The Triumph of the State Over the Nation: From Totalitarianism to Interventionism

Legal History, Rey Juan Carlos University, Madrid, Spain


The first man, who, after enclosing a piece of ground, took it into his head to say, ‘This is mine,’ and found people simple enough to believe him, was the true founder of civil society.1—Jean Jacques Rousseau (1712–1778)

No, gentlemen, democracy and socialism are not linked to each other. They are not only different but contradictory things. What if by chance, democracy were to consist of a government more interfering, more detailed, more restrictive than all others, the only difference being that it would be elected by the people and would act in the name of the people? In that case, what would you have done, if not have given to tyranny an aura of legitimacy that it did not previously possess and to have secured for it the strength and omnipotence that it lacked? Democracy extends the sphere of individual independence, socialism restricts it. Democracy gives the greatest possible value to every man, socialism turns every man into an agent, an instrument, a number. Democracy and socialism are linked by only one word, equality; but note the difference: democracy wants equality in liberty, and socialism wants equality through constraint and servitude.—Alexis de Tocqueville. (1805–1859)2

Arise ye workers from your slumbers

Arise ye prisoners of want

For reason in revolt now thunders

And at last ends the age of cant.

Away with all your superstitions

Servile masses arise, arise

We’ll change henceforth the old tradition

And spurn the dust to win the prize.

So comrades, come rally

And the last fight let us face

The International unites the human race.—Eugene Pottier (1816–1887).3

Fascism establishes the real equality of individuals before the nation. The difference is in the scale of responsibilities …[] the object of the regime in the economic field is to ensure higher social justice for the whole Italian people…[]What does higher social justice mean? It means work guaranteed, fair wages, decent homes; it means the possibility of continuous evolution and improvement …[] it means that the workers must enter more and more intimately into the productive process and share its necessary discipline…[] As the past century was the century of capitalist power, the twentieth century is the century of the power and glory of labor—Benito Mussolini (1883–1945)4

The indirect powers… seized the legislative arm of parliament and the law state and thought they had placed the Leviathan in a harness. Their ascendancy was facilitated by a constitutional system that enshrined a catalogue of individual rights. The “private” sphere was, thus, withdrawn from the state and handed over to the “free”, that is, uncontrolled and invisible forces of society.—Carl Schmitt (1888–1985)5

17.1 From Liberalism to Interventionism

Over the course of the nineteenth century, a constitutional model of the state took hold in the western world in which power (sovereignty) was posited not only in the king, as was the case under the preceding model of absolute monarchy, but in the nation, conceived of and envisioned as the entire citizenry. Under this new order, the organization of the state and the relationship between the people and the governing powers was based on and governed by an agreed-upon text, a constitution, whose approval established the legal framework according to which all power was to be exercised. State power was, in addition, to be limited by declarations stipulating the citizens’ fundamental rights, which were not to be violated by the law or the government.

It is true, however, that while in theory the state was controlled by the nation—meaning the whole body of citizens—through its parliamentary representatives, this national representation was not entirely democratic. As explained earlier, power remained in the hands of a new ruling oligarchy, essentially made up of the industrial and financial bourgeoisie, which had supplanted the traditionally privileged classes that had prevailed under the Ancien Régime. This new ruling class controlled European parliaments in large measure by virtue of censitary suffrage systems, which required a certain level of wealth for one to vote and enjoy political representation. The more constitutions curtailed states’ capacities to intervene in the economic and social spheres, the more absolute was the hegemony of the new elite.

It must be said, nevertheless, that the policies pursued by the ruling classes that now controlled the legislative, executive and judiciary powers, thanks to their commitment to laissezfaire policies, did bring about, in most liberal European states, an era of unprecedented economic prosperity and expansion,6 with spectacular demographic growth because of higher standards of living, and breakthroughs in nutrition, health, hygiene and medical science. As a result, Europe moved from a focus on the individual to a “mass culture”, which prompted a radical transformation in Europe’s social structure. This shift led to major alterations in the West’s legal and constitutional systems, upon which we shall focus in this chapter.

17.2 The Triumph of Big Capitalism and the Transformation of the Western World

If after 1850 one can speak of the triumph of “Big Capitalism”, it is because Europe enjoyed exponential economic growth because of the dramatic expansion of production and trade volumes, rendered possible by scientific progress and, more specifically, the appearance of new technical developments that radically altered the conditions of everyday life in western societies.

17.2.1 The Inventions That Changed the World

The Industrial Revolution which started in the middle of the eighteenth century (Pollard 2002, 12–20), with discoveries such as the steam engine,7 which utterly transformed industry and transport, was complemented, intensified and accelerated by what has been called the Technical Revolution, or Second Industrial Revolution (Boyns and Edwards 2013, 167–203), which began about one century later8 (we shall restrict the use of the term “technological” to what is happening in our own era)9 and brought about more change in every way than the world had experienced in the previous two millennia (Trebilcock 1981, 1–20). From the perspective of constitutional history, this “Technical Revolution” was a key force behind the spectacular strengthening of European nation-states and their power in the nineteenth century.10

The list of inventions—such as the light bulb, phonograph,11 photographs12 and the cinema,13 the telegraph, telephone, radio and, later, television14—is truly impressive and allows us to fathom the extent to which the lives of westerners changed forever. We have to bear in mind that it was also during this period that electricity15 was first produced and developed,16 while the combustion engine made possible the emergence of cars and aircraft.17

Extraordinary progress was also made in medical science, which benefitted from advances made by scientists in the fields of Chemistry and Biology, including, for instance, a water filter devised by Charles Chamberland that prevented the contraction of many diseases, dramatic progress in asepsis and antisepsis (the keys to the prevention of hospital infections), the emergence of vaccines (Louis Pasteur, Edward Jenner), and progress in surgical techniques, revolutionized by the emergence of anesthesia18 in the United States.

17.2.2 Demographic Expansion and the Concentration of Urban Populations

Thanks to medical advances and increases in the standard of living, Europe experienced dramatic exponential demographic expansion, the population of the Continent tripling between 1840 and 1914. In this regard Germany is worthy of special note, in 1880 recording the astronomical figure of 37.5 births per 1,000 people.19 The problem was that this population increase essentially affected urban areas.

The technical breakthroughs made in Europe at the end of the eighteenth century directly affected the means of production. As a result of mechanization, greater quantities of goods were produced, of better quality, and at a lower cost. The tradeoff was that machines completed the tasks formerly performed by men, leaving many farmers in rural areas without work, who were forced to move to cities to find jobs in the factories that began to sprout up around urban areas (Hohenberg and Lees 1996, 179–214).20

As a result, cities grew uncontrollably. In England, undoubtedly the world’s most economically developed country in the nineteenth century, the urban population shot from a quarter of the population in 1831 to two-thirds in 1870. To varying degrees, urbanization affected all of Europe in the same period. In 1814, the number of cities with populations of more than 50,000 was 46 (the largest at the time being London, which had not yet reached one million). In 1914—only 100 years later—there were 179 cities with populations of over 100,000 inhabitants, three of which (London, Paris and Berlin) exceeded two million. In the United States, urban growth was even more spectacular. The most illustrative case is that of Chicago, which went from being a mere town in 1830, to a city of 100,000 in 1850, to a metropolis of three million people in 1914.21

17.3 The Social Consequences of Economic Expansion

17.3.1 The Middle Class and the Proletariat

The wealth amassed by the western nation-states in the second half of the nineteenth century, thanks to the Technical Revolution, the consolidation of the liberal model of state, and the fact that European states controlled virtually the entire globe by way of colonial imperialism, brought essential social and political changes. The first one was that below the wealthy oligarchy was a growing middle class (Butler 1997, 14–34) enjoying gradual improvements in its standard of living and, accordingly, pressing for greater political representation through the introduction of more democratic electoral procedures. This was the thrust of the successive electoral reforms that extended censitary suffrage to a larger group of people, adopted in England in 1832, 1867, 1872 and 1884, and in France between 1814 and 1848 (Crossick and Haupt 2004, 133–165).

Just when the middle class was gaining access to political representation, however, the social order was once again shaken up and blurred as a consequence of the momentous economic transformations spawned by the triumph of Big Capitalism (Wahrman 2003, 411). While the “free” person, i.e. one not subject to any feudal servitude and living off the fruits of his own labor, was a social type which appeared in the Renaissance and spread throughout Europe in the seventeenth century, by the mid-nineteenth century the “working class” was a result of the abovementioned transformations that had led to increasingly uneven distributions of wealth. Enormous fortunes stood in stark contrast to masses of people wallowing in the most absolute poverty. Beneath the middle class arose a new European social stratum: the proletariat (from the Latin proles, meaning “offspring”), thus called because its members had no assets but their own children.22 The proletariat was also referred to as “the Fourth Estate” to differentiate it from the former tripartite estate system under the Ancien Régime: the two privileged classes (clergy and nobility) and the Third Estate, made up of the common people. From the point of view of constitutional history, the proletariat burst onto the political scene in the mid-nineteenth century, aiming to achieve the political influence necessary to alter a constitutional system in Europe (Neale 1972, 15–40)23 which had relegated workers to a life of misery. This is what came to be known as “the social question” (Moggach 2000, 21).

17.3.2 The Origins of “the Social Question”

The Industrial Revolution rapidly and dramatically transformed the agricultural society of the Old Regime. With less and less work in the countryside, the cities were flooded with people, where conditions were often dire. The glut of labor available allowed factory owners to impose draconian conditions on their employees. Working hours were endless, there were no mandated rest periods, and workers could barely survive on their wages.

These “labor” difficulties spurred many Europeans to emigrate, primarily to the United States. Between 1580 and 1815 (235 years), three million Europeans had emigrated to America. From 1815 to 1860 (45 years) five million Europeans emigrated to the U.S. alone, and between 1860 and 1927 (67 years) the figure reached 27 million.24 Major waves of European emigration also headed for South America, particularly Italians and Spaniards leaving for Argentina, and Portuguese leaving for Brazil (Moch 2003, 147–157). Millions of Europeans also settled in Australia (West and Murphy 2010, 9). The conditions, which these immigrants encountered, were often precarious. Nevertheless, the New World’s unstoppable growth offered many more opportunities than the “Old World”, where society was much more structured and opportunities for social mobility much more restricted.

Nevertheless, while many left, even more stayed on the Continent, and this generated an increasingly unsustainable situation for the growing mass of people crowded into its cities, many unemployed, or with jobs that confined them to perpetual poverty.

