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La interpretación constitucional en la teoría de Peter Häberle — Transcript

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0:08Secondly, it is an honor for me to
0:14introduce our professor from the Gea
0:16gymnasium, uh, whom I have known for
0:23many years, and who is a true academic.
0:32A doctor of law, doctor of philosophy,
0:34uh, full professor of sociology and
0:36philosophy of law at the University of
0:38La Plana, where he earned his doctorate
0:41in law, and doctor of philosophy from
0:43the University of Seville, uh, he has
0:45given numerous lectures and is the
0:47author of many publications. He just
0:54handed me three of his latest works
0:56that he has produced, I believe a
1:01synthesis of the philosophy of law. And
1:08what is very interesting, in his
1:10opinion, is that, uh, he is a
1:13researcher who has carried out research
1:15tasks in the most diverse places:
1:18Guatemala, Norway, Japan, and, uh,
1:20other communities, surely, right? Uh,
1:32that has allowed him, uh, a perspective
1:34, a truly universal vision that has to
1:36do precisely with the theme of the
1:39university. It seems to me that he
1:46perfectly combines, uh, this universal
1:49perspective with what the university
1:51should truly offer to its students. On
2:00this occasion, Professor Almeric is
2:02going to speak to us about
2:04constitutional interpretation in Peter
2:06Häberle. Uh, Häberle is one of the
2:12German authorities in the field of
2:13constitutional law. He has been here in
2:21Argentina, he has participated in some
2:23activities at the University of Buenos
2:25Aires, and he has a, uh, highly
2:27interesting thesis on the implications
2:33uh, of the normative dimension. It
2:37seems to me that the reflections that
2:39the professor is going to offer us
2:41today might go in that direction for
2:46the students. So, uh, for those who
2:48have just joined us. The subject of
2:55constitutional interpretation is
2:57probably, uh, one of the central issues
2:59in legal theory that, uh, allows for a
3:01horizontal link with the field of, uh,
3:04constitutional dogmatics. Here, two
3:11aspects come together, uh, that have
3:14been increasingly linked lately. And I
3:18think this makes it very interesting
3:20because it allows us to see the
3:22practical dimension of theory and the
3:24theoretical aspect of practice. I leave
3:31you then with the professor, on behalf
3:33of the Department of Public Law I, the
3:36Department of Legal Philosophy, and the
3:38Argentine Association of Legal
3:39Philosophy. We appreciate your presence
3:45. He will speak for about 35 to 40
3:49minutes, and then, uh, we will open a
3:51channel for questions. Thank you very
3:54much. Thank you very much, Renato, my
4:02friend of many years, indeed, and
4:04thanks to you for the
4:15Ah, he says thank you all for your
4:22attendance and to Renato, and also to
4:29the professor, who I know is part of
4:31the invitation from the depart—a
4:40friend from my stints in Guatemala,
4:44where I met him. Uh, I want to make a
4:50very quick mention of the formal reason
4:52for my presence. There is a teacher
4:55exchange program at my university, I
5:02believe at others too, but the call
5:03depends on my university in this case,
5:06which tries to promote, uh, exchanges
5:08between teachers and likewise here.
5:12Well, I applied in agreement with
5:14Professor Radio Barril and they granted
5:16it to me, but the reverse also exists;
5:18meaning, there are teacher instances so
5:20that professors...The microphone,
5:25because you have to you have to get
5:29close to the microphone! Let's see. I
6:01reiterate briefly, in case it wasn't
6:03heard, I thanked Professor Ría for his
6:05attendance, Professor Manini, head of
6:07the public department, and I commented
6:09that the formal reason for my stay is a
6:11call for teacher exchange stays, which,
6:13in the same way it allowed me to come
6:15here, can allow Argentine professors to
6:17go to Spain. Uh, I mention it in case
6:27anyone is interested, well, uh, by
6:29agreeing on topics, etc., uh, one can
6:31apply and do a brief teaching stay.
