the tripartite division,adding despotism as a third form to monarchy and therepublic) is still based on the criterion of number, even ifit is dominated by the idea that the essential distinction isbetween the government of one (which can only be aphysical person) and the government by an assembly (whichcan only be a legal person, whether it is an assembly ofaristocrats or of representatives of the people). Conse-quently, democracy and aristocracy are best considered asjust one species under the general name of republic (whichcan, in fact, be either democratic or aristocratic).

The distinction between democracy and autocracy isfounded on a completely different criterion: namely, thatpower either ascends from bottom to top or descends fromtop to bottom. To justify this, Kelsen makes -use of thedistinction between autonomy and heteronomy: democraticforms of government are those in which the laws are madeby the same people to whom they apply (and for thatreason they are autonomous norms), while in autocraticforms of government the law-makers are different fromthose to whom the laws are addressed (and are thereforeheteronomous norms). So while the classification found atthe birth of the modern state has absorbed democracy intoa more general concept of republic, the more widespreadclassification of modern political theory absorbs monarchy

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and aristocracy together in the more general concept ofautocracy, and gives particular prominence to democracyseen as one of the two poles on which all existingconstitutions, to a greater or lesser extent, converge.

THE EVALUATIVE USE

Like any other form of government democracy can beevaluated, either as a good form to be praised or rec-ommended or as a bad form to be blamed and condemned.The entire history of political thought is riddled withdisputes about the best form of government and within thisdispute a recurrent theme has been the argument for andagainst democracy.

The start of this dispute can be seen in the discussionreferred to by Herodotus (The Histories, III, sections 80-2)between three Persians, Otanes, Megabyzus and Darius,on the best form of government to install in Persia afterthe death of Cambyses. Each of them defends one of thethree classical forms and attempts to refute the othertwo. Otanes, the defender of democracy, after criticizingmonarchical government because the monarch 'can do justas he wants without being responsible to anyone', givesgovernment by the people 'the name more lovely than anyother: equality of rights', and defines it as that in which'the government is accountable and all decisions are takenin common.' The defender of aristocracy, Megabyzus, andthe defender of monarchy, Darius, both offer argumentsto show that government by the people is a bad form. Thefirst finds nothing more silly or insolent than a 'good-for-nothing mob' and concludes that it is not permissible 'toflee the overbearingness of the tyrant by bowing to theinsolence of an unleashed mob'. For the second, 'when thepeople govern it is impossible to prevent corruption in thepublic domain, which does not generate hostility but, onthe contrary, solid friendships between ne'er-do-wells.'

In this dispute, which would have taken place in the-

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second half of the sixth century BC and which was reportedin a text of the following century, some of the argumentsagainst democracy were presented and fixed once and forall. In Greek thought praise and blame come close to oneanother. Pericles offered the most famous praise in hisspeech to the Athenians in honour of the first dead of thePeloponnesian war.

We live under a form of government which does not^emulate theinstitutions of our neighbours; on the contrary, we are ourselvesa model which some follow, rather than the imitators of otherpeoples. It is true that our government is called a democracy,because its administration is in the hands, not of the few, but ofthe many; yet while as regards the law all men are on an equalityfor the settlement of their private disputes, as regards the valueset on them it is as each man is in any way distinguished that heis preferred to public honours, not because he belongs to aparticular class, but because of personal merits; nor, again, onthe ground of poverty is a man barred from a public career byobscurity of rank if he but has it in him to do the state a service.And not only in our public life are we liberal, but also as regardsour freedom from suspicion of one another in the pursuits ofevery-day life; for we do not feel resentment at our neighbour ifhe does as he likes, nor yet do we put on sour looks which,though harmless, are painful to behold. But while we thus avoidgiving offence in our private intercourse, in our public life weare restrained from lawlessness chiefly through reverent fear, forwe render obedience to those in authority and to the laws, andespecially to those laws which are ordained for the succour ofthe oppressed and those which, though unwritten, bring upon thetransgressor a disgrace which all men recognize. (Thucydides,History of the Peloponnesian War, II, 37)

In this passage democracy is considered a good form ofgovernment on account of the following features: it is agovernment in favour of the many and not the few; thelaw is equal for rich and poor alike and therefore it is agovernment of laws, whether written or not, and not ofindividuals; and liberty is respected both in private and inpublic life, where what counts is not adherence to anyparticular party but merit.

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However, the most celebrated condemnation is found inthe eighth book of Plato's Republic, where democracy isdescribed as a degenerate form, though not the mostdegenerate, which is tyranny. The four degenerate formsare matched against the ideal of the city state and rankedin order of increasing degeneration: timocracy, oligarchy,democracy and tyranny. While oligarchy is the governmentof the rich, democracy is the government not of the peoplebut of the poor against the rich. The principle of democracyis liberty, but it is a liberty which is abruptly transformedinto licence due to the lack of moral and political restraintcharacteristic of democratic people, due to the upsurge ofimmodest desire and superfluous needs, because of lack ofrespect for the law and a general tendency to subvertauthority so that parents fear their children, 'the masterfears and flatters his pupils and the pupils laugh at theirmasters and teachers' (563a).

The distinction between the three good constitutions andthe three bad constitutions which is based on the criterionof whether government is in the common interest or isself-interested, and which was to become one of thecommonplaces of later political thought, receives its firstdefinitive statement in Aristotle. In this typology govern-ment by the masses appears in its good form under thename of politeia and in its bad form under the name ofdemocracy. Like Plato, Aristotle defines democracy as thegovernment by the poor and consequently by the many,but only because in most states the poor are more numerousthan the rich. But the government of the poor is just asself-interested as government of the rich and it is equallycorrupt given that the criterion of good government isattention to the common interest. In Polybius, the nameschange but the arrangement into three good and three badforms of government remains. The good form of populargovernment is democracy in which the people 'take onthemselves the care of the public interest'; the bad form,ochlocracy (or government by the plebs), is the degenerationof democracy:

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For the people, having grown accustomed to feed at the expenseof others and to depend for their livelihood on the property ofothers, as soon as they find a leader who is enterprising but isexcluded from the honours of office by his penury, institute therule of violence; and now uniting their forces massacre, banish,and plunder, until they degenerate again into perfect savagesand find once more a master and monarch. (Polybius, Histories,VI, 9)

When used prescriptively, the typology of governmentalforms contains both absolute and relative judgements. Fromthis point of view the dispute about democracy is not justconcerned with whether democracy is a good or bad formbut whether it is better or worse than the others. Thereare three possibilities in a typology that does not distinguishpure from corrupt forms: that democracy might be theworst, the best or somewhere in between. Historically, themost frequent and important theses are the first two sincethe comparison is usually made between the two extremeforms which are, in fact, monarchy and democracy. In atypology which does distinguish between pure and corruptforms of constitutions, the comparison becomes morecomplex: democracy can be either the worst (or the best)of the good forms or the best (or the worst) of the badforms. In Greek thought the two most frequent thesesderive from Plato (from The Statesman) and Polybius.

For Plato, democracy is at the same time the worst ofthe good forms and the best of the bad forms (whereasmonarchy is the best of the good forms and the worst ofthe bad forms), with the consequence that the differencebetween good and bad democracy is minimal (whereasthere is a great difference between monarchy and tyranny).Polybius, on the other hand, ranks democracy at the bottomof both the good and bad scales; that is to say, it is theworst of both the good and bad forms. In the typology ofPlato's Republic, which only deals with degenerate forms,the evaluative problem is to assign a place to democracyin the process of continuing degeneration; for Plato it isworse than timocracy and oligarchy but better than tyranny.

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Finally, in a typology such as Vico's which only recognizesgood forms - good in the sense that every form correspondsto a definite stage in the development of humanity (to theZeitgeist, as Hegel will eventually put it) - the evaluativeproblem is to assign democracy its proper place in theprocess of ongoing perfection. For Vico democracy or, touse Vico's terminology, the popular republic, is better thanthe aristocratic republic but worse than a principality. (ForVico as well as Plato, government by the people is not anextreme form - that is, a form found at the beginning orend of a series as in most political theories - but anintermediate form.)

In the dispute about the best forms of governmentthe classics of modern political thought (whose insightsaccompanied the rise and consolidation of largely monarchi-cal, territorial states) have been, at least up until the FrenchRevolution (and with the exception of Spinoza), in favourof monarchy and against democracy. Among these areBodin, Hobbes, Locke, Vico, Montesquieu, Kant andHegel. While some of these authors (Vico, for example),looking at the various forms of government in their historicaldevelopment, exalt monarchy as the form of governmentmost adapted to their age, others (such as Hobbes andBodin) make an abstract comparison of all the traditionalarguments against government by the people and of all theancient and modern grounds against democracy (and whichlater turn up in the right-wing propaganda of our daywithout any noticeable changes). The tenth chapter ofHobbes's De cive, entitled Specierum trium civitatis quoadincommoda singularum comparatio, can be consideredparadigmatic: the arguments against democracy may bedivided into two groups: those which deal with the governingsubject (the popular assembly compared to the undividedpower of the monarch) and those which deal with themanner of governing. The defects of a popular assemblyare incompetence, the dominance of eloquence (and,therefore, of demagogy), the development of parties whichblock the formation of a collective will and favour rapid

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changes in the law and, finally, the lack of secrecy. Thedisadvantages of power exercised by the people consist ingreater corruption (because in a democracy there are manystarving people who have to be made happy by theirleaders), and less security because of the protection thatthe demagogues are forced to extend to their supporters;moreover, this increased corruption and insecurity is notcompensated for by greater liberty.