The abominable conditions to which these proletarian masses were subjected during the second half of the nineteenth century in Europe are expressly described in the following text by Vicens Vives, one of the most lucid Spanish historians of the twentieth century:

  • … the masses and social proletariat were soon melded, as capitalism’s evolution tended to concentrate wealth in the hands of a small core of people while an increasing number of had to live off their work, whether in large factories or in the commercial institutions of Big Capitalism. Thus, the proletariat came to be made up not only of former workers and craftsmen, but of the new masses of peasants who flocked to the cities to labor in factories and workshops.

  • Large industrial companies, which amassed enormous amounts of capital, had thrived thanks to economic liberalism. Liberal economists called for the absence of any intervention in corporate production and labor policies. The enrichment of the nation seemed to ratify the validity of their doctrines, but it should not be overlooked that this wealth ended up in the hands of a relatively small economic elite. To increase their revenues early and mid 19th-century industrialists did not hesitate to subject their workers to the harshest of labor conditions. Although these conditions varied greatly between the different nations, broadly speaking workers toiled for 13 to 14 hours a day, under unhealthy conditions, and for wages which barely allowed them to survive given the cost of living. With unrestrained access to cheap labor, companies even turned to employing children and women, upon whom the long hours and grueling work took a heavy toll (…) There were no social welfare laws providing workers with any protection in the event they were disabled, or any security once they were too old to work any longer.

  • But even more disturbing was the worker’s new spiritual condition and his relationship to his trade and employers. Traditionally apprentices and workers labored alongside master craftsmen to learn the different trades, with the latter group inculcating a love for the craft and a dedication to fine work in the former. Between employer and worker and master and apprentice there existed ties of friendship and solidarity. The “rationalization” of industry shattered these ties. As the Industrial Revolution progressed work became an activity which allowed one to survive – and in many cases just barely. Filling immense factories, employees performed specialized tasks and formed part of assembly lines under the supervision of other wage earners like themselves. Workers began to view their companies as hostile entities for which they had no affection and where they had to struggle (by force, if necessary) to receive higher wages, a reduction in working hours, or compensation during old age or in the event of accidents. (…).

  • The glaring inequalities between employers and their employees were the first factor giving rise to a collective awareness among them regarding the shared interests it behooved them to defend. (…) Opposition to the working conditions of the day crystallized in a broad social movement, whose manifestations ranged from constructive to destructive, from peaceful to violent. The most relevant and consequential aspect of the workers movement was the collective dimension it adopted, in both the social and political spheres. Through this collectivism the masses, for the first time, took history into their own hands and became its protagonists.25

The emergence of organized labor movements began to transform European economics and society, soon impacting its politics and constitutions, as the surging pressure exerted by the proletariat called into question the principles of the liberal state which, according to its critics, had allowed for deplorable degrees of human exploitation.

17.4 The Constitutional Consequences of the Social Question

17.4.1 From Censitary to Universal Suffrage

The first consequence of these drastic social changes was an expansion in the number of people authorized to vote in elections.

In the mid nineteenth century, the European nation-states’ swelling wealth allowed the middle class to achieve a degree of political influence, as it was incorporated into the electoral base when censitary and indirect suffrage was abandoned, giving way to universal (male) suffrage.26 In the United States, the transition to universal suffrage was a consequence of the incorporation of new, non-slave states into the union populated by many small property owners, a process that would be consolidated after the end of the Civil War in 1865. In Europe, the expansion of suffrage came about in some countries progressively, as it happened in England between 1832 and 1918, and in others abruptly, as it was the case in France in 1848, though it would be consolidated after 1875; in Prussia, in 1850, at least formally; and in Spain, first between 1868 and 1875, and then on a permanent basis after 1890.27 These were clear signs that European politics was undergoing a historic shift.28 Women suffrage, as we have seen in the previous chapter, would not appear until the twentieth century.

Universal suffrage, despite being initially limited to men, swung open the doors to masses of workers who had become “class conscious” in the wake of the publication, on February 21, 1848, of Karl Marx (1818–1883) and Friedrich Engels’ (1820–1895) Communist Manifesto (Manifest der Kommunistischen Partei) a powerful proclamation of communist principles, which ended in the following manner:

The Communists disdain to conceal their views and intentions. They openly declare that their ends can only be attained by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at the prospect of a communist revolution. The proletariat has nothing to lose but its chains. They have a world to win. Working men of all countries, unite!29

17.4.2 The Questioning of the Laissez Faire Principle: The Socialist Approach

Galvanized by Marxism, the working class struggled to replace the laissez faire state with another model, one which endorsed the exercise of political power to prevent the exploitation of man by man, thereby threatening one of the basic individual rights on which the liberal state was based: the right to property.30 From Romantic Socialism to Scientific Socialism

In 1754, Rousseau, in his Discourse on the Origin and Basis of Inequality Among Men, had already described private property as the root of social inequality (Viroli 2002, 73). France’s François-Noël Babeuf (1760–1797) would seek to apply these ideas as the first to seek to extend the revolution to the social level (Conspiracy of the Equals) before being executed by the Directorate (Rose 1978).

At the theoretical level it was the French Romantic Socialists, such as the Count of Saint-Simon (1760–1825) and Charles Fourier (1772–1837), who laid the foundations for economic authoritarianism by advocating the abolition of inheritances and state acquisition of the “means of production”, as a means by which to achieve social justice, to be based on the principle of “from each according to his ability, to each according to his needs”. The movement grew more radical with Pierre Proudhon (1809–1865), Louis Blanc (1811–1882)31 and, above all, Marx himself. The Revolutionary Approach

Socialism represented a full-on attack against the premises of the liberal state, as it advanced the idea that the defense of the disadvantaged should constitute one of the government’s essential aims, a principle openly criticized by liberals, who feared its social consequences and dreaded a return to an all-powerful and authoritarian state.

In France the Revolution of 1848 clearly constituted an uprising of the masses (Geary 1984, 25–89) as opposed to the quintessentially bourgeois Revolution of 1830 (Pilbeam 2006, 168–180).32 In fact, the first article of the Constitution of the Second French Republic (1848–1851) defined the new regime as a “social republic” and introduced universal (male) suffrage, definitively adopted in France, displacing censitary electoral systems.33

It is worth pointing out that in the mid nineteenth century France was, along with the United States, the only western country with a large number of small landowners, in the former as a result of the Revolution of 1789, in the latter as a consequence of the staggering abundance of land available. Thus, in these nations citizens were more sensitive to the dire conditions suffered by workers in the wake of the Industrial Revolution, and convinced by their social realities that this was not an inevitable state of affairs.34 In fact, the French Constitution of 1848 recognized as one of the state’s primary functions that of providing citizens with work, an objective it pursued through the creation of “National Workshops” (ateliers nationaux). This policy, without any doubt, marked a precedent in the construction of what would come to be called the “welfare state”.35

Liberals, however, put up strong resistance to these kinds of developments. It is noteworthy that on September 12, 1848, the very lucid liberal thinker Alexis de Tocqueville (1805–1859) rose to address the French Second Republic’s Constitutional Assembly to deliver a “speech against the right to work” in which he rejected a series of social rights which he viewed as utterly incompatible with the individual rights which the liberal state ought to ensure. In his view, accepting these postulates meant opening the door to the return of political authoritarianism.36

Following Marx and Engels’ Communist Manifesto Socialism took on a decidedly political tint and became an international movement overtly aimed at toppling the liberal state. To achieve this Marxist Socialism espoused class struggle, i.e. the proletariat as a united, international class violently overthrowing the exploitative class: the bourgeoisie. For this purpose, the International Workingmen’s Association (IWA) was founded in London in 1864, also known as the First International (Freymond and Molnár 1966, 3–35). Social Democracy and Mass Parties Emerge

During this stage, “scientific” Socialism was clearly revolutionary in nature, as it called for an armed uprising against the liberal established order, seeking the institution of a totalitarian regime: the dictatorship of the proletariat, as the first stage of a process leading to the creation of a state devoid of social classes. The failure of the Paris Commune (March–May 1871), however, would lead Marx to renounce violence, and at the 1872 Hague Congress, radical anarchists led by Bakunin (1814–1876) were actually expelled from the IWA (Nomad 1966, 68). Henceforth the socialist movement’s aim became to control the liberal state by legal means through the corresponding electoral processes. This was Social Democracy, a political movement which arose when supporters of Marx and La Salle met at Gotha in 1875 (Manuel 1997, 208).

This explains why it was at this time when the first mass parties were founded: in 1875 the German Socialist Workers’ Party,37 the Spanish Socialist Workers’ Party in 1879 (Gillespie 1989), in 1892 the Italian Socialist Party,38 the English Labour Party in 1900 (Worley 2009, 3), the Russian Socialist-Revolutionary Party in 1901 (Hildermeier 2000, 42–50), and in 1905 the French Section of the Workers’ International (SFIO), the forerunner of the current French Socialist Party.39

17.4.3 The Conservative Approach: Bismarck’s Sozialpolitik

It is certainly a paradox that the social rights of workers would begin to receive effective protection from a conservative government such as that in Imperial Prussia, a development that started because Bismarck, despite the fact that he belonged to the Prussian aristocracy, was astute enough to realize the need to reduce the pressure exerted by the socialist movement, spurring him to adopt a policy of worker protection which may be considered a precursor of the “welfare state”.

After the establishment of the Second Reich in 1871, and despite his resounding victories over France and Austria, the all-powerful Bismarck faced strong internal opposition from the bourgeois parties in the Reichstag. It was then when to buttress his political position, he opted to win over and ally himself with the working class by endorsing the state’s adoption of policies favoring its welfare (Roth 1984, 59–84). In a speech before the Reichstag on November 17, 1881, Emperor William I recognized that it was incumbent upon the state to promote the well-being of all its citizens, especially the most vulnerable and needy, through the appropriate institutions and using those resources at society’s disposal. At this point Bismarck’s government adopted what would come to be termed “social policy” (Sozialstaat), which took the form of a series of legislative measures passed between 1883 and 1889.40 This set of laws would be incorporated into the Social Insurance Code of 1911, and enabled the Weimar Republic to expressly recognize the right to social welfare protection.41

The social protection model backed by Bismarck would be adopted in the United Kingdom from 1906 to 1911, thanks to Lloyd George and his advisors W.H. Beveridge and Winston Churchill, who urged the government to take a step forward and break with the outmoded tradition of social assistance provided exclusively in the form of the “poor laws”. It should be noted that 20 years later the British government would take a further step to reinforce social protection by assuring state funding for the system, as under Bismarck’s model it was only sustained financially by employers and workers.42

17.4.4 The Return of the Interventionist State

In general, however, Europe’s governments would remain relatively reluctant to protect the least fortunate classes so long as their liberal states were enjoying considerable economic growth, fruit of their colonial expansion. This would abruptly change, however, with the catastrophic turning point of World War I, a “collective suicide” committed by Europe’s all-powerful nation-states which would lead, among many other things, to the success of the Russian “Soviet Revolution” in 1917. These developments in Europe would give rise to a new constitutional model, reflected, on the other side of the Atlantic, in the Mexican Constitution of 1917, which featured references not only to “individual rights” but “social rights” as well (Meade 2010, 169–170).43 World War I and the Russian Revolution would prompt western governments to generally embrace this recognition of the need for the state to take an active role in mitigating economic inequality and social injustice.