6:38Specifically, the one I know, I suppose
6:40there are others, but even though
6:42Santander bank funds this, uh, I think
6:47they do it in other places, but I know
6:49the call...interest a, a possibility to
6:54...Well, a the issue I wanted to
7:06address today is constitutional
7:08interpretation in the theory of Peter
7:10Häberle, who is a well-recognized
7:12constitutionalist, Honorary Doctor from
7:14Granada, Lima and Castilla, gold medal
7:25of the Court of Rome, cross of merit
7:27from Germany and Bavaria, and about
7:33whom the University of Granada has also
7:35created, uh, a research center in honor
7:37of his work. And he has a theory, uh
7:43about, not so much about legal
7:48argumentation on constitutional norms,
7:50but rather how to understand
7:51constitutional ones in their cultural
7:53context, and I think it has interesting
7:59aspects, also some that can be improved
8:01, and since I don't know to what extent
8:08his theory is already known, I will try
8:10to synthesize his exposition a bit, uh,
8:12to then focus more on issues that I
8:13think are controversial and can prompt
8:15more debate. Uh, he says he starts from
8:27the premise that constitutions are, uh,
8:29texts that have a legal meaning and a
8:31cultural meaning, which, one does not
8:39rival the other, he doesn't claim the
8:41cultural meaning is complementary,
8:42legal and not rival. So, in that sense,
8:48it is not a new legal theory, but an
8:50attempt to complement legal theory with
8:52a cultural dimension that he believes
8:54has been somewhat undeveloped. The
9:03Constitution does not mean only and
9:05exclusively a legal system for tourists
9:07, which they must interpret following
9:09the old and most modern exegetical
9:10rules of their art, but it also serves
9:12as a guiding thread for every citizen.
9:17A layperson, as far as legal science is
9:19concerned. The Constitution is not
9:24limited to being just a set of legal
9:26texts or a mere compendium of normative
9:28rules, but rather the expression of a
9:30certain degree of cultural development,
9:32a means of self-representation for an
9:33entire people, a mirror of their
9:35cultural legacy and the foundation of
9:37their hopes and desires. This argument
9:46reminds me of the debate on
9:47codification in Germany between the two
9:49schools, right? The historical school,
9:57and codification did not occur then as
9:59it did later. But Hegel, who was in
10:02favor of codification, said, "You don't
10:04need to be a shoemaker to know where
10:06your shoes pinch." The shoemaker is
10:11probably the only one capable of fixing
10:12the problem with the shoes, but knowing
10:14that the shoes fit poorly is something
10:16anyone can tell. Knowing whether the
10:20basic norms that govern the State are
10:22acceptable is something every citizen
10:23knows. It is not just a matter for
10:26jurists. And that is why he said a
10:30cultured people has a right to a law
10:31that is laid out rationally and based
10:33on principles understandable to the
10:35citizenry. That was the argument in
10:39favor of codification. In this sense,
10:44it seems to me that the reasoning
10:46follows that the Constitution is part
10:47of a people's culture, insofar as it is
10:49the way a people represents itself
10:51politically. And that is the cultural
10:56meaning of the Constitution. If a
11:03people has a constitution—a
11:04democratic one, it is understood—we
11:06can tell if they are better or worse
11:08off culturally speaking. And this, the
11:17fact that this generalized acceptance
11:19of the Constitution exists among
11:21citizens is part of a type of
11:22democratic culture. The meaning of the
11:29cultures of constitutions refers to
11:30democratic constitutions that guarantee
11:32rights and freedoms, because, as it
11:34says, it has an individual dimension in
11:36which each person also recognizes
11:38themselves insofar as their rights are
11:40guaranteed. It is not just the
11:43collective meaning, but also at the
11:45same time, the individual one. We call
11:51that constitutional culture, and they
11:53define it as such. The sum of attitudes
12:00and ideas, of subjective experiences,
12:02value scales and subjective
12:04expectations, and the corresponding
12:06objective actions, both at the level of
12:08the individual citizen and their
12:09associations, as well as at the level
12:11of state organs and anyone else related
12:13to the Constitution, understood as a
12:15public profession. This is what is
12:23called constitutional culture. Uh, that
12:29doesn't mean that, I mean, it doesn't
12:31pose it in terms of rivalry.
12:36Constitutional culture is not an
12:37opposite to the legal meaning of the
12:39Constitution. He says that, most
12:44commonly in concrete processes, the
12:46normative text precedes constitutional
12:48culture. No, a constitutional culture
12:53isn't formed without a written
12:55constitution, which then comes as a
12:57kind of secondary derivative. He says
13:02it usually happens the other way around
13:04: first the constitutional text, but
13:06the legal text by itself isn't enough
13:08to organize a constitutional culture;
13:10it depends on many other things, and
13:12that's why he calls it crystallization,
13:14right? There is a crystallization of
13:19cultural elements, one of which is the
13:21legal text, but alongside it there are
13:23others. This set of attitudes that
13:26dictates how individuals function, how
13:28they act, the associations they are
13:30part of, institutions, and so on. How
13:37does constitutional culture manifest
13:39itself? In the electoral conduct of
13:45citizens, the predisposition to carry
13:47out power changes in a real and
13:49effective way, parliamentary practices,
13:51the deputies 'code of honor, the role
13:53of the press, the legal profession, the
13:55state of permanent alertness, and the
13:57level of sensitivity and critical
13:58predisposition of public opinion. It's
14:05one way of listing it. On other
14:11occasions, with the same constitutional
14:13text, there can be electoral processes
14:14where the vote goes to the extremes and
14:16there are options that are very
14:18disruptive to the system, and thus
14:20constitutional culture suffers, or
14:21there can be more sensible electoral
14:23behavior. That doesn't depend on the
14:31legal text; it depends on what kind of
14:33political consciousness exists and it
14:34is not legally controllable, but it
14:36could lead to the failure of the
14:38Constitution and a breakdown of a
14:39constitutional order. Therefore, within
14:44this crystallization of elements, this
14:49this type of factors are these. Hm.