Spinoza's Tractatus was written to demonstrate thesuperiority of democratic government but, unfortunately,the section dedicated to this form of government was leftincomplete. However, when comparing Hobbes and Spinoza(legitimately comparable because of the similarity of theirfirst principles), it is possible to understand why Spinoza,although starting from the same realistic vision of powerand the same way of conceptualizing the state, arrived ata radically different conclusion from Hobbes in comparingthe different forms of government. What divides them isthe ultimate goal of the state which is peace and order forHobbes and liberty for Spinoza. This difference rests, inturn, on another, even deeper, difference that allows usabove all to contrast one theory with the other: namely thedifference based on the dominant perspective chosen byevery political writer and which makes it possible to contrastwriters who look at things ex parte principis (that is, fromthe ruler's point of view in order to justify their right ofcommand and the subjects' duty to obey) with writers whosee things ex parte populi (or, in other words, from thepoint of view of the ruled in order to justify their right notto be oppressed and the ruler's duty to proclaim just laws).There are those who hold that the main problem of thestate is to maintain the unity of power, even to the extentof damaging the liberty of individuals; and there are thosewho propose that the main problem of the state is tomaintain individual liberty even to the extent of endangeringits own unity.

The argument between the proponents of monarchy andthe proponents of democracy is an argument between two

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parties which analyse and evaluate the same problem fromcompletely different points of view. The solution offeredby those who advocate democracy (which is the problemof the state seen from the point of view of the ruled), isultimately the identification of the rulers with the ruled or,rather, the elimination of the ruler as a figure separatefrom the ruled. This identification is clearly set out inSpinoza who, expounding the 'foundations of democraticgovernment', affirms that 'in it ... no one transfers theirown natural rights to another in so definitive a manner thatthey can no longer be consulted; instead, they delegate itto the greater part of the whole society of which they area member. Thus everyone continues to be as equal as theywere in the preceding state of nature' (1670). This statementcannot fail to bring to mind the central idea which inspiredthe work of the man considered to be the father of moderndemocracy: the idea of a society through which 'each one,by uniting with all, obeys no one but himself, remainingfree as before' (Rousseau, 1762).

The Rousseauistic theme of liberty as autonomy, on thedefinition of liberty as 'the obedience of everyone to thelaw he has prescribed himself became, after the Americanand the French Revolutions and after the birth of the firstsocialist and anarchist ideas, if not the main, then one ofthe main arguments in favour of democracy in the face ofevery other sort of government (which if not democraticmust be autocratic). The problem of democracy becamemore and more identified with the theme of self-governmentand the progress of democracy with the expansion of thoseareas in which the method of self-government was beingput to the proof. From the beginning of the last centuryuntil today the development of democracy coincided withthe progressive expansion of political rights: that is,the right to participate, if only through the election ofrepresentatives, in the formation of the collective will. Theprogress of democracy goes hand-in-hand with the convictionthat, after the age of Enlightenment, humankind (toparaphrase Kant) left the age of minority and as an adult,

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and no longer a pupil, must freely decide about bothindividual lives and collective life. As an ever-increasingnumber of individuals acquire the right to participate inpolitical life, autocracy regresses and democracy advances.Alongside the ethical argument in favour of democracy,which is seen as the political manifestation of the supremevalue of liberty, the positive evaluation of democracy-autonomy compared to autocracy-heteronomy deploys twoother arguments, one of which is more properly politicaland the other more generally utilitarian. The politicalargument is founded on one of the most agreed-uponmaxims in all political thought: the maxim that power tendsto corrupt. The history of political thought can be seen asa long, uninterrupted and impassioned discussion about thevarious ways of limiting the exercise of power and, ofcourse, democracy is one of these. One of the strongestarguments in favour of democracy is that the people cannotuse power against their own interests or, to put it anotherway, when the legislator and the addressee of a law areone and the same, the first cannot abuse the second. Theutilitarian argument is founded on another maxim ofexperience (not so well-founded, to be sure), which claimsthat the best interpreters of the collective interest are thosewho belong to the collectivity whose interest is at stake -that is, they have the same interests - and in this sense,vox populi vox del.

THE HISTORICAL USE

For centuries, at least until Hegel, the major politicalwriters used the typology of governmental forms to outlinethe development of human history understood as thesuccession of one type of constitution by another accordingto a certain rhythm. The question here is, what place diddemocracy occupy in some of the more important systems?It is necessary, first of all, to distinguish between regressivephilosophies of history, in which successive stages are

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increasingly degenerate; and progressive philosophies inwhich successive stages are an improvement on the precedingone; and cyclical philosophies, in which there is a returnto the beginning after having run through all the progressiveor regressive stages. In regressive histories (Plato) orcyclical-regressive histories (Polybius) democracy generallyoccupies the third place in a series which puts monarchyfirst, aristocracy second and democracy third. The bestexample of this is Polybius (and not just for this but alsoin view of his influence on modern writers; Machiavelli inthe second chapter of the Discourses springs to mind) whoseperiodization presents in rapid synthesis a series of the sixforms alternating between the good forms and theirrespective bad forms:Spontaneously and naturally, monarchy arises first and througha series of opportune corrections and transformations kingship isderived from it. When this falls prey to the natural defects whichtransform it into tyranny, it is abolished and replaced byaristocracy. When, by natural process, this degenerates intooligarchy and the people indignantly punish the injustices oftheir chiefs, democracy springs up. When it in its turn istarnished by illegality and violence it turns into ochlocracy.(Histories, VI, 4)

In the modern age of the great monarchies, when theregressive conception yielded to the progressive, the writer'sobservational range was greatly extended and the cycle ofthe ancients was reversed: monarchy was no longer at thebeginning of the cycle but the end. Vico was considered aninnovator because after the savage condition (not yet social)and state of the family (which was not yet a state) hebegan the history of states not with monarchy but with anaristocratic republic, followed by the popular republic andfinally the principality. In De universi iuris uno principio etuno fine, popular government is defined as that where'equal suffrage, free speech and the equal access of all tohonours, including the highest, notwithstanding birth orinheritance' (1720) are in force (the principle that the basisof political rights is wealth lasts, as already noted, until the

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French revolution and beyond). One characteristic of theVichian typology, however, is that it is transformed into adichotomy in a different manner from those already pointedout: the two most noted dichotomies are monarchy andrepublic (with democracy and aristocracy reduced to one)and democracy and autocracy (with monarchy and aristoc-racy reduced to one). For Vico, the essential differenceis between, on the one hand, the aristocratic republicrepresenting the heroic age, and on the other popularrepublic and monarchy which both represent the merelyhuman age. The classical trichotomy, therefore, may beturned into the dichotomy between aristocracy and 'humangovernments' (that is, democracy and monarchy) in which:

in virtue of the equality of the intelligent nature which is theproper nature of man, all are accounted equal under the laws,inasmuch as all are born free in their cities. This is the case inthe free popular cities in which all or the majority make up thejust forces of the city, in virtue of which they are the lords ofpopular liberty. It is also the case in monarchies, in which themonarchs make all their subjects equal under their laws, and,having all the force of arms in their own hands, are themselvesthe only bearers of any distinction in civil nature. (1744, section927)

In Montesquieu's important classification of governmentalforms, expounded and illustrated in detail in the Esprit deslois, monarchy appears again as the form of governmentmost adapted to the large European territorial states.Despotism is the form most adapted to oriental peoples,and the republic (which, following Machiavelli, can beeither democratic or aristocratic) the most suitable for theancient world. By its nature, republican government isdefined as that in which 'the people as a body, or certainfamilies, enjoy supreme power' (1748): according to theprinciple, or the 'spring' which motivates it, it is character-ized by virtue (while monarchy has honour as its governingprinciple, and despotism, fear). In both chapters devotedto the nature of democracy and to its governing principle,examples are taken from Greek and Roman history and

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one finds the following statement: 'Greek politicians, wholived under a popular government, recognised in virtue theonly force capable of sustaining them. Today's politiciansspeak only of manufacture, commerce, finance, riches andluxury' (Montesquieu 1748), and the origin of the definitionof virtue as 'love of the republic' is obviously classical. Thenature and governing principle of despotism are illustratedwith examples dealing with oriental peoples; the nature andprinciple of monarchy with examples dealing with the greatEuropean states of Spain, France and England.

Montesquieu's tripartite division becomes a fundamentalprinciple for the interpretation of the course of humanhistory in Hegel's philosophy, the last great philosophy ofhistory to chart the evolution of civilization through thechange from one form of government to another (afterHegel, most philosophies of history took the evolution ofsocial forms, the relations of production and so on as theirmarkers). The principal elements which will shape thegeneral design of the immense material of his maturephilosophy of history can already be seen in a juvenilework: 'The continuity of world culture, after orientaldespotism and the degeneration of that republic whichdominated the world, has brought humanity to an intermedi-ate position' which is 'the system of representation' found'in all modern European States' (1799-1802). In the Lectureson the Philosophy of History, the theme is taken up againand its main elements expounded as follows:

Universal history is a process of the education of man away fromthe unrestrained character of natural will towards universal andsubjective liberty. The Orient knew and only knows that onealone is free, the Greek and Roman worlds that some are free,the Germanic world that all are free. The first form, then, whichwe see in universal history is despotism, the second is democracyand aristocracy, and the third is monarchy. (1830-1)

For Hegel, then, as for most writers who reflect on theformation and growth of the modern state, democracy is aform of government which belongs to the past. In the work

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that represents the essence of his political thought, ThePhilosophy of Right, Hegel writes against the concept ofpopular sovereignty which is the antithesis of monarchicalsovereignty: 'Taken without its monarch and the articulationof the whole which is the indispensable and direct concomi-tant of monarchy, the people is a formless mass and nolonger a State. It lacks every one of those determinatecharacteristics - sovereignty, government, judges, magis-trates, class-divisions, etc., - which are to be found only ina whole which is inwardly organized' (1821, section 279annotation). By making constitutional monarchy the culmi-nating moment of historical development Hegel, the philos-opher of the age of restoration, brought an epoch to aclose.