17.5 The Russian Revolution and the First Triumph of Totalitarianism

The principle of state intervention to reshape society made huge strides, especially after 1902, when Lenin’s ideas prevailed at the Second Congress of Russia’s Social Democratic Labor Party, at which he advocated revolutionary radicalism and the triumph of the proletariat by violent means. At this point there appeared “Bolsheviks” (“members of the majority”) and “Mensheviks” (“members of the minority”), led by Julius Martov, who advocated a “social-democratic” approach to change, more in keeping with Marxist orthodoxy since 1872.44

17.5.1 Lenin and the Soviet Revolution

Vladimir Illich Ulianov (1870–1924), a lawyer and intellectual (alias “Lenin” as all Russian revolutionaries used pseudonyms to evade the tsar’s police) dissented from Marx in his belief that the road of social democracy, as proposed by the author of Das Kapital to transform the social order, was too circuitous. Instead, he advocated a more expeditious route: violent revolution led by a select group of professional revolutionaries. Among this cadre Lenin included Iósiv Dzugashvili (1878–1953), better known by his revolutionary nickname, Stalin, or “man of steel”, who was of humble origins and, in contrast to Lenin, not an intellectual but a man of action.45

Lenin’s strategy led to victory in nothing less than three revolutions: that of 1905 and the February and October Revolutions of 1917 (Haimsom 2005). The first did away with autocracy, the second with monarchy, and the third with private property. These revolutions can be called “soviet” in that they replaced the traditional political and social order of the Russian monarchy with a collectivist regime led by soviets—groups of workers and soldiers designed in 1905 by León Trotsky, the pseudonym of Lev Davidovich Bronstein (1879–1940), one of the Russian Revolution’s most radical and effective leaders.46

17.5.2 International Proletarianism vs. the Capitalism of the Liberal Nation-States

World War I Germany’s high staff actually contributed decisively to the October Russian Revolution by making the decision to allow Lenin and all the leading Russian revolutionaries, who had taken refuge in Switzerland, to travel to St. Petersburg in a special train, via Helsinki (Pearson 1991).47 Since the outbreak of the war, the Germans had been forced to fight on two fronts, and wished to overthrow the tsar to be spared fighting the Russians in the east. The German plan seemed to work at first, as after the triumph of the Soviet Revolution Lenin signed the Brest-Litovsk Treaty (March 3, 1918), in which the new Bolshevik Russian regime (Hardach 1981, 233–234) not only pledged to cease hostilities against Germany, but also suffered significant territorial losses.

The German generals did not take into account that Lenin considered the World War I a struggle between capitalists and that, consequently, he was convinced that German workers would not fight against their Russian comrades, but against the German oligarchies that had enslaved them. The Germans perceived the danger posed by the triumph of the Soviet Revolution too late and, as a result, ended up seeking an armistice to end World War I, signed on November 11, 1918.48 Just months later the Third International, or Kommintern (of International Communism) met, with the precise objective of fomenting proletarian revolution throughout the world.49

In fact, in the year 1919 a wave of revolutionary processes swept through Europe, starting in recently defeated Germany, where in January of 1919 the Spartacist Uprising (January Strike) broke out, headed by Karl Liebknecht and Rosa Luxemburg (December 1918–January 1919), violently put down by the government of the Weimar Republic, under the leadership of the socialist Friedrich Ebert (Henig 2006, 8–12).

17.6 The European Oligarchies React by Defending “National Socialism”

The Soviet Revolution dealt a great blow to the ruling classes of the western states, which did not hesitate to organize and to back parties appealing to the masses of workers, with platforms of aggressive social reform in a desperate attempt to prevent the triumph of Bolshevism. This was the “Third Way” (Gentile 2005, 59), a compromise between the old parliamentary system and the communist revolution.

This “language of class anxiety” (Maier 2011, 22–38) would lead to the rise of Benito Mussolini (1922–1943) in Italy and Adolf Hitler (1933–1945) in Germany, both populist leaders who ended up imposing fascist dictatorships which actually did make surprisingly significant progress in the area of labor and economic reform.50

After coming to power in 1922 by way of a coup détat (The March on Rome), Mussolini strengthened the executive, reorganized the government administration and created public bodies to bolster the economy through massive investment in public works and industrial consortia. As a result, Italy overcame its economic crisis and enjoyed an era of great prosperity that made the fascist regime, at least initially, extremely popular.51

In Germany, the authoritarian constitutional tradition stemming back to the 1850 Prussian Constitution, was significantly reinforced by Bismarck’s imperial conceptions during the Wihelmine period (Eley 1996). Germany’s defeat in World War I, the Spartacist Revolt and the Versailles Diktat, rampant inflation, which took off in 1923, and the fallout of the Great Depression after 1929 provided fertile ground for a totalitarian model of the state in Germany.52 All these circumstances explain why Hitler, after failing to pull off his own coup (Beer Hall Putsch, Munich, 1923), rose to power 10 years later via election in 1933, and quickly imposed a fierce dictatorship. Hitler’s regime enjoyed public support because he, like Mussolini in Italy, also launched a policy of state economic intervention which alleviated the massive inflationary crisis that had plagued the country. As a result, in just 3 years the German economy became the world’s second strongest, topped only by the United States.53

Both Mussolini and Hitler, embraced a state model according to which the government actively intervened in the economy and adopted the measures necessary to prevent social injustice, but on a strictly “national” scale, soundly rejecting any notions of international solidarity, as forwarded by Lenin. It is highly significant that the party with which Hitler came to power was called the National Socialist German Workers Party (Nationalsozialistische Deutsche Arbeiterpartei, NSDAP), a political organization founded in 1920, months after the failure of the Spartacist Uprising and the foundation of the Kommintern.54

Hitler, however, sought not only to take over the German state, but to redefine the very idea of the “nation”, propounding a racist concept (McDonough 2003, 60) according to which the German people (Deutsches Volk) needed to be purified to contain only pure Aryan blood (Mosse 1989, 43–58). This warped notion of the nation (Stolleis 1998, 64–86) led to the extermination of entire ethnic groups (genocide), including the Jews and gypsies, as part of the Nazis’ “Final Solution” (Endlösung), along with the elimination of persons with physical and mental defects to improve the race through eugenic engineering (Browning 2004, 374–423).

17.6.1 Perfectly Legal Dictatorships

In this general overview, we do not have enough space to present a detailed analysis of totalitarian regimes and their institutions. We can make the general observation, however, that dictators, whether communist or fascist, have invariably sought to adorn their autocratic regimes with the trappings of legality.

Thus, for example, in Italy, Mussolini never repealed the country’s constitutional regime, nor did he dethrone the king. Rather, he merely “suspended” the Albertine Statute. In fact, Mussolini never even formally became the head of state. During the fascist ventenio, Italy remained a monarchy. This did not, however, prevent the fascists from carrying out a gradual legal assault on the state, which would ultimately allow them to control the government as Italy’s sole party, beginning with electoral reform through the Acerbo Law (1923), which rewarded the party winning the elections—even if by a narrow margin—two-thirds of the seats in the national legislature (Ghisalberti 2012, 347–348).55

In the case of Nazi Germany, one must remember that Hitler came to power legitimately by winning national elections and forming a coalition with Germany’s conservative parties, headed by Vice-Chancellor Franz Von Papen, in a government led by the Nazi leader on January 30, 1933. Following the dissolution of the Reichstag and the call for new elections, Hitler, in response to the Reichstag fire of February 27, 1933, imposed the “Decree for the Protection of the German People and the State” (Verordnung des Reichspräsidenten zum Schutz von Volk und Staat), issued by President Hindenburg (Kershaw 2000, 439), which restricted public liberties a week before the elections to the Reichstag. This was the beginning of what Alan Bullock calls the “Revolution after power” (Bullock 2005, 137–171), a movement that was consolidated when the new assembly elected on March 5, granted Hitler full powers through the Enabling Act of March 24, 1933.56 The fascist dictatorship was actually established in a legal manner, within the constitutional framework of the Weimar Republic,57 preserving the façade of the “civil Rechtsstaat” (Stolleis 1998, 7) but forcing most German constitutionalists to emigrate.58 The same situation arose, as we saw in Chap. 14, in France in the spring of 1940, when the National Assembly and Senate voted to invest Marshal Pétain with full powers so that the aging soldier could reform the Constitution and create a new authoritarian state, thereby liquidating the Third Republic.

As for Soviet Russia, the October Revolution generated a very curious totalitarian state featuring successive constitutions (1918, 1924, 1936, 1977) containing a peculiar version of public law, including provisions such as an election rule whereby only the workers were allowed to vote (appearing in Lenin’s first constitution), which deprived all other social groups, from the middle class up, of political representation—a kind of censitary suffrage turned on its head to favor the workers rather than the elite. After Lenin’s death in 1924, Stalin, from his post as General Secretary of the Communist Party, managed to gain power by, over a 10-year period, killing off all his revolutionary comrades from the first stage—including Kamenev, Zinoviev and Trotsky, among others—through a set of kangaroo courts known as the “Moscow Trials” (1936–1938), in an effort to acquire total power and stigmatize any real or suspected opposition (Pringle 2006, 167–168). From this moment until his death (1953), Stalin went on to impose an iron dictatorship over a monolithic state based on relentless police repression, terror and massive propaganda.59

This, however, did not prevent him from approving his own constitution in 1936. Stalin’s fundamental law was peculiar, as it underwent constant changes, governing aspects which would normally be dealt with by ordinary laws, or even regulations (Duverger 1973, 422–424). In fact, Soviet constitutions were not lasting and stable foundational texts, but rather legislative hodgepodges undergoing constant change., including the Brezhnev Constitution of 1977, which officially gave up on the “dictatorship of the proletariat” and inaugurated the era of “Developed Socialism” (Daniels 1993, 313–315). All these attempts at constitutional texts established a legal framework suitable for a regime in which the important thing was not the government, nor the legislatures, nor the courts, but the power of the sole party (Communist Party of the Soviet Union), which constituted the core of the state. This is why one only came to form part of the Party after a long and careful selection process for which it was necessary to spend several years as a candidate before joining the new dominant class (nomenklatura).60

