Public Law and History

Government by public law was first theorized in isolation from history. To set up the commonwealth, early modern philosophers retreated to a state before, or outside, history. Ironically, it is the misery of life in the state of nature that warrants that history will, at worst, instantiate what was agreed outside of it, confirming the terms of the agreement. The immediacy of the threat that every man is exposed to in the state of nature creates an equivalence between a commonwealth that arises through compact and one created by force where “a man … by war subdueth his enemies to his will, giving them their lives on that condition.”Footnote ³ However, the publicists who developed public law into a proper doctrine of government could not continue to ignore history. In time, they developed strategies to metabolize the concrete, material nature of the reality that public law had to take cognizance of. This positivist, materialist turn is evidenced across European public law thinking from the second half of the nineteenth century. It is the context within which Carré de Malberg elaborates his general theory of state, and so we shall need to consider it as a preliminary to the exposition of his work.

While the positivist turn is a European phenomenon, it is through German public law theory that we access it. German law scholars were frontrunners in articulating the methodology of nascent public law. The hegemony of German public law thinking gave rise to a very palpable sense of unease in France, where the memories of the 1870 defeat made the theoretical subservience to German public law awkward.Footnote ⁴ What German public law offered was a strategy to accommodate the discipline to the emergence of society as a motor of social development. This strategy is exemplified in Georg Jellinek’s towering general theory of state from 1900 where juridical reflection on the state is refracted through a distinction between history and public law. They are the two aspects under which the state can be seen, its two sides, as Jellinek calls them; on the one hand, the state as it appears and changes in history, and on the other, the state as a given architecture of determinate public law powers. The point of Jellinek’s distinction is to open public law up to history, without being swallowed by it. Carré de Malberg grapples with the same problem in his theory of state. What he takes from Jellinek is the intuition that the unity of the object must be constituted in and through law. Public law theory must be able to constitute its object—the state—as it has developed through, and exists in, time. This requires a specific delimitation of time. In Jellinek’s theory of state, the two aspects of the state are integrated into a genealogical account that traces the functional differentiation of the state over time, at the same time as it affirms its trans-historical identity. It is implied that the account covers the past of the state in its entirety. But the precautions that Jellinek takes concerning admissible data reveal that there are limits to the synthesis. Thus, Jellinek admonishes us that in using the historical method to study social institutions, we need to be clear about what functional changes are relevant. Not all are: “The primary lesson is that we do not need to know the entire history of a contemporary phenomenon in order to grasp its essence (Wesen). Only from when its present goals (Zwecke) manifest themselves for the first time, that is, from the time when a still-vital context begins to connect past and present, does the evolution start that [functional change] teaches us to understand. What is prior to this evolution contributes nothing to a scientific determination of the present.”Footnote ⁵

What mediates between diachrony and eternal present is the state. The state is here defined as an institution that we can know from the goals it pursues in the present. It is the present, in other words, that determines what we recover from the past. There are antecedents of this methodological presentism. Hegel and Marx relied on a similar strategy to anchor their work in history. But where they were able, or almost, to embed their subject (Spirit/capitalism) in human history as its driving force and most immediate manifestation, Jellinek operated within a narrow segment of history. In distinguishing between the two sides of the state, he configured history on public law, creating a time-space where the agency that moves history is affirmative of, and so patterned by, legal order. The effect of the operation is to neutralize history by enclosing the advent of the new within the boundaries of the present, as they are set out in public law.

Ironically, the presentism that enables Jellinek to tell the history of the state as a public law history enables someone like Hans Kelsen to take himself out of that same history. Before Kelsen would tether his pure theory of law to a logical distinction between is and ought, fact and norm, he used the time-space in which Jellinek moved to undercut the idea of the state as an agent. His argument was that as social agency is everywhere affirmative of legal order, it can be seen as a function of it. What that means is that, properly understood, there is no state agency, only individual acts that are attributed to the state by reference to an enabling rule of law. Behind the mystifications of state theory, there is no state that commands; there are only rules of positive law: “That one man rules another, in other words, that the volition of one becomes the motive for the volition of another, this we cannot say of the state. Closer to the truth, we would say there is a stable order, according to which one commands while another obeys. This order, and nothing but it, grounds the unity of the many relationships of domination that are given empirically.”Footnote ⁶

Carré de Malberg develops his theory of state on the basis of the concomitance between the neutralization of history and the rise of the legal order as the operative element of the state. Knowing this helps us understand why he would elaborate a theory of the state at a time when even the most decisionist forms of European public law theory turned from state theory to constitutional theory.Footnote ⁷ What determines the singular path he shall take is a disconnect between his commitment to the positivist methodology advanced by German public lawyers and his acute awareness of the specificity of the French situation. Carré de Malberg wants to align law and history, but the inconclusive nature of French constitutionalism meant that the strategy did not produce an insulating effect. The inconclusiveness that we refer to springs from the dualism that emerged with the July Monarchy. The 1830 Charter juxtaposed two rival principles of legitimacy: a dynastic principle tied to the monarch and a democratic principle tied to the chamber of deputies. The Charter identified the king and the chamber of deputies as representatives of the nation, which meant that government had to have the confidence of both.Footnote ⁸ The dualism carried over into the three constitutional laws that composed the 1875 constitution: a law on the organization of the Senate (February 24), a law on the nature and the organization of government (February 25), and a law on the relationship between public powers (July 16). The laws conferred extensive powers on the Head of State, including the power to dissolve the chamber of deputies, nominate ministers, and promulgate laws. At the same time, however, they deprived him of the legitimacy of a direct election by establishing that the Head of State would be elected by the two chambers united in a national assembly. Carré de Malberg recognizes but has reservations about the dualism of the 1875 constitution, which he qualifies as nominal.Footnote ⁹ It is not impossible, he tells us, that a modern state could be organized on a dualist basis, but it does not reflect the reality of the Third Republic. The executive may have the power to will for the nation, but it can do so only subject to approval by Parliament: “In the present state of French public law, the Executive, …, does not have this primordial power [of willing for the nation]: the Executive cannot will and act except where it has not only the confidence and support but also the approval, if only tacit, of the assemblies.”Footnote ¹⁰