MODERN DEMOCRACY

At the time of the formation of the great territorial states,which were brought into being by the centralizing andunifying activities of princes, the now classical argumentagainst democracy consisted in pointing out that democraticgovernment was only possible in small states. Even Rousseauwas convinced that a real democracy had never existedbecause it required, among other conditions, the existenceof a small state 'in which the people would find it easy tomeet and in which every citizen could easily get to knowall the others' (1762). But just as Hegel was praisingconstitutional monarchy as the only form of governmentafter the French Revolution in which world spirit mightrecognize itself, a republican government was born in anenormous territory, destined to become larger than thatoccupied by the principal European states and sufficientlystrong to attract the attention and admiration of somerestless and clear-sighted spirits: the United States ofAmerica.

To tell the truth, some of the founding fathers of thenew state, who were to demonstrate in their theoretical

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debates and in constitutional construction that they werewell acquainted with both classical and modern politicalthought, did not want the republic they were aiming at andto which they had committed their energies to be confusedwith the democracy of the ancients. James Madison'sjudgement on ancient democracy (The Federalist, no. 10)can hardly be distinguished from that of the most relentlessof anti-democrats: 'Hence it is that such democracies haveever been spectacles of turbulence and contention; haveever been found incompatible with personal security or therights of property; and have in general been as short intheir lives as they have been violent in their deaths.' ButMadison, following the tradition of the classics handed onto Rousseau, was referring to direct democracy. By'republic' he meant representative democracy, exactly thatform of government which today we, convinced that onlyrepresentative democracy is viable in large states, calldemocracy (without any further specification) and whichwe oppose to all old and new forms of autocracy. Madisonwrote: 'The two great points of difference between ademocracy and a republic are: first, the delegation of thegovernment, in the latter, to a small number of citizenselected by the rest; secondly, the greater number of citizens,and greater sphere of country, over which the latter maybe extended' (The Federalist, no. 10). The definite viewemerging from this passsage is that there exists a necessarylink between the representative state (or republic) andterritorial dimension, and that the only non-autocratic formof government possible in a large territory and with a largepopulation (even if that of the United States was verysparse) is government by representation, a democratic formof government which is corrected, limited and temperate.The following quotation confirms that the changeover fromdirect to indirect democracy is objectively determined byexternal factors and that therefore the republic is not somuch opposed to democracy as the only sort of democracypossible in given types of territory and population: 'Theother point of difference is, the greater number of citizens

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and extent of territory which may be brought within thecompass of republican than of democratic government; andit is this circumstance principally which renders factiouscombinations less to be dreaded in the former than in thelatter.'

It is to Alexis de Tocqueville, in the first volumeof Democracy in America, published in 1835, that therecognition, the consecration almost, is owed of the newstate of the New World as a genuine form of moderndemocracy in contrast to ancient democracy. In the prefaceto the 1848 edition, de Tocqueville wrote that America hadall but solved the problem of democratic liberty whichEurope was only just then confronting: The principle ofpopular sovereignty which we have only just introducedinto our country has reigned supreme in America for sixtyyears and there it has been put into practice in the mostdirect, most unlimited, most absolute way' (1848). For thewriter of these words, the distinction between direct andrepresentative democracy no longer has any relevance:'Sometimes the people itself makes the laws, as in Athens;at other times deputies, elected by a universal suffragerepresent it and act in its name under almost directsurveillance.' What matters is that power is really inthe hands of the people, whether directly or throughrepresentatives who enforce the 'law of laws' (that is, theprinciple of popular sovereignty) so that 'society acts of itsown accord' and 'power does not exist outside it and thereis no one who would dare to believe, let alone express, theidea of looking for power elsewhere.' The chapter on theprinciple of popular sovereignty concludes with these words:The people reign over the American political world likeGod over the universe. It is the beginning and end ofeverything: everything springs from it and everything leadsback to it' (de.Tocqueville, 1835-40).

In contrast to the democracy of the ancients which isfounded on government by assembly and which recognizesno intermediary between the state and the individual, andin whose name Rousseau, its modern advocate, condemns

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particular associations as guilty of dividing what shouldremain united, modern democracy is pluralistic and liveson the existence, the multiplicity and the vigour ofintermediate associations. De Tocqueville was struck bothby the equality of conditions and by the tendency ofmembers of American society to join associations in orderto promote the public good, so that 'independently of thepermanent associations created by law in the name of thecommunity, the city and the country, there also existed ahost of others which owed their existence and developmentto the will of individuals' (1835-40). And associationismbecame a new criterion (new compared to the traditionalcriteria which focused exclusively on the number of rulers)for distinguishing between democratic and non-democraticsocieties as is shown by this surprisingly incisive passage:

In aristocratic society men have no need to unite in order to actbecause they are already firmly held together. Every rich andpowerful citizen is like the head of a permanent and strongassociation which includes everybody dependent on him andwhom he bids carry out his plans. In democracies where allcitizens are independent and inefficient, they can do hardlyanything alone and no one is able to oblige his peers to cooperate.If they do not learn to help each other freely, they all fall intohelplessness, (de Tocqueville 1835-40)

REPRESENTATIVE DEMOCRACY AND DIRECT DEMOCRACY

In the century before the First World War, the historyof democracy coincides with the consolidation of therepresentative state in the main European countries andwith their internal development: so much so that thecomplex typology of traditional forms of government isreduced to the opposition of the types, democracy andautocracy. Bearing in mind the two fundamental character-istics of American democracy highlighted by de Tocqueville(the principle of popular sovereignty and the phenomenonof associations), the representative state which was gradually

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being consolidated in England and, from there, diffusedthroughout most other European states by the earlynineteenth century, the constitutional movement consistedin a process of democratization along two lines: theenlargement of the right to vote up to the point of universalsuffrage for both men and women, and the developmentof political associations until mass political parties wereformed and their public functions recognized.

Nothing illustrates this two-pronged process better thana comparison of the Statute of the King of Sardinia,promulgated by Carlo Alberto on 4 March 1848, and whichwas later to become the first written constitution of theKingdom of Italy (1861), with the Republican Constitutionelaborated and approved by the Constituent Assembly,elected on 2 June 1946 and which entered into force almostexactly a century after the Albertine Statute, on 1 January1948. First of all, through successive extensions of politicalrights in 1882, 1912, 1919 and 1946 (and without takinginto account the 1975 extension of the vote to 18 year olds),the size of the Italian electorate went from little more than2 per cent of its inhabitants to about 60 per cent. Second,with the changeover from monarchy to republic, even thesupreme position in the state became an elective one andtherefore, in the technical sense of the word, representative.A nominated senate was replaced by a second chamberelected by universal suffrage. With the institution of regionswith legislative power, an attempt was made to redistributepower from the centre to the periphery although it is tooearly to judge whether this has been successful. Finally,the recognition granted to all citizens of 'the right to associatefreely in political parties and to compete democratically todetermine national policy' (Article 49) was meant tolegitimate organizations which facilitate the formation of acollective will through the aggregation of homogeneousinterests in a society characterized by plurality of groupsand strong social tensions.

The consolidation of representative democracy has notprecluded the return of direct democracy, albeit in secondary

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forms. It could even be said that the ideal of directdemocracy has never completely died out and has survivedin radical political groups which have always tended toconsider representative democracy not as an inevitableadaptation of the principle of popular sovereignty to therequirements of large states, but as a shameful and mistakendeviation from the original idea of government by thepeople, for the people and through the people. As is wellknown, Marx believed that several intimations of directdemocracy were brought together in the brief experienceof political government which was found in the ParisCommune between March and April of 1871. The themewas strongly taken up again by Lenin in State and Revolution(1917), an essay which was meant to have guided the mindand behaviour of the constructors of the new state whichwas rising from the ashes of Tsarist autocracy. Directdemocracy is often contrasted, as the real form of socialistdemocracy, with representative democracy which is con-demned as truncated and deceitful and, moreover, the onlyform of democracy possible in a class state such as thebourgeois state. By direct democracy is meant all thoseforms of participation in power which do not constitute anykind of representation (neither the representation of generaland political interests nor the representation of particularand organic interests): that is, (a) government by the peoplethrough delegates with specified and revocable mandates;(b) government by an assembly (namely, government notonly without irrevocable or mandated representatives, butalso without delegates); (c) referendum.

The first of these is found in the present SovietConstitution, whose Article 142 says that 'every deputy isaccountable to the electorate for his own work and for thework of the Soviet of workers' deputies, and may berecalled at any moment by a majority decision of theelectorate.' In most constitutions of popular democracies,the second form usually belongs to an emerging phase ofcollective movements, the so-called 'birth phase' whichprecedes institutionalization; recent examples are the stud-

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ent movement and the local council committees in largecities. The third form was inserted into some post-warconstitutions like the Italian (Article 75). Of these threeforms of direct democracy the second and third cannothope to substitute and, indeed, they never have substitutedthe various forms of representative democracy practicablein a democratic state; just as the various forms ofrepresentative democracy have never pretended to substituteand, in fact, never have substituted authoritarian forms ofexercising power as, for example, modes of bureaucraticorganization in those states which are called democratic.Therefore on their own they cannot constitute a true andproper alternative to the representative state: the secondbecause it is only applicable in small communities andthe third because it is applicable only in exceptionalcircumstances of limited relevance. As for the first, withthe formation of large party organizations which sometimesimpose very strict voting discipline on the representativeselected on their policies, the difference between a represen-tative with a mandate and one without becomes moreand more blurred. The deputy elected through a partyorganization receives a mandate not from the electoratebut from the party which punishes the deputy by revokingthat mandate when he or she ignores discipline, whichbecomes a functional replacement for the electorate'simperative mandate.