All of these classes of totalitarian states certainly merit a more detailed study, as they are extremely germane and valuable towards an understanding of the extent to which law in these regimes did not serve as a limiting force, but rather a legitimizing instrument of power, something necessary after the collapse of the Ancien Régime and the disappearance of tradition as the legitimate justification of power. Above all, they illustrate how each new autocratic regime ended up creating its own legitimacy and legal framework. From the constitutional history perspective, the most interesting fact is that specific aspects of these totalitarian regimes still form part of our democratic states in the twenty-first century. Without going any further, one can cite the power structure prevailing in our current mass parties, whose leadership is determined by conventions at which cadres of elites are elected which end up enforcing party discipline, particularly when it comes to drawing up electoral lists. These practices have led specialists in public law to expressively designate our contemporary political party leaders the “New Princes”, who have turned our democracies into “Partocracies” (Rubio Carracedo 1995, 72–77). Massification comes at a price.61

17.6.2 An Adapted Legal Theory: From Ihering to Carl Schmitt

The consolidation of the nation-state in the nineteenth century also decisively transformed jurisprudence, furnishing law with a political dimension and meaning, as it gradually evolved into an instrument of the state. The herald of this trend was Rudolf von Ihering (1818–1892), significantly, a contemporary of Marx (1818–1883). Over the course of his life, von Ihering shifted from embracing a strictly dogmatic conception of the Jurisprudence of Concepts (Begriffsjurisprudenz) towards a more realistic and pragmatic understanding of law (Luhman 2004, 344).62 In his work The Struggle for Law (Kampf ums Recht), published in 1872 (von Ihering 1997), he bases his view of the law on the relationships between it and power. His approach culminated in his masterpiece Law as a Means to an End (Der Zweck im Recht), published between 1877 and 1883, in which he posits law not as an absolute value but as the mere product of a relationship established between parties with clashing interests. The regulatory system, then, reflects a conflict of interest, and it is the juror’s duty to ascertain in each instance the interest which ought to be served (von Ihering 1999). This is the basis of what has been called the “Jurisprudence of Interests” (Interessenjurisprudenz) (Bomhoff 2013, 17). The following step was for the state to use the law to defend the politically dominant interest.

The association of positive law with state law reached its zenith when Hitler came to power, in the form of the Rechtserneuerungsbewegung (Reformist Legal Movement), whose primary exponent was Carl Schmitt (Stolleis 2004, 169–173). When it comes to understanding totalitarian legal systems, it is worth looking at the criticism offered by Carl Schmitt of the liberal model of the state, in which he justified the establishment of an all-powerful regime, imposed upon the citizenry based on social considerations which he ultimately extended to all areas.63

The scholarly approach to law of Carl Schmitt (1914–1985), sought to provide theoretical underpinnings for the German National Socialist State before he ended up falling out with Hitler. However, Schmitt’s conception of the state went much further. One would expect Schmitt’s ideas to have been utterly discredited and forgotten after the collapse of Nazism. In fact, however, his works are still being republished and widely read, a telling indication of the extent to which they contain a lucid analysis of the harsh reality of the mass-based states prevailing in the first decades of the twentieth century.64

According to Schmitt, the limits imposed by the liberal model of the state had led to the development of intermediary bodies that completely overpowered and subverted the state, which was reduced to obeying their mandates and, therefore, failed to fulfill its primordial function of protecting civil society.

Schmitt was opposed to the rule of law because the legal system that limited state power was controlled and determined by the indirect and private “powers of society”, uncontrolled and unseen, who cared only about their own interests instead of defending the common good.

As magnus homo, or a sovereign person of the state similar to God, the Leviathan was destroyed from the inside in the 17th century… but its work, the state, survived it with an army and a police force, an administrative and judicial apparatus, and an effective and specialized bureaucracy. The state increasingly has come to resemble a mechanism and a machine, and the development of the concept of law has gone hand in hand with this evolution (…) the law has become a technical means of taming the Leviathan (“placing a hook in the Leviathan’s nose”.). The state itself metamorphoses into a positivist legal system.65

This situation, in Schmitt’s opinion, called for the reestablishment of a direct link between the individual and the state, instead of one mediated via a so-called “representative assembly”, whose laws corrupted this relationship.

17.6.3 The Expansion of Social/Legal Protection in the Interbellum Period

The liberal state model suffered a great blow in Europe as a result of World War I, but in the United States its spirit was not only intact but even reinforced, as the country flourished, establishing itself as the world’s most powerful nation after 1918. Yet, in America, which continued to embrace free markets and limited government in the wake of the Great War, the principle of the need for public intervention in economic matters was soon to be accepted, not as a consequence of war, as was the case in Europe, but in response to the devastation wrought by the Great Depression, which shook the nation’s faith in laissez faire and the liberal model which it had hitherto embraced with few reservations.

17.6.4 The Crisis of the Liberal State Model in the U.S.A.: The New Deal The United States After World War I

Until 1918, the United States had been just one more power within the set of western nations, in a world controlled, as we have seen, by the European nation-states. The Great War, however, would alter this situation forever. A single statistic is sufficient to illustrate the transformation: in 1914, the United States owed the various European states some 3 billion dollars. The trade balance was, thus, heavily tilted in the Continent’s favor. By 1918, the European states owed the U.S. federal government no less than 14 billion dollars—almost five times more.66

Whereas Europe had been ruined and destroyed during this period, the United States enjoyed an era of burgeoning prosperity. With immense natural wealth, a huge domestic market, the absence of customs barriers, and new techniques that made possible better and cheaper production (like scientific management, or “Taylorism”, and assembly lines), the United States became a society marked by mass production and consumption (Chambers 2000, 61–63). This transformation enabled the country to become the world’s premier economic power.67 In 1925, the U.S. provided the global economy with more than half its iron, coal, steel, copper, oil and cotton, despite a population accounting for less than 5 % of the world. Thanks to this wealth the U.S. government was able to grant massive loans to a Europe ravaged by war, such those via the Dawes Plan (1924), followed by the Young Plan (1930), for the settlement of German war reparations and national recovery (Murphree 2005, 269–272).

The two terms of President Calvin Coolidge (August 2, 1923–March 4, 1929), were a time of great economic prosperity, the so-called “Roaring 20s”, an era of tycoons like the most famous of them all, John Davidson Rockefeller (1839–1937), who amassed huge fortunes and built genuine empires in just a few years (Morris 2005). The private sector’s resources dramatically surpassed those of the public sector, a situation consolidated by America’s still relatively pristine liberal state model. This spectacular prosperity led people to speculate on the stock exchange without initial capital, using borrowed money to invest on Wall Street, trusting that its constantly rising dividends would enable them to repay their loans and turn a profit. For many years this practice actually worked.68 Alongside the “real economy”, however, a speculation-driven bubble gradually swelled, considerably distorting the appearance of prosperity. At the end of the first decade of the twenty-first century, this situation has become eerily familiar to western economies. The Great Depression

When Coolidge completed his second term, the American presidency remained in Republican hands, as he was succeeded by Herbert Clark Hoover (1929–1933). Within just months of Hoover’s election, the U.S. financial system collapsed. From Wednesday, October 23 to Tuesday, October 29 (Black Tuesday), the New York Stock Exchange plummeted. By the time, the market stabilized in mid November stocks had lost half their value. Fifty billion dollars had disappeared into thin air.69

The Wall Street collapse was, in fact, only the symbol and most vivid illustration of a wider crisis. In reality, the entire American economic system unraveled in what came to be called the “Great Depression”.70 The worst part of this crisis was that, because all the western countries depended on America’s prosperity, the economic earthquake in the U.S. sent out shock waves that destroyed banks and factories all around the world, leaving millions unemployed. Tariffs were raised and a monetary crisis ensued. On September 21, 1931, the Bank of England abolished the gold standard (Kindleberger 2013, 157), triggering the collapse of the pound sterling, hitherto the world’s benchmark currency, which dragged down the currencies of many other countries with it.

This was the first serious global financial crisis (Boyce 2012), and it had dramatic social consequences. The middle class was devastated71 which, among other things, allowed Hitler to win the German elections in 1933, by promoting himself as a populist leader,72 who would put an end to the abuses committed by the capitalists who had plunged the world into chaos, and do so without falling into the hands of Bolshevik revolutionaries.73 After Communist totalitarianism, Italian Fascism and Germany’s “national socialism” became compelling alternatives to the liberal state, whose very survival was called into question. The 1929 Great Depression would have important constitutional consequences in the U.S.74 Roosevelt’s New Deal

The liberal model of the state did not disappear, but it did have to be adapted to address new circumstances, even in the United States of America, the world’s most liberal regime. This was the task which befell the nation’s 32nd president, Franklin Delano Roosevelt (FDR), the longest-serving in the country’s history, as he was in the White House from March 4, 1933 until April 12, 1945. Elected four times, he died in office, cutting short his final term.75

FDR, a Democrat, triumphed in the election of 1933 with a platform whose central tenet was protection for the common man from the ravages of the Great Depression. To this end he proposed a “New Deal” based on the premise the state should intervene to stimulate the economy and, in general, to alleviate the situation of the needy.76 This program was carried out in two phases. Immediately after taking office, Roosevelt began to take steps to revive the U.S. economy in the short term (“The 100 Days”.). In 1935 a second, more ambitious, longer-term phase began. The New Deal included federal aid to farmers, public assistance to the homeless, and established the nation’s first social welfare system (Social Security Act, August 14, 1935), agricultural protection legislation (Agricultural Adjustment Act, May 12, 1933) and an ambitious initiative known as the National Recovery Administration (NRA), a government body created via the National Industrial Recovery Act of June 16, 1933, a bill encapsulating the very essence of the New Deal (Beaudrau 2005, 97–120). Its aim was to regulate economic affairs, including work hours, minimum wages and guaranteed prices. The federal government strove to bolster the economy through a bold policy of public works, including the creation of a government agency for the exploitation of the Tennessee River (Tennessee Valley Authority Act, May 18, 1933), featuring major investments to improve its navigability, control floods and generate electricity. Also undertaken was the construction the Hoover and the Colorado River Dam, on the border between the states of Arizona and Nevada, which took 5 years to build (1931–1936) and whose workers founded the nucleus of what is today the city of Las Vegas. Thanks to the New Deal what American constitutionalists call the Administrative State went from a question of words to actual deeds (Rohr 1986, 111).77

17.6.5 A New Deal for Europe?

Amidst the aftermath of the First World War, the liberal model would not be reestablished in Europe. In fact, to prevent the spread of Soviet-style revolution the oligarchies of the European states did not hesitate to launch serious social reform to match the promises of Soviet Russia, where in 1918 the platform of the Bolshevik Party called for full employment through the creation of a sweeping Social Security system. Thanks to Nikolai Aleksandrovich in 1925, the Soviet Union introduced the first national system of free medicine, made possible by the “nationalization” of the country’s doctors.78 In the same line, the Stalinist constitution of 1936 stated that citizens had the right to a public health system funded entirely by the state. The Soviet system guaranteed every citizen employment, and favored an increase in birthrates through the assignment of public housing, with larger homes for larger families (Majnoni d’Intignano 1993, 30).