15:02This gives rise, Haberle also says, to
15:04an open society of interpreters of the
15:07Constitution, an open community.
15:13Interpretation exists, let's say, the
15:15argumentation of the courts, of legal
15:17doctrine, etc., but why would a citizen
15:24consider their rights violated and
15:26resort to the forms of amparo appeals,
15:28for example, depends on their level of
15:29awareness of the rights they have? It
15:32is not something that can depend on the
15:34constitutional text. And in that sense,
15:36there is a certain, a series of
15:41non-controllable elements, like that
15:43consciousness that is not legally
15:45controllable. Which There is an example
15:51that I find interesting, he doesn't
15:53mention it, but it's an article, it's a
15:55chapter in a book, uh, by Nor Bear
15:57that's called, uh, "English Liberty,"
16:03right? expression in Japan compared to
16:06the United States. The thing is also
16:12that we have known the Japanese
16:16constitutional text was suggested,
16:21let's say, right?,by MacArthur and
16:25MacArthur was a military man, he wasn't
16:27a constitutionalist either. So what he
16:31did was, with some advisors, use the
16:33United States Constitution model and,
16:35with some tweaks, propose the Japanese
16:38Constitution, which therefore in much
16:40of its wording is almost identical to
16:42the US Constitution. From the point of
16:50view of comparative analysis,
16:51comparative constitutional law, it's a
16:53very timely example because faced with
16:55the same normative statement, we find
16:57different practices and, uh, not
16:59explainable by the meaning in the
17:00strict sense of the words, because it
17:02is drafted the and it refers to freedom
17:09of expression. He uses examples of, uh,
17:15freedom of speech, the right to
17:17demonstrate, assembly. The quantifiable
17:27part in this comparative analysis is
17:28the number of cases that reach the
17:30Supreme Court in defense of these
17:32fundamental rights, very different in
17:34one country and the other, not
17:35explainable by the meaning of the
17:37Constitution of the articles of the
17:38Constitution, but by the cultural
17:40context. In in Japan there is a saying
17:54and it is that the nail that sticks out
17:56gets culturally uh claiming a right
18:06against the practice of the majority is
18:08violence and and well, one can analyze
18:15examples of the application of these
18:17articles when the Constitution came
18:19into force. So he says that citizens
18:24asked for permission from
18:26administrative authorities to show a
18:27movie to friends at their house, right?
18:31And they said, "Why? Why do you have to
18:34ask for permission?" And he says, "Well
18:36, we are going to be a group, a
18:37gathering of several people." Well,
18:39it's an exercise of the right, of
18:41course. Oh, then we can do it without a
18:43problem. the right of peaceful
18:49demonstration which is limited by
18:51public areas, etc. Uh, on many
18:53occasions there are different legal
19:01regions, well, in the use of
19:03demonstration if there should be
19:04administrative authorization or not,
19:06but it must be notified to the prefect
19:08in Japan and the prefect on many
19:09occasions denied the demonstration due
19:11to disturbance of public order. Of
19:15course, every demonstration disturbs
19:17public order. The question is, when do
19:20we consider an alteration of public
19:22order acceptable in one place or
19:24another? In a culture where the sense
19:28of order is external, it is easier to
19:30restrict this right. In other places,
19:35the political culture takes precedence
19:37over the administrative authorities,
19:38even if public order is disturbed. The
19:44element that determines the difference
19:46from one place to another is not the
19:47article stating the right to peaceful
19:49protest, but the cultural context in
19:51which it exists. So that is what it
19:54refers to. The cultural interpretation
19:59to which he is referring. And. Of
20:07course, he says, "We cannot understand
20:09how constitutions actually function if
20:11we ignore this structural dimension."