Rather than recognizing the indeterminacy of the 1875 constitution, Carré de Malberg blanks it out by aligning the constitution with subsequent institutional practice. The drive to establish a perfect correspondence between institutional practice and constitutional text is emblematic of his methodology, which reduces the text to what it has been made to mean in an attempt to distill out what Denis Baranger felicitously terms the objective effect of the law.Footnote ¹¹ Critics have noted that in assigning an unequivocal sense to the 1875 constitution, Carré de Malberg attributed an esprit des institutions to a constitutional complex that was not reflective of a collective decision.Footnote ¹² Leaving these critiques aside, what matters here is how Carré de Malberg’s effort to do away with the indetermination of the law involves history. Reducing the law to its objective effect involves constant assimilation of past (where the constitution was made) and present (where its meaning is fixed). The operation of assimilation is reflected in the indexical reference to the “present state” of French public law. The awareness of temporal difference conditions the way Carré de Malberg analyzes a seeming contradiction in how the 1875 constitution distributes the power to will for the nation and the conditions it sets for the exercise of this power:

What should retain our attention is not the observation by Carré de Malberg that the constitution of the Third Republic contradicts itself, or that this contradiction eventually works itself out in favor of Parliament. The passage matters by the light it sheds on the intuition of history that informs Carré de Malberg’s theory of state. We saw that German public law theory proceeds on the proviso that the constitution frames and informs social agency, instituting what we might call constitutional time. This mode of time is not absent from Carré de Malberg’s theory of state. Reference is made to powers, the exercise of which would involve the executive in a formal opposition to the chambers. But the passage shows how constitutional time is overlaid by another temporality in which the balance between constitutional actors shifts, without, however, occluding what was originally fixed. Both temporalities are visible in this palimpsest that layers intuitions of constitutional history, some tied to sovereignty, others to the balance between powers of government. The indexical references to time that Carré de Malberg includes in the text—today, at this moment—indicate an awareness that two temporalities intersect. More importantly, they indicate an unwillingness to gloss over the difference between them.

The telescoping of temporalities in Carré de Malberg’s theory of state creates what we might call an irresolution of history. We shall have more to say about that. What matters at this point is how this irresolution affects Carré de Malberg’s attempt to theorize public law government. The irresolution of history paints the object of theory—the state—as the site of an internal dialectics between conflicting impulses that implicate sovereignty and constitutionalism. The dialectics destabilizes the efforts to constitutionalize public power, those of Carré de Malberg but also those of modern European public law theory. Constitutionalism, as a specific form of reason, developed as a technique to manage the relationship between sovereign power and those subject to it. It relied on a number of mediating terms, chief among them property, to maintain equilibrium between the public and the private. There are no middle terms in Carré de Malberg’s general theory of state, Still, he does not give up on the project of maintaining equilibrium. However, the balancing act does not play out between society and state as the antagonistic entities. It plays out within the state, which, in its immediate identity with the nation, collapses the distinctions that kept in place law-based government: public/private, objective/subjective, ideal/material.Footnote ¹⁴

The novelty of Carré de Malberg’s demarche is easily overlooked because, although different in its orientation, it recalls another radically novel enterprise of public law theory. Like Kelsen, Carré de Malberg operates a rigid boundary demarcation between law and fact. Beyond the constitution “there are only facts (du fait).”Footnote ¹⁵ Carré de Malberg recognizes that these facts will affect the state in the form of social norms, the respect for which ensures social stability, but he nevertheless insists that they are irrelevant to public law theory: “in no way could they serve as the basis for, or an element in, a juridical theory of the state. The rule of conduct that they indicate for states is wholly moral or political in nature, and cannot be reduced to a juridical formula or restated in terms of legal rules.”Footnote ¹⁶ The argument borders on circularity: social norms cannot form the basis of a juridical theory of the state because the rule of conduct they prescribe is not juridical in nature. Kelsen would rely on the idea of the auto-relationality of law to close off the sphere of public law to all social forces.Footnote ¹⁷ The dialectics that play out in Carré de Malberg’s theory of state between different temporalities connect to those forces, which empower Parliament in relation to the executive. But unlike Kelsen, Carré de Malberg cannot access an Archimedean point, from which a line of demarcation could be traced that would separate legal order and society. Forces that the law cannot control are already operative within the constitution. Carré de Malberg’s theory is traversed by an outward movement that integrates those forces into the state. We see how this plays out in a passage that deserves to be quoted at some length:

