GIOVANNI BIRINDELLI, 18 Nov. 2010
(Original publication: Catallaxy Institute)
The Italian constitution (but most probably not only the Italian one) is self-contradictory in relation to the principle of equality before the law, and therefore in relation to the very idea of law. This self-contradiction is not surprising, nor it is something new, nor, in its essence, it is an exclusively Italian problem: it can be seen as an expression of what Michael Oakeshott described as the typical characteristic of the modern state, namely the tension between what he callstelocracy and nomocracy: two views of a social order (and, as a consequence, of the legitimate roles of the state) which, Oakeshott says, even though mutually incompatible, are somehow coexisting in the modern state.
* * *
Telocracy (or, as Hayek calls it, taxis, or ‘designed order’) is a social order conceived as an organization for the attainment of a specific, often collective end (or hierarchy of ends): an end (telos) which is decided by the authority and imposed by it on the individuals who compose the social order.
If, by using the word ‘democracy’, we intend a political system based on representation and majority rule, then it is clear that a democracy, intended in this way, can easily be a form of telocracy: in this case the specific, often collective end (or hierarchy of ends) imposed on all the citizens would be that decided by the authority elected by the majority of them.
The imposition of this specific, collective end (or hierarchy of ends) and the kind of coercion that the representative authority needs in order to impose it on the individuals (and in particular on the minorities) requires a very particular idea of law: this is positive law (or thesis, or command). This kind of ‘law’ is the procedurally correct decision of the representative authority and therefore it exists only after legislation: in other words, for this kind of ‘law’ it is not content that matters, but rather the pedigree (Dworkin).
The idea of equality before the law associated to positive ‘law’ can include legal inequality: that is different treatment of individuals, though uniform within the categories of individuals arbitrarily and legally formed by the authority (e.g. progressive taxation).
From the few elements sketched above, it can be seen that a telocracy is a social order where political power and, more specifically in the particular case of today’s so-called ‘democracies’, political power of the representative majority, is unlimited. In other words, a telocracy is a totalitarian political order.
* * *
Nomocracy (or, as Hayek calls it, cosmos, or ‘spontaneous order’), on the other hand, is a social order conceived as the result of human action but not of human design (Mandeville, Hume, Ferguson, Menger, Hayek). Unlike a telocracy, a nomocracy is not, therefore, an organization (which is the result of human actionand of human design) but a spontaneous social order defined by the general,abstract rules of individual conduct within which every person who composes the order is free to use his own knowledge, capabilities, resources, opportunities forhis own legitimate, individual ends. In a nomocracy, the role of the state is notto organize the society for the attainment of particular ends (or hierarchy of ends), such as the “general interest” for example (however one wants to define it), but to defend its rules of just individual conduct from anyone, including itself, the majority or the so-called ‘public opinion’.
A typical characteristic of the rules (nomoi) that identify a nomocracy is that, unlike positive ‘law’, they exist independently of the authority that has the responsibility of defending them (and in case discovering them): they are the result, not of authority’s decision, but of a slow, dispersed, spontaneous process of cultural selection of successful uses and conventions, that is of uses and conventions that contributed to enhance the chances of survival of society and in time (a lot of time) emerged as moral principles, as abstract rules of justindividual conduct. A nomocracy is therefore based on a negative idea of law (nomos or negative law), according to which law exists before legislation and independently of authority. In a nomocracy, the authority has the responsibility of defending and in case discovering the law, but not the power to “make” it: negative law cannot be made more than old tree can.
The process by which, in a nomocracy, the lawyer discovers the law, is extremely complex. However, there is one thing that helps the lawyer in this difficult task of discovering the law: being an abstract principle, a rule of just individual conduct, a negative law needs to have abstract coherence with the rest of the abstract principles recognised as valid in a society.
Also because of this, the idea of equality before the law associated with negative law, and therefore to nomocracy, cannot include legal inequality and therefore positive equality before the law: in a nomocracy, equality before the law means equality of all before an abstract, general principle without the authority having the power to form arbitrary categories of individuals and applying the same principle differently within each of these categories. This also means that in a nomocracy the authority does not have the power to apply a “social justice” distinguished from principles of just individual conduct: as Cubeddu says, “what is unjust for the individual cannot be just for the state”.
A nomocracy is therefore a social order where political power is limited by negative law or nomos. In other words, in a nomocracy the sovereign is not the legislative assembly (the legislative authority), but the law that exists independently of it.