20:14So that is It is not a matter that
20:19makes sense within the structure of
20:20legal argumentation, but rather one
20:22that surrounds legal reputation. He is
20:24not the only one, by the way, who
20:29refers to this, right? There is a
20:32classic book in political science from
20:36the United States called "Kochba" that
20:41also traces, right?,the cultural
20:43functioning of fundamental rights. Of
20:50course. So, uh Japanese citizens
20:56exercise their rights in a cultural
20:58context where exercising a right has a
21:00specific meaning determined by Japanese
21:02culture, distinct from that of the
21:04United States. And uh that leads to the
21:11fact that, as Redle also argues, a
21:12citizen who filed for legal protection
21:14is as much a participant in the final
21:16decision as the Constitutional Court
21:18itself that recognizes it, isn't it? In
21:22their case, because if the action is
21:24not exercised, the court does not
21:26intervene. So, what does it depend on
21:28whether a certain country has more
21:30citizens who are conscious of their
21:32rights or not, who exercise actions to
21:34protect their rights? Not so much on
21:37the constitutional text, but on the
21:39political culture of the citizens.
21:45There. Nineteen years ago, the Syrian
21:54dictator died, and the succession was
21:58planned for his eldest son, who had
22:03been prepared by his father to be the
22:05next president, but the eldest son died
22:07unexpectedly. And the second one, who
22:12lived in London, was called when his
22:14father died; he was called in a rush
22:16for the position, and the Constitution
22:22said that to be president, one had to
22:24be, among other things, 35 years old,
22:26which he was not. So Parliament met
22:31urgently to amend the Constitution, and
22:33a European journalist asked the
22:35President of Parliament with some irony
22:37, right? "But why are you meeting?""Why
22:42have you been called to this emergency
22:44session?""Well, man, because we have to
22:47change the Constitution since he is not
22:4935 years old, right?" And the president
22:51acted as if he didn't understand, right
22:53? And the other explained to him, "But
22:55don't you see it? It says 35 here, and
22:57he doesn't have them.""So we have to
22:59change the Constitution." Clearly, that
23:00type of political culture reveals what
23:02value the constitutional text holds.
23:05It's not a problem of the standard,
23:07it's a problem of the cultural context
23:09in which it occurs. Uh, this individual
23:17trained in London didn't learn much
23:19from English democratic culture. There
23:27there is not the first, no, the young
23:31state was in Paris. Neither have a
23:34series of cases been repeated, the
23:36dictator of North Korea was in
23:37Switzerland. It seems they have a long
23:42way to go, right? There's there's a,
23:46because I have a little memory, but
23:48there's a, I really like, the cannibals
23:50are cooking a guy to eat him, right? Uh
23:56, and at one point he tastes the broth,
23:59like the soup, he tries it and says, "
24:00This is food and not the garbage that
24:02the UN gave us." Uh, I didn't learn
24:09much about then uh skipping the jump
24:14constitutional was not an impediment,
24:16evidently, for him to become president
24:18and serve. Well, uh what dimensions
24:31does this meaning of the constitutional
24:33text have in its cultural
24:34interpretation? But he distinguishes
24:40three three levels, right? In the first
24:44place, constitutions make express
24:46references to culture in different
24:47forms. for example, the protection of
24:51cultural heritage, cultural tradition,
24:53etc. Uh, the objectives that education
25:00must follow, tolerance, etc., as a type
25:02of civic culture, the the political
25:07values that must be protected, right?
25:09The Spanish Constitution starts like
25:13this, right? It constitutes a social
25:17and democratic state of law with
25:19freedom, equality, justice, and
25:20political pluralism as superior values.
25:26This comes from the thesis of
25:27Böckenförde, the dualist foundation,
25:29right? According to Böckenförde that
25:35in social ethics the values are there
25:37or not, it does not depend on what the
25:39legal norms say. Legal norms, at most,
25:42can only confirm that certain values
25:44function socially. So, it's not that
25:49the law creates them, but rather it
25:51leaves a record that they are socially
25:53operative, and in that sense, the
25:55Constitution recognizes certain values.
26:00So, he says that to some extent
26:02preambles make reference to this style.
26:08Secondly, there is another dimension
26:10which is culture in the usual sense,
26:12that is, the protection of artistic
26:14creation. of the arts, etc., scientific
26:20research, many uh constitutions, but
26:22many articles make reference to it.
26:30Here I think he makes a it's a topic
26:35that is very dear, right? He says, for
26:40example, there is a difference in
26:41German and French culture, because the
26:43French tend to consider that literary
26:45creation is part of political culture.