What defines the state, what constitutes it as a state, is the legal order. But it is the state, not the legal order, that channels the play of forces in society and mediates between the statutory organization of government and its social milieu. It is the state that enables the great mass of the nation to internalize the organization of government. Carré de Malberg does not develop the mechanisms by which subjection shades over into allegiance. The point is not how the transformation happens but that it happens. The result is, we are told, that the power of the state rises up with irresistible force. State power is not just greater than competing powers. As subjection to government is internalized, the nature of power changes; it is transformed from brute power (puissance de fait) to legal power (puissance de droit).Footnote ¹⁹ Carré de Malberg carefully avoids designating the power of the state as sovereign, although it exhibits all the characteristics of sovereignty.Footnote ²⁰ If he wants to avoid the notion of sovereignty, it is because it refers back to an origin that predates the institution of legal order.Footnote ²¹ Thus, he takes pains to dissociate himself from the myth of co-originality of power and order that Hobbes invented. The supreme nature of its power is not the first cause of the state; supreme power is an effect of the given equilibrium of forces that creates the state as the dominant force of society.Footnote ²² A perfect counterpoint to the Hobbesian myth. There is no outside, no before from which we move into society. But these differences aside, the passage reproduces the most important feature of Hobbesian sovereignty, viz., to render power in-distinctly objective and subjective, institutional and individual. In the passage above, we are told that supreme power arises at the point where government organization intercepts the forces of society, linking them and the great mass of the nation.Footnote ²³ If a stable and permanent state organization can be set up on the basis of their coordination, it is because no social force is excluded. The comprehensive nature of the state is expressed in its identity with the nation that Carré de Malberg introduces in the second volume of his work. It is wholly inconceivable, he tells us, that there should be in the state two distinct persons, a person state and a person nation: “Behind the names, the state and the nation are one and the same being. The state is the abstract person in which the nation exhausts itself and comes together.”Footnote ²⁴

Much of modern constitutionalism has been an attempt to move beyond Hobbes’ in-distinct force field to a description of society where the objective and the subjective are assigned to separate domains. The option is not available to Carré de Malberg. The entity that emerges in the above passage is all state, a total state, even if he does not designate it as such. The term gained currency in the beginning of the 1930’s where Carl Schmitt would use it to denote a form of government in which the state should turn its power to invest and dominate civil society, or else cede its place to more resolute and ruthless social formations that would employ the new mass communication technologies—weapons, as Schmitt called them—to control civil society.Footnote ²⁵ Schmitt would, for a time, sing the praises of the total state. Eventually, however, he lost faith that the liberal state could maintain its autonomy in relation to civil society and turned to more agile formations like the movement. This is not true of Carré de Malberg whose theory of state remained anchored in liberalism. But we cannot ignore that, as fascism rose to government, it relied on the idea that the state was called to constitute the unity of the social collective. Just to give one example, we find the idea expressed in the work of Carlo Esposito, a non-ideological conformist who introduces the equivalence between state and nation as a concession to the adoption of the fascist regime in the Italian Republic.Footnote ²⁶ In view of its resonance in fascism, we have to ask whether the equivalence of state and nation can co-exist with liberal constitutionalism. To that end, we consider how Carré de Malberg proposes to recover constitutionalism for this state that is co-extensive with society and so seems to have swallowed up the liberal sphere. This takes us deeper into the nexus of public law and history and eventually leads us to the question of the referendum.

A Constitutionalism for the State-Nation

Carré de Malberg engages constitutionalism under the aspect of the separation of powers. He is adamant that the classical doctrine is incompatible with the reality of the modern state. Implementing a separation of powers would paralyze the state, indeed, destroy its unity.Footnote ²⁷ Instead, Carré de Malberg proposes a hierarchical ordering of powers. How the act of a state organ should be assessed depends on the degree to which it actuates the power of the state: “According to positive law as it is today, the separation of powers is not a separation of functions. The three types of acts, legislative, executive, and judicial, can be identical in content, but the same decision will take on very different values, depending on which authority it is taken by… That is what the separation of powers means today… A separation not in terms of material functions but of degrees of formal power.”Footnote ²⁸ The organs of the state exercise the same power at different degrees of intensity, or as Carré de Malberg puts it, they exercise like functions with different force (puissance).Footnote ²⁹

In shifting from separation to gradation of power, Carré de Malberg stands constitutionalism on its head. Constitutionalism developed as an exercise in introducing distinction into absolute power. It assigned specific functions to specific actors and so overlaid the blank screen of generalized subjection by an increasingly determinate image of distinct actors and functional powers, with the effect of relating law to a historical world where authority and command were always already distributed in specific ways. We see how this plays out as Locke introduces the distinction between executive and federative power in the second treatise on government. Locke knows where the powers lie; he knows that they inhere in one and the same actor. Executive and federative power are both means to protect the commonwealth against its enemies, and are “hardly to be separated, and placed, at the same time, in the hands of distinct persons.” Doing so would destroy the commonwealth as it would place its forces under different commands. The point of insisting that these powers, which devolve on the same person, be “really distinct in themselves,” is to distill out specific domains in government, a condition for regulating the exercise of a power that was there from the infancy of government.Footnote ³⁰

