Sovereignty, Venezuela, Social contract, Rule of Law & the Greeks…
By Aleksander Boyd
London 22 Oct. 04 – Yesterday I sat on a lecture on the subject of Constitutional Law. Our professor entertained us with a retrospective account of public law and how it has evolved into what it is today in the UK. I keep finding, whenever I go to class, striking similarities between the concepts espoused by certain societies in ancient history and the ‘system’ that governs Venezuela. More to the point; mention was made about the characteristics of leadership of a legitimate government. In this case there seemed to be three distinctive types:
1. The charismatic leader; under such rule nothing gets constructed or created, the person exercising the leadership commands absolute loyalty and in general terms said ‘rule’ lasts only one generation for the very own leader does not permit the emergence of new leaders.
2. The traditional leader; this one has sort of inherited power, either via consanguinity with previous rulers or via arbitrary bestowment by powerful financial or political groups. It leaves no infrastructure legacy.
3. The rational leader is neither charismatic nor traditional. Its power derives from social consensus and in most cases is accountable to the precepts of the Rule of Law. Policies are generally conceived with the aim of increasing the wealth of the State. Legislation is approved by the representatives of the people either in Parliament or Congress.
The scope of the mentioned models is quite limited when applied to contemporary societies.
A sovereign nation State concept has developed. The fate of nations can no longer be decided by a remote ruler disconnected to the intrinsic problems of said nation. Ergo sovereignty took over imperialism, at least in theory. Alas in reality we see how conventions, legislation and the sovereignty concept were utterly violated by the coalition of nations led by the US & UK recently in Iraq. From a strictly legal perspective the invasion should not have occurred without the seal of approval of the UN Security Counsel. An interesting point was made in regards to the US’ failure in signing the treaty of the International Criminal Court which would have allowed for American officials and military personnel to be brought to international justice by aggrieved parties. Allegedly the same man who said that his nation was sovereign enough to impede extraterritorial judicial trials on members of his army, almost unilaterally decided to take action against another sovereign state and its people owing to gross human rights violations. It’s bit of a contradiction isn’t it? For one could argue that in this instance it appears that American sovereignty carries more weight than the Iraqi counterpart. The Greeks used to believe that no matter how sound laws were they would be irremediably violated by mankind. So the question was not how to upheld the laws when these were infringed but rather what sort of actions were to be used to counteract said behaviour.
Rule of Law & Separation of Power
Aristotle was one of the foremost philosophical theorists of the time. He maintained that there existed the necessity of separating the executive, legislative and judiciary in order to keep a constant check upon one another. He warned about the perils of bestowing the three branches of power in the same man for it would undoubtedly lead to sheer chaos. Therefore it was thought that for the proper functioning of the State a succinct separation between the powers needed to be made. The government, in this constitutionally incipient environment, was to be bound and subject to law.
Much later in history two main diverging approaches to law developed; legal positivism and natural law. The former deals with the procedures that are utilised to pass legislation regardless of whether or not the approved legislation is considered to be fair. The latter on the other hand has to do with the fairness of the law regardless of whether or not procedures and legislative requirements have been duly followed in the law passing process. Another interesting aspect of the natural law stance is that of morality; i.e. if many of the members of a social group have high moral values the State acts equally.
The Greeks considered those who were alien to politics as idiots in the belief that the sole feature that differentiates humans and animals is reasoning. Ergo he who can reason and decide on issues that directly affect his everyday life and does not raise his voice, via suffrage, to approve or condemn certain policy or law must be an idiot. Quite straightforward and logical if one thinks of it. Corporal punishment was to be the method to deal with those who abstained from taking part in the politics of the “polis”.
In 1.651 Thomas Hobbes published Leviathan which is considered to be the first theory of social contract. In it he argues, amongst other very interesting themes, about three different types of government and brings to the public fora a rather radical and fatalistic motive for the social contract, i.e. “I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner”. The message he tried to convey was that the intrinsic nature of man is violent and he needs a superior power that can restrain such violence so pena of punishment. In that light he envisioned three types of government for the “Commonwealth”:
1. Monarchy: rule by one man (the Monarch).
2. Aristocracy: rule by a self appointed small group of privileged men.
3. Democracy: ruler elected by the people.
Then in 1.690 John Locke’s Essay Concerning Human Understanding and Two Treatises on Civil Government sharply contrasted with the previous ideas proposed by Hobbes. Locke saw fit to affirm that people are naturally sociable creatures that can negotiate what is in their best interest, ergo the notion of having a supreme ruler who could decide for them was in his view flawed. Furthermore his liberal arguments went on to become the basis of the concept of “checks and balances” that governs the USA. He advocated for separation of powers, something that Hobbes did not support favouring instead monarchical rule, stating that society necessitated of no king but of people’s representatives in parliament.
Building upon some of Locke’s theories Jean Jacques Rousseau published “The Social Contract” which laid the basis for the third theory of social contract. He agreed with Locke about the affable nature of the individual arguing instead on the fairness of the social contract. That man did not set out voluntarily to enter in such a binding relationship with the State was out of the question, the issue being the negotiation of those terms of the contract considered unfair. Loss of negotiating power with the State could only be resolved by revolting against it.
With the aforementioned as benchmark I set out to fit the Venezuelan system in the casse-tete. Factual evidence on patterns of conduct of Venezuelan officials and lack of governing plans or infrastructure proves that Hugo Chavez fits neatly the description of the charismatic leader. He has nothing traditional about himself and most certainly rationality is not one of his attributes.
- Sovereignty: Chavez would have you believe that his revolutionary experiment is all about reclaiming our sovereignty from US’ or Columbus' hands. However in this subject the facts also contrast deeply with his discourse. Case in point Fidel Castro and Chavez’ unpatriotic effort to please him at the expense of ceding away our dignity, sovereignty and resources.
- Rule of Law: is Chavez subject to law? No. Are his officials subject to law? No. Are his supporters subject to law? No.
- Separation of power? One should not reply a question with another question however this one must be answered with some others; in Venezuela, who controls the legislature? And the judiciary? And the novel Electoral and Citizen powers? What would Aristotle think about the Venezuelan “polis”?
- Legal positivism and natural law: are proper legal procedures to legislate observed in Venezuela? No. Does anyone in the legislature question the fairness of laws? To some extent the opposition to Hugo Chavez. Is there any morality among those who govern? None.
- Participatory democracy: Venezuela is at present a State where those who support the government are a class of their own. Grants, social benefits, foreign exchange, contracts, passports, IDs, etc, are given by the State quite expeditiously to the individual requiring any of those services should he / she had abstained from participating politically against the government. Ergo we can see a reversal from the Greek model for now the punishment is selectively inflicted by the State upon those who raised their voices on issues that they did not agree with. Should one considered the Ni-Nis idiots or visionaries? After the consummated electoral fraud of the recall referendum the majority has decided to participate not for it is a futile exercise. The dilemma now is whether or not to vote in the regional elections. Either way the electoral lackeys of Chavez will concede an apotheosic victory to Chavez’ candidates. Therefore politically active groups should commence with the preparations for resistance.
- Social contract: Hobbes theory is the one that resembles most closely the current administration in Venezuela. There is no monarch but a failed putschist who became president after realising that the utilisation of democratic tools would serve to further bestow upon himself absolute power. The fatalistic and violent views of Hobbes are epitomised in Chavez himself for he sees nothing but battles, enemies, violence, invasions, assassinations, so on and so forth. A distinctive departure from Locke’s and Rousseau’s observations of man’s nature. The Leviathan is Chavez and his Hobbesian nature can only be confronted with Rousseauan tactics.
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