The following chapter has two main sections that partially overlap. Perhaps they just convey the same idea in two different ways. In the first section I present a conceptual analysis of the terms people, sovereignty, and popular sovereignty to reach the conclusion that in a constitutional democracy sovereignty, and so political authority, is divided and shared among different state organs, contrary to Rousseau’s conception, and that the “people” – the voters – are only one of the constituted powers. In the second section, I argue that the concept of popular sovereignty as constituent power of the people, rather than transposing onto the subject “people” the idea of absolute power of a monocratic institution (the Kingship), is instead the foundational principle of the framework of limited power typical of the contemporary constitutional state. The “people,” I therefore conclude, have to be understood as occupying a vital double role within our constitutional imaginary – supplying both the constituent power and a constituted power.

INTRODUCTION

The word democracy covers nowadays a variety of different meanings; it qualifies for instance at the same time political regimes like the United States, the United Kingdom, Athens in the fifth and fourth centuries BC, and, according to some generous definition, even the Kemalist Turkey. An attempt to clarify at least some of the possible different meanings of this magic word may be useful to suggest a standard helping to discuss the political system that has existed in Russia since the end of the Soviet regime. Here the approach will be historical, taking into account the history of concepts. Democracy is not only the name we give to a set of institutions but also a positively value loaded term; that is why we discuss the reasons and the limits of this normative assessment.

By and large, democracy is used nowadays as an equivalent of “good (or decent) government” without specifying among other things what is good about this form of political regime, which most of the time is not even defined at all. The usual answer that democracy is better than dictatorship is theoretically unsatisfactory, because in most of the Western countries, there is no real threat to it, and such an answer can be justified only by intellectual laziness, the one happy to repeat what Sir Winston Churchill was supposed to claim. The approach chosen here – the history of institutions and political theory – offers only some preliminary remarks that may be useful to clarify some background aspects of the general topic of the book. This chapter intends to be essentially a contribution to conceptual elucidation, and it has no ambition to suggest anything regarding the practical political problems and urgencies of the Russian Federation. John Dunn is right when he writes at the beginning of his contribution (in this volume) that a question open to discussion is “how far democracy is the appropriate criterion for political normality and political decency for the Russian Republic.”

Rule of law and democracy are both desirable attributes of a political system. Scholars writing of democratic transitions from authoritarian rule usually argue that the goal of such a transition is the establishment of democracy with the rule of law, implying that both may be achieved simultaneously. Perhaps that is so. What is often meant by rule of law is no more than the notion that government should work its will through general legislation, legislation to which the governors themselves are subject, rather than through irregular decrees and ad hominem proclamations. But rule of law may require more than this: it may require that people are able to foresee accurately the legal consequences of their actions and not be subject to sudden surprises whether or not these take the form of legistation, or perhaps that the law contain, or at least not violate, certain substantive principles and rights.

Democratic rule minimally requires government by the people or their representatives, elected on a broad franchise. But, in some conceptions, it too many require more than that. Perhaps, democracy demands that the range of choice open to government be broad and not constricted by externally imposed restraints (such as legal protections for minorities). We expect, for example, or hope, that our government can correct inequities arising from markets or social interactions. Such interventions can involve confiscatory taxes or draconian regulations, either of which can threaten claims for minority rights. Or perhaps, democracy requires that the people be regularly and genuinely consulted on fundamental legal changes so that institutions or practices of deliberation and consultation are in place and functioning.

INTRODUCTION

In contemporary democracies electors can choose their representatives, reward them by reelection, or turn them out of office; no appeal can be made against a judgment as final or conclusive as an election. However, electors cannot bind representatives, once elected, in the choices they make as legislators. Representatives have a power constitutionally unbound from any promise they may have made during the campaign; a freedom that also entails a risk, because they may be punished at the next election, but only if the voters hold them to their promises. The ban on “imperative mandates” is one of the central tenets of modern representative government.

Rousseau famously held, not without reason, that the citizens of representative governments – which we call democracies with a small abuse of language – are, like the English, free only for one day, the day of the elections, and slaves the rest of the time. Unfortunately, Rousseau failed to suggest any clear or sensible alternative to that extreme and bleak verdict. Perhaps unintentionally, he eventually opened a path that leads nowhere, or rather, toward the utopia that some still vaguely call “direct democracy.”

In addition to the rejection of representative government, another aspect of Rousseau's theory of democracy deserves emphasis: its nonconstitutionalist thrust. Rousseau in fact did not distinguish between ordinary and constitutional laws. He had no conception of the supremacy or “superlegality” of the constitution; nor did he notice the critical difference, pivotal in any contemporary Rechtstaat, between the constituent power that establishes the constitution and the subordinated powers, such as the legislative, that carry out their constitutionally delegated duties.

After Thermidor French politics and political theory were dominated by a major challenge: namely, how to save the principle of the republic while obliterating the experience of its practical realisation. The key problem for French republicans, starting with Benjamin Constant and Germaine de Staël, was to establish a disjunction between republicanism and the Terror, or to make people forget the bloodshed associated with the establishment of the republic by appealing to the hopes and principles of 1789.

In considering, as I shall do here, the early years of the revolution, 1789–91, there is an additional difficulty, because the Constituent Assembly gave the French a government which had the form of a constitutional monarchy rather than a republic – at least in the ordinary modern sense of the two terms. Not only was representative sovereignty shared between an elected legislative assembly and an hereditary monarch, but the latter, in his capacity as head of the executive and co-legislator, was entitled to a right of veto – a right to suspend his formal sanction of laws proposed by the Assembly – for a period of four years.

Among historians of the revolution, the Constituent Assembly has never enjoyed much favour. Too moderate, and excessively bourgeois for some, it has been considered by others to have been at the true origin of the Terror. The first view, largely dominant in France until very recently, is undoubtedly closer to historical reality, at least as far as the argument about its moderation is concerned – and this in spite of the strong ideological bias common to the Jacobin and Leninist disqualification of 1789.