This constitutionalism does not transpose to Carré de Malberg’s functionally undifferentiated state. The shift from separation to gradation of power collapses, or renders illegible, distinctions between domains. Power is the same across all domains. What contours the complex are differences in intensity. In this integrated state, legislative power reigns supreme. It alone exercises state power to the maximum degree, first and foremost by creating law that binds other organs of state. The primacy of legislative power has two aspects. It is the primacy of a specific type of act. Unlike regulation or other administrative acts, legislation trumps all conflicting rules and can only be rescinded or modified by new legislation.Footnote ³¹ But ultimately, the primacy of law flows from the primacy of the state organ that produces it. In relation to the executive, Parliament asserts its authority through personal subordination. The executive is drawn from among the members of Parliament, to whose supervision and control it is subject.Footnote ³² In relation to the judiciary, the superiority of Parliament does not have this relational dimension; it rests on the subordinate nature of adjudication as a mode of government. Courts can only supplement lacunae in the law, and the discretion they have is to be exercised within the bounds of the law. On Carré de Malberg’s reading, the subordination of courts to legislation is so comprehensive that he comes close to assimilating the judiciary to the executive branch as just another handmaiden of Parliament.Footnote ³³

A tension exists between the levels of Carré de Malberg’s analysis. The abstract determination of the nature of power—gradation of powers—leaves unexplained why the government of the Third Republic had the institutions that it had. Conversely, it is not clear that the political reality of the Third Republic corresponded to the image of a perfectly integrated state painted by Carré de Malberg. To metabolize this tension, Carré de Malberg redefines the work of constitutionalism. Traditional constitutionalism set limits to government power by distinguishing domains of government action and devising protocols for them. What we might call its regulatory articulation of government power was supplemented by the supposition of a moral relationship—trust—between subjects and their governors, which, in the Lockean version, was non-renewable as it traded off the stock of paternal care that was left over from the beginning of political society.Footnote ³⁴ Where trust was broken or exhausted, property remained an absolute barrier to government. The constitutionalism that emerges in Carré de Malberg’s state theory continues to be concerned with delimiting government. But as government powers are integrated into a state that is co-extensive with society, constitutionalism must look inward to find those limits. This explains that Carré de Malberg repeatedly consults American constitutionalism to see how it poses checks and balances to government. However, the system that American constitutionalism developed cannot be transposed to the Third Republic. The subordinate role of the French courts means that constitutional review would not pose a real limit to the power of Parliament. Neither would the constitution, which empowers the legislative to amend the constitution and so effectively enables it to determine the extent of its own powers.Footnote ³⁵

Ultimately, Carré de Malberg’s investigation into the possibility of governing society by public law reduces to one single question: are there, within the constitutional system, limits to the power of Parliament? The answer is affirmative. There are “effective limits” to the omnipotence of Parliament which flow from the practice of using recurrent elections to appoint government. These effective limits render Parliament’s power, unbounded though it may be, ephemeral and its possession precarious.Footnote ³⁶ In qualifying the limits as effective, Carré de Malberg gestures towards something that lies outside the conceptual boundaries of his theory.Footnote ³⁷ We shall have more to say about that as we consider another phenomenon that Carré de Malberg qualifies as effective, namely representation. In both instances, efficacy designates the involvement of the demos in government. Carré de Malberg skirts the question as he notes that alone amongst the organs of state, Parliament exercises state power to the maximum degree. In this context, he asks whether the dominance of Parliament is compatible with the principle that the nation is the source of all public power. Does the “strong concentration” of public power in Parliament mean that it has usurped the rightful place of the nation?Footnote ³⁸

At first glance, the connection that is here established between Parliament and the nation is unexpected. It is not clear why shifting the governmental balance of power in favor of the legislative branch would threaten the position of the nation. As we shall see, the decision by Carré de Malberg to fold a question of government into a question of constitutional principle involves an effort to repair the relationship of public law to history. Carré de Malberg has already indicated the nature of the limits to Parliament’s power. The matter should therefore be settled. But the question of the limitation on the power of Parliament returns in the section on the organs of state, this time in the context of a recovery of French post-revolutionary constitutional history. In a seemingly contradictory movement, Carré de Malberg radicalizes the tension between the political reality of the Third Republic and constitutional history. He leans into the present by underscoring the predominance of Parliament. It is inadmissible to distinguish between a primordial sovereignty that creates the constituted powers and a lesser sovereignty for everyday use, one exercised by the very same constituted powers.Footnote ³⁹ There can only be one sovereign power within a state, and the organs that exercise it already exist. Irrespective of where we look in history, a nation has “accredited organs that ‘represent’ it and have as their mission to articulate its will.”Footnote ⁴⁰

