The Forgotten Jurisprudence of Giovanni Sartori

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Giovanni Sartori (1924-2017) is best known as a political theorist specializing in democratic theory (also the title of his most popular work). But he is not known as a jurist, unlike fellow Italian Bruno Leoni, despite remarkable insights for jurisprudence. Legal philosophy is poorer for not remembering Sartori’s contributions, particularly insofar libertarians and classical liberals are concerned. Sartori’s insights emanate from an essay, “Law and Liberty”, published in 1976 by the Institute for Humane Studies, which is a modified reproduction of chapter 13 of his book, Democratic Theory.

I came across this essay in the course of research for my master’s thesis, and to my surprise discovered that not many other classical liberals have taken note of it. Hopefully this summary inspires some interest in Sartori’s forgotten jurisprudence.

Types of Freedom to be Distinguished

It is common today to identify individual rights and liberty with democracy. This is likely because of how democracies tend to preside over freer societies than their dictatorial counterparts.

But Sartori notes that liberty was not originated in democracy, but rather acquired by it. These are, therefore, still distinct concepts, and we must not suppose that democracy will necessarily be protective of individual freedom. Instead, “our liberties are assured by a notion of legality that constitutes a limit and a restriction on pure and simple democratic principles”.

We find democracy easier to understand because it describes something everyone intuitively understands, whereas freedom evokes so many different elements that one is never sure which element is being considered. This is why advocates for liberty must be clear what freedom they’re working with. In Sartori’s case, it is what he refers to as political freedom, as opposed to psychological, moral, social, or economic freedom. To be sure, Sartori argues that most of these other types of freedom depend on the existence of political freedom.

Indeed, even if one believes in so-called “positive” liberty – State support – “negative” or defensive freedom remains a necessary precondition for that positive liberty to be exercised. Sartori makes the point that any conceivable positive liberty is meaningless if not supported by the traditional negative liberties.

Sartori focuses particularly on the difference between internal and external freedom, something classical liberals have difficulty with to this day in our engagements with progressives and socialists. Even John Locke distinguished between these two types of freedom. In his famous Two Treatises of Government, Locke dealt with external freedom, which means a person is not subject to the arbitrary will of another, whereas in his Essay Concerning Human Understanding, he dealt with internal freedom, which means a person has the ability to determine for themselves.

Liberty, then, can refer to three phenomena: Allowance (“I may”), ability (“I can”), and capacity (“I have the power to”). As classical liberals who are concerned with political freedom, only liberty in respect of allowance – external freedom – is relevant. This is not to say that the other conceptions of freedom are unimportant. As Sartori writes, “permission without ability and ability without permission are equally sterile.” Liberty in respect of ability – internal freedom – is what the “philosophical approach”, rather than the practical approach of classical liberals, is concerned with.

Liberty and the Law

The protection of rights is a key talking point in classical liberalism. Sartori explains that we have always chosen the law as the medium to do this. Freedom has always been linked with legality. He then outlines three distinct approaches to law: The Greek “what pleases the people is the law” approach, the Roman approach which focused on private law, and the English, but more specifically the liberal, approach, which concerns itself with the public-law relationship between government and the people. Sartori identifies constitutionalism fully with the latter, liberal approach.

To Sartori, the idea of limitation (the mainstay of constitutionalism) is inseparable from the law in general.

Constitutionalism balances government by man (rule by legislators), and government by law (Rule of Law). Rule by legislators happens when laws are “made” in legislation, whereas Rule of Law refers to the law as “discovered” in a court setting. Where legislators make law, law is “the product of sheer will”, but where law is discovered, “it is the product of theoretical inquiry and debate”. We need a bit of both, because if we subscribed exclusively to the Rule of Law, governance would be impossibly inflexible and static. And since the greatest body of common law concerns private law, sticking entirely to discovering law will yield very few solutions to the protection of liberty.

Constitutionalism, while balancing these two approaches, limits rule by legislators through method and procedure on the one hand, and scope on the other. Legislation must be enacted adhering to all the formal rules of statutory lawmaking, and it must comply with the prescripts of the higher law, the Constitution. But even then, legislation as conceived of within the liberal constitutional paradigm is about being complementary to – “to integrate, not to replace” – the common law.

At the time Sartori was writing, he felt that already constitutional law was starting to tip the balance in favor of rule by legislators, something keenly felt today still. Representative assemblies were originally conceived of as institutions that prevented kings from unilaterally and arbitrarily changing the law, but themselves later became lawmaking entities.

But it remains the case “that liberal politics is constitutionalism”, and since most of the world today operates within the logic of constitutionalism, it would be fair to say that liberalism, in its classical sense, still reigns supreme.

Jean-Jacques Rousseau

Sartori mounts an intriguing defense of Jean-Jacques Rousseau, who is not exactly associated with the protection of individual freedom today, because of his “general will” theory.