26:52And that’s why he said, when someone
26:54asked Devon why he didn't stop SAT
26:56protests, he said: "You don't stop
27:02yourself," he said. In the French
27:07Republic, no, it is part of the
27:09political culture that there are people
27:11who are absolutely critical of the
27:13system, but who have stood out for
27:14their contribution to French cultural
27:16creation, and therefore, they must be
27:18there. Then he says uh, he says that
27:29neither on the part of the artists, of
27:31the writers fundamentally, nor on the
27:33part of the State does that culture
27:35exist; German authors do not feel the
27:36responsibility to promote a civic
27:38culture to the same extent as the
27:40French, nor does the State recognize it
27:42in the same way. But he tells him: "
27:51Basically, a constitutional culture, as
27:58in a free society, is one in which, by
28:00definition, artistic creation is free,
28:03because culture is what allows us to
28:05recognize ourselves as a civilized
28:07society, and therefore, the
28:08constitutional protection of artistic
28:10creation has more importance than is
28:13usually granted." Why? Uh, because,
28:21effectively, if not only is the
28:26constitutional text and legal sense
28:28enough, but that civic culture as well,
28:30then how has that been built? How has
28:33it been represented through artistic
28:35works since ancient times? Uh, it is
28:39decisive in the formation of the
28:41citizens' consciousness. So those
28:50articles that protect cultural creation
28:52are essential because they have a more
28:54significant impact than is usually
28:55conceded. But I am going to the third
29:02level, which is the deepest one and to
29:04which he makes perhaps it is not the
29:07one he devotes the most attention to,
29:09but he does point it out as the most
29:12important, and it is that culture is
29:17what determines the pre-understanding
29:19of uh who we are in the world and how
29:25we interpret ourselves. And therefore,
29:30it is something prior to the
29:31possibility that a Constitution can
29:33have meaning. And here he says: "This
29:45began to become evident in the debate
29:52towards the beginning of the 20th
29:54century, uh, a certain status of
29:56cultural sciences; above all, he
29:58attributes the leading role to, and to,
30:00and to it is...that is to say, the
30:08contrast between natural sciences and
30:10cultural sciences and how cultural
30:12sciences have a differentiated status,
30:15they operate differently." And how,
30:24let's say, the final argument behind
30:26this is whether science or culture is
30:28more universal. I mean, there is a very
30:38cheap example if we want, but the
30:39square root of nine is indisputable,
30:41right? But there are cultures that
30:45haven't reached square roots either. So
30:49, uh, there is the sociology of
30:51knowledge: why have certain cultural
30:53developments been able to assign
30:55meaning to specific scientific
30:56statements and others not? So, it's not
31:03that cultural meaning modifies the
31:05validity of scientific statements, but
31:07rather that it allows them to have
31:09meaning for people or not. In the
31:13conception of we are governed more by
31:21algorithms every day because the
31:23development of mathematics allows it
31:25and because the application of
31:26mathematics to social processes is
31:28reaching that point. But clearly at the
31:32level of mathematics of Borges said in
31:39the "rodinario" he said their numbering
31:46system was 1, 2, 2 + 1, a dog, because
31:49a dog has four parts; the number four
31:51doesn't exist, right? Simply, uh, so: 1
31:55, 2, 2 + 1, one dog, one dog plus one,
31:59one dog plus two, one dog plus 2 + 1,
32:02two dogs. He says from 24 on, it's just
32:06called "many dogs," because it's
32:08inconceivable with that system, uh,
32:10number. measures, the development of
32:14mathematics in a context like this is
32:15very...that means that mathematics
32:17aren't truths, it has nothing to do
32:19with that, but culture limits the
32:21conditions of what can be stated,
32:23meaning, even scientifically. Therefore
32:28, in a way, culture preconditions the
32:30meaning of even legal ones. And in that
32:34sense, every text, not just the
32:38constitutional one, every text is
32:40predetermined by the cultural context.
32:43That is the radical debate that must be
32:45entered into in that, in that debate in
32:51Germany. from the early 20th century,
32:54uh, and others tried to base the
33:02studies of cultural sciences on
33:03different premises than the
33:05mathematized sciences, let's say. And
33:14he says this disappeared a bit from the
33:16landscape after '45, when the postwar
33:18Constitution was written, because,
33:20according to his explanation, the
33:22priority was to have an economically
33:29developed state, a welfare state that
33:31would leave that behind a thesis I
33:36curiously agree with, because. But he
33:41says that then these foundations of the
33:43study of constitutions as cultural
33:45texts fell somewhat into oblivion and
33:47that he is trying now—I mean, he
33:48doesn't consider himself absolutely
33:50innovative either—he considers
33:52himself part of this certain tradition.