Carré de Malberg is trying to connect his own time back to the 1789 revolution. But what to do about the intervening revolutions? Are they not an aspect of the legacy that he is trying to recover? And if so, what place should they be assigned in the temporal arc he is drawing? Carré de Malberg’s strategy is to create a counter-story of sovereignty. To that end, he assimilates the theories of government of Rousseau and Sieyès. He is clearly aware that he is pushing beyond what interpretive fidelity authorizes. He notes the salience of general will in Rousseau’s theory and recognizes that the immediacy with which general will manifests itself in legislation absorbs the space that a constituent power would occupy.Footnote ⁴¹ He also notes that the concern for individual rights that permeates Sieyès’s theory of constituent power runs counter to the spirit of Rousseau’s social contract.Footnote ⁴² But ultimately, the similarities outweigh the differences. Rousseau and Sieyès depart from the notion of popular sovereignty, according to which the people contains within itself all constituted powers. This view foregrounds the question of representation (understood as delegation). The people exercise their powers by identifying a constituent organ among the organs of state and they confer upon it the plenitude of sovereign power.Footnote ⁴³ At the same time, the fact that the people contains within itself all constituted powers undercuts the separation of constituent power and constituted powers, around which constitutionalism is articulated.Footnote ⁴⁴

In assimilating the theories of government of Rousseau and Sieyès, Carré de Malberg creates a pole, against which he can set off his own historical account.Footnote ⁴⁵ Fundamentally, he distances himself from the idea that what happens in history translates immediately and perfectly into constitutional order. Revolutions throw up the “erroneous” notion that constituent power derives directly from the people.Footnote ⁴⁶ Against this unitary politico-constitutional history, he sketches a history not of popular but of national sovereignty, which means that no one person or group in society can claim to possess sovereignty. Sovereignty belongs only to the nation.Footnote ⁴⁷ As it does not feature an actor that carries all of sovereign power, the history of national sovereignty avoids extremism at both ends: on the one hand, it avoids the revolutionary eruptions that entered history in 1789, and on the other, the usurpation of the place of the nation by a legislator grown omnipotent. Throughout, national sovereignty keeps history on the right track. It enables the revolution to have a public law history inasmuch as it shifts focus from the historico-revolutionary action of the people to the work of the constituent assembly, which Carré de Malberg consistently portrays as pushing back against the principle of popular sovereignty.Footnote ⁴⁸

At the other end of the trajectory where Parliament has all but freed itself from constitutional history, national sovereignty appears as the last rampart. Its intervention is decisive. It is also radically underdetermined. We have no public law criteria to assess what it does and how it operates. In an almost conversational tone, Carré de Malberg confides in us that there are constituent assemblies and constituent assemblies; those founded on a principle of popular sovereignty will take an inflated view of their own significance. Where they can determine the extent of their own powers, as in the Third Republic, they “easily” become omnipotent. This is not true of assemblies that are founded on the principle of national sovereignty because, no matter how august they may appear, they “cannot be seen to contain the entire power of the nation.”Footnote ⁴⁹

The conversational tone translates a conceptual embarrassment. It is clear that Carré de Malberg ties the reconciliation of historical time to national sovereignty. It alone will allow public law to merge past and present. But what is this principle? Carré de Malberg’s reference to article 3 of the Declaration of the Rights of Man and of the Citizen begs the question. Interpreting the operative phrase (“No body nor individual may exercise any authority which does not proceed directly from the nation”) to mean that there can be no single carrier of all of sovereign power is not the only, and not the most convincing reading.Footnote ⁵⁰ Noting that it is an essentially negative concept, Carré de Malberg juxtaposes the sovereignty of the nation to a sovereignty that would be located in a single point external to the state, whether that point be the monarch or the demos.Footnote ⁵¹ Whatever it is, the nation is neither the monarch nor the people, and as Olivier Beaud notes at the end of a careful and patient analysis, national sovereignty, as it is used by Carré de Malberg, means little more than the institutionalization and im-personalization of the power of the state which ultimately reduces to the superiority of the constitution in government.Footnote ⁵²

In assimilating the two rival points of incarnation—monarch and people –, Carré de Malberg takes government by public law out of a history of popular struggle: “With the exception of the 1793 Constitution, which tried to put into practice the theories of the Social Contract, French constitutions, while often linked with the principle of popular sovereignty, whether by publicists or politicians, were in reality conceived in the spirit of national sovereignty and retained that orientation.”Footnote ⁵³ The implication is that the process that got underway in 1789 had a natural national trajectory, from which only the madness of revolutionary terror could cause it to diverge. However, as the account closes in on the present time, we find that far from following a natural trajectory, national sovereignty needs to be supplemented. We have already seen that, with the integration of state power, the limiting juridical function associated with the principle of national sovereignty migrates into the effective limits of the electoral cycle. As we get close to the end of Carré de Malberg’s work, we witness the emergence of a new effective determinant of government:

At first glance, the observation is almost trite. Yes, the electoral body does not only exert influence on election day but also in between elections. Influence is continuous or permanent, which, as Carré de Malberg goes on to note, means that the will of the nation does not reduce to that of Parliament. At all times, the electoral body makes its view known as voters exchange with their elected representatives. Beneath the air of self-evidence, the introduction of a new channel of influence translates a profound transformation of the state and of the place of the demos in it. As history shades over into the present, the state, to prevent capture of national sovereignty by Parliament and maintain the connection between past and present, develops a sensibility for impulses, of which we cannot be sure that they were there before. What we might call the innervation of the state is a corollary to the emergence of a new type of relationship between voters and elected representatives. In the system of government created after 1789, the elected representatives were not bound by any pre-existing will. But the parliamentarism of the Third Republic introduced “into the old system of representation created after 1789 a principle, or an element, that was not there before.” In this new parliamentarism, which Carré de Malberg terms effective representation, the electoral body relates to Parliament in a quasi-determinative mode: “…without being directly determined by imperative orders of the electoral body, decision taken by the elected representation, cannot be in persistent opposition to the wills of that body, but will have to present an image of them that is more or less accurate and adequate of that will …”Footnote ⁵⁵

