Violence and Legitimacy

Volker Sellin

• Publisher: De Gruyter Oldenbourg
• Year: 2017
• ISBN:
  9783110559002
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Benjamin Constant distinguished two kinds of government: unlawful government based on violence, and legitimate government based on the general will. In Europe monarchy was for over a thousand years considered the natural form of legitimate government. The sources of its legitimacy were the dynastic principle, religion, and the ability to protect against foreign aggression. At the end of the eighteenth century the revolutions in America and France called into question the traditional legitimacy of monarchy, but Volker Sellin shows that in response to this challenge monarchy opened up new sources of legitimacy by concluding alliances with constitutionalism, nationalism, and social reform. In some cases the age of revolution brought on a new type of leader, basing his claim to power on charisma.

1Introduction

Il n’existe au monde que deux pouvoirs, l’un illégitime, c’est la force ; l’autre légitime, c’est la volonté générale.

Benjamin Constant1

Legitimate and Illegitimate Government

Why do people allow themselves to be governed by others? It appears safe to say that people are ready to be governed by others if they consider that government legitimate. The criterion of legitimacy is agreement with convictions of right. According to Peter Graf Kielmansegg “legitimacy is social acceptance as of right.”2 But since convictions are subject to change a long accepted political system may eventually lose its legitimacy. If legitimacy is lost, government deteriorates into dictatorship and can maintain itself by force only. That’s what Benjamin Constant had in mind when he declared that there were only two kinds of government: “One is illegitimate and works by constraint; the other one is legitimate and is the general will”. By identifying legitimacy with the general will Constant clarified that legitimate government is based on a recognition that the individual citizen cannot refuse as long as he accepts the prevailing order of values. The recognition is thus “not the result of a free decision” but a “perception of social validity.”3 Constant emphasized that no form of government will last without this perception: “If the government of the small number is sanctioned by general approval it becomes the general will. This holds true of any form of government: If theocracy, monarchy, aristocracy prevail on the minds, they are the general will.”4 Constant’s general approval must be distinguished from the popularity of a ruler. If government is transmitted through heritage it may easily fall on the shoulders of persons who are unable to obtain popularity, their legitimacy notwithstanding. According to Linda Colley between the restoration of Charles II in 1660 and the accession of George III one hundred years later in Great Britain no ruler, with the possible exception of Queen Anne, enjoyed at best more than a modest or passing popularity.5

By the criteria of legality and recognition on the one hand and arbitrariness and constraint on the other Aristotle had distinguished “right or constitutional” from “degenerate” governments, orthai politeiai from parekbaseis. He explained the distinction by referring to the household where he qualified the government of the master over his slaves as despotic and over his children and his wife as a rational guidance of free individuals. In a monarchy he called lawful government “royal,” in a democracy “political.”6 On the other hand, he defined despotic government as the absolute determination of the will of the subjects by the despot. To Aristotle the final criterion, by which the government of free individuals and the government of slaves could be distinguished, was the benefit for which the government was exercised. A free government aimed at the common good, a despotic government at the advantage of the governors only.7

Aristotle’s distinctions dominated political thought way into the early modern period. At the end of the 16th century Johannes Althusius defined the “legitimate ruler” (legitimus magistratus) in Aristotelian tradition by his intention to serve the common good.8 The legitimate ruler observed the law. To Jean Bodin the “royal and legitimate monarchy” (la monarchie royale et légitime) followed natural law.9 The rational philosophy of the Enlightenment justified government by an original contract the purpose of which was to grant the observation of natural law and the well-being of the commonwealth. In his article Société in the Encyclopédie, Louis de Jaucourt declared that a government was “legitimate” only if it contributed to the purpose for which it had been instituted.10 The term “legitimacy” (légitimité) has come into use only shortly before the French Revolution. In 1788 Le Roy de Barincourt used expressions such as “legitimacy of pure democracy” (légitimité de la pure démocratie) and “legitimacy of the constitution” (légitimité de la constitution).11 In the beginning of the Restoration period a concept of legitimacy became dominant which in political theory had hitherto been regarded as one of its variants only. The partisans of the traditional monarchical order regarded divine right hereditary monarchy as the only form of legitimate government. Legitimacy thus became a term to designate party and was opposed to revolution and popular sovereignty. Ever since the 1830’s this doctrine was called legitimism and its adherents are known as legitimists.12