A nomocracy is thus not compatible with democracy if, by this name, we indicate a political system based on representation and majority rule, that is a political system where there is no limit of principle to group decisions; nomocracy ishowever compatible with democracy if, by this name, we refer to a political system where group decisions (and therefore coercion of some by others) are reduced as much as possible, that is with the political system of a free society. I will call this political system negative democracy.
* * *
Now, a curious thing about the current coexistence of these two mutually exclusive ideas of social order (telocracy and nomocracy), together with their own opposite concepts of law, equality before the law and democracy, is that often they seem to exist in the same individuals, even though at different levels, which perhaps may be called external and internal (or conscious and unconscious).
At an external or conscious level, a contemporary individual is likely to take for granted the positive idea of law: the fact that in today’s political arrangements the power to defend a moral principle (say the one that protects private property, or equality before the law, of freedom of thought) and the power of allocating resources, lie both in the hands of the same assembly, and the connected fact that rules expressing moral principles and measures allocating resources are called by the same name: “laws”, do not upset him at all. However, if the same individual is stimulated to think about it, it is very luckily that he would be able to see that while, on the one hand, the principle which forbids to steal, for example, as much as that which forbids to rape a woman, exist independently of authority (in the sense that a sufficiently strong representative authority could make the violation of those principles legal but not legitimate), on the other hand the decision to allocate ‘public’ resources to newspapers, for example, or to the construction of a bridge to the island of Sicily is totally dependent on the authority who has the power to take that decision (without which that measure would simply not exist). In other words, if stimulated to think about it, the same individual who today acritically accepts as ‘law’ any command by authority, is likely to be able to see the difference between a law in the proper sense of the word (the abstract, general principle whose existence is independent of authority) and a measure (whose existence wholly depends on authority’s decision, and therefore is the typical expression of political power); and he is also likely to be able to understand that a political arrangement where the latter is not limited by the former is a political arrangement necessarily inclined to totalitarianism and to the rule of organized crime (legal or not).
This coexistence, within the same individual (though at different levels), of two contradictory ideas of law is reflected inside the constitution; more likely, this contradiction is itself a reflection of the one existing inside the Italian constitution, which, itself a positive law (the highest in rank), the ordinary citizen has learned to consider as the ‘origin’ of the law.
The self-contradiction of the Italian constitution is most evidently seen in the concept of equality before the law. In fact, on the one hand, the Italian constitution defends a negative idea of equality before the law: just to make an example, the Italian constitutional court has recently declared unconstitutional a measure shielding the “top four jobs in the state” by criminal prosecution because it violated article 3 of the constitution (equality before the law). On the other hand, however, the same constitutional court has declared that, because that measure violates article 3, in order to be legally valid it has to be approved as a “constitutional law” (that is: violating the principle of equality before the law is OK as long as that principle is violated by the same constitution that should defend it); in addition, the same constitution includes progressive taxation (i.e. legal inequality: article 53); imposes a system of positive law and therefore the parliament’s structural conflict of interests (the same institution has, on the one hand, the power to defend – or not to defend – abstract principles of justice and, on the other, it has also the power to allocate resources, i.e. to use political power for the protection of particular interests of individuals or groups).
In other words, the mutually exclusive concepts of nomocracy and telocracy coexist in the same constitution, which therefore is self-contradictory. As Oakeshott says, the tension between them is a typical characteristic of the modern state. Of course, today, at least in Italy, their coexistence inside the same institutional framework is not one between equals, but rather one between a voracious, obese master (telocracy) and its slave (nomocracy), who is allowed to eat only what the former leaves on the plate, in case he decides to leave something.
The coexistence of nomocracy and telocracy is today present also in common law countries (which in fact, as Leoni pointed out in 1961, are gradually becoming less and less so); but there, at least in some cases, this coexistence appears to be between a stronger guy (telocracy) and a weaker guy (nomocracy), but not a slave. As Dworkin reports, in the UK the House of Lords declared (McLoughlin vs. O’Brian, 1983) that reasons of policy could be prevalent on the rule of law, but at least in that system there was a Lord Scarman who tried to remind his colleagues (the majority) that, however pressing the reasons of policy may be, they cannot prevail on principles of law. In Italy’s system, as I believe in the rest of continental Europe, the very possibility of a Lord Scarman seems to be ruled out.