As the present folds into the past, finally reconciling historical time, the electoral body—the political face of the nation—stirs. The principle of national sovereignty entailed that no individual or group could claim to possess a sovereignty that belongs to the nation. Carré de Malberg’s theory of state shows the nation to be acting to prevent the usurpation of its place. Its actions connect present and past in a history of public law. At the same time, it acts in ways that bypass the statutory organization of the state, calling into question the identity of state and nation that frames Carré de Malberg’s recovery of history. How, and in what capacity, is the nation involved in government? Only by answering that question can we find out why Carré de Malberg had to reject the referendum, and what the subsequent reversal of his position meant for his attempt to salvage the project of government by public law.

Past against Future

The fact that Carré de Malberg opens up his theory of state to forms of representation that are not juridical in nature does not mean that he relaxes his notion of public law representation. On the contrary. Carré de Malberg notes a drift or tendency in public law theory towards forms of proportional representation, and while he critiques it as incompatible with the system of representation that was established in 1789, he recognizes that the people, not the nation, seems, “to a certain extent” to have been invested with an independent volition.Footnote ⁵⁶ At the same time, he is adamant that the constitutional significance of the electoral mechanism remains the same. Elections are not about creating a likeness of society, or about reproducing its diversity on a smaller scale.Footnote ⁵⁷ What matters in elections is not what the body of elected representatives looks like but that its composition intercepts an equilibrium of forces and so shows the state to be in sync with the nation. To prop up the identity state/nation, he devotes a long, and at times tortured analysis of the suffrage, the aim of which is to show that, as a matter of law, the electoral mechanism does not constitute the voters as an organ capable of willing for the nation, to which Parliament would then have to give expression, either by its actions or its composition. What acts in the elections is the state, not a body distinct from it. In an attempt to dissociate the election and the people, Carré de Malberg anchors the electoral mechanism within the constitution. We should not see elections as an act of self-determination by the sovereign people. Elections are a constitutional function and if they involve collective agency, it is because such agency is mandated and bounded by the statutory organization of the state. In carrying out its mandate, the electoral body does in fact not enunciate a collective will; it merely nominates those who are called to will for the nation.Footnote ⁵⁸

Voting involves no originary will-formation. Carré de Malberg corroborates this observation by observing that where the electoral body expresses a distinct will, it is agglomerated into the two chambers of Parliament to make up a single, complex organ of state.Footnote ⁵⁹ The strategy extends to the involvement of the individual voter. Elections make rights holders of individual voters, but they only have a right to participate, and so their right exhausts itself before the act of voting. In casting one’s vote, the agency of the individual voter is absorbed into the constitutional function, and the expression of will passes from the individual to the state. Only through this appropriation does voting acquire the superior force that we associate with the suffrage, where the “personality of the individual [acting as a state] organ disappears, leaving only the personality of the state.”Footnote ⁶⁰

The elision of individual agency, with the attendant dissipation of the particularity of individual will, means that Carré de Malberg can assign no driver to the rise of proportional voting. As the agency is all on the side of the state, it is unclear why, and by which mechanism, it would pivot towards a semi-representative regime. But here, sociological description cedes to a higher political imperative. The finality of the move is to foreclose on the possibility of independent representation of the people by a collective actor.Footnote ⁶¹ The constitution of the Third Republic would seem to allow for such representation inasmuch as it envisages the dissolution of Parliament, which effectively confers on the people the power to control the will of its elected representatives and impose conformity with its own.Footnote ⁶² But dissolution emanates from within the institutions of Parliament and has been contained within them, so successfully in fact that Carré de Malberg can assert that since 1887, dissolution has fallen into desuetude.Footnote ⁶³ Not so with another form of popular consultation: the referendum. It provides the electoral body with a means to directly determine the will of the nation. Carré de Malberg professes considerable sympathy for the civil educational virtues of the referendum, but he is adamant that its introduction would put the final nail in the coffin of the system of representative government that was instituted in 1789; it would propel France into a system of direct democracy.Footnote ⁶⁴

The referendum, initially associated with the figure of Georges Boulanger, rose to prominence in French political life in the 1880s as part of a reaction against the predominance and self-sufficiency of Parliament.Footnote ⁶⁵ But it is not clear that these partisan reasons are what motivate Carré de Malberg’s opposition to the referendum. Something else comes through in the Contribution, a sense of extreme exposure to forces that affect the foundations of political order. The sense of exposure is expressed in different ways. It comes through in Carré de Malberg’s observation that to pry power away from the chambers of Parliament, one would have to upend (bouleverser) the entire constitutional system of 1875 and so begin constitutional history again.Footnote ⁶⁶ As he considers how the Third Republic might move forward without becoming a direct democracy, Carré de Malberg acknowledges a sense of uncertainty about what the future might bring, and about the capacity of Third Republic to deal with it. Semi-representative government “tries to reconcile, and maintain an equilibrium between, some of [the] respective tendencies and institutions” of representative government and direct democracy; “[as] a matter of logic, this balancing act may appear precarious, but given the situation in France, there is a real possibility that the constitutional system it answers to will last.”Footnote ⁶⁷