Although the present book does not follow the narrow understanding of legitimacy that dominated the Restoration period, its object is nevertheless the legitimacy of monarchy, not the legitimacy of government in general. This limitation of the focus is justified by the fact that even after the French Revolution monarchy remained for more than a century the prevailing form of government in Europe.

Monarchy and Revolution

During the French Revolution the legitimacy of government was redefined. On 26 August 1789 the National Assembly adopted the Declaration of the Rights of Man and of the Citizen. The third article deals with sovereignty. It reads: “The source of sovereignty resides essentially with the nation. No body and no individual are permitted to exercise authority which does not expressly emanate from the nation.”13 The phrase was not intended to be a declaration of war on the monarchy. The overwhelming majority of the National Assembly in the summer of 1789 could not even imagine another form of government in France. But the article laid the foundation of a kind of monarchy that was entirely different from the one that had hitherto existed. By transferring sovereignty to the nation, the King was restricted to an organ of the constitution with a limited number of certain clearly defined rights. The constitution that the assembly adopted two years later subordinated the King to the law. In the paragraph determining the rights and powers of the King it states that in France there was no “higher authority than the law.” The King governed only on the basis of the law and could demand obedience only “in the name of the law.”14

The monarchy that was created by this constitution did not last. Eleven months after delivering his oath on the constitution the Legislative Assembly deposed Louis XVI. Only six weeks later the National Convention abolished the monarchy as well. During the following months the Convention sat in judgment on Louis XVI. In the end the King was condemned to death and executed on 21 January 1793. Within three years France had thus experienced two fundamental turns of her political system. By claiming the sovereignty for the nation in the Declaration of the Rights of Man and of the Citizen in 1789 the National Assembly had demonstrated that the absolute monarchy had lost its legitimacy, and the proclamation of the Republic on 21 September 1792 similarly confirmed the loss of legitimacy of the democratic monarchy as well that had been founded only one year before. The turns occurred because in both cases the existing constitution no longer conformed to the general will and was therefore perceived as a constraint or better, as force without legitimacy.

In political theory power without legitimacy has always been regarded as despotic. Two types of tyrants have been distinguished: the tyrant who had usurped the government against the law (usurpator ex defectu tituli), and the tyrant who had legally come to power, but governed tyrannically (usurpator ex parte exercitii).15 In the Old Regime the deposition of a ruler had normally been justified by showing that he had turned a tyrant. In keeping with this argument estates used to add to the resolution by which a ruler was deposed, a list of his illegal acts in order to expose the tyrannical character of his government. The most well-known example of this procedure is the adoption of the Declaration of Rights by the English Parliament in 1688. According to the Declaration James II had forfeited his legitimacy by repeated breaches of the constitution. The purpose of his deposition was therefore said to be the defense of the existing law against the ruler and, by consequence, the restoration of the rule of law.16 Law was thus construed as something unalterable and intangible, sanctioned by tradition.

The transformation of Louis XVI to a mere organ of the constitution by the Constituante followed a different pattern. In the Declaration of the Rights of Man and of the Citizen of 26 August 1789 no unlawful acts of the King are listed. The justification for reducing the King to the executive function only was not the abuse of power. The truth is that the legitimacy of a government was fundamentally redefined. Louis XVI had lost the legal basis of his government because the principles of monarchical legitimacy themselves had changed. In the terms of Benjamin Constant Old Regime monarchy had inadvertently transformed itself into a tyrannical regime because it had failed adequately to conform to the change of the “general will” (volonté générale).