POLITICAL DEMOCRACY AND SOCIAL DEMOCRACY

The enlargement of democracy in contemporary societyoccurs not only through the integration of representativeand direct democracy but also (and above all) through theextension of democracy beyond politics to other spheres(democratization being understood as the institution andexercise of procedures which allow the participation ofthose affected in the deliberations of a collective body). Ifone democratic trend is to be seen nowadays it is not, as

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is often mistakenly maintained, the substitution of directdemocracy for representative democracy (which is, in anycase, impossible in large organizations), but the transfer ofdemocracy from the political sphere (where the individualis regarded as a citizen) to the social sphere (where theindividual is regarded as many-faceted); for example, asfather and son; as spouse; as entrepreneur and worker; asteacher and student and student's parent; as officer andsoldier; as administrator and client; as producer andconsumer; as manager of public utilities, and so on. Inother words, in the extension of the form of ascendingpower (which up until now was confined to the largerpolitical associations) to the arena of civil society in itsvarious manifestations from the school to the work-place.Consequently, current forms of democratic developmentcannot be interpreted as the affirmation of a new type ofdemocracy. Rather, they should be understood as theoccupation of new spaces, which up to now have beendominated by bureaucratic and hierarchical organizations,by some of the traditional forms of democracy.

Once the right to political participation has been achieved,a citizen of the most advanced democracies takes accountof the fact that the political sphere has now been includedin a much larger sphere, that of society as a whole; politicaldecisions are conditioned, even determined, by whathappens in the social sphere. This is why the democratizationof political affairs, which occurs with the institution ofparliament, goes hand-in-hand with the democratization ofsociety. Consequently, it is perfectly possible to have ademocratic state in a society where most institutions, fromthe family to school, and from the firm to public services,are not governed democratically. At this point the questionarises that characterizes, better than any other, the actualstate of development in countries which have the mostpolitically advanced democracy: 'Is the survival of ademocratic state possible in an undemocratic society?' Thiscan also be formulated as follows: 'A political democracywas and still is necessary so that people are not governed

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despotically. But is it enough?' In recent times, when onewanted to give proof of the development of democracy ina given country, what mattered was the extent of politicalrights, from restricted to universal suffrage; but no furtherdevelopment is possible once suffrage has been extendedalmost everywhere to women, and in some countries theage limit has been reduced to 18 years. Today, if you wantan indication of the development of democracy in a country,you must consider not just the number of people with theright to vote, but also the number of different places besidesthe traditional area of politics in which the right to vote isexercised. In other words, to pass a judgement today onthe development of democracy in a given country thequestion must be asked, not 'Who votes?' but 'On whatissues can one vote?'

The discussion about the meaning of democracy will notbe complete unless it takes account of the fact that thereis another meaning to the word. Until now democracy hasbeen considered as a complex of institutions characterizedby the type of answer given to two questions: 'Whogoverns?' and 'How is government exercised?' However,there is another meaning of the word 'democracy' in modernpolitical language: a regime characterized by certain endsand values towards whose realization a certain politicalgroup aims and works. Behind these ends and values, whichare used to distinguish a democratic from an undemocraticregime not just formally but substantially, lies the principleof equality. This is understood not as the legal equalityintroduced into liberal constitutions when they were noteven formally democratic but as social and, at least in part,economic equality. Thus there is a distinction betweenformal democracy, dealing with the form of government,and substantive democracy which deals with the content ofthis form. These two meanings are found perfectly fused

FORMAL DEMOCRACY AND SUBSTANTIVE DEMOCRACY

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in the Rousseauistic theory of democracy, since theegalitarian ideal which inspires it is realized in the formationof the general will, and in view of this both meanings arehistorically legitimate. This historical legitimacy, however,does not license the belief that they refer to the same thingin spite of the identical terminology. It is even truehistorically that formal democracy fails to maintain themain promises of the substantive democratic programmeand, similarly, substantive democracy operates through theundemocratic exercise of power. The sterility of the debateabout to what degree regimes, which abide either by theprinciple of government by the people or government forthe people, are democratic is proof of the lack of a commonreferential element. Every regime is democratic accordingto the meaning of democracy presumed by its defendants,and undemocratic in the sense upheld by its detractors.The only point on which both sides agree is that the perfectdemocracy should be both substantively and formallydemocratic. But this type of regime up to now has neverexisted.

ANCIENT DICTATORSHIP

As democracy came to be considered the best (or leastbad) form of government - the form best suited tothe most socially, economically and politically developedsocieties - the evaluative use of the theory of governmentalforms simplified the traditional typology and becamepolarized, as already said, around the dichotomy ofdemocracy/autocracy. In common use, however, the usualterm for the second part of the dichotomy is not 'autocracy'but 'dictatorship'. Today the use of the term 'dictatorship'is so widespread for governments which are not democraciesand which have arisen by suppressing preceding democraciesthat the technically more correct term 'autocracy' has beenrelegated to manuals of public law. The present greatdichotomy is not an opposition of democracy and autocracy

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but of democracy and dictatorship, even if the second termis used in a historically incorrect manner. The use of theterm 'dictatorship' to refer to all non-democratic regimesbecame widespread after the First World War, both in theheated debate on the form of government established bythe Bolsheviks and in the descriptions of fascist regimes,beginning with the Italian, which were employed by theiropponents. This opposition of dictatorship to democracywithin a system of discourse where democracy came to havea eulogistic meaning ended up by imputing to 'dictatorship'a negative meaning which was contrary to its historicalusage and which really belonged in classical philosophy toother terms such as 'tyranny' and 'despotism' and, morerecently, 'autocracy'. Even in 1936, Elie Halevy coulddefine his own times as 'the age of tyranny', but today thisexpression is no longer used to define the 20 years betweenthe two world wars: the regimes that Halevy called'tyrannies' have passed into history as 'dictatorships'.

'Dictatorship' is a term which, like 'tyranny', 'despotism'and 'autocracy', derives from classical antiquity. However,it differs from them in having had originally and forcenturies a positive connotation. 'Dictator' was the nameof the office of an extraordinary Roman magistrate, whichwas instituted in about 500 BC and lasted until the end ofthe third century AD. He was nominated by one of theconsuls under exceptional circumstances such as the conductof a war (dictator rei publicae gerundae causa] or thesuppression of a revolt (dictator seditionis sedandae causa]and because of the exceptional situation he was givenextraordinary powers. These consisted above all in thedecreasing distinction between the imperium domi, whichwas the sovereign command exercised within the city wallsand consequently subject to such constitutional limits asprovacatio ad populum, and the imperium militiae, whichwas the military power exercised outside the walls and assuch was not subject to constitutional limits. The excessivepower of the dictator was counterbalanced by its temporarynature: the dictator was nominated only for the duration

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of the extraordinary task entrusted to him, for a maximumperiod of six months, and never beyond the tenure of officeof the consul who appointed him. The dictator, therefore,was an extraordinary magistrate but a legitimate one becausehis existence was foreseen by the constitution and his powerjustified by the state of necessity (the state of necessity isa normative fact according to lawyers; that is, a fact suitablefor suspending an existing legal state and putting into actiona new legal situation). In short, the characteristics of theRoman dictatorship were: (a) a legitimating state ofnecessity; (b) full powers of command; (c) one person aloneinvested with this command; (d) short duration of theoffice. In so far as it was a monocratic magistraturewith extraordinary but limited and temporary powers,dictatorship is always distinct from tyranny and despotismwith which, in current usage, it is often confused. Thetyrant is a monocrat who exercises absolute power but isneither legitimate nor necessarily temporary. The despot isa monocrat who exercises absolute power and is legitimatebut not temporary (it may even be a long-term regime asdemonstrated by the classic example of oriental despotism).What is common to these three forms is that they are filledby monocrats with absolute power; tyranny and dictatorshipdiffer because, whilst the latter is legitimate, the former isnot; despotism and dictatorship differ because, althoughthey are both legitimate, the legitimacy of the first hasa historico-geographical foundation while the second islegitimated by a state of necessity. Dictatorship differs fromboth tyranny and despotism by being temporary.

It was precisely this temporary character which earneddictatorship its favourable judgement from the great politicalwriters. In a chapter of the Discourses, significantly entitled'Dictatorial authority aided not damaged the Romanrepublic', Machiavelli refutes those who had maintained thatdictatorship caused 'Rome's period of tyranny' (1513-19)because tyranny (the reference is to Caesar) was not broughtabout by dictatorship but by the prolongation of thedictatorship beyond the established limits. And he sees

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acutely that the positive aspect of dictatorship lay in itstemporary and specific nature:

The Dictator was made to be temporary and not permanent andonly in order to remedy the reason for his creation; and hisauthority included the power to decide for himself remedies tothat pressing danger, to act without consultation and to punishwithout appeal; but he could not do anything that would diminishthe state or that would reduce the authority of the Senate or thePeople, to unmake the old orders of the city and make new ones.

In the Social Contract, after observing that the law couldnot possibly foresee all possible cases and that exceptionalcases would occur in which it would be momentarilyexpedient to suspend their effect, Rousseau states that, 'Inthese rare and obvious cases public security is provided forby a particular act entrusting the office to him who is mostworthy' (1762). This delegation can occur in two ways: eitherby increasing the authority of the legitimate government, inwhich case the authority of the laws is not changed, onlythe form of their administration; or, when the danger issuch that the system of laws might constitute a barrier toresolute action, by nominating a supreme chief (the dictator)who 'silences all laws and momentarily suspends sovereignauthority' (Rousseau 1762). For Rousseau, too, dictatorshipis healthy only if it is strictly limited in time: 'In whatevermanner this important trust is conferred, its duration shouldbe fixed at a very short period which in no circumstancesshould be prolonged . . . because once the urgent need haspassed dictatorship becomes tyrannical or useless' (1762).