History would not bear out this prediction, and the text contains every indication that Carré de Malberg knew that it was unlikely to. As he returns to the question of the referendum in 1931, his reflections no longer inhabit a history of national sovereignty where the social collective has been absorbed by, and into, the state. In the place of the nation stands the people, a people actively reclaiming their political rights. Given the growing influence of public opinion on government, it is “rational and in conformity with the nature of things that the people’s rights are strengthened. From this point of view, the opinion imposes itself that parliamentarism is a transitional regime destined, in the normal course of history, to end up as an, if not integral democracy then at least a hybrid between democratic and representative institutions.”Footnote ⁶⁸ The referendum is the avenue through which the rise of the people spills over into constitutionalism. The changes it occasions are profound: “In the states that oppose to the legislative power of the chambers the possibility of a referendum by popular demand, the people rises to the supreme rank by taking on the power to decide definitely on the rejection or adoption of parliamentary decisions. As a result, Parliament would be relegated to the status of a simple public authority. It would represent the general will only in coming up with, and proposing an adequate expression of it, in which respect its office would be like that of a public servant. The real sovereign would be the people, armed with the juridical means of having the final say…”Footnote ⁶⁹

The referendum institutes this world where the citizens united as a people delegate to Parliament the task of elaborating a general will which it is for them to express and ratify. A world where Parliament relates to the citizens in terms of a representation that is both political and esthetic. Parliament is the “figuration” of the sovereign.Footnote ⁷⁰ The superiority of legislation derives from the fact that in the deliberation assembly, “all citizens are [rendered] present, or in any event, represented.”Footnote ⁷¹ If the terms and tone call to mind Rousseau, the referendum does not have the significance that he would have attached to it. Leaving aside the deep and ultimately tragic ambiguity of Rousseau’s notion of self-determination, on his theory of general will, the referendum is seen as a manifestation of the people. In the Contribution, Carré de Malberg notes that, once the people are recognized as the primary organ of state, the drift towards manifestation becomes inevitable. Then the referendum appears an “unavoidable necessity; the moment you take as your point of departure that the assembly of deputies only represents, in the proper sense of the word, the will of the people, it becomes unthinkable that [the assembly] could express will, leaving the people it represents without means of making known its real (véritable) opinion against the opinion falsely attributed to it.”Footnote ⁷²

The opposition reality/falsehood leaves no doubt that, at this point, the referendum is seen as a medium of manifestation. The theoretical reflections from 1931 paint a different picture. At this point, what matters about the referendum is not that the people manifest their will. On the contrary, Carré de Malberg makes it very clear that the body of citizens need not avail itself of the opportunity to express its will. More than once, he informs us that in a system reformed by the inclusion of the referendum, the consent of the people can be tacit, adding that, after deliberations in Parliament, “the final decision would pass to the people, that is, if it is of a mind to take it.”Footnote ⁷³

The change of tone is too insistent to ignore.Footnote ⁷⁴ We would correlate it with a reconfiguration of the relationship between people and state that gives a new slant to constitutionalism. The theory of public law government that Carré de Malberg develops in the Contribution is predicated on the agency of the people, the eruption of which began the only constitutional history that he is concerned with. But if Carré de Malberg’s theory of state departs from a manifestation of the people, it is also directed against it. The distinction between popular and national sovereignty is designed to foreclose on the disruptive political agency of the people. Seen in this perspective, what we have designated as a turn to the total state appears as a strategy to intercept and absorb social forces that, if unchecked, might coalesce into a power to rival that of the state, with the effect of undermining the project of government by public law. In principle, the conversion to the referendum opens up an avenue for the type of agency that Carré de Malberg set his theory of state against. But as we have seen, he does not require the sovereign people to show itself; the sovereign people speaks by its silence rather than by its actions. We might say that his theoretical reflections move us from a world of intense presence (of state power) to a world of meaningful absence (of the sovereign people).

The transition marks an epochal change in European constitutionalism. Carré de Malberg is clearly aware that we have entered a new chapter in the history of the state. He addresses the change in the preface to the Contribution which, it will be remembered, opens by asking whether it still makes sense to publish a treatise on the right of the state that was written before the war. The shocks, of which he speaks in the preface, emanated from an opposition of state powers, but he leaves no doubt that what has changed with the war concerns the internal relationship of each state to its subjects. Where the text itself speaks of this relationship in terms of coordination and cooperation, the preface, written in light of the experiences of war governance, speaks in terms of domination. Carré de Malberg insists that defining state power in terms of domination does not tell us anything about the usual or desirable level of domination that a state exercises; it merely indicates the limits of state power.Footnote ⁷⁵ But the short passage reflects an awareness of how extreme state power had become, not only at its limit. In a chillingly premonitory tone, he tells us that the end of the war does not mean that “the state no longer needs power. On the contrary, the formidable multiplication of its tasks … inevitably (fatalement) call for a strengthening of public power. Even before the world war, it was clear that the contemporary life of the state demands that the means of action and the power of the national community rest in the hands, or under the supervision, of the state. What can we say on the day after a cataclysm that revealed, with blinding clarity, the imperative need for strict discipline and solid organization? State power will not be entering a phase of degrowth anytime soon.”Footnote ⁷⁶

