Democracy and Dictatorship

The Nature and Limits of State Power

Norberto Bobbio

• Publisher: Polity
• Year: 2017
• ISBN:
  9781509526154
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In this important volume Norberto Bobbio examines some of the central themes of political theory and presents a systematic exposition of his views. With great astuteness and profound scholarship, Bobbio unfolds the elements for a general theory of politics.

Bobbio's wide-ranging argument is focused on four themes: the distinction between the public and the private; the concept of civil society; differing conceptions of the state and differing ways of understanding the legitimacy of state power; and the relation between democracy and dictatorship. Bobbio's discussion draws on a wealth of theoretical and historical material, from Plato, Aristotle, Hobbes and Locke to Marx, Weber, Habermas and Foucault. By analysing the development of different languages of politics in relation to changing social and historical contexts, Bobbio deepens our understanding of the concepts we use to describe and evaluate modern political systems.

1
The Great Dichotomy: Public/Private

A DICHOTOMOUS PAIR

It was in two much commented-on passages of Justinian’s Corpus iuris (Institutiones , 1, 1, 4; Digesto, 1, 1, 1, 2) where public law and private law are defined in an identical manner – the first as quod ad statum rei romanae spectat, and the second as quod ad singulorum utilitatem – that the pair of terms ‘public’ and ‘private’ first entered the history of Western political and social thought. Through constant and continuous use, and without any substantial changes, they have since become one of the ‘great dichotomies’ used by several disciplines – social and historical sciences as well as law – to define, represent and order their particular fields of investigation. In this respect the dichotomy can be likened to others playing a similar role in the social sciences: war/peace, democracy/autocracy, society/community, state of nature/civil society. A great dichotomy may correctly be spoken of when we are confronted with a distinction that is suitable (a) for dividing a world into two spheres which together are exhaustive in the sense that every element of that world is covered, and mutually exclusive in the sense that any element covered by the first term cannot simultaneously be covered by the second; and (b) for establishing a division that is not only comprehensive in the sense that all elements potentially or actually referred to by the discipline are covered by it, but also dominant in that it subsumes other distinctions and makes them secondary. In legal language, the pre-eminence of the distinction between private and public law over all other distinctions, its unchanging use in different historical periods and its comprehensiveness were sufficient to make a neo-Kantian philosophy of law treat the two concepts of private and public law as two a priori categories of legal thinking (Radbruch 1932, 122–7).

The terms of a dichotomy can either be defined independently of each other, or else only one is defined while the other is defined negatively with respect to it (peace as notwar). In this latter case, the first term is said to be the dominant one and the second the weak one. The definition of public law and private law mentioned above is an example of the first case, although the first term is stronger in that private is often defined as ‘not-public’ (privatus qui in magistratu non est, Forcellini), and rarely the other way around. In addition, it can be said that the two terms of a dichotomy qualify each other in the sense they always occur together: in legal language, public law suggests instantly, by contrast, private contract, for example. In ordinary language the public interest is determined with respect to and by contrast with private interest and vice versa. Finally, from the moment that the space defined by the two terms is completely covered (tertium non datur) they arrive at the point of mutuillly defining themselves in the sense that the public domain extends only as far as the start of the private sphere (and the reverse is also true). The size of the areas referred to by either of the terms can be enlarged or reduced depending on the situation to which the dichotomy is applied. One of the commonplaces of the age-old debate about the relationship between the public and private domains is that increasing the size of the public sphere reduces the private sphere and vice versa, an assertion which is generally accompanied and complicated by contrasting value judgements.

Whatever the origin of the distinction or the moment of its birth, the classic dichotomy between public and private law reflects the situation of a group which distinguishes between what belongs to the group as a group and what belongs to single members or, more generally, between the society as a whole and other incidental, lesser groupings (such as the family) or else between a superior central power and inferior peripheral powers which enjoy only a relative autonomy, if any. In fact, the original distinction between public and private was accompanied by an affirmation of the supremacy of the first over the second, as is shown by one of the fundamental principles which regulates every arrangement covered by the great division: the principle according to which ius publicum privatorum pactis mutari non potest (Digesto, 38, 2, 14) or privatorum conventio iuri publico non derogat (ibid., 45, 50, 17). Notwithstanding the age-old debate provoked by the variety of criteria which justify – or which are held to justify – the division of the two spheres, the fundamental criterion remains that of the different persons and situations to which the general notion of utilitas applies. Besides the singulorum utilitas of the definition already cited, the celebrated Ciceronian definition of the res publica should not be forgotten: a ‘thing of the people’, when ‘people’ means not just an aggregation of individuals but a society held together by the utilitatis communione (De re publica, 1, 41, 48) as well as by legal bonds.

