Juridification by Constitution. National Sovereignty in Eighteenth and Nineteenth Century Europe

Abstract

In its first research period (2014–2015), the Research project ReConFort focused on national sovereignty/constituent sovereignty as a key category of its overall research on communication dependencies of historic constitutions. The topos was not only used as a search item, but also as tertium comparationis. On a comparative overview, national sovereignty is used to explain a legal starting point of the constituting process (the so-called ‘big bang-argument’). All references to national sovereignty mark the process of juridification of sovereignty by means of the constitution, i.e. political legitimation is turned into legal legitimation. This is coincident with the normativity as goal of the modern constitutional concept arising out of the revolutions at the end of the eighteenth century. The essay of the Principal Investigator examines the juridification of sovereignty in the French discourse around the works of Sieyès and the parliamentary pre-revolution. In the debates around the Great Sejm the old aristocratic understanding of the Polish Nation as one of the noblemen is found to be powerful. The procedural openness of the May Constitution 1791 is explained as a reflex onto juridification of national sovereignty. National sovereignty in the Spanish Cádiz Constitution 1812 is connected to the anti-Napoleonic context of the constitutional process. The general and extraordinary Cortes’ claim to the constituent power by virtue of the recourse to national sovereignty cannot be understood as representing a Rousseauian national volonté générale. The natural origin of national sovereignty in the Cádiz’ liberal understanding is influenced by late scholastical concepts and combines the supralegal limitations for the royal government with the historical legitimisation of the Cádiz constitution by the old fundamental laws of the Monarchy (las antiguas leyes fundamentales de la Monarquía). The constituent sovereignty in the Norwegian Grunnloven May 1814 is in various aspects comparable with the Spanish case: the constitutional process was received as guarantee of national independence. The Moss Process into the Swedish Union under the Fundamental Law of the Norwegian Empire of November 4, 1814 demonstrates the Extraordinary Storting as Constituent Assembly and the monarchy as constituted power. The statement of the Christiana Faculty of Law 1880 on the King’s veto with regard to constitutional amendments relies on the differentiation between constituent and constituted sovereignty by explaining why constitutional amendments cannot be left to either of the constituted powers – neither to an ordinary parliamentary assembly nor to the King alone. The French Charte Constitutionelle 1814, mixing constitutional binding and divine reign, avoids the term sovereignty. The reference to authority (l’autorité tout entière) in the preamble permits the prerevolutionary subsumption as divine right. The monarch by the Grace of God Louis XVIII appears as constituent sovereign, the label as charter (charte) tries to create the impression of a royal privilege. Due to his absolute power, the monarch is the sole bearer of executive power (Art. 13), of the exclusive right of legislative initiative (Art. 45, 46) and of jurisdiction (Art. 57). The Charte Constitutionnelle 1814 was imitated numerously until 1830, including its intrinsic systematic incompatibilities (between the monarchical principle and parliament’s legislative and budgetary rights). Its revolutionary overcoming in the French July Revolution 1830 led to a European-wide constitutional movement, whose connection with national struggles for freedom, invigorated the people and its representation as constitutional factors. Like in France, a parliament took over the task of drafting a constitution in Belgium after the Revolution of 1830: The constituent assembly, dominated by the liberal-catholic legal minds, is pouvoir constituant, the newly-to-be-appointed King is just taking on the role as pouvoir constitué. Contrary to the French model, the Belgian Constitution is not negotiated with the monarch, but freely proclaimed by a national congress in its own right. In the octroi of the Piedmontese Statuto Albertino 1848, the constituent act of granting the fundamental law (statuto fondamentale) was communicated to maintain the plenitudo potestatis of the absolute monarchy, to rationalize the old royal sacredness. Therefore, according to the preamble of the Statuto Albertino, the participation of the Council (Consiglio di conferenza) was simply advisory. The Piedmontese state was to remain based on the ‘monarchical constitutional foundation’ (art. 2) and ‘the person of the King is holy and inviolable’ (art. 4). The oath of the Senators and Representatives contained first the loyalty towards the King and then towards the constitution and the laws (art. 49). The Italian coincidence of the monarchical sovereignty in its absoluteness with the granting of the Albertine Statute was meant to avoid any scope for the differentiation between pouvoir constituant and pouvoir constitué. The improvised parliamentarism in the Frankfurt National Assembly corresponded with the openness of the ‘Sovereignty of the Nation’ whereby Heinrich von Gagern inaugurated the St. Pauls church-assembly. This avowal to the singular and unlimited pouvoir constituant of a not existant German nation did not make sense as a programmatic claim to self-government, but reflected the indecisiveness of the post-kantian liberalism between monarchical and popular sovereignty. It avoided the open commitment to popular sovereignty and thus the conflict with the monarchy, enabling a consensual framework between imperial government and parliamentary majority.