This is a chapter from the book:
The Democratic State
Chapter 3: Law — Constitutional state —Democracy
By adopting a constitution, the state satisfies the interest of its citizens in competitive social relations and undertakes to do everything it does in the form of laws which ensure that constitutional rights are enforced. The fact that the representatives of the people legitimate their action in terms of constitutional rights and correct their action when it conflicts with the constitution, makes the state constitutional, the “rule of law.”
As such, it is emancipated from the influence of private interests on its actions, and is accountable only to the constitution in the exercise of its power. Democracy is the adequate form for the relation between the state and its people in so far as it realizes an abstract identity between popular will and state power, abstract because it does not depend on private individuals consenting to specific laws and their execution. For it is not consent that is required, but obedience. Should citizens cease being obedient, it will be the “rule of law” that is abandoned, not the state itself.
a) Why the bourgeois state is democratic
Democracy is the adequate form of state in that state power restricts freedom whenever the use of freedom infringes on the freedom of other citizens. Otherwise the state stands aside. It acknowledges the particularity of all private persons subjected to its law. It gives its laws generality, relates all actions to itself, and makes no special demands on any party, apart from the demand that everyone act in accordance with their own economic resources. (We will see in subsequent chapters how thoroughly it does this!) Unlike the absolutist state, it does not give preferential treatment to any estate or class. Rather, everyone enjoys all rights and nobody is privileged. It is not by being partial, by directly promoting the interests of certain parts of society, that the state serves one class. It is the law guaranteed to all, and justice, which result in the advantage of the stronger and the permanent disadvantage of those with fewer resources at their command. The democratic state trusts in the power of private property. It acts in accordance with existing social relations when it codifies them as law.
Since its power originates in society, the constitutional state, which embodies the “rule of law,” regards it as its duty to use power only in ways appropriate to the aims of its citizens. It performs this duty by making its own collisions with citizens conform to the criteria of constitutional rights. It generously contents itself with only those restrictions on citizens that are contained in the constitution. On the other hand, it is legitimate for the state to transgress these limits whenever its own existence is at stake. If it sees its sovereignty jeopardized by insubordination on the part of those who are continually and quite legally imposed upon, the democratic state permits itself to react to the violation of public duties by safeguarding the political order with no ifs, ands or buts. It will counter the threat to disregard its rules by accusing the “unruly elements” of misusing rights. So it protects these rights by consistently expanding them into emergency laws, the lawful preparation for the emergency when a state no longer wishes to bother being constitutional!
c) Democratic and fascist alternatives
The democratic form of state with all its highly praised forms of social intercourse is the institutionalization of the antagonisms between state and citizen. State power acts as an instrument for competing citizens by defining the limits on individual freedom. Private citizens are confronted with the abstraction of their own will as an outside force which they must obey. Since they require this force to pursue their individual interest, but accept it only because of this interest, they are staunch democrats only when they themselves are not restricted by the activity of the state. They lose their democratic attitude when faced with someone who benefits from laws which for them are only duties. Then they come up with better ideas about how the state ought to clamp down. In the middle of the finest democracy, “decent” citizens plead for “simpler” forms of political power, while an argument against rule itself is virtually never heard. State officials, on the other hand, come to realize that their service to the public interest hardly ever meets with approval. So it does not necessarily further their careers to go through with all the democratic procedures. After a while in office they grow tired of democratically legitimating their actions toward their citizens and stop bothering to refer everything to the Bill of Rights. On fitting occasions, however, they do not forget to proclaim that they acquired their power democratically.
The abstract concept of democracy is also quite useful for explaining fascism. The wish for this alternative form of bourgeois rule is always present in a democracy, both by politicians and citizens. Its time comes when state and citizen, in opposition to each other, agree that all the difficulties of economic life stem from an inefficient exercise of power. The result is an unsqueamish use of political power that demands a willingness to make sacrifices exceeding the usual democratic standards, in order to do away with faultfinders, with citizens who are not willing to buckle down once and for all in political and economic matters. Anti-fascism as a program to save democracy has nothing with which to counter the political weapons of the fascists who are out to save the nation from noxious elements the other way around. There is the legend, which among leftists actually counts as the explanation of fascism, that an especially chauvinist part of the bourgeoisie seduced a people of noblest democratic instincts, but only because of the power structure in society. This is itself a piece of nationalistic reverence for a true democracy. To counter the fascist will of the people to sacrifice for the nation, such critics can pose nothing but a fictitious identity between the people and the state.