In western Europe states with non-democratic governments actually made greater progress in the area of protection for workers and the socially disadvantaged than did parliamentary democracies, with the clear exception of democratic England, where the welfare state saw considerable advances during the post-war period when the principles of the Beveridge Plan of 1942 (Rosanvalllon 1992, 147–148) were implemented.

The case of France, meanwhile, is paradigmatic: the Left triumphed in the elections of 1937, with its Popular Front victorious, but the measures adopted in favor of the poor were limited. The most important achievement of André Léon Blum’s government were the social benefits it secured for French workers, including a reduction in work hours to 40 per week, guarantees of paid vacation time (15 days per year),79 and respect for trade union representation and social negotiation through collective bargaining agreements. Moreover, employment immediately became one of the main priorities of the “French State” created by the two legislative chambers by virtue of an act passed on July 10, 1940, which did away with the Third Republic and granted Marshall Petain full powers to draft a new constitution. The French national motto, Liberté, Egalité, Fraternité (Freedom, Equality, Brotherhood), was even replaced by Travail, Famille, Patrie (Work, Family, Fatherland).80

There was also considerable progress made in the area of social protection under the dictatorships established in Italy, Spain, and, above all, Germany. In Italy, Mussolini’s fascist government not only bolstered the economy through major public works, such as the Mediterranean Highway and the excavation of the Roman Forum, but also founded major public companies and entities to reorganize production in key industries. At the same time Italy rearmed, launching imperialists campaigns in Libya and Ethiopia and intervening decisively in the Spanish Civil War. Mussolini’s regime acted to provide workers with legal protection through the Labor Charter of April 21, 1927,81 reinforced by the Law on Corporations of February 5, 1934, the creation of a mandatory “worker’s card” for salaried employees, and the implementation of the idea of vertical unions in which the principle of class struggle was replaced by that of corporate promotion. This was the “Corporate State” (Blinkhorn 2006, 39–43).

In Spain, the tepid social protection efforts initiated from 1883 to 1903 by the Social Reforms Commission (de la Calle 1989) led to passage of the Work Accidents Law (Ley de protección de los trabajadores accidentados) of 1900, which established Spain’s first social insurance system. Though the scope of this legislation was limited, after this point the pace of reform accelerated, with the foundation of the Institute of Social Reform (Instituto de Reformas Sociales) in 1905, the National Institute of Social Welfare (Instituto Nacional de Previsión) in 1908, and in 1919 the first insurance for retired workers (Retiro Obrero), and the law establishing maternity insurance in 1923.82 Social protection increased considerably under Primo de Rivera’s dictatorship because of the regime’s commitment to social worker protection and social welfare. Worthy of note is an initiative by Eduardo Aunós,83who issued the relatively revolutionary approval of the principle of mixed negotiation commissions consisting of both workers and employers to resolve labor conflicts; the socialist leader Francisco Largo Caballero was appointed in December of 1925 as councilor of state84; and a Work Code was approved in 1926.

During the Second Republic (1931–1936), political instability and the outbreak of the Civil War explain the meager progress made towards the consolidation of a social welfare system, save for the creation of a National Savings Bank (Caja Nacional) against “forced unemployment” in 1931,85 in contrast to the New State created by Franco on October 1, 1936,86 which made social welfare a top priority of the regime from the very outset (Aguilera-Barchet 2012, 671–672). In 1938, in the midst of the civil war, Franco’s government promulgated the Fuero del Trabajo (Labor Charter), the first of its “Fundamental Laws”, which may be considered the foundation upon which Spain’s Social Security system was built.87 The second of Franco’s Fundamental Laws, the Fuero de los Españoles (1945), in essence a declaration of fundamental freedoms, featured an extensive enumeration of social rights. In this regard Franco was clearly inspired by the ideas of the Spanish fascist party, La Falange, and its former leader José Antonio Primo de Rivera, whose legacy Franco sought to adopt (or co-opt, according his detractors) for his regime and party: the “National Movement”. This aspiration spurred Franco to create the Sindicatos del Movimiento (Movement Unions)88 and a specific jurisdiction for the defense of employees’ interests: the Magistratura de Trabajo (Work Magistracy), still in place today.89 May 1st was declared Labor Day in Spain (Fiesta del Trabajo), a celebration over which Franco personally presided every year.90 A decisive stage in the history of Spanish social welfare provisions began during the long period when José Antonio Girón de Velasco served as Minister of Work, creating Illness Insurance (1942) and an Obligatory Old Age and Invalidity Insurance (1947). It would not be until 1963, however, when a universal Social Security system was created, based on a publically managed, unitary and integrated social protection model funded by mandatory contributions imposed by the state on employees and employers.91

During the era of Primo de Rivera Spain’s Portugal saw an army takeover in 1926, with Portugal’s military class placing university professor Coimbra Oliveira Salazar in power. After serving as Tax Minister in 1928 Salazar was later appointed by the military as President of the Council of Ministers, which 1 year later allowed him to promulgate a corporatist constitution inspired by the Church’s social doctrines, specifically the Rerum Novarum encyclicals issued by Leo XIII (1891) and the Quadragesimo Anno of Pio XI (1931).92 With a similar objective Salazar would promulgate a “National Work Statute” in 1933 (Lewis 2002, 135).

An authoritarian and corporatist model of the state designed to achieve social welfare objectives also prevailed in Austria, drawing upon the works of Othmar Spann (Johnston 1983, 311–313) and imposed by Engelbert Dollfuss and Arthur Schuschnigg, until Hitler unilaterally proceeded to annex the country (Anschluss) on March 12, 1938 (Steininger 2008, 72–114).

With regards to Germany, it is noteworthy that the social welfare initiatives undertaken by Bismarck, far from being abandoned by Hitler, were actually expanded (Stolleis 2013, 133–148) with measures such as the launching of massive public works to stimulate the economy (12,000 km of highways), the rebuilding of the armament industry, and the creation of a model based on the mass consumption of goods previously available only to the most affluent. This effort included a law for the reduction of forced unemployment which succeeded in slashing the number of Germans out of work from six million to two million in just 3 years;93 the creation of a Social Security system, and legislation to prevent layoffs and child labor. Other social welfare measures adopted by Hitler’s regime included the granting of low-interest loans to engaged couples, major tax reductions for large families, and the construction of affordable housing for one or more families, to be built on the largest possible parcels of land. The social policies of Hitler’s government led to the construction of over 677,000 buildings in Germany between 1933 and 1938, and more than 1,458,000 subsidized homes for those of humbler means. This housing policy was complemented by rent control policies which did not allow prices to exceed 20 % of renter income. The sadistic brutality, military belligerence and the crimes against humanity committed by the Nazi dictatorship, however, would overshadow and led people to overlook these surprisingly significant advances in social welfare, which allowed Hitler to convert Germany from a country in shambles in 1933, when he took power, into the world’s second strongest economy in just 3 years.94

17.7 The Road to War

17.7.1 The Expansion of Totalitarianism: The Confrontation Between Communism and Fascism

From the point of view of constitutional history the triumph of totalitarianism in Russia, Italy and Germany ushered in an era characterized by brutal repression through the development of state security forces that crushed any attempts at dissent. Stalin, Hitler and Mussolini all killed or confined in concentration camps those who opposed their regimes. This system of terror was, however, “justified” by spectacular economic growth and concealed by propaganda touting the regimes’ achievements. Thus, liberal parliamentary government spiraled into crisis as attempted military coups and revolutionary uprisings spread, in both cases aimed at overthrowing the constitutional order to impose dictatorships which promised to more effectively solve the social and economic crisis plaguing the era.95

The same happened in Asia with Japan, a nation state that had emerged in 1853 from two and a half centuries of self-imposed peaceful isolation, but within a few decades, the country’s leaders embarked on a policy of aggressive territorial expansion. During the last half of the nineteenth century, the Western imperialist powers of England, France, and Germany established the model for acquisition of colonies in Asia and for the partition of China into spheres of influence. Near the end of the century, about the same time, Japan began to capture colonial territory, the United States and Russia also initiated their imperialistic expansion in Asia. Imperialism can be defined as direct or indirect domination of an industrialized country over a colonial territory or another country. Japan forcefully acquired three major foreign territories between 1894 and 1910: Taiwan in 1895 after the Sino-Japanese War of 1894–1895; Korea as a protectorate in 1905 after the Russo-Japanese War of 1904–1905, then as a colony when unilaterally annexed by Japan in 1910; and the Kwantung Leased Territories in 1905 in southern Manchuria when Japan succeeded to Russia’s leases after the Russo-Japanese War. When Emperor Hirohito ascended to the throne in 1926, Japan was enveloped in a struggle between liberals and leftists on one side, and ultraconservatives on the other, and becomes a semi-democratic regime, according to Takenaka, that had broken down in 1932. Then, an authoritarian regime in which the military projected strong influences was established, and brought Japan to the Second World War (Takenaka 2014, 1).

In line with this trend, in Spain on September 13, 1923 General Primo de Rivera imposed a dictatorship suspending the Constitution of 1876, less than a year after the March on Rome (October 27–29, 1922) which had placed Mussolini in power. His dictatorship lasted until January of 1930, precipitating the fall of the Spanish Monarchy on April 14, 1931.

The Second Republic introduced universal suffrage for the first time in Spanish constitutional history, as the 1931 Constitution gave women the right to vote. However, the triumph of Spain’s right wing parties in the general elections of November 1933 was never accepted by the Left. From October 5–9, 1934, as a reaction to the Right’s victory in said elections the previous year, PSOE Secretary General Francisco Largo Caballero led a revolt throughout Spain (which succeeded, ephemerally, only in Asturias) through which he sought to establish a Soviet-style regime. In February of 1936, new elections were held, and this time the leftist coalition, the Popular Front, prevailed.96 This time, however, it was the right wing parties that refused to accept the outcome. The Army rebelled in July, sparking the beginning of the Spanish Civil War.