CORRESPONDING DICHOTOMIES

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

Associations of equals and associations of unequals

Since the law is an ordering of social relations the great public/private dichotomy is primarily reflected in the distinction between two types of social relationships: between equals and between unequals. The state – and any other organized society with either a total or partial public sphere – is characterized by relations of subordination between governors and governed, or rather between holders of the power of command and subjects with the duty of obedience. These are relationships of inequality. Both natural society (as described by natural lawyers) and market society (as idealized by the classical economists in which the private sphere is opposed to the public sphere) are characterized by relationships of coordination between equals. The distinction between an association of equals and an association of unequals is no less classic than the distinction between public and private spheres. Thus Vico writes: Omnis societas omino duplex, inaequalis et aequalis (1720, ch. LX). The family, the state, and the relations between God and man are found amongst the first; amongst the second are found associations of brothers, kin, friends, citizens, guests and enemies.

It can be seen from examples that the two dichotomies of public/private and society of equals/society of unequals do not completely overlap; conventionally, the family belongs to the private sphere as opposed to the public sphere; or rather it is placed in the private sphere where it is towered over by the more complex organization of the city (in the Aristotelian sense of the word) or the state (in the sense of modern political writers). However, with respect to the difference beteween the two types of association, the family is an association of unequals.

Evidence that the family belongs to the private sphere is provided by the fact that the European public law which accompanied the foundation of the modern constitutional state placed in the private sphere those patriarchal, paternalistic and despotic conceptions of sovereign power which liken the state to a family writ large or those which attribute to the sovereign the powers of the patriarch, the father or the master: all positions of different strength in family associations. Vico, on the other hand, saw the relations between enemies as relations of equality – correctly, apart from anything else, because international society is, abstractly considered, an association of formally equal entities, so much so that Hobbes and Hegel compare it to the state of nature – and they usually belong to the realm of public law, if only the external public law governing the relations between states rather than the internal public law governing the relations between ruler and ruled in the same state.

With the birth of political economy which gave rise to the differentiation of the sphere of economic relations from the sphere of political relations, economic relations were substantially understood as relations between unequals (as a result of the division of labour) but formally equal in the market. The public/private dichotomy reappeared in the form of the distinction between political society (of unequals) and economic society (of equals). From the point of view of the agent characteristic of each, a distinction was made between the society of the citoyen who attends to the public interest, and that of the bourgeois who takes care of his or her own private interests in competition or collaboration with other individuals. Behind the distinction between the economic sphere and the political sphere is the ancient distinction between the singulorum utilitas and the status rei publicae, and through it public and private spheres were differentiated for the first time. Thus, with the birth of political economy, the natural law distinction between the state of nature and civil society is rehabilitated in the distinction between economic society and political society. Soon after that civil society, understood in a Hegelian (or better Marxian) way as a system of needs, is distinguished from the state. It should be noted that the line of separation between the state of nature, the economic sphere and civil society on the one hand, and the political sphere and the state on the other, is always the line between associations of equals (at least in the formal sense) and associations of unequals.

Law and contract

The other conceptually and historically important distinction which is involved in the great dichotomy is a distinction between the sources (in the technical, legal sense of the word) of public and private law: law and contract. Cicero remarks that public law consists of lex, senatus consultus and foedus (international treaty); private law consists of the tabulae, the pactum conventum and the stipulatio (Partitiones oratoriae, 37, 131). As can be seen, the criterion for the distinction between public and private law are the different ways in which they come into existence, both being binding rules of conduct: public law is public in virtue of being imposed by political authority and assumes the specific form, increasingly prevalent with the passing of time, of ‘law’ in the modern sense of the word; that is, of a norm which is binding because it has been imposed by the supreme power (sovereign) and is habitually enforced through coercion (the exclusive use of which truly belongs to the sovereign). Private law or, more precisely, the law concerning private persons, represents the set of norms established by individuals to regulate their reciprocal relations, the most important of which are patrimonial relations, through bilateral agreements whose force lies primarily and independently of public regulation on the principle of reciprocity (do ut des).

The explanatory force of the superimposition of the two dichotomies private/public and law/contract is revealed in the modern doctrine of natural law, where contract is the typical form of how individuals govern their relations in the state of nature (that is, in the state where a public power does not as yet exist); whereas the law, usually defined as the highest expression of the sovereign power (voluntas superioris), is the form in which the relations amongst subjects and between the state and subjects are regulated in civil society: that is, in a society which is held together by an authority that stands above individuals. The contrast of the state of nature and civil society as the contrast between the sphere of free contractual relations and the sphere of relations regulated by the law was taken over and strengthened by Kant, who brought to its conclusion the process of the identification of the two great dichotomies of legal doctrine: private law/public law on one side and natural law/positive law on the other; private law is the law that comes from the state of nature and its fundamental institutions are property and contract, whereas public law derives from the state and is constituted at the suppression of the state of nature and is, therefore, positive law in the proper sense of the word: a law whose binding force derives from the possibility that the coercive power of the state belonging exclusively to the sovereign will be exercised on its behalf.

The clearest confirmation of the fact that the contrast between private and public law passes through the distinction between contract and law ...

Table of contents

• Cover
• Table of Contents
• Title
• Copyright
• Introduction: Democracy and the Decline of the Left
• Preface
• 1 The Great Dichotomy: Public/Private
• 2 Civil Society
• 3 State, Power and Government
• 4 Democracy and Dictatorship
• Bibliography
• Index
• End User License Agreement