The transition to fascism does not at all contradict the statement that democracy is the adequate form of state under capitalism. Democracy can “function” as the institutionalization of the conflicts of capitalist society only as long as citizens, legally bound to respect the exigencies of private property, compete properly. In other words, democracy is dependent upon the willingness to put up with the diverse results of competition. This is why people must be well prepared for democracy, and why certain populations are not considered mature enough for such a sophisticated form of state. At the same time, democrats are quite comfortable with fascist conditions which they have created and continue to maintain in foreign lands. The art of self-control is part of democratic rule, its cardinal virtue. But the forms of poverty in the “third world” are no basis for such a virtue, once free will is allowed to assert itself there.
d) Attitudes toward democracy
The collisions between state and citizen, an inevitable consequence of their subjection to the law, lead citizens to complementary forms of approval and disapproval.
One can take part in democratic life by disapproving of actions of the state because one doubts their legitimacy. Here one will encounter other people who take a stand in favor of the same measures and stress their legitimacy. Approval and criticism will change sides depending on the nature of the law which is in dispute.
Or one can make it one’s concern to perfect democracy. One either invents a general crisis of legitimacy and demands more regard for citizens or more efforts to gain their consent; or one castigates the state for being too unsure of its existing legitimacy, for continually orienting its actions toward the approval of its citizens. In the former case one sees the threat coming from enemies of democracy, in the latter from enemies of the state. These “enemies of the state,” not having such an easy time of it, keep insisting on their real desire for a state.
One can actually oppose the democratic state by denying its legitimacy. For the leftist revisionists of communism, the clear distribution of advantage and disadvantage among the population is a reason to suspect constant misuse of the people’s consent to the state’s sovereign law-making. They therefore propose a state which lets itself be guided by the “interests of the masses.” Anarchists, by contrast, are satisfied with the discovery that the state uses violence against individuals. In the name of the people, they compete with the state by acting violently themselves, only to find the popular will quite in favor of the violence used by public institutions. Being separated from the masses, but not in the same way as the state functionaries, anarchists are hunted and victimized while the anti-terrorist squads become the heroes of democracy. To fascists, the legitimacy of the state is nothing but an encumbrance on the performance of its tasks. They demand from citizens not only unlimited consent, but also unconditional submission, that they give up every interest which limits the state. And politics should consist in relentlessly orienting the population toward the purpose of the state: terror in the name of the state.
e) Historical remarks
The emergence of democratic states is based on the fact that classes with opposing interests had one thing in common: both classes could use a state which forced respect for their own necessities. The unity between the bourgeoisie and the proletariat was a negative one — it was directed against a state which made itself the instrument of an unproductive class. In America, which had no feudal past, a ruling authority was just created, more or less from scratch.
Extolling democracy has nothing to do with explaining it; people usually resort to citing advantages which not many citizens can enjoy. And when it comes down to defending democracy, they are never squeamish. The easiest way to praise democracy is to “compare” it with conditions remote in time (all phases of human history!) or in space (Timbuktu!). And the easiest way to dismiss criticism is to point out that things could be a lot worse.
Serious comparison of bourgeois democracy with the preceding form of society reveals progress — recognition of (abstract) free will, abolition of relations of personal dependency, etc. — but also the force exerted on the great majority of free citizens. All liberties go only as far as the state allows, their restriction has been institutionalized; in fact they are only justified as long as they serve a purpose that has nothing to do with individual well-being. This is where people, especially journalists and revisionists inside and outside academia, start interpreting the mission of democracy. They like to jabber on and on about the ideal of democracy versus its reality, about “fighting for” democracy, about “extending” democracy…