33:58Uh, the basic objectives he says an
34:05interpretation of the Constitution must
34:08fulfill as, as an entity, as a theory
34:10of culture, and, above all, they have
34:18to do with the processes of
34:19constitutional creation and reform, in
34:21which an exclusively positivist vision
34:23has to reach points where the only
34:25argument I have to use to explain them
34:27is decisionism, that is, the legislator
34:29, uh, introduces this reform. Why has
34:34reform become necessary? Uh, why has
34:37the previous Constitution fallen into
34:39disrepute? Well, that's simply the
34:41legislator introducing the reform,
34:43period. They have the authority to do
34:46so. They do it, but he says, "But if we
34:48want to understand the meaning of the
34:50Constitution, we would have to ask
34:51ourselves how these changes are
34:53produced.""And in that sense, it's not
34:57that the theory of the Constitution as
34:59culture alters the meaning of the
35:01Constitution, but rather that it allows
35:02us to understand its processes of
35:04reform and, above all, of reception,
35:06something to which he has dedicated
35:08much time and which I believe are his
35:10most interesting contributions." For
35:14example, uh I remember having read
35:18something, right? A study of the
35:22constitutions that were approved in the
35:24East German Länder after reunification
35:26. It was the German Democratic Republic
35:31. As a unitary state, it joins the
35:37Republic, unites with the Federal
35:38Republic, and therefore also adopts a
35:40federal form, and the corresponding
35:42states have to approve their
35:44constitutions. So, he makes a
35:47comparison of the five new
35:49constitutions that are approved there
35:54and what elements they take from other
35:56constitutional forms close in time. For
35:59example, he mentions a greater
36:01sensitivity for difference and not so
36:03much for equality. And something that
36:06has later been reiterated in subsequent
36:08constitutional reform processes and
36:10that today is beginning to be
36:14problematic in countries like Hungary
36:16or Poland, right? That is, against the
36:19idea of European citizenship, our
36:21national difference, our own identity,
36:23all this, he says, begins to appear in
36:25certain constitutions at a certain
36:27moment and has been taking...why? What
36:31cultural processes have led to this
36:33type of new constitutional reform? So,
36:36from that point of view, in comparative
36:38constitutional law, especially in
36:40constitutional reform processes, he has
36:42very interesting research, and that is
36:44where I believe his point of view can
36:46contribute the most and, let's say, it
36:53does not supplant the study of the
36:55legal dogmatics of the new
36:56constitutional texts. It complements it
37:01; it tries to understand the cultural
37:03background of these reform processes.
37:15Uh, secondly, he says, because if we
37:17want to create a rational explanation
37:19of constitutional texts, the solely
37:21legal meaning of constitutions, there
37:23are things it fails to explain, and
37:24therefore we need other types of
37:26explanatory elements. Third, because
37:37the theory of the Constitution as a
37:38science of culture is then a forum for
37:40interdisciplinary dialogue between
37:42legal science and other cultural
37:44sciences that that can help with this
37:52understanding and also because it
37:54serves to reinforce the value of the
37:55Constitution. If we understand why
38:00there is a civic culture that
38:01individuals, the citizens, internalize,
38:03etc., we can better protect the Well,
38:11broadly speaking, this is the idea of
38:18the theory of the theory of the
38:19Constitution as a cultural text. What
38:26limitations do I think the approach of
38:33In the first place, it seems to me that
38:34there is a long German tradition of,
38:36let's say, my company France discussing
38:44, proposing the idea of nation in the
38:45sense of political entity and Germany
38:47in the sense of cultural identity. For
38:53example, it says, it mentions that the
38:55German reunification treaty in 1990
39:00states that despite Germany having been
39:02divided into two states, the German
39:04cultural identity was maintained
39:05throughout that time and that the new
39:07unified republic later had the
39:09objective of maintaining that identity.
39:15In other words, the nation with
39:16cultural identity is very typical of
39:18German doctrine; it has been held this
39:20way for a long time, but this has been
39:22the subject of debate and controversy,
39:24and I think it ignores it a bit; it
39:26maintains that same traditional German
39:28line without questioning it. I think
39:33this has its. Second, it seems to me
39:44that it ignores the tradition of the
39:46debate in the field of anthropology
39:48regarding what culture means and the
39:49interpretation of cultures. He has a
39:58series of references in Germany, but
40:03there are other things that have been
40:05left aside. For example, uh Clifford
40:10Geertz, who I think within the field is
40:12the one who has most posed these types
40:14of questions. Besides, he has a book
40:21called Local Knowledge in which he says
40:23that there is a basis of similarity
40:25between anthropology and legal science,
40:27and it is that both try to find
40:29elements of general validity in
40:30particular cases. Let's say, the law is
40:39concerned with resolving cases, but to
40:41resolve cases, it needs general norms,
40:43right? Anthropology describes
40:47particular cultures, but it has to find
40:49descriptive elements of characteristics
40:51, right? Because the structural
40:53approach, for example. So there is an
40:57initial methodological similarity which
40:59, nevertheless, has never managed to
41:01produce phenomena of communication
41:03between both sciences. And he believes
41:07it isn't explained very well why, but
41:09he says, a series of anthropological
41:15presuppositions are beginning to reach
41:17the legal sphere very timidly, which
41:19have to do with, uh, cultural
41:25interpretation; that is, uh, why can
41:28there be communicable meanings, right?