Rousseau has been grossly misinterpreted and misrepresented, argues Sartori, because he never meant majoritarian dominance with this theory, but was instead trying “to discover objectivity in subjectivity, something absolute and stable in what is relative and changeable.”

Rousseau worked with “Laws with a capital L – that is, few, very general, fundamental, ancient, and almost immutable supreme Laws”. In fact, he did not think man ought to be a lawmaker, but rather law’s judge and custodian. Even the popular will, according to Sartori’s interpretation of Rousseau, ought not be legislated.

The “general will”, rather than being the popular will, is “a will that acknowledges [laws] rather than creates them, sustains them rather than disposes of them, safeguards them rather than modifies them”. This will “is an entity of reason that does not suffer the vicissitudes of human will, or of particular wills”, but is closer to the “spirit of the people” (the volksgeist before it was interpreted in a particularly nasty fashion in the twentieth century).

Sartori is not entirely apologetic about Rousseau, who he says contradicted himself by allowing the majority to interpret what was supposed to be an objective absolute. But this was a mistake, not malice. Rousseau’s theory was about a “general will [as] an objective moral will made up of qualitative elements” rather than the subjective “will of all.”

Rousseau, like the best of the classical liberals, wanted a “watchdog democracy” – a small State where decisions are preferably made unanimously. To him, the general will was “a brake, rather than an accelerator” that “would obstruct and curb legislation”. He never intended to free “man by means of popular sovereignty” but believed firmly in the supremacy of law over such passing majoritarian will.

Legislation and Diminishing Consequences

It is a great error that we assume because we have elected lawmakers to represent us, that we consent to every rule in legislation they adopt. “How absurd! Clearly this is nothing more than mental gymnastics in a frictionless interplanetary space.”

The reality is that with larger political constituencies, and a greater scope of the legislative domain, the consent initially given is rendered meaningless. The vote – the cause – cannot produce everlasting consequences like an unlimited legislative mandate after an election – the effect.

Sartori argues that it is incumbent on us to not stretch the idea of political representation beyond “the law of the dispersion of effects”, for if we do so, “the less closely are the representatives tied to those they represent.”

Skepticism About the Value of Law

Sartori was aware of contemporary skepticism around whether the law is useful as a guarantor of liberty. This skepticism is not entirely unjustified, given how law has moved away from being a protector of freedom and more into the rule-by-legislators domain. This does not mean we have to abandon constitutionalism, but we also cannot let ourselves “be lulled by the idea that the laws stand guard over us while we sleep twenty-four hours a day.”

Until recently, society looked at the content of law to determine whether it is, in fact, “law,” but since adopting a particularly statist approach to law – formalism and positivism – we now only consider the form of law. This has the result that “a law without righteousness is nonetheless law,” and therefore can no longer be so closely associated with the idea that liberty and law are interlinked and mutually-dependent phenomena. This also defeats the point of constitutionalism.

This newfound “legislative conception of law” results “in a real mania for lawmaking, a fearful inflation of laws”. The sheer amount of legislation, alongside the poor quality with which they are written, discredits the institution of law, particularly the common law. We have replaced “jurists and jurisprudence” engaged in legal scholarship and the discovery of law, with politicians. Legal certainty, one of the key purposes of law, is jeopardized by law’s mass fabrication.

This dominance of law by legislation also leads to associating all State diktats with law.

Stephan Kinsella has touched on this aspect of Sartori’s work, originally in the 1995 edition of The Freeman:

“Furthermore, as another Italian theorist, Giovanni Sartori, has pointed out, when legislation is thought of as the primary source of law, citizens become more accustomed to following orders, and thus become more docile, servile, and less independent. Once people lose their rebellious spirit, it is easier and more likely for the government to become tyrannical.”

We have reason to be alarmed, argues Sartori. The law used to be “a solid dam against arbitrary power,” but is at risk of becoming “no guarantee at all.” We cannot rely on the law exclusively – insofar as it is tied to its statist conception – for the protection of our freedom, but this does not change the fact that “placing the law above men” remains the only sure way to secure liberty. We must “return to the constitutional State with renewed vigor and awareness.”

Giovanni Sartori’s insights into law and liberty inspires one to not reject the notion of the Rule of Law as a legitimizing instrument of oppression, but to regard it as a political ideal that would re-entrench the common law and individual freedom as the guiding lights in organized society. Jurisprudence, long neglected in classical liberal circles, should come onto its own once more and reclaim that marvelous creation of classical liberal thought, constitutionalism, before we lose it entirely.

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Martin van Staden is the Editor in Chief of Being Libertarian, Rational Standard, and Think Liberty. He has a law degree from the University of Pretoria. His articles represent his own views and beliefs, and not that of any of the organizations he is involved with.