There emerged, then, in non-democratic Europe two diametrically opposed camps: supporters of communist dictatorships and those who defended the triumph of the totalitarian, National Socialist or fascist models,97 which collided in the Spanish Civil War (1936–1939), the immediate ideological and military prelude to World War II (1939–1945).98

17.7.2 From the Spanish Civil War to World War II

The tension between communists and fascists swelled throughout Europe and ended up exploding in Spain, whose Civil War served as a brutal stage vividly illustrating the ideological clash in question, and the fierce commitment of the respective sides to their principles. While the democratic nations adopted policies of non-intervention, the totalitarian regimes sent aid to support their ideological allies. Stalin defended the Popular Front, or republicanos (the Republic disappeared, de facto, in July of 1936) while Mussolini and Hitler supported the España Nacional, a term employed by those who perpetrated the military coup following the creation of the Junta de Defensa Nacional on July 24, 1936, which gave rise to the common term for the insurgent right-wing forces: nacionales.99

The Spanish Civil War would prove to be only a prologue to a much greater global conflagration, World War II, whose origins may be traced to the imperialist policies through which Mussolini, and especially Hitler, strove to expand their nations’ territory, in Germany’s case in search of Lebensraum, or “vital space”.100 Both dictators had initiated widespread rearmament campaigns during the 1930s, portending the outbreak of a new worldwide conflict. In the final years of the decade Hitler moved audaciously to expand German territory, with the 1938 annexation of Austria (Anschluss), and the Sudetenland (a German-speaking region of Czechoslovakia), abided by England and France in the Munich Agreement (September 30, 1938)—a concession which would go down in history as a cowardly and imprudent act of appeasement. His next step was to occupy the Danzig corridor, imposed by the 1919 Versailles Treaty, which had divided Germany in two. Then, on August 23, 1939, Hitler shocked and appalled the world by signing a “Non-aggression Pact” with Stalin101 through which Germany and Russia effectively divided up Poland between them, and which, by removing Russia as a potential enemy in the impending conflict, spared Germany the daunting prospect of fighting a two-front war, as was the case in World War I.

On September 1, 1939, Wehrmacht troops crossed the Polish border, thereby igniting World War II, as the Allies declared war two days later.102 On September 17, it was the Russians’ turn to invade Poland, which they did under the pretext of protecting the Ukrainians and Belarusians inhabiting the eastern part of the country.103

For 21 months, the Wehrmacht seemed invincible—until June 22 when Hitler committed the colossal and fateful blunder of invading Russia (Operation Barbarossa), an offensive that would end in absolute failure, culminating in the Germans’ ultimate defeat at Stalingrad (June 1942–February 1943). The surrender of Von Paulus (commanding 90,000 soldiers, surviving from his initial force of 250,000), marked the beginning of the end for Hitler.

The paradox was that Stalinist Russia emerged on the side of the victors, and during the early post-war years the communists touted themselves, and were recognized by many in the west, as heroes and saviors. Celebrations of the Soviets’ feat, however, were short-lived as Stalin soon revealed his antagonism to any collaboration with the western democracies and his determination to subject territories gained during the War to the Russian yoke. Rejecting aid from the Marshall Plan (1947) for Eastern Europe, the Soviets occupied and laid claim to the region. The result was the dramatic geographical and ideological division of Europe: in the west capitalist democracies received massive aid from the United States, while in the east the Soviet Union took control over its recently seized satellite republics; what Churchill vividly termed the “Iron Curtain” had fallen with striking suddenness.104

Soviet Russia would continue to control and support communist dictatorships until the fall of the Berlin Wall in 1989, which brought about the dramatic and unforeseen implosion of the Soviet Union by the end of 1991.105

17.8 The Triumph of the Welfare State Model

Hitler’s defeat halted the spread of the totalitarian model of the state—at least in Western Europe. In contrast and opposition to the communist Soviet model, the United States stood as the primary defender and champion of the liberal state—though America was hardly as liberal as it once been, having clearly accepted enhanced social welfare as a legitimate end of government, and having adopted policies to pursue it. Consequently, following World War II a new model of the state arose according to which democracy and freedom would have to be reconciled with government intervention in the economic and social spheres. This interventionism, however, proved legally problematic both in the U.S., where the New Deal was initially attacked as unconstitutional, and in Western Europe, where the architects of the law and state had to develop a model in which public power could once again be delimited by constitutions.

17.8.1 The Welfare State and the Rule of Law

From the point of view of Western constitutional history, the defeat of Italian fascism and German Nazism was followed by a need to regain a vision of the state based on and bound by the rule of law. This did not, however, involve the restoration of the pure liberal state, as it was understood that political power ought to continue to be exercised to prevent social injustice. This essential transformation had important constitutional consequences. In the United States Roosevelt’s New Deal faced opposition in both Congress and the Supreme Court, while in Europe, Hans Kelsen had to revive a constitutional model that made the rule of law compatible with government attention to social concerns. The New Deal and the U.S. Constitution: New Measures Raise New Questions

Once the panic unleashed by the Great Depression had subsided, voices in America’s private sector began to criticize the terms of the interventionist legislation that had been introduced to deal with the crisis. Many businessmen declared war on the New Deal, calling it a “socialist” program incompatible with traditional American individualism. Conservative politicians revolted106 and succeeded in getting the United States Supreme Court to declare some of the laws implemented under the New Deal unconstitutional. The Roosevelt Administration, however, fought hard against the idea of the Supreme Court attacking a democratically elected authority enacting policies allowing the country to overcome economic crisis.107

The confrontation between the Democratic president and the Supreme Court was an ongoing affair. The former was committed to establishing a new model of an interventionist government acting to defend the disadvantaged (welfare state), while the latter sought to retain the traditional laissez faire conception of the economy and the state. In the end Roosevelt won the clash with the Supreme Court simply because he remained in office for so long, winning re-election in 1936, 1940 and 1944. As a result, judges opposed to the New Deal gradually retired and were replaced by others sympathetic to the welfare state model, that consolidated what has been called the “New Deal Constitutional Revolution” (Purcell 2002, 238–255), which created in the U.S. the bases for the development of Administrative Law (White 2002, 94–128). When Roosevelt died in April 1945, he was succeeded by Vice President Harry S. Truman who, against all odds, was re-elected in 1948 in an extremely close election.108 Thus, when Dwight D. Eisenhower became the 34th President in 1953, the Democrats had held the White House for 24 years. By this point, the Republicans were in no position to abolish Roosevelt’s historic reforms, which had become entrenched. The principle of the Administrative State had come to be recognized as compatible with the U.S. Constitution109

The New Deal did not provide definitive solutions at the economic level, as the United States failed to truly emerge from the crisis until massive rearmament activity began in response to the outbreak of World War II, when the country became what President Roosevelt called “the arsenal of democracy”. However, it did radically change the social landscape in the United States, where social inequality was mitigated and unions protecting the rights of workers grew stronger. Though the nation’s pronounced commitment to free markets was pared back and tempered, even after these changes, the United States continued and still continues to embrace laissez faire much more strongly than does Europe.

Things were and are a little bit different in Europe, where the notion of a strong state, as we have seen, has deeper historical roots. This is why after the end of World War II in European democratic nations, from a constitutional point of view, there appeared an intermediate state model lying somewhere between the liberal and totalitarian alternatives, an interventionist state but one bound by the Rule of Law, a new constitutional pattern whose principles were perhaps best defined by the Austrian jurist Hans Kelsen. The Recovery of the Idea of the Social Pact. Hans Kelsen and the Contemporary Revival of the Rule of Law

After the Nazis’ defeat in 1945, eminent western lawyers and legal scholars acted to redefine a model of the state that, without giving up elements of social welfare, would be compatible with the democratic system. The leading figure of this movement was, without any doubt, the founder of the Vienna School of legal theory, Hans Kelsen (1881–1973). The Austrian devised a Pure Theory of Law (Reine Rechtslehre) through which he advanced the principle of Geltungsgrund der Rechtsnormen (“a foundation of legal validity”) aimed at rendering the law independent of political power.

The case of Kelsen is all the more interesting because initially, in his youth, he had been a strong advocate of law’s subordination to the state. In fact, in an early stage he had fully linked the two. In his first work, entitled Main Problems in the Theory of Public Law (Hauptprobleme der Staatsrechtslehre), first published in 1911 in the Austro-Hungarian Empire, he argued that the foundation of a law should only be sought in the mandate which affords it obligatoriness, by virtue of what he called the principle of “attribution” (Zurechnung), according to which a given act (illicit) necessitates a specific reaction (the sanction). According to this doctrinal approach, the law was simply whatever the state decided (Vinx 2008, 15–23)—which makes it easier to understand why the relatively late consolidation of the state in Germany, in the last third of the nineteenth century, led German lawyers to defend the idea of a strong state. Thus, for a young Kelsen the law required no other justification other than its simple recognition by legislators, who in this way became the legal sphere’s primary agents, to the manifest detriment of judges, whose function was not to transcend a perfunctory application of the law.

The political events culminating in the rise of Hitler’s Third Reich (1933–1945), however, prompted Kelsen (who had fled the Nazi regime, first taking refuge in Switzerland and later the United States) to alter his thinking, calling for a separation of the legal sphere from political power, differentiating legality and legitimacy (Maccormick 1989, 184–193). This was the concept which inspired his works The Pure Theory of LawReine Rechtslehre—1934—a work revised in 1960 (Kelsen 2005)—and, above all, General Theory of Law and State, published in 1941110 (Kelsen 2007). It was during this second stage of his thought that Kelsen formulated his famous theory of the logical structure which, applied to the general legal system, resulted in the formulation of the principle of a hierarchy of norms. Kelsen structured the legal system as an imaginary pyramid in which legal norms supported each other, constituting a “rising formation” (Stufenbau) at the top of which was the “fundamental norm” (Grundnorm), characterized by not depending upon on any other (Raz 2009, 122–160) and constituting the ultimate foundation of the legal system’s validity (Janzen 1937, 205–226).

From the point of view of legal history, Kelsen’s thinking unquestionably marks a return to the idea of the social pact (Leroy 2011, 361–374). The basic norm (Grundnorm) is the basis of the legal system’s legitimacy because it is the product of said pact, the essential rule by which a social community agrees to abide. The novel development was that in his new approach Kelsen did not focus on the state. Rather, the state occupied a secondary role, eclipsed by and subordinated to the law, to be administrated by a legal system that became the essence of the social pact. According to current legal thinking, the law becomes, then, a separate category, insofar as it justifies itself. It is “pure”, to use Kelsen’s terminology, because is separated or differentiated from the state (Somek 2006, 753–774) and not at its mercy, as was the case during the era of absolute monarchy, or under the totalitarian regimes of the twentieth century (MacCormick 1993, 1–18).