MODERN DICTATORSHIP

It is clear from the history of this office and from classicinterpretations that the dictator exercises extraordinarypowers but only in the area of the executive function andnot the legislative one. Machiavelli and Rousseau equallyemphasized this limitation, the former writing, as we have

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seen, that the dictator was not able to do anything thatmight 'diminish the state', the other that 'the suspensionof legislative activity' (which was due to the dictator) 'inno way abolished it', because 'the magistrate who silencesit cannot make it speak' (Rousseau 1762). Only in moderntimes, the age of the great revolutions, has the concept ofdictatorship been extended to the establishing power of thenew order: that is, to revolutionary power which, to followMachiavelli, unravels the old order with the aim ofestablishing a new one. In his noted work on dictatorship(1921), Carl Schmitt distinguishes between classic dictator-ship which he calls, quoting from Bodin, 'commissary' (inthe sense that the dictator executes his extraordinary taskwithin the limits of the commission received), and thedictatorship of modern or revolutionary times, which hecalls 'sovereign' and which 'sees in all existing order a stateof affairs to be entirely removed through its own action'and therefore 'does not usurp an existing constitution butrather aims at a state of affairs in which it is possible toimpose an authentic constitution'.

Revolutionary dictatorship also springs from a state ofnecessity and temporarily exercises exceptional powers (atleast in the initial intention), and for this reason it is giventhe name of dictatorship, but the task attributed to it andwhich it takes on itself is much vaster. It is no longer aquestion of remedying a partial crisis of the state, such asan external war or a revolt, but of resolving a total crisis,a crisis that throws into doubt the very existence of a givenregime, such as a civil war (that is, a war that can signalthe end of the old order and the birth of a new one). Thedictator has been invested with his power by the constitutionand has, therefore, a constituted power, whereas thesovereign dictator invests himself with power or receivesa merely symbolic popular investiture, and assumes aconstituting power. The French National Convention, whichdecided on 10 October 1793 to suspend the Constitution ofthe same year (never to be restored), and which establisheda provisional revolutionary government until the arrival of

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peace is an exemplary case of the second type of dictatorship.Compared to classical dictatorship, the Jacobin dictator isno longer a monocratic magistrate - even if the personalityof Robespierre is conspicuous - but is the dictatorship ofa revolutionary group: the Committee of Public Health.

The dissociation of the concept of dictatorship from theconcept of monocratic power must be emphasized becauseit marks the passage from the classic use of the term, whichafter the revolution even applied to Napoleon's regimewhich was interpreted as a military dictatorship, to themodern use popularized through the writings of Marx andEngels. Used in expressions such as the 'dictatorship of thebourgeoisie' and the 'dictatorship of the proletariat', theterm referred not to a person, or even a group of people,but to an entire class. Even if its original meaning wasmuch tampered with it could be gainfully replaced by theterm 'domination' as used in the typically Marxist andEngelian expression 'class domination'. Moreover, whatdistinguishes the character of the modern dictatorship fromits classical form is the extension of power which is nolonger limited to the executive function but is extended tothe legislative and even constitutive functions, even if thespecific case of the French Revolutionary Governmenttended to present itself as not abolishing but as suspendingexceptionally and provisionally the constitution and, there-fore, as a dictatorship in the classical sense of the word. Inreality, the difference beteween revolutionary (similarlycounterrevolutionary) and commissary dictatorship revealsitself not in the declarations of the principles, who neverfail to solemnly announce their temporariness, but in thefacts: that is, the effects produced on the preceding order.

REVOLUTIONARY DICTATORSHIP

Another step forward in the history of the fate of theconcept of dictatorship is that made by the unfortunatestandard-bearers of an egalitarian revolution (which, in

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fact, never took place): Babeuf, Buonarroti and comrades,the protagonists of the Conspiracy of Equals (9-10 Sep-tember 1795). In the thinking of these men, especially ofBuonarroti who, having survived the condemnation of hiscomrades, in the last years of his long life became thehistorian and theorist of the conspiracy in his bookConspiration pour I'egalite dite de Babeuf (1828), the ideais clearly stated that the revolution must be achieved by ahandful of motivated men. There must follow after theexplosion of the revolution a transitory state marked bythe exercise of exceptional powers concentrated in thehands of a few (a genuine precedent for Marx's and Lenin'sstate of transition) and that, finally, the new society ofequals should only be installed after the revolutionarydictatorship has succeeded in eliminating not only theoppressors of the people but also those 'considered incapableof regenerating themselves', as well as every vestige of thepast, using violence if necesssary. Buonarroti wrote that toovercome the difficulties present after the revolution, thestrength of all would be necesssary but that this strengthwould be nothing 'if not directed by a strong, consistent,enlightened and immutable will' and that 'many reformswould be necessary before the general will could emanateand be recognised' (1828-9). One of the tasks attributedby Buonarroti to the revolutionary government of 'wisemen' is the preparation of the new constitution which wouldcomplete the revolutionary phase, thus demonstratingbeyond any shadow of doubt that the salient characteristicof the revolutionary dictatorship is the exercise of sovereignpower par excellence: that is, constitutive power.

It must be emphasized that in this new context dictator-ship, although having changed its descriptive meaning, haslost nothing of the positive value of the original. In contrastto the current use which compares dictatorship unfavourablywith democracy, the first use of 'dictatorship' to denoterevolutionary dictatorship as well as military dictatorshipshares the favour enjoyed by the Roman magistracy,summoned in exceptional situations to save the republic

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from war or rebellion, and the term was used again with afavourable connotation. It should also be remembered thatin the seventeenth century the term 'despotism' was usedfor the first time with a positive sense in the distinctionmade by the physiocrat Le Mercier de la Riviere betweenarbitrary despotism, 'founded on the opinion which lendsitself to all the disorders and all the excesses to whichignorance makes it susceptible', and legal despotism,'established naturally and necessarily by law', and wastherefore understood as the best form of government which- precisely because of the monocratic and absolute natureof its power - was capable of reading dispassionately andperfectly the great book of nature and of declaring andapplying the laws that must regulate the social order. Itwas enough to use the term 'enlightened' to change thevalue of even such a 'despotism' which had been execratedfor centuries. When Buonarroti called the will of thecommittee of bold men who must guide the revolution'enlightened', and the components of the government inthe state of transition 'wise', he invites us to line up theidea of revolutionary dictatorship with that of enlighteneddespotism. The idea of revolutionary dictatorship asa provisional and temporary government imposed byexceptional circumstances survived in the theory and practiceof Blanqui rather than Marx. Marx's political theory speaksof dictatorship of the proletariat in the sense of dominationby a class not of a committee, and even less of a party; hedoes not, therefore, use the sense that the term hadsubstantially preserved in the passage from classical dictator-ship to modern dictatorship. The only remarks made byMarx on the state of transition deal with the experience ofthe Paris Commune between March and May 1871, andargue that the government of the Commune represented amore advanced form of democracy than the representativedemocracy of the most advanced bourgeois states. Nothwith-standing this Engels, in his preface to Marx's writings onthe civil war in France, saw in the Paris Commune the firstgreat and terrible trial of the dictatorship of the proletariat.

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166 Democracy and Dictatorship

But this makes even more evident the fact that classdomination (dictatorship in the non-technical sense) is onething and the form of government in which this dominationexpresses itself is another (and the case of the Communewas not, at least in Marx's interpretation, a dictatorship inthe technical sense).

In the Marxian expression 'dictatorship of the proletariat'the term 'dictatorship' has no particular evaluative signifi-cance: since all states are dictatorships, in the sense ofdomination by a class, the term refers substantially to astate of affairs and has an essentially descriptive significance.The shift from dictatorship with a positive value, referringto a magistracy or a revolutionary government, to thenegative value which is prevalent today, occurred becausethe term no longer indicates generically the dominion of aclass but a form of government: that is, a mode of exercisingpower. The term now extends to all undemocratic ways ofwielding power and it loses all its specific connotations inthis enlargement, above all the state of necessity and oftemporariness which was used to justify the many positiveevaluations of this institution (the Roman dictatorship) andof a form of government modelled on it (revolutionarydictatorship).

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Althusius, J., 1603, Politica methodice digesta exemplis sacris etprofanis illustrata, second edition, Herborn 1614; ed. cit. HarvardUniversity Press, Cambridge (Mass.) 1932 (tr. The Politics ofJohannes Althusius, Eyre and Spottiswode, London 1965).

Anonymous, 1765a, Societe (Morale), in Encyclopedic, -ouDictionnaire raisonne des sciences, des arts et des metiers, parune societe de gens de lettres. Mis en ordre et publie par M.Diderot . . . , et quant a la Partie Mathematique, par M.d'Alembert . . . , Briasson, David, Le Breton, Durand, Paris1751-65, vol. XV, pp. 252-8 (anthology).

1765b, Societe civile, ibid., p. 259.Bockenforde, E.W. (ed.), 1976, Staatund Gesellschaft, Wissensch-

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Buonarroti, F., 1828, Conspiration pour I'egalite dite de Babeuf,Librairie romantique, Brussels.

(1828-9) (Sui caratteri del governo rivoluzionario), manu-script fragment published in A. Galante Garrone, FilippoBuonarroti e i rivoluzionari dell'Ottocento (1828-1837), Einaudi,Turin 1951.

Burke, E., 1790, Reflections on the Revolution in France, Dodsley,London.

Croce, B., 1925, Politica in nuce, in Elementi dipolitica, Laterza,Bari; also in Etica e politica, Laterza, Bari 1954, pp. 217-54.