What comes through in this passage is a new vision of the state, and of how it relates to what it governs. The Contribution still moves within the constellation of early modern political philosophy which opposed state and society and labored to institute exchanges between them. The preface does not. It has left behind the opposition of state and society, around which Jellinek and Kelsen continued to articulate their theories, even as they blinded themselves to what went on within society. What the text of the Contribution casts as an equilibrium system where the state intercepts and absorbs the forces of society, a system where its identity with the social collective is constantly re-negotiated and hopefully won, now appears as a relationship of master and servant, a relationship of total exposure of one to the other. This may explain why Carré de Malberg’s 1931 reflections designate the social collective as a people, not as a nation. The designation does not ascribe to the social collective the sort of independent agency associated with the people in the text of the Contribution. The designation works in tandem with the referendum to remind the state that there is something that transcends its power, something that it cannot render present. This is a new kind of constitutionalism, one not concerned with adapting the categories of the past to a new reality, as Carré de Malberg was in the Contribution. The abstract novelty of the integrated public law that he presented in the Contribution makes way for what seems to be a classic public law of general will and popular sovereignty. But this public law does not look to harness the sovereignty of the people, or to keep the state in sync with society. Its concerns are with the meaning of what that relationship between the state and the people was once about. Just a few years after Walter Benjamin withdrew his treatise on the origins of the German tragic drama, the referendum, as theorized by Carré de Malberg, functions quite literally as a scheme within an allegorical constitutionalism that preserves past republican meanings and reflexes in a world where nature—or, in the case of law, second nature—does not carry intrinsic meaning.

The weight of the twentieth century bears down on the text as we ponder the significance of Carré de Malberg’s gesture which points towards, indeed seems to open a space where the last constitutional barriers to the power of the people would fall, but where the people would be replaced by the masses as the subject of power. What convinced Carré de Malberg that the past was closed off, and how far into the future did that intuition allow him to see? It is hard to say. The story that we have told is one of the depletion, and eventual exhaustion, of the perhaps most fundamental resource of bourgeois constitutionalism: the belief that law could bind together society by establishing a sphere where all subjects are equal (which government would have to relate to the spheres of inequality and domination that persisted in society).Footnote ⁷⁷ Of course, the equality that law instituted was merely formal and so incomplete as a representation of the social collective, but it was not meaningless. Ironically, it was the omnipotence of the constitutional organ that was meant to represent this society of equals that convinced Carré de Malberg that law-based government had run its course. This omnipotence had as its corollary a detachment of Parliament from the people which the Carré de Malberg of the Contribution tried to remedy by introducing other, unofficial forms of representation, new ways of playing the jusnaturalist game of painting society through the state. We may not be able to determine what drove the reversal of position in his 1931 reflections on the referendum. Ultimately, his reasons matter less than what the reversal delivered us into—the return of the people, but a people that is not called to decide. What matters in the referendum is not that the people decide but that it once mattered that we claimed it did.

In Carré de Malberg’s late works, the qualified return of the people dialogues with the rise of a power that Carré de Malberg formerly saw as a handmaiden to Parliament. Drawing a comparison with the Weimar Republic, he indicates a rebalancing of the relationship between Parliament and the executive as a means of escaping absolute parliamentarism. In the Third Republic, creating the legislative and the executive as a duality—dualiser the two powers—can only be done by superimposing on their unequal relationship “an organ of a special and higher essence,” one capable of imposing its supremacy; in other words, the people.Footnote ⁷⁸ The political valence of this resonance between the rights of the people and the needs of the state is indeterminate. Calling to mind that the powers of government are subordinate to the people could be seen as a commitment to direct democracy.Footnote ⁷⁹ But the governmental practice that Carré de Malberg describes does not bear out this reading. The supremacy of the people that Carré de Malberg refers to does not give it a role in government. In his reflections on the referendum, he confirms that the agency of the people, which he qualifies as a power of domination, is spiritual: “In a parliamentary regime to which the referendum has been added, Parliament would exercise its representative power subject to the recognition of the rights of the people. Its powers of representation would not be destroyed; they would be limited, or more precisely dominated by those of the represented.”Footnote ⁸⁰ Not only is the people not called to play an active role in government; someone else is. Carré de Malberg is very aware that connecting executive power to the people, as the founders of the Weimar Republic had done by making the office of the President the subject of direct election, would open up an avenue for a new type of government. He speaks approvingly of the unlimited “dictatorial” powers that the Weimar constitution confers on the president, in contrast to the limited powers that the Head of State has under the constitution of the Third Republic.

The moralization of government and the amplification of executive power are introduced as answers to imperatives that originate outside of law.Footnote ⁸¹ What makes them operative within the constitution is that they cut against the parliamentary state that had built up in the course of the nineteenth century. Like his earlier work, the reflections of the late Carré de Malberg are wholly determined by what they react against. What has changed may ultimately be a matter of history, or rather, of how we relate to it. Where the Contribution attempts to show that France’s bourgeois parliamentary regime grew out of its political history, the late reflections of Carré de Malberg look for a way to exit the narrative arc he had so laboriously constructed. That has been our history since, a slow, and sometimes not so slow, eclipse of a story that was told to set right a time that was already out of joint.