This does not, however, preclude the “constitutional pact” from including social rights as the basis of the agreement upon which the state rests.111 That is, the principle is compatible with greater or less state intervention in the lives of individuals. Thus, a Kelsenian approach is fully compatible with a “welfare state” provided that it is bound by the Rule of Law. The “Constitutionalization” of Public Law in Europe as a Buffer Against the Strengthening of the Executive

Kelsen’s doctrine represents a victory of law over power, the primacy of limits imposed by the legal sphere over the political realm (Kalyvas 2007, 122–160). Thanks to him, the trend in Western Europe after WWII was for constitutions to stand above and beyond election campaigns, and the establishment of constitutional courts has become widespread to ensure the protection of the social pact outlined in and guaranteed by state constitutions, thereby protecting minorities from temporary political majorities.112

In broad strokes, then, it may be said that Europe is moving towards the American constitutional model, according to which constitutions may be defended by judicial means from attacks upon them by politicians. The law must prevail—at least theoretically—against the “anything goes” spirit of political combat. However, this effort undoubtedly requires the “depoliticization” of the constitutional courts, which is not always easy.113

17.8.2 The Spread of the Welfare State After 1945

Prior to World War II, the adoption of social measures in the West did not mean the establishment of universal social welfare systems financed by the state—at least in democratic regimes, though, as we have seen, Hitler and Mussolini did institute sweeping state social welfare systems. After 1945, however, the western democracies which had defeated Hitler and Mussolini would take major steps towards the establishment of welfare states, within democratic and constitutional frameworks, by virtue of social welfare legislation, such as the adoption of the Beveridge System in the U.K.—the first comprehensive public health system fully funded by the state to appear in Western Europe (Majnoni d’Intignano 1993, 27–30).

The policy of economic interventionism initiated by Roosevelt in the United States had repercussions in Europe, where democratic governments also began to implement interventionist policies in the defense of workers. A quite significant example is that of France, where a provisional government issued an executive order (ordonnance) creating a Social Security system in 1945114—something that the Third Republic proved incapable of doing, even during the Popular Front (leftist coalition) period.115 In the second half of the twentieth century, most advanced western countries established universal public health systems financed by taxation, controlled by the legislative branch, and managed by a public body—with the exception of the United States.116

17.8.3 The United States Stands Alone: From Roosevelt to Obama

Despite the implementation of the New Deal to fight the consequences of the Great Depression, following World War II America diverged from its European counterparts by never providing for universal, state-provided medical coverage, leaving Americans to continue to depend upon private medical insurance. For decades, many members of the Democratic Party have called and campaigned for the introduction of federally-backed medical coverage for all citizens, with plans and efforts intensifying during the 1960s under President Kennedy and President Johnson, with their “New Frontier”, “Great Society” and “War on Poverty” programs. Despite the optimism and idealism which characterized the era, these plans never came to fruition, and support for them withered amidst the turmoil of the late 1960s, the malaise and economic crisis of the 1970s, and the conservative revolt of the 1980s. It would not be until Democratic President Bill Clinton (1992–2000), that another serious presidential campaign for universal coverage was attempted: the Health Care of Act of 1993 faced massive opposition and went down to defeat in Congress.117

The establishment of universal medical coverage would not prevail in the U.S. until 2010 and passage under President Barack Obama of the “Patient Protection and Affordable Care Act” (ACA) and the “Health Care and Education Reconciliation Act” (HCERA) more commonly known as “Obamacare”.118 These two pieces of historic legislation were met with cries of protest and opposition, and brought before the Supreme Court for review by those alleging that federal power could not extend global medical coverage throughout the 50 states.119 In 2012, the nation’s high court ruled that both laws were, in fact, constitutional, marking a landmark decision in the history of the welfare state in the U.S.120

17.9 The Transformation of the Totalitarian Model of State: Communism After 1945

Despite fascism’s failure and defeat in World War II, the democratic model of the state did not go on to prevail throughout the world, by any means. One of World War II’s great victors was the Soviet Union, which espoused a totalitarian model of the state utterly anathema to a market economy. The paradox is that Stalin, after having been allied with Hitler from 1939–1941, ended up on the side of the triumphant Allies, associated with the United States and the European democracies, the United Kingdom and France foremost among them. This coalition would prove short-lived, as the totalitarian model of the state, based on party discipline and central planning, and the liberal system, based on democratic processes and free markets, were, of course, irreconcilable.

17.9.1 The Marshall Plan and the Raising of the Iron Curtain

The fragile alliance between the democratic nations and the totalitarian Soviet Union would end up rupturing after the launch of the Marshall Plan (June 5, 1947), as Stalin refused to accept the reestablishment of democracy and market economies121 in that portion of Europe which had fallen under his control (Roberts 2006, 317). The confrontation started with the dramatic Berlin Airlift (June 24, 1948–May 12, 1949), the first episode in a process that ended up splitting Europe into two blocks: Western Europe, in which the democratic model of the state was recovered; and Eastern Europe, in which Soviet-style totalitarianism prevailed until 1989 (Roeder 1994, 61–101). The Berlin Wall (Berliner Mauer), erected in 1961, would become the most tangible and dramatic symbol of this state of affairs.

In fact, the split affected the whole world after the Korean War (1950–1953) (Fousek 2000, 62–186). This was the Cold War period, defined by the ongoing struggle between the liberal, capitalist West, led by the United States, and the communist East, headed by the Soviet Union (Engerman 2010, I, 20–43). For over four decades (1945–1989), these two political, economic, and ideological juggernauts would remain at loggerheads, generating a perpetual state of international tension and rivalry that at times sparked armed conflicts in which the two superpowers squared off, though by proxy, providing support to their respective allies. During this protracted confrontation the democratic nations of Europe founded NATO for their common defense from the communist threat posed by the Soviet Union, which responded by creating an analogous entity, the Warsaw Pact.122 The Soviet bloc had begun with bold and ambitious plans for the strengthening of the Soviet state and the spreading of communist revolution around the world, but over time it became evident that the Soviet Union was failing to export its model internationally, and that the country itself was coming apart at the seams because of its ineffectual economic policies and widespread yearning for greater freedoms amongst its people.123

17.9.2 The Expansion of Communism After 1945

The Soviet Union was, however, not the only state in the world that had embraced a totalitarian, communist regime. In 1919, Lenin had founded the Kommintern to expand Communism internationally, as a result of which communist regimes would eventually develop in different regions around the globe. The Soviet model spread during the era of decolonization above all in Asia, where in 1945, Ho Chi Minh founded the Democratic Republic of Vietnam (Olsen 2006, 1–12). In 1947, in response to the Marshall Plan, Stalin created a new version of the Kommintern, the Kominform, for the international expansion of the Soviet model of the state (Mastny 2010, 30–34). The Soviets would go on to provide support to North Korean dictator Kim Il-sung during the Korean War (1950–1953), which left Korea divided into a communist north and democratic south (Gardner 2004, 126–143), and for the ensuing decades, during which the dictator would remain in power.

In China, meanwhile, Mao Tse-tung rose to power (Brown 2009, 179–193) and headed the People’s Republic of China from its establishment in 1949,124 governing the country as Chairman of the Communist Party of China until his death in 1976.125 Mao transformed China into a thoroughly communist state controlled by one party, with industry nationalized and sweeping communist reforms undertaken to govern every aspect of life. Stalin’s death did not mark the end of Communism’s expansion, as “revolution” would also cross the Atlantic in Cuba with the triumph of the revolution led by Fidel Castro against dictator Fulgencio Batista (January 1, 1959),126 while other Latin American revolutionaries, such as Che Guevara, would also seek to spread communist revolts throughout the Americas during the 1960s.127

The signs of Communism’s erosion became increasingly evident during the 1980s (Eley 2002, 363), though even then the considerable importance which communist parties enjoyed in democratic European states should not be overlooked, as these parties were integrated into the Communist International, and their general secretaries continued to receive instructions from Moscow.128 All of this, nevertheless, came crashing down like a house of cards after the Soviet Union’s demise in 1991, when President Mikhail Gorbachev opted to pursue vital and sweeping economic and political reform (perestroika) while at the same time opening up Russia to the international community (glasnost) (Brown 2009, 481–502). The stunning result was the total collapse of the Soviet Union, followed by the vanishing of Eastern Europe’s communist regimes (Suny 2011, 469–485) in what Cornelius Castoriadis has called the “pulverization of Marxism-Leninism” (Castoriadis 2009, 58–69).

17.9.3 The Transformation of the Communist Model of State: The Chinese Example

The collapse of the Berlin Wall (1989) and the Soviet Union (1991) did not, then, do away with communist autocracies, as there still remain Cuba, North Korea, Vietnam, and the People’s Republic of China.

It has to be pointed out, however, that some of these countries have adopted—in practice, if not in theory—new models of the state, such as the People’s Republic of China. Chinese Communist regime, after suffering the final years of Mao’s rule, marked by an extremely violent and convulsive period during the Cultural Revolution (1968–1976)—whose excesses have been officially recognized and condemned-, took a very different direction, when Mao’s successor, Deng Xiaoping (1904–1997), decided to undertake massive economic transformation while leaving the country’s communist political structures (MacFarquhar 2011, 246–336) intact, during the crucial period of 1978–1992, in what he called “Market Socialism” (Dittmer 1993, 3–35), a Socialism with Chinese characteristics (Goodman 2002, 99–101).

While Beijing’s regime remains nominally and officially communist, after Mao’s death it has not only joined the community of free market economies, but also has, ironically, evolved into the world’s premier industrial power. Needless to say, the meaning of the dictatorial state has shifted, as rather than attempting to suppress the market system it has actually ended up fomenting it, creating a state-administrated form of capitalism (Amin 2005, 128–149), coated with economic imperialism, and not devoid of a certain trace of revenge for the colonial era during which China was dominated by the west. Such is the “Chinese model” (Tian 2005, 1–6).129

The path taken by China has, without any doubt, yielded dramatic results, as the country has become an economic superpower. Its industrial and financial might has forced the leaders of democratic regimes around the world to express respect for and tolerance of the Chinese regime, even though it is clearly a police state that continues to perpetrate executions of purported criminals and to relentlessly suppress free expression and protest. China and states like it are, in short, autocratic states ruled by isolated elites who adopt euphemistic descriptions of themselves as “socialist”, “democratic”, and “popular”, despite the glaring fact that they are so far none of these things.130

17.10 The Contemporary Transformation of the State Model in Western Capitalist Countries: A Return to Oligarchy?

17.10.1 The “Thirty Glorious Years”, or the Contemporary Way of Addressing the Social Question

The economic recovery following World War II—which in France came to be called the “Thirty Glorious Years” (1945–1975), or the “invisible revolution” (Fourastié 1987, 79)—generated in the west a feeling of general affluence which ended up dampening the political struggle for worker protection and economic equality (Eley 2002, 405–428). As the distinction between the proletariat and the bourgeoisie blurred and faded in the post-War era, particularly through the 1960s, trade union and workers rights initiatives waned, in large measure because working class individuals, rather than striving to seize power, concentrated their efforts on bettering their economic situations and forming part of the expanding and increasingly accessible middle class (Stark 1990, 310–329).