41:31Because one thing in a cultural context
41:33is communicable and in another it is
41:34not. Uh, and in that sense, I think the
41:44debate that the anthology presents is
41:46deeper than what it manages to pose
41:47here, but for example, it doesn't
41:49mention Eco's treatise on semiotics,
41:51does it? It seems to me, uh, quite
41:58lucid. Second limitation. The
42:12references he uses, uh, granted his own
42:14debate with Marcel, etc., arose from a
42:16controversy with Marxist theses
42:18regarding culture and law, both as a
42:20superstructure of production. And in a
42:30way, both, I believe, have been trying
42:32to propose alternatives to this. Not
42:38necessarily, no, I'm not trying to
42:40criticize, but I think he is speaking
42:42of alternatives that go beyond what the
42:44text recovers in its theses. Why?
42:51Because all anthropologists say that
42:52one of the elements of culture is the
42:54system of production. The system of
42:58representation of the world, of the
43:00gods, etc., and the system of
43:02production, but his view of culture
43:04when he speaks of the Constitution, the
43:06creation of art, etc., there, the
43:08system of production has disappeared.
43:11It is what it is, a concept of culture,
43:13something that I believe is quite
43:15debatable. And finally, it seems to me
43:21that, particularly regarding Marx,
43:23there are elements that he hasn't paid
43:25enough attention to. Why in a given
43:33context do certain values become
43:35socially consolidated that the
43:40Constitution later adopts? It has an
43:47explanation, not simply in terms of
43:49culture, which is perhaps a somewhat
43:51diffuse concept, but of concrete
43:52organizational processes—something
43:54that not even Tocqueville said in
43:56general, though I believe Tocqueville,
43:58in "The Old Regime and the Revolution,"
44:00which I think is a book that hasn't
44:01received all its credit. Tocqueville
44:10writes, Tocqueville says: Why did
44:12France come to proclaim equality when a
44:14century earlier equality was not a
44:16social value? To everyone, the
44:20inequality of rights seemed normal. How
44:24does the transition occur from a
44:26society that considers the inequality
44:28of rights legitimate to one that is no
44:29longer willing to tolerate it? Well,
44:34the substantial field is public
44:35administration, and Tocqueville
44:37dedicates himself to describing very
44:42carefully the entire transformation of
44:44the administration that the absolute
44:45monarchy carried out and how that
44:47generated the inequality of rights. In
44:50other words, the absolute will sawed
44:51the branch from under its own feet,
44:53right? It laid the foundations of a
44:56political system that would eventually
44:58end it, and without intending to, a new
45:03social value was generated. But all
45:08this depends on what kind of new
45:09organizational structures appear, not
45:11simply on culture in general. Why are
45:15they cultural values? Because they are
45:17linked to certain processes of
45:18production, administrative organization
45:20, and so on. So, it seems to me that
45:23attributing everything to cultural
45:24values is too vague. I don't think that
45:29the sociology of law, which lives in
45:30this sense—by the way, it is...
45:35analyzes these types of processes in
45:37much greater detail. For example,
45:42Norbert Elias in The Civilizing Process
45:44arrived at these theses, right? How is
45:48the monopoly of legitimate violence
45:50organized in the hands of the State?
45:52These are concrete processes. How that
45:55leads to revaluing the right to life,
45:57et cetera, is linked to one thing or
45:59another. So, in failed states, the
46:04right to life makes no sense. Not just
46:07in failed states. The Declaration of
46:10Rights of the citizens didn't include
46:12the right to life because people were
46:13being killed; the revolutionaries were
46:15finishing people off. So, it didn't
46:17occur to them that this was a
46:18fundamental right. It was included
46:20later, but it wasn't in the declaration
46:22of rights. So, what kind of processes
46:25regarding the end of violence lead to
46:27these rights being enshrined in
46:28constitutions? He didn't refer to it
46:32much, but something I think hasn't
46:39received enough attention is how he
46:41describes the parallels between the end
46:43of feudalism and the appearance of a
46:45modern public administration linked to
46:46the reality of rights with other
46:48processes, for example, in the realm of
46:50ecclesiastical organization, right? At
46:58the time when the Catholic Church
47:00functioned through parish priests, it
47:01had a type of...that type of
47:08organization believes in the equality
47:10of all believers in the sense that they
47:12are all equally children of God, right?
47:17Weber says he calls this typical claims
47:21of legitimacy. A system can have one
47:23typical claim or another; it is a
47:25descriptive concept, not a value-based
47:27one. If someone comes in right now and
47:31yells "fire," we all leave. If someone
47:37comes in and says "buy this from me,
47:39please," why do we listen to one and
47:41not the other? That has to do with it.