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Dahl, R.A., 1963, Modern Political Analysis, Prentice-Hall,Englewood Cliffs (NJ).

Elia, L., 1970, Governo (forme di), in Enciclopedia del diritto,vol. XIX, Giuffre, Milan, pp. 63-75.

Evans-Pritchard, E.E. and Fortes, M. (ed.), 1940, African PoliticalSystems, Oxford University Press, London.

Farneti, P., 1973, Introduzione a P. Farneti (ed.), // sistemapolitico italiano, II Mulino, Bologna, pp. 7-60.

Filmer, R., 1680, Patriarcha. Or the Natural Power of Kings,Chiswell, London.

Gramsci, A., (1930-2a), Passato e presente. I cattolici e lo Stato,in Quaderni del carcere, Einaudi, Turin 1975, pp. 662-3 (tr.Selections from the Prison Notebooks of Antonio Gramsci,Lawrence and Wishart, London 1971).

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Haller, K.L. von, 1816, Restauration der Staats-Wissenschaft, oderTheorie des naturlichgesellingen Zustands der Chimdre desKunstlich-burgerlichen entgegengesetzi, vol. I, Steiner, Winter-thur.

Hamilton, A., Jay, J. and Madison J., (1787-8), The Federalist,MacLean, New York 1788.

Hegel, G.W.F., (1799-1802), Kritik der Verfasssung Deutschlands,Fischer, Kassel 1893.

(1808-12), Philosophische Propadeutik, Duncker und Hum-blot, Berlin 1840 (tr. The Philosophical Propaedeutic, BasilBlackwell, Oxford 1986).

1821, Grundlinien der Philosophic des Rechts, Nicolai, Berlin(tr. The Philosophy of Right, Oxford University Press, London1942).

(1830-1), Vorlesungen uber die Philosophic der Geschichte,Frommann, Stuttgart 1934 (tr. Lectures on the Philosophy of

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De Cive, Elzevier, Amsterdam 1647.1651, Leviathan, or the Matter, Form, and Power of a

Common-wealth, Ecclesiasticall and Civill, Crooke, London.Jellinek, G., 1911, Allgemeine Staatslehre, Haring, Berlin.Kant, I., 1796, Zum ewigen Frieden. Einphilosophischer Entwurf,

Nicolovius, Konigsberg (tr. Perpetual Peace, in Kant's PoliticalWritings, Cambridge University Press, Cambridge 1977).

1797, Die Metaphysik der Sitten, I. Metaphysische Anfangs-griinde der Rechtslehre, Nicolovius, Konigsberg (tr. Metaphysicsof Morals. Part 1. The Metaphysical Elements of Justice, Bobbs-Merrill, New York 1965).

Kelsen, H., 1922, Der soziologische und der juristische Staatsbe-griff. Kritische Untersuchung des Verhdltnissses von Staat undRecht, Mohr, Tubingen.

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-1960, Reine Rechtslebre, Deuticke, Vienna 1960 (tr. The PureTheory of Law, University of California Press, Berkeley 1967).

Lasswell, H.D. and Kaplan, A., 1952, Power and Society. AFramework for Political Inquiry, Routledge and Kegan Paul,London 1952.

Lenin, V.I., (1917), Gosudarstvo i revoljucija, Zizn' i Znanie,Petrograd 1918 (tr. The State and Revolution, Allen and Unwin,London 1919).

Locke, J., 1690, Two Treatises of Government, Churchill, London.1694, An Essay on Human Understanding, Ballet, London.

Luhmann, N., 1972, Rechtssoziologie, Rowohlt, Hamburg (tr. ASociological Theory of Law, Routledge and Kegan Paul,London 1985).

Luther, M., 1523, Von welltlicher uberkeytt, wie weytt man yhrgehorsam schuldig sey, Schyrlentz, Wittenberg.

Machiavelli, N., (1513), II Principe, Blado, Roma-Giunta, Firenze1532; ed. cit. Einaudi, Turin 1977 (tr. The Prince, Penguin,Harmondsworth 1975).

(1513-19), Discorsi sopra laprima decca di Tito Livio, Blado,Rome-Giunta, Florence 1531; ed. cit. Feltrinelli, Milan 1977(tr. The Discourses, Penguin, Harmondsworth 1970).

Marx, K., (1843), Zur Judenfrage, in 'Deutsch-FranzosischeJahrbucher', n. 1 (1844) (tr. On the Jewish Question, in Early

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Montesquieu, C.-L. de Secondat de, 1734, Considerations sur lescauses de la grandeur des Romains et de leur decadence,Desbordes, Amsterdam.

1748, De I'Esprit des loix. . ., Barrillot et fils, Geneva (tr.Spirit of the Laws, University of California Press, Berkeley1978).

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The Social Contract, Dent, London 1973).Russell, B., 1938, Power. A New Social Analysis, Allen and

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1928, Verfassungslehre, Duncker und Humblot, Munich-Leipzig.

Spinoza, B., 1670, Tractatus theologico-politicus, Kiinraht, Ham-burg (tr. A Theological-Political Treatise, Dover, New York1951).-

Tocqueville, A. de, 1835-40, De la democratie en Amerique,Gosselin, Paris (tr. Democracy in America, New AmericanLibrary, New York 1956).

1848, Avertissement de la douzieme edition in De la democratieen Amerique, Pagnerre, Paris 1848.

Treitschke, H. von, (1894-6), Politik. Vorlesungen gehalten ander Universitat zu Berlin, Hirzel, Leipzig 1897-8 (tr. Politics,Constable and Co., London 1916).

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1744, La Scienza nuova giusta I'edizione del 1744, Laterza,Bari 1967 (tr. The New Science, Cornell University Press, IthacaNY 1948).

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Index

absolutism 93, 95, 109-10,111-12, 113, 114

abstentionist state 122adaptation 49administrative power 32aims see purposeAlbertine Statute 153Alberto, C. 153Almond, G. A. 51, 76, 108Ambrose, St 121anarchy 126, 132ancient democracy 158-61anthropology 67-8, 128Antigone 92arbitrary despotism 165aristocracy/nobility 94, 101,

112and democracy 136-8, 142,

146, 148, 152aristocratic republic 147Aristotle

on city/natural society 4,34-7, 40, 44, 57, 62-3

on constitutions 109on family 52on forms of government

101, 102, 135-6, 140on good/contemplative life

120, 126on individual 115on laws 91

on power 71-3on totality 14

associations 152partial 53, 114

Augustine, St 82authority of God 83-4autocracy 102-3, 107-8

and democracy 137, 145see also dictatorship

autocratic classes 107autonomous norms 102-3,

137, 145; see alsoautocracy

autonomy of sub-system 108axiological use of theory see

descriptive use

Babeuf 164bad, democracy as 136,

138-45, 149barbarism see primitivebase/superstructure dichotomy

29-30, 40, 77-8Belgium 107Bloch, M. 65Bockenforde, E. W. 27Bodin, J. 11, 136, 142

on absolutism 94, 110on civil society 35on dictatorship 162on laws 82, 93-4

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Index 173

on monarchy 94, 103on property 94on sovereignty 75on state 58, 62on unjust sovereign 12

bourgeois class 112, 114, 121bourgeois law 11bourgeois society 14, 22, 23,

28-9, 53, 129Bracton, H. de 91Britain see EnglandBucharin, N. I. 132Buonarroti, F. 164-5bureaucratic state 111-12,

113, 118Burke, E. 85

Caesar 58, 160Campanello, T. 127capitalism 124, 125Catholicism see Churchcentralization/concentration

95, 112-13change, social 50-1, 57, 63charismatic power 87-8Christianity see Church; GodChurch 29, 36, 73-4

disappearance of 119as estate 112heretical groups 131power 78, 94and prince see rulers,

sacredand state 120-1, 122, 124,

128see also under God

Cicero 3, 6, 58-9, 65, 109cities 94; see also under

Aristotlecivil law, distinct from penal

23

civil power 72-3civil society 22-43

as civilized society 37-9current debate 39-43Hegelian system 30-4Marxian interpretation

27-30meanings 22-6natural law tradition 34-7and public/private

dichotomy 7, 14, 16and state 51

civil war 57, 114civilized society, civil society

as 37-9class

divisions 131dominance 67, 163, 166formation 67political 107see also aristocracy;

bourgeoisclassic dictatorship 162Clastres 67clergy see Churchcoalitions of political parties

16codification of law 10-11coercion see forcecollective contracts 16collective entity 14; see also

public; statecollective interest 145collective property 67collegial organs see estatescolonialism/imperialism 86,

100commissary dictatorship 162common law 92-3; see also

natural lawcommunism of goods 94

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174 Index

commutative justice 8-9complex societies 88

ungovernability 25-6, 125see also modern state

computers 21Comte, A. 54concentration see

centralizationconfederation 99-100, 107confessional state see Churchconflict 25, 28, 51, 54consensus/consent 78, 84, 86

organization of 77-8see also civil society

conspiracy 19Constant, B. 13, 129constitution 32, 62, 89, 90, 97,

109and democracy 154-5liberal 157monarchical 91value judgements on 134,

140written 93, 95, 117

constitutional monarchy 94,104, 110, 112, 149

constitutive elements of state89-91

contemplative life 120continuity

social 50-1state, arguments in favour

of 62-6contracts

collective 16and law 6-8

corporate state 111-12, 114,116

corporation 53corruption, state of 38-9crisis of state 125

Croce, B. 69custodian state 123cyclical philosophies of history

146

Dahl, R. A. 71decentralization 153decolonization 100demands and responses 51democracy/democratic 101,

102-3, 107-9, 133-58classes 107and dictatorship 158-66direct 20, 150-1, 154-5, 156formal 157-8modern 149-52, 161-3political 155-7power 21representative 115, 150-1,

