A view of Iceland in April 2016: an ongoing clash between legality vs. legitimacy

The promise of constitutionalism rests on a “great modern fallacy” (as the Swiss historian Jacob Burckhardt called it) according to which citizens can rationally and deliberately adopt a new constitution to meet their needs and assent to a social contract. While a Constitution is obviously for the people, not a single one has never been written by “we, the people“ but rather by some “founding fathers“. In the history of comparative constitutionalism, Iceland has showed how this fallacy may one day come true. And that is why constitutional experts from around the world follow this process very closely.

But what is really happening in Iceland transcends the promise of a new constitution. Put in simple terms, what we witness is a process of destitution/deconstruction of a legal order and a revolutionary upheaval or call for constitution/reconstruction of a radically different one. Sociologists and social scientists know well how progress is not linear as history advances in waves or tides of reform followed by impasses or even regressions. In 2016, Icelanders seemed trapped between constitutional upheaval (calling for the enactment of the constitutional draft voted on October 2012) and continuity (deciding by political consensus on the reform of three selected issues).

What is important to signal, however, is that the new constitutional legal order that many citizens asked for after the crisis reflects a fundamental change of paradigm and is not well understood by the ruling political elite. It is a democratic call to provide legitimacy to the constitutional text following Rousseau´s ideal (who required the assent of all to the original social contract). For a new generation of citizens, the main concern is to provide for legitimacy through universal participation in constitutional and law making rather than secure stability or preserve the political status quo.

This call coming from the people challenges the legal reality in a way difficult to explain to those not familiar with legal philosophy. The validity of Icelandic legal system is based on a double test which can be summarized in two words: legality (formlegt lögmæti) and fairness/fundamental rights (réttmæti). This is typical in a positivist legal order. In continental Europe, on the contrary, (ie. Spain, France, Italy, Germany) the legal theory requires a third pillar for the law to be validly formulated, adopted and recognized as such: legitimacy (efnislegt lögmæti). This is requirement that the law is initially and subsequently consented by the people and that it is also good for the people. Reasons for the different legal theory are historical. As European constitutions were redrafted in the aftermath of wars, a departure from positivism was necessary. After lenghly debates a triple test was conceptualized and adopted bringing a third factor into the formula: law = legality + fairness + legitimacy (Radbruch, “Five Minutes of Legal Philosophy”, Oxford Journal of Legal Studies 1945 reprinted 2016 and Pattaro and Iturmendi Morales, Filosofía del Derecho 1980). In this formula none of these concepts is more important than others, a balance is reached case by case but all three must be there for the law to respect the so called “rule of law“.

We are now at the crossroads where we witness a confrontation between legality and legitimacy as opposing values. A substantial part of the society dares to rejects laws (or even Constitution) originally drafted and later interpreted by an elite. The society is polarized. There is a deep mistrust on the parliament (Althingi). The fiction of the ultimate validity of the current constitutional text looks like a broken mirror. More and more citizens and some political parties question the natural supremacy of “the law of laws“ based on formal aspects and excluding its content. They simply reject the thesis of a hierarchical pyramid where the authority of the supreme norm is self-justificated and tautological but the people is excluded. They reject legality as an exclusive and excluding theory. Drawing on Carl Schmitt, they argue that the constitution has a superior value not by its formal aspects nor by constitutional history but by the fundamental decision of the people (the real constituent power) and by virtue of the supreme value of its content.

This call for “legitimacy“ is a deep revolutionary legal claim that challenges the current status quo and is not yet conceptualized. This word does not exist as such in Icelandic legal language as scholars considered the consent of the people to be relevant for the political science. As reality nevertheless has proved, Icelanders have understood very well the importance of the concept in practice since they could reject in two referenda (Icesave 2010 and 2011) a legislative act adopted by their Parliament. In a parallel way, the collection of signatures requesting different petitions to the authorities is stronger than ever (the last petition to invest in the publich health sector is by far the largest with more than 85.000 signatures in 2016). Rather than ignoring this deep call for reform, I will argue that it is better to formulate the legitimacy demand and ground it to the proper legal theory with a view to ameliorate the current debate. For this reason, I would like to propose a new trio of words that may be useful to formulate the concepts and resulting theory that is requested by many citizens. In Icelandic common language we could resume it in a simple formula: Lög/Stjórnaskrá = lögmæti + réttmæti + „þjóðmæti“.

This formula reflects obviously the view of a new generation who wants a radical change of society. It means the end of an era where citizens were happy to leave government and constitutional matters in the hands of the governing class. It is a deep call for more democracy, true representation beyond elections and real accountability of the political elite. A new political reality emerges. Sovereignty is not conceived as an authority that the people permanently transfer and alienate to an external entity (Parliament) but rather as a supreme and inalienable right of the people that is delegated to representatives who are then accountable for it in a permanent basis. The legitimacy is not only given every four years through elections but is to be won day by day. In this perspective, the call is for the supreme power and authority of the Parliament to be limited and counterbalanced by citizens/civil society. It means a new political and legal order. This should not surprise us after all since State authority in a modern democratic society is constantly limited in the name of human rights and/or supranational/international entities that rule over economic issues (EU Treaties or EEA agreement).

The claim for legitimacy to be part of the (constitutional) legal order has been formulated by society, it just needed a proper name/concept („þjóðmæti“ in common language but „efnislegt lögmati“ for legal experts) and supporting legal theory. A debate is now necessary to argue pros and cons of this approach and work towards +democracy. Whether we see constitutional upheaval or continuity is still to be seen. At the end of the day, only history will tell whether this other continental vision of law and a new constitutional making that really includes the citizens prevails or not in Iceland.

 

This article has been published in Icelandic in the journal STUNDIN on 23 March 2016, I thank Ólöf Pétursdóttir for an excellent translation.

http://stundin.is/pistill/logmaeti-og-thjodmaeti/

 

PS. The critique of formal supremacy and legal positivism is obvious when Schmitt paraphrases Kelsen: “A law “is valid when it is valid and because it is valid”. CARL SCHMITT, CONSTITUTIONAL THEORY (Jeffrey Seitzer ed. & trans., Duke Univ. Press 2008) (1928).