The dwindling cogency of Marxist precepts was described by post-Marxist thinkers such as Cornelius Castoriadis (1922–1997)131 and Herbert Marcuse (1898–1979) who tried to adapt the leftist approach to advanced industrial societies (Marcuse 2007).132 Critiques of capitalist society’s values and examinations of its paradoxes and contradictions, offered up by thinkers such as Thorstein Veblen (1857–1929), who popularized the concepts of the “leisure class” (Diggins 1999) and “conspicuous consumption”, proved more pertinent than the old orthodox Marxist doctrine.133

The assumption that unlimited economic growth would allow all to enjoy higher standards of living, that a “rising tide would lift all boats”, was called into question by the first oil crisis, in 1974. To prevent an economic standstill western societies increasingly resorted to incurring public and private debt, which paved the way for the “financial economy”, which began to play an increasingly pivotal role superseding truly productive sectors and activities. We should not forget that it was excessive debt that gave rise to the financial crisis, which swept the globe in 2007, leading to the historic bankruptcy of Lehman Brothers in 2008, and sinking the world in an unprecedented global economic crisis.

17.10.2 The Neoliberal Way and John Rawls’ Theory of Justice

From the point of view of legal and constitutional history, the welfare state model was openly criticized and challenged during the 1980s by the conservative administrations of President Ronald Reagan (1981–1989) in the U.S., and Prime Minister Margaret Thatcher in the United Kingdom (1979–1990). Both leaders implemented policies of “deregulation”, favoring private initiative and enterprise in the economic sphere while restoring the principle that the role of the state is not to assure the welfare of all, but rather to promote prosperity by allowing free markets to generate maximum levels of wealth.134 These leaders’ economic advisors135 and allies were also quick to point out that the private sector offers far more effective and efficient management than do public entities.136

This resurgence of the liberal model of the state also had consequences in the field of legal theory, particularly in the work of the American legal philosopher John Rawls (1921–2002), who besides redefining the idea of public reason (Rawls 1997, 765–807) and political liberalism (Rawls 2011), in his most acclaimed works A Theory of Justice (1971),137 and Justice as Fairness: A Restatement (2001)138 examined and presented justice as a search for what was fair rather than as a struggle between clashing interests (Päivänsalo 2012), thereby breaking with the abovementioned influential theories advanced by Rudolf von Ihering (Gaus 2003, 177–204).139

17.10.3 Growing Inequality and Its Constitutional Consequences

Though the deregulatory policies adopted in the United Kingdom and United States in the 1980s yielded considerable economic prosperity in the short term, in the long term they fostered not only to structural imbalances in the western economies, but also pronounced social inequality as the richest grew richer, the position of the middle class stagnated, and the increase in the numbers of the poor became alarming (Atkinson et al. 2010, 664–692). Between 1980 and 2000, the richest of the rich, the top 1 %,140 went from controlling 8 % to 16 % of GDP, while the moderately rich, representing 10 % of the world population,141 did only from 25 % to 27 % (Kempf 2013, 33–34). Nevertheless, despite a considerable increase in inequality in the European Union, this economy remains one of the most egalitarian in the world.142

This trend is not unique to the most advanced western countries, as inequality has grown in the developing world as well, where China and India are prime examples (Piketty and Qian 2010, 44–47). In 2012, China already boasted a growing number of millionaires, and a huge gap with its rural population that generally lives in poverty (Sicular et al. 2010, 85–104). India’s 100 richest people, meanwhile, have gone from controlling 0.4 % of the nation’s wealth in 1998 to 25 % in 2009.143 This trend is even more significant when one considers that in 2010 the “developing countries” accounted for 50 % of the world’s total wealth, according to OECD sources, which raises the question of whether the days of western economic supremacy are numbered.144 In any case, what is indisputable, according to critics of the current system, is that decreased wealth should be accepted and expected by western political leaders as they look to the future, as ever-greater prosperity based on perpetual growth is simply not sustainable.145

The system, however, is sustained, as observed by Susan George, because the masses are afraid of losing their jobs, and anxious of their own futures, and anxious about their children. In fact, this is the first generation that believes that its offspring will have it worse than they did. In this context the middle classes of the developed world, however, must recognize and bear in mind that they continue to be extremely fortunate, which generates a widespread feeling of TINA (There Is No Alternative).146

The feeling that nothing can be changed explains the growing political apathy among the citizens of democratic nations, to the point that, we are witnessing the consolidation of a trend towards chronic abstention (Subileau and Toinet 1993).147 The shifts in the percentages of those not voting in European elections are illustrative: 38 % in 1979, 41 % in 1984, 41.5 % in 1989, 43.3 % in 1994, 50.5 % in 1999, 54.6 % in 2004, and 56.8 % in 2009—a troubling trend that is also being observed in the United States, in both legislative and presidential elections (Barbour and Wright 2013, 391–392).

17.10.4 Towards a New Oligarchic Model of the State?

The legal and constitutional consequence of these important economic and social transformations is that, from the point of view of constitutional history, the democratic principle runs the risk of being progressively supplanted by oligarchy, as the massive fortunes forged during the 1980s have allied with the political class (Le Goff 2003, 136–137). This situation is far from the “Property-Owning Democracy” advanced by John Rawls and James Meade as the necessary alternative to liberal democratic socialism,148 and which some call “Post Democracy” (Crouch 2004, 53–69). This trend is by no means one exclusive to democratic regimes, as even in autocratic, emergent powers, such as the People’s Republic of China power is increasingly held by a political/financial oligarchy which, after concentrating in its hands the lion’s share of the country’s wealth, has proceeded to amass political power in an increasingly clear and uncontested fashion. As scholar Jean-Luc Domenach has explained, the bureaucratic class that has governed the country for over 50 years has partially morphed into a cadre of businessmen constituting a plutocratic oligarchy (Domenach 1984, 23–39).149

It should not be overlooked that the return to oligarchic government was already advanced in 1942 by Joseph Schumpeter in his book Capitalism, Socialism and Democracy, in which he endorsed returning to government by a ruling class rather than fully embracing egalitarian values and democratic government understood as maximum attentiveness to the dictates of the masses.150 Democracies’ regression to oligarchy was already noted by Robert Michels in 1911 (Michels 2008), a constitutional situation fast evolving from a threat into a patent reality.151

The situation seems particularly dangerous when these oligarchies convene at international forums to set global policies, with decisions made by groups of a private nature that seek to conceal the magnitude of their power. Cases in point include the Trilateral Commission created in 1973, the Bilderberg Group, and the Davos Forum, which Susan George calls the “Davos class” (George 2010, 6)—influential pressure groups which play decisive roles in determining government policy around the world. Today it seems that the state has granted itself license to intervene in the lives of individuals, with the means justified by the end of optimal resource management, as if it were a kind of businessman.152 This premise is dangerous, as this kind of intervention could ultimately take precedence over representativeness and, taken to its extreme, over democracy itself153 and the Rule of Law.154

For some critics the state has already become a kind of giant company, with everything determined by what its “managers” decide. According to this view public leaders have become all but businesspeople, with the important caveat that the constitutional pact prevails, and citizens enjoy a constitutional framework through which they may recover their freedom when circumstances make clear—for example, by recurring economic crises—that running the state based on a corporate model has its limitations (Sandel 2012, 6–16). The solution for many lies in a new way of governing, not based on power but on negotiation, with governance replacing government.

17.11 The End of the Nation-State Era and the Beginning of Global Constitutional History?

The nation-state, as a western constitutional model, has certainly not disappeared from our contemporary world, and new nation-states are still being created, such as South Sudan, founded in 2011 in response to the War in Darfur (Toïngar 2014, 5–8). Unilateral, nation-based approaches to international relations and conflict resolution have, however, been in crisis ever since World War I, progressively superseded by global approaches that tend to replace mandated and imposed solutions with multilateral, negotiated settlements, i.e., governance rather than government.

17.11.1 From the League of Nations to the United Nations

In the wake and in light of World War I, it became clear that the nation-state model was incapable of successfully addressing the new world order by preventing war and assuring widespread public well-being. U.S. President Woodrow Wilson was the first major international figure to conceive and promote a system by which conflicts between states would be resolved globally through the mechanism of a broadly supported international institution granted considerable authorities. Wilson’s 14-point plan, taken before the U.S. Congress on January 8, 1918, called for the formation of “a general association of nations” designed to assure the peace.

Unsurprisingly, Wilson became the arbiter of the Versailles Treaty, its first 30 articles and an addendum establishing the Pact of the League of Nations, which entered into effect on January 10, 1920. The League of Nations’ primary mission, as set forth in its covenant, was to prevent wars through collective security and disarmament and settle international disputes through negotiation and arbitration. Despite these lofty and admirable aims, it would fail to achieve any of them. 22 years after Versailles, its most obvious failure would be its inability to prevent the outbreak of World War II. It did not help that that the United States, ironically, refused to join the very institution that President Wilson had designed and championed, as the League faced too much opposition in Congress (Cooper 2010, 330–376).

After Hitler’s defeat, the same approach was revived and carried out once again with the creation of the United Nations and the founding of a whole series of international organizations designed to prevent international conflicts. In the economic sphere other multilateral accords were reached, such as the Bretton Wood Agreements and the creation of institutions like the World Bank, the International Monetary Fund (IMF), the GATT, and the International Trade Organization and the foundation of the World Trade Organization (WTO) (van den Bossche and Zdouc 2013, 74–81), to cite only a few. The fundamental assumption underlying these different bodies is that international concerns and crises—which grow in number and complexity as the globe becomes increasingly interconnected—should be addressed and solved not by the dominant powers within states, or through unilateral or bilateral agreements, but rather through ongoing negotiations and multilateral agreements supported by alliances of states granted progressively expanded missions and authorities. Government is being replaced by “governance”.155

17.11.2 Governments and Governance: From Authority to Negotiation

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