Preserving Legitimacy, a Never-Ending Task

The usurpation of the constituent power by the Constituante marks the beginning of a process during which in the whole of Europe the relationship between legitimacy and power, monarchy and despotism underwent a fundamental change. Every indubitably legitimate monarchy could degenerate into a regime of brute force if it insisted inflexibly on its traditional rights. Therefore the European monarchies were confronted with the need incessantly to reassert their legitimacy and to devise strategies to adapt to social change. In September 1791 Louis XVI saved his throne only by taking an oath on the constitution, and the restoration of Louis XVIII in 1814 succeeded only because he conceded a constitution that preserved fundamental achievements of the Revolution and the Empire.

A consequence of the drying up of the traditional sources of legitimacy was the decline of divine right monarchy. Even if the majority of the European monarchies maintained the divine right formula in the royal title the dogma rapidly lost credibility. As the constitution of 1791 shows, the French National Assembly had removed it from the title of the King. Louis XVIII restored it, but could not avoid that it was increasingly questioned. Not only in France did it lose adherents. In 1831 in the Kingdom of Württemberg liberal-minded Paul Pfizer registered “a steadily waning belief in the divine institution and the supernatural origin of monarchical authority,”17 and in 1852 the lawyer and former member of the Frankfurt National Assembly Heinrich Albert Zachariae admitted that to him “the divine right of Kings” was “an entirely unknown entity.”18

Jacob Burckhardt called the age that had been inaugurated by the meeting of the Estates General in Mai 1789 and continued in his own life time, the revolutionary period (Revolutionszeitalter). In Burckhardt’s eyes the revolutions of the 19th century were but the expression and the manifestation of a principle that had been working underground since 1789 at the latest, of a “spirit of eternal revision,” as an unabating tendency of “desiring change in the interest of public good.”19 It was precisely this spirit of revision that again and again called into question the legitimacy of monarchy. In the long run monarchy could neutralize the menace of revolution only by appropriating part of its principles. On the one hand policies legitimating monarchy were restorative insofar as they were meant to secure and consolidate monarchy; on the other hand they were revolutionary to the degree that they made concessions to the revolution. In a process of continuing restoration monarchy in fact supported the revolution, and in this endeavor monarchy was more successful than the revolution had been so far. A comparison between the democratically created constitution of 1791 and Louis XVIII’s imposed Charte constitutionnelle of 1814 shows the difference. While the constitution of 1791 was abolished a year later the Charte remained in force for 16 years at first and after its revision during the July Revolution for another 18 years. At the same time it became the model and prototype of a great number of imposed constitutions in Poland, Germany, Belgium, Spain, and Italy, since not only in France, but in other parts of Europe as well the history of monarchy in the age of Revolution was a history of repeated restorations, a never-ending process of adjustment to ever new challenges. In order to preserve monarchical legitimacy it was imperative to make concessions before they were extracted by force. As early as September 1807 the Prussian Chancellor of State Karl August von Hardenberg wrote of the Revolution that the “power” of its “principles” was “so great” and that these principles were “so generally recognized and disseminated that a government” that did not accept them, either “risked its ruin or their enforced implementation.” Therefore he recommended counteracting the “violent impulsion” from below by “wisdom of the government” with a view to safeguarding the monarchical principle.20 When in early 1848 in the face of the revolution that had broken out in Sicily, one after the other of the States on the Italian peninsula imposed constitutions, Giacinto Borelli, minister of the Interior in the Kingdom of Sardinia, advised King Carlo Alberto also to impose a constitution. If the transition to constitutionalism could not be avoided, it was better that the King grant the constitution by his own free will instead of waiting until he had no choice but to cede to force; it was better to “set the conditions than to r...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• 1 Introduction
• 2 Violence
• 3 Dynasty
• 4 Religion
• 5 Success in War
• 6 Enlightenment
• 7 Constitution
• 8 Nation
• 9 Social Reform
• 10 Charisma
• 11 Summary
• 12 List of Abbreviations
• 13 Picture Credits
• 14 Bibliography
• Index