The Law beneath Rights’ Feet. Preliminary Investigation for a Study of the Charter of Fundamental Rights of the European Union

• Date: 01 December 2002
• Author: Massimo La Torre
• Published date: 01 December 2002
• DOI: http://doi.org/10.1111/1468-0386.00163

The Law beneath Rights' Feet.

Preliminary Investigation for a Study

of the Charter of Fundamental Rights

of the European Union

Massimo La Torre*

Abstract: This article is meant as a philosophical preface to the study of the European

Charter of Fundamental Rights. In particular, attention is focused on a particular legal

positivistic reading of legislation as a political moment which would not allow for

transcendental rights. This view is rejected by pointing out how much the notion of

citizenship and consequently of fundamental rights is central for the democratic, and in

some case even for the legal positivistic, celebration of legislation. In the last section a few

conclusions are drawn as far as the scope of the Charter is concerned. In particular, any

interpretation of it in the framework of the so-called regulatory paradigm (which gives up

the democratic connection between deliberation and representation) is considered

incoherent and self-defeating. In addition the principle of indivisibility of rights is

evoked in defence of the validity of social rights within the Charter.

I

In this paper my main aim is to consider the relationship between law and politics in

order eventually to arrive at some conclusion as to what dynamics may arise between

the validity of fundamental rights and the contest of production of legal norms (®rst

and foremost, legislation). I am doing this here in order later to start to assess the

scope and impact the recent Charter of fundamental rights of the European Union has

or may have on the current laborious process of building a supranational political

system.

In particular, my attention goes to discussing and refuting a conception of the State

based on rule of law in purely voluntarist terms on the basis inter alia of a narrowly

positive law interpretation of Kant's legal philosophy. Second, I am interested in

showing the intimate relation there is between law and politics once the law is

`constitutionalised', that is, becomes `mild',

1

especially the structure and the guarantee

of rights, and politics becomes `civilised', i.e. becomes a civil conversation, the

practical expression of citizenship.

European Law Journal, Vol. 8, No. 4, December 2002, pp. 515±535.

#Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

* A contribution to the Workshop on `The Charter of Fundamental Rights as a Constitution-Making

Vehicle', ARENA, Oslo, 8±9 June 2001. The author is at the University of Catanzaro, Italy, and Hull

School of Law, UK. The paper was translated by Iain L. Fraser

1

Cf. G. Zagrebelsky, Il diritto mite (Einaudi, 1993).

II

The process of progressive autonomisation of political power from the social and

moral spheres emerging in the modern epoch as from the crisis of the Empire goes

through the work of certain thinkers who welcome and develop the political processes

under way, but sometimes propose new models for them, to which political reality

adapts as it ®nds them suited to its own dynamics.

2

The most important of these

thinkers, the fundamental ones, I should say, are three in number. They correspond to

three stages in the development of the degree of autonomy of the political dimension.

First comes Machiavelli, then Hobbes, and lastlyÐit may be maintainedÐthe third,

Kant. Machiavelli makes the Prince, and therefore political power, amoral: liberated

from the traditional ties to morals and religion. However, if Machiavelli's Prince has

cut the moorings on the moral side, the same cannot be said of his rooting in a

particular materiality. On the side of society the prince is still ®rmly moored, for the

mere reason that he is conceived of as an actual man, indeed, a man of certain `virtues',

special capacities. Thus, Machiavelli exempli®es him in a historical personage of his

own times, endowed with certain idiosyncratic traits. In short, the Prince lacks the

necessary abstractness to make politics a separate thing, remote from the concrete

dynamics of social life, from its movements and from its passions.

The next step is taken by Hobbes, to whom one may in certain respects join

Rousseau. Hobbes no longer sees political power in the Prince, a ¯esh-and-blood

creature, but in a symbolic, abstract, collective entity. For the ®rst time he sketches out

what would subsequently be called the State, which Hobbes calls Common-wealth:

Leviathan. Common-wealth, community, and State, Leviathan, are very closely con-

nected. That is because the abstract political entity is conceived of on the basis of

assertion of a will distinguished from the will of the individuals though incorporating

it; we thus have the `one will', which is by no means the `will of all'.

But, it might be objected, where is the novelty here, when the whole of political

medieval thought, and still more, `classical' Greek and Roman thought, talk of

nothing else but civitas,res publica,polis, in short, `community'? Is this abstractness

of the political dimension not at the very foundations of re¯ection on society? Well, the

dierence is twofold. First, and this is a fundamental dierence, the terms civitas,or

polis, express, for the Romans and Greeks respectively, the concept of society as a

whole, not just that of the political sphere. The political is entirely immersed in society.

But Hobbes intends by Common-wealth not just any society, but society constructed

on the basis of the political dimension. Common-wealth corresponds in natural law

language to civil society, as distinct from natural society or the state of nature.

Whereas for the Aristotelian tradition pursued until the dawn of the modern era

society is a given, and political power an internal element of it, produced by it, for

modern natural law thinkers society is a problem, since they postulateÐeven if only

hypotheticallyÐthe existence of a previous stage, the state of nature, variously

depicted by the various authors, with as a constant feature the precariousness of

relations among the human beings living in it. These relationships are then stabilised

through an outside intervention (outside the relations), whereas in the Aristotelian

model this stability is a datum, that is, is intrinsic to the social relations themselves.

This outside intervention is the action of political power, accordingly located outside

European Law Journal Volume 8

516 #Blackwell Publishers Ltd. 2002

2

An important discussion of this process can be found in E. Cassirer, The Myth of State (Yale University

Press, 1946).