152-3, 156republic 20social 156-7substantive 157-8in theory of governmental

forms 133-5; descriptiveuse 133-4, 135-8;evaluative use 133-4,138-45; historical use133-4, 135, 145-9

descriptive use of theory ofgovernmental forms133-4, 135-8

desire, achieving object of 70despotism 72-3, 86, 95, 101-3,

113, 147, 165and democracy 137, 148Oriental 33, 102, 119

dichotomybase/superstructure 29-30,

40, 77-8family/state 31, 32, 37

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Index 175

great see public/privatestate and civil society see

civil societydictatorship: comparison with

democracy 158-66ancient 158-61modern 161-3revolutionary 162, 163-6

differentiation of roles 108diffuse government 68diffuse power 125direct democracy 20, 150-1,

154-5, 156direct domination 29discontinuity, state, arguments

in favour of 60-2distributive justice 8-9divine right of kings see

rulers, sacreddivine law see under Goddoctrinal state 124doctrine, political 44-5domination/dominance

class 67, 163, 166direct: contrast with

hegemony 29Duverger 106

Easton, D. 51economic power 76-8economic relations 122-3

and civil society 30-1, 40and state 49-50

economic society and politicalsociety, distinctionbetween 5-6

economics, primacy of politicsover 15

education 70effectiveness 86-8, 89Elia, L. 107

emergency, state of 117empire 98-9enemies, relations of equality

between 5Engels, F. 28, 67, 125, 131,

163, 165England/Britain

constitution 95, 109democracy in 153estates 95law 91-2monarchy 94, 104, 110, 148political liberty 90two-party system 106-7

Enlightenment 123, 144equals/equality 157-8

association of 4-6, 9and revolution 163-4

equilibrium, social 49Ermacora, F. 23estates (intermediate bodies)

95, 112-13eudemonistic state 34, 72, 123Europe

confederation 99-100democracy 153governments 107, 114monarchy 98, 104, 109,

147-8parliaments 112, 114see also individual countries

evaluative use of theory ofgovernmental forms133-4, 138-45

Evans-Pritchard, E. E. 68evil/wickedness

change as 57of masses 127, 129state as necessary 127-30;

unnecessary 130-2executive power 70, 95-6

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176 Index

expanding government 68external limits of state and

law 97-100

falsification 47family and kinship 52-3, 66-7

as associations of unequals4, 9

and civil society 36power in 71-3state as 5and state dichotomy 31, 32,

37fascism 159fear 101, 127federal states see

confederation;Switzerland; UnitedStates

Ferguson, A. 37-8, 66feudal state 111, 121Filmer, R. 72Florence 109force 70, 87, 121-2

and justice 82justification for 128monopoly of 61, 74-7, 89,

123formal democracy 157-8Fortes, M. 68foundations of state see

legitimacyFrance

absolute state 95 _constitution 93, 162Declaration of Rights 57,

96estates 112monarchy 94, 98, 104, 109,

148Paris Commune 154, 165-6

republic 105revolution 110, 112, 114,

142, 144, 163, 164, 165-6free market society 129friendship 52functionalism and state 49-52future history 85

game theory 98, 116Garve, C. 37Gelasio I, Pope 121gendarme state 123Gentile, G. 32Gentili, A. 98Germany 27, 75, 112

constitution 98empire 98law 12monarchy 95, 102state 54

Gierke, O. von 111goal see purposeGod

authority of 83-4laws of 92, 93-4power of 20see also Church

gooddemocracy as 136, 138-45,

146, 149greatest see lifeman naturally 23

goods, communism of 94government

forms of 100-11; classicaltypologies 101-3; mixed94, 104, 108-11;monarchy and republic103-7; see also state,forms of

and law 91-3

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Index 111

Gramsci, A. 24, 29-30, 40, 78Greeks 138-9, 147-8

city 62-3; see also underAristotle

and democracy 20, 139despotism 33see also Plato; Polybius

Grotius, U. 63, 98groups 22, 24, 25, 116, 130,

131attacking sovereignty of

state 16-17see also political parties

guild socialism 130Gurvitch, G. 130

Habermas, J. 18Halevy, E. 159Haller, K. L. 36Hamilton, A. 96happiness 72, 126, 129; see

also eudemonistic stateHegel, G. W. F. 54, 62, 145

on civil society 23, 27-8,30-4, 37-8, 40

on forms of government102

on history 131, 148on individual 15on international society 5on law 7, 10, 14-15, 16on morality and politics 80on political science 46on power 72, 75, 79on slave 15on state as culminating

moment 53; despotic 72,103, 113; ethical 126;German 98; legitimacy 8;monarchy 103, 104, 110,112-13; totality of 14, 16

hegemony 29, 78; see alsocivil society

heretical sects 131Herodotus 138heteronomous norms 102-3,

137, 145; see alsodemocracy

Hilferding 124Hinze, O. 112historical use of theory of

governmental forms133-4, 135, 145-9

Hobbes, T. 44, 62, 80, 103on anarchy, state of 126on civil society 35-6, 38on family and patriarchy

53, 72on independence 57on international society 5on monarchy 94on natural liberty 78on nature, state of 38on order 50, 143on partial associations 53,

114on political science 46on power 70, 74, 75, 82-4,

128on slave 15on sovereign 12on state 58, 78-9, 114, 126,

143; absolute 45, 94,110; justification for 46

honour and obedience 101Humboldt, W. von 129

ideal republic 126-7ideological power 76-8,

118-19, 123ideology and civil society 29imperialism see colonialism

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178 Index

independence, sovereignty as65

individual 130; see also rightsindustrial society 53ineffectiveness 87inequality see unequalsinfluence 71instability 110institutions, political 49, 112

functions of 51-2history of 44-5and legitimacy 26non-democratic in

democracy 156see also state

integration 49intermediate bodies (estates)

95, 112-13internal limits of state and law

93-7international society 5, 9interventionist state 122-3Isidore of Seville 129Islamic states 124Italy 27, 107

constitution 155democracy in 153fascism 159

Jay, J. 96Jellinek, G. 11, 23, 47-8John, King 96John of Salisbury 65justice/judicial 31, 65

commutative anddistributive 8-9

and force 82power 32, 70, 95-6state of 124

justification 81-3, 128Justinian 1, 3

Kant, I. 123, 142, 144on confederated states 99on dichotomy in law 7on eudemonistic state 34,

72on monarchy 103on natural law 35-6on public power 18on republic 105

Kaplan, A. 70Kelsen, H.

on autocracy anddemocracy 102-3, 137

on force 75, 87, 90on legitimacy 86-7on political liberty 137on law 11, 48-9, 89on rights of man 96on state 48-9, 75, 87, 89,

90Keynesianism 123kinship see family

La Maira 68labour, division of 67Lasswell, H. D. 70Latin America 100law/legal

civil distinct from penal 23codification of 10-11and contract 6-8despotism 165history of 45legal-rational power 87-8perspective on state 47-9positivism 86-7private 23, 33; primacy of

10-13of property 12-13public 64; and private 1-3,

6-8; rise of 11-12

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Index 179

state of 123system, state as 89-90, 102see also natural law; and

under statelawgiver see legislatorlay state 122-3League of Nations 99legal see lawlegislative power 70, 95-6legislator/lawgiver (wise man)

92-3legitimacy 30, 73, 87, 89, 101,

119of state 8, 81-8;

effectiveness and 86-8;principles of 83-6;problem of 81-3

and ungovernability 26Lenin, V.I. /Leninism 118,

124, 154, 164liberal constitutions 157liberal state 97, 123liberal theory 129liberty 56, 70, 78, 90, 97

and democracy 140, 143,144, 151

life, sacrificed 7, 34limits of state 90Livy 45, 63Locke, J. 136, 142

on liberty 34on parliamentary monarchy

45on power 71-3, 84on property 12-13, 56on state 33

Lucretius 126Luhmann, N. 88Luther, M. 128Lycurgus 92lying 19, 21

Mably, G. B. de 99Machiavelli, N. 55, 128, 136-7

on forms of government101, 147, 160-1;monarchy and republic103-4; tyranny 160-1

on Livy 45on political science 46and Polybius 146on power 41, 69, 79-80,

128on revolution 162on rulers 119on state 41, 57-60, 63

MacPherson 78Madison, J. 96, 150Magna Charta 96majority decision as zero-sum

game 116market society and

associations of equals 4Marsilius of Padua 136Marx, K./Marxism 124

on bourgeois society 53on civil society 5, 14, 23-4,

27-30, 32, 40, 119on democracy 154and functionalism 49-51on power 77-8on private law 10-11on revolutionary

dictatorship 163-4, 165-6on state 67, 122, 125, 131-2

material validity, limits of 90mathematical dream 132maximalist state 122-4media 21, 26mental power 70metaphors for rulers 55Middle Ages 64-5, 73, 92Migne, J. P. 93, 127, 129

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180 Index

military power 70dictatorship 117, 163

Mill, J. S. 129minimalist state 68, 122-4,

129-30mixed government 94, 104,

108-11modern democracy 149-52,

161-3modern state 60-2

birth of 103unification in 98-9

monarch see rulersmonarchical constitution 91monarchy 101-2, 103-7, 109

absolute 93, 95, 111-12,113, 114

constitutional 94-5, 104,110, 112, 149

and democracy 136-8,141-2, 143, 146-8

distinct from tyranny 65and estates 112-13parliamentary 114power of 85see also rulers

monocratic power 163Montesquieu, C.-L. de S.

