Liberal Thought in Argentina, 1837–1940. Группа авторов
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imposes on its decisions, and how it organizes the government of democracy.
For the creation of a law, the sovereign delegates its powers, reserving
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the power to enact the law. The delegate represents the sovereign’s interests and reason.
The legislator exercises a limited and temporary sovereignty; his norm is reason.
The legislator issues the organic law and formulates therein the rights and duties of the citizen and the conditions of the pact of association.
It divides social authority into three great powers, of whom it draws the limits and attributes that constitute the symbolic unity of democratic sovereignty.
The legislative power represents the reason of the people, the judiciary its justice, and the executive its action and will; the first creates the law, the second applies it, and the third executes it; the first votes on expenditure and taxation and the immediate organ of the desires and needs of the people; the second is the organ of social justice, manifested in the laws; the third is the tireless administrator and agent of social interests.
These three powers are truly independent; but far from isolating themselves and condemning themselves to immobility, offering mutual resistance to maintain a certain illusory balance, they will proceed harmoniously, via different routes, to the single goal of social progress. Their strength shall be the sum of the three joint forces, their wills shall unite in a single will; just as reason, sentiment, and will constitute the moral unit of the individual, the three powers shall form the unity that shall lead to democracy, or the legitimate organ of sovereignty, intended to pass judgment without appeal on all matters that interest society.
The conditions of the pact are written; the cornerstone of the social edifice has been laid; the government is organized and driven by the spirit of the fundamental law. The legislator presents it to the people; the people approve it, if it is the living symbol of their reason.
The work of the constituent legislator is done.
If the organic law is not the expression of public reason proclaimed by its legitimate representatives, if they have not spoken in this law of the interests and opinions of their constituents, if they have not succeeded in interpreting their thoughts; or in other words, if the legislators, ignoring their mission and the vital demands of the people they represent, have become miserable plagiarists and copied, from here and there, articles from other countries’ constitutions, instead of writing one with living roots in the popular conscience, their work shall be an
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aborted monster, a lifeless body, an ephemeral law without action that could never be sanctioned by public judgment.
The legislator will have betrayed the trust of his constituents; he will be an imbecile.
If on the contrary the work of the legislator fully satisfies public reason, his work is great, his creation sublime, and resembles the work of God.
Then neither the people, nor the legislator, nor any social authority whatsoever will be able to raise its sacrilegious hand in that sanctuary where the supreme and inviolable law is written in divine letters; the law of laws, which each and every man has acknowledged, proclaimed, and sworn before God and man to respect.
Sovereignty, it can be said, has been embodied in that law, the reason and consent of the people is there; order, justice, and liberty are there; therein lies the safeguard of democracy.
This law could be revised, improved in time, and adapted to the progress of public reason by an assembly elected ad hoc by the sovereign; but until such time comes which the law itself indicates, its power is omnipotent; its will dominates all wills; its reason rules over all reason.
No majority, no party, no assembly may break this law, on pain of being usurpatory and tyrannical.
That law is the touchstone for all other laws; its light illuminates them, and all thoughts and actions of the social body and of the constituted powers are born from it and converge at its center. It is their driving force and around it gravitate, like heavenly bodies around the sun, all the partial forces that make up the world of democracy.
With democracy thus constituted, the sovereignty of the people arises from that point and starts to exercise its unceasing and unlimited action, but always circling in the orbit that the organic law traces; its right does not go beyond this.
Through its representatives, it makes and reverses laws, innovating every day, taking its activity everywhere and imposing an incessant movement, a progressive transformation to the social machine.
Each act of its will is a new creation; each decision of its reason is progress.
Politics, religion, philosophy, art, industry; it examines everything, develops it, puts it to the supreme vote, and enacts it; the voice of the people is the voice of God.
From this we can deduce that if the people have no enlightenment or
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morality; that if the seeds of a constitution are not, so to speak, disseminated in their customs, in their sentiments, in their memories, in their traditions, the work of organizing it is unrealizable; that the legislator is not called upon to create an organic law, or to adapt that of other countries to his, but to know the instincts, needs, interests, all that forms the intellectual, moral, and physical life of the people he represents, and proclaim them and formulate them in a law; and that legislators must only be those who combine the highest capacity and noblest virtue with the most complete knowledge of the spirit and demands of the nation.
From here it also arises that if the legislator is conscious of his duty, before examining which form of government would be preferable, he must find out whether the people are in a fit condition to be ruled by a constitution, and if this is the case offer them not the best and most perfect constitution in theory, but that which is best adapted to their condition.
“I have given the Athenians not the best laws,” said Solon,15 “but those which they are in a fit state to receive.”
From this it can be inferred that when public reason is not ripe, the constituent legislator has no mission whatsoever, and as he cannot be conscious of his dignity, or of the importance of the role he represents, he is part of a farce that he himself does not understand, and passes or copies laws with the same ease as he would the briefs of his legal practice or the accounts of his business.
From this, in short, we can deduce the need to prepare the legislator before entrusting to him the work of a constitution.
The legislator will not be prepared if the people are not. How can the legislator do the right thing if the people are ignorant of what is good? If they do not appreciate the advantages of liberty? If they prefer inertia over activity? Their habits over innovations? What they know and can touch over what they do not know and view from afar?
For this reason, to prepare the people and the legislator it is vital to draw up first the subject of the law, that is, to spread the ideas that should be embodied in the legislators and realized in the laws, making them circulate, giving them popularity, incorporating them into the public spirit.
It is necessary, in a word, to enlighten the reason of the people and
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that of the legislator on political questions before proceeding to constitute the nation.
Only on this condition will we achieve what we all earnestly desire, that a future legislator or a national representation may appear capable of understanding and remediating the ills that beset society, of satisfying its desires and laying the foundation of an unshakeable and permanent social order.
As long as the public spirit is not sufficiently mature, the constitutions will do no more than fuel anarchy and foster in all spirits the scorn of all law, of all justice, and of the most sacred principles.
As democracy is the government of the people