baron de 142on estates 95on federal republic 99on forms of government

101-2, 147-8; despotism72, 113, 127, 147;monarchy 103, 110, 113

on limited state 45on political liberty 90on power 96on Rome 63

morality/ethics 140and politics 79-80, 82-3

More, T. 46Morgan, C. 67Mortati, C. 89Mosca, G. 83, 87, 107, 110-11motivation and power 88multi-party system 106-7, 118

Napoleon 10, 163natural law 6-7, 66, 84, 92-3,

115and civil society 24, 29,

31-2, 34-7natural liberty see libertynatural rights see rightsnatural society see primitive

societiesnature, state of 5, 7, 66-7

and civil society 32, 34,35-6, 38

see also primitive societiesneeds, system of 31, 40negative conception of state

125Netherlands 107nobility see aristocracynon-state and state 119-22non-violence 131Nozick, R. 129numbers of rulers 135-7

obedience 101, 101-2, 144absolute 83limits of 85-6

Objective Spirit 33-4, 53, 80ochlocracy 136, 140-1oligarchy 101, 109, 140, 141one-party system 106, 118-19open classes 107order 143

collapse of 50Oriental despotism 33, 102,119

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Index 181

Paine, T. 23, 129Paris Commune 154, 165-6parliaments/parliamentary

government 104-5, 107,112, 114

history of 44Parsons, T. 49, 50partial associations (systems)

53, 114participation 42, 145parties see political partiespassions 91Pasukanis, E. B. 11patriarchal society/paternalism

53, 71-3pattern maintenance 49Paul, St 121peace 65, 121, 143penal law, distinct from civil

23people as constitutive element

of state 89-90Pericles 139Persia 138pessimism 128philosophy, political 46-7, 70physical power see forcePhysiocratic doctrine 121Plato 54, 146

on government forms 134,135, 140-2; democracy108-9, 140; monarchy108-9; republic 127

on justice and force 82on laws 91on noble lie 21on ruler-weaver 55

police 31-2political democracy 155-7political doctrine 44-5political economy 31

political institutions seeinstitutions

political liberty as aim 90political parties 25, 56,

115-16, 118-19coalitions of 16and democracy 153power of 106

political philosophy 46-7, 70political power 76-8

as public power 18-19and state 71-6; primacy of

79-80see also power

political society 52, 114and economic society,

distinction between 5-6see also civil society

political science 46-7political system 69;

see also statepolitics: primacy over

economics 15Polybius 44, 59, 109-10, 136,

140-1, 146popular republic 146-8popular sovereignty 149,

151-3positive conception of state

125-7positive laws 93positivism, legal 86-7Powell, G. B. 76, 108power

and civil society 32democracy 21economic 76-8forms of 70-9of God 20-ideological 76-8, 118-19,

123

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182 Index

invisible 18-21physical see forceof prince 19, 21sovereign, and law 6-7and state 69-80; forms of

71-9; foundations of81-8; and law 91;political 71-6, primacy of79-80; theories of 69-71

see also force; politicalpower; public power andunder rulers

Preobrazenskij, E. A. 132president 105, 107primitive/natural societies

66-8, 126civil society substituted for

27-8, 35see also family; nature,

state ofprince see rulersprincipality 142, 146private, publicization of

15-17, 20private law 23, 33, 94

primacy of 10-13see also public/private

private property see propertyprivatization of public 16-17,

23production, modes of 49-50,

77; see also economicprogressive philosophies of

history 146property 38, 56, 67

collective 67law of 12-13

protection 15, 42-3Proudhon, P. J. 130public law 64

rise of 11-12

public opinion 26public power

and invisible power 18-21and secrecy 17-18primacy of 13-15privatization of 16-17

public/private dichotomy 1-21corresponding dichotomies

3-9evaluative use of 9-17secrecy and invisible power

17-21publicization of private 15-17,

20purpose/goals

attainment 49-50of state 89-90see also happiness

Pufendorf, S. 98

Radbruch, G. 2rational rulers 84-5rationality, belief in 87-8rationalization 118Rawls, L 129reason and law 91, 93reciprocal action 50regressive philosophies of

history 145-6relational theory of power

70-1religion see Churchrenegades 124representation/representative

150democracy 115, 150-1,

152-3, 156and public power 20state 111, 114-17

republic 44, 45, 59, 101-2,103-7, 109

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Index 183

aristocratic 147and democracy 20, 137,

146-7, 149-50federal 99ideal 126-7popular 146-8universal 100

resistance 86responses and demands 51revolution 57, 144; see also

under Francerevolutionary democracy 162,

163-6rights

divine, of kings see rulers,sacred

of individual 12-13, 22-3,55-6, 86, 91, 94, 96-7,114-15

Riviere, le M. de 165Robespierre, M. M. I. de 127,

163roles, differentiation of 108Rome 33, 58, 63-4, 147-8

constitution 109law 10, 11-12as republic 44, 45

Rosmini-Serbati, A. 36Rousseau, J.-J. 44

on civil society 38-9on democracy 45, 136, 149,

150, 151, 158on dictatorship 161-2on justice and force 82on lawgiver 93on liberty 57, 144on republic 103on Rome 63

rulers/prince/monarch/sovereign

Dictator (Roman

magistrate) 159-61illegitimate see tyranny;

usurperlack of 68-9and law 91-2, 93-4, 98metaphors for 55numbers of 135-7one party as collective 118power of 19, 21, 71-5,

79-80, 83-5, 93-4, 98;counterbalanced 112

president 105, 107rational 84-5and ruled 54-7; behaviour

towards 101-2; internallimits 93-7

sacred (divine right) 64-5,79-80, 88

subordinate to law 91-2succession 94see also monarchy;

sovereignRussell, B. 70

sacrificeof goods see taxationof life 7, 34

Saint-Simon, C. H., Comte de53, 132

Salutati, Coluccio 65Sardinia 153Sassoferrato, Bartolo di 11, 65savagery see primitiveScandinavia 107Schloezer, A. L. von 22Schmitt, C. C. 20, 102, 110,

162Schumpeter 108scientific techniques 47secrecy 17-18, 19-21secularization 122-3

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184 Index

separation of powers 95-6Seysell, C. de 112slaves 71-3Smith, A. 37-8, 53, 121, 129social change 50-1, 57, 63social continuity 50-1social contract 7, 65, 125social democracy 156-7social equilibrium 49social state 124socialism 53, 130

state 117-19, 124society and state 52-4; see

also civil societysociological theories of state

47-51, 54Socrates 92sovereign/sovereignty

as constitutive element ofstate 89

. dictatorship 162as independence 65and new groups 16-17popular 149, 151-3power 6-7, 73-5see also rulers

Soviet Union 11, 117-18, 159law 11

Spain 148Sparta 92, 109specialization in government

112Spencer, H. 13, 129Spinoza, B. 56, 90, 97, 126,

136, 142-4spiritual power see Church;

GodStalin 118state

birth of, time of 66-9and civil society, dichotomy

between see civil societycontinuity, arguments in

favour of 62-6discontinuity, arguments in

favour of 60-2end of 53-4, 125-32;

necessary evil 127-30;positive conception125-7; unnecessary evil130-2

as family 5and family, dichotomy 31,

32, 37forms of 111-24; historical

111-14; maximalist andminimalist 122-4; andnon-state 119-22;representative 114-17;socialist 117-19; see alsogovernment, forms of

and law 13-14, 89-100;constitutive elements ofstate 89-91; externallimits 97-100;government of 91-3;internal limits 93-7

as mediator and guarantor16

origin of name 57-9protection 15secrecy 18, 19-21sovereignty attacked by

new groups 16-17towards study of 44-57;

functionalism andMarxism 49-52;historical disciplines44-5; legal andsociological perspective47-9; political philosophyand political science

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Index 185

46-7; rulers and ruled54-7; and society 52-4

see also under powerStein, L. von 54subjective theory of power

70-1submission, contract of 65substantialist theory of power

70substantive democracy 157-8succession 94suffrage 115, 153, 157superpowers 100superstructure see base/

superstructureSwitzerland 99, 107symbolic nature of politics 56systematic use of theory see

descriptive usesystems 51, 53, 114

Tacitus 63taxation 33, 94, 112technocratic state 131-2territory as constitutive

element of state 89-90Third World 100Thomas, St 92Thucydides 63, 139time, limits of 90timocracy 140, 141Tocqueville, A. de 151-2totalitarian state 119-20

without public opiniontotality of state 14, 16trade unions 16, 116traditional power 87-8Treitschke, H. von 69Trockij 118two-party system 106-7

26

tyranny/tyrant 65, 82, 94, 101,140, 141; see alsodictatorship

Ulpian 93unequals, association of 4-6

and distributive justice 9society of 77

ungovernability of complexsocieties 25-6, 125

unification in modern state98-9

United Nations 99-100United States

constitution 93, 95Declaration of Rights 57,

96as federal state 99, 100government 107modern democracy 149-52as republic 104, 114revolution 144

universal republic 100universal state 126usurper 83, 94utilitarianism 145

validity 90value judgements

abstention from 47on constitution 134, 140positive and negative 125

Venice as republic 59, 104,109

verification 47Vico, G. 136

on barbarism 64, 66on equals and unequals 4-5on family 67on forms of government

103, 142, 146-7

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186 Index

on haughtiness of scholars45

on monarchy 103on republic 146-7

violence 141; see also civilwar; force

virtue 101, 148voluntaristic doctrines 84voting see suffrage

Weber, M. Illon collective action 89-90,

116on domination 41on force 75on legal and social

perspectives 48

on legitimate power 87-1101-2

on public power 61on rationalization 118on rulers 101-2

Welfare State 122, 123wise man see legislatorWittfogel, K. 119Wright Mills, C. 107

Xenophon 55

zero-sumgame, majority decision

116relation, power as 98

3,

as

Index by Ann Hall


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