47:46Both have claims of legitimacy to issue
47:48commands, but people follow them or
47:49they don't. What does that depend on?
47:53Whether people obey is a factual matter
47:55. A political system can have—the
48:00Constitution of Saudi Arabia says in
48:02Article 1, "The Constitution of Saudi
48:04Arabia is the Quran," and that's it. So
48:06, why must one obey the regime? Because
48:09it is a religious justification. Or one
48:15has to obey the Führer because he is
48:17the natural leader of the Aryan race
48:19due to his superiority, and there are
48:21different systems, value-neutrally
48:23speaking. What determines whether there
48:28is one or the other, does it have to do
48:30with the type of organization of the
48:32apparatus? The church could have been
48:37organized around religious orders with
48:39charismatic legitimation or with
48:40rational legitimation based on canon
48:42law. This gentleman is responsible for
48:46administering this, whether it is him
48:48or not. There is a book by John Joan
48:53that says how our idea of functioning
48:55comes from this change. When early
49:02Christianity says that someone is the
49:04administrator of the sacraments, it
49:05doesn't depend on their virtue, but on
49:07them having a legitimate appointment.
49:12And therefore, uh, one does not obey
49:16someone because of their personal
49:17charisma, but because they are an
49:19administrator designated for it. So,
49:22the transition when the Church begins
49:24to organize itself this way, its claims
49:26to legitimacy are universalist.
49:29Everyone can be. A State that is
49:34organized as a rationalized public
49:35administration has validity claims
49:37based on equal rights. It depends on an
49:41administrative structure. So, they are
49:43not simply cultures that generate
49:45values, one does not know very well why
49:47, but they depend on concrete social
49:49conditions. So, it seems to me that it
49:52stays a bit on the surface, but there
49:54is still much more. Well, I have tried
50:01not just to present, but to debate some
50:03of the positions, if this sparks more
50:05debate, I have already finished some
50:07attention, I believe. Uh, I will just,
50:13I will now stop debating and leave the
50:15floor to you for thank you very much
50:28for your insight and your suggestive
50:34critical observations. Uh, we have a
50:38few minutes to take questions. ideas,
50:42debates, the floor is yours. I knew the
50:57professor was going to be a doctor of
51:10law in minutes, uh, with a splendid
51:12thesis on time and law
51:19I just bought the book on time in the
51:21constitution, uh, I find the approach
51:23you situated regarding the articulation
51:26between culture and, uh, what we could
51:28call the mode of production, following
51:30the theses a bit, uh, I would say the
51:32language of historical materialism, to
51:34be deeply interesting. Don't you also
51:42understand that in Habermas it is
51:44situated? I think it has a huge imprint
51:46, I don't know, the doctor will know
51:48more, of the entire hermeneutic
51:50tradition of Gadamer, right? Regarding
51:53the question of the reception of the
51:55context, yes? Of pre-understanding. Uh,
52:00don't you understand that this tension,
52:03which one could at first glance
52:05perceive between mode of production and
52:07culture, is somehow, uh, a an approach
52:15that is also limited in itself, and
52:17that, on the contrary, modes of
52:19production are inexorably permeated by
52:22the order of the symbolic and of
52:24language that shape culture, limits,
52:26forms, images, narratives, and
52:28operational fictions with which a text,
52:30uh, somehow establishes that legitimacy
52:33that Weber also proposes? That would be
52:39the question. Well, I’ll go ahead and
52:47congratulate you on the doctorate,
52:49which will surely go well. Uh, my first
52:54thesis advisor gave us three pieces of
52:57advice, but one, the first was so
52:59we’d get the idea, that a doctorate
53:01is a pathological state, and it’s
53:03true; so, you will soon abandon the
53:06symptomatology, which is exhaustion.
53:16Yes, I, let’s see, it happens to me
53:18too: the lack of explicit reference to
53:21Agar when, being German himself,
53:23because he cites mostly German authors,
53:25yet he only mentions him occasionally,
53:27but I think he deserves greater
53:29recognition, and. And yes, good luck, I
53:39believe, indeed, that the narrative
53:47structure of individual self-awareness
53:50and collective consciousness, not only
53:52in case sectors, but even before, eh,
53:59eh, not enough attention is paid to it,
54:01but that doesn't take away, right? I
54:09want to argue a little bit also about
54:11the autonomy of legal science, that
54:14even if everything has a, eh, that the
54:16symbolic dimension, etc., is decisive,
54:18it does not annul the precision of
54:20legal validity. I am not human, but it
54:31seems to me that something, systems
54:37theory, didn’t originate from it, but
54:40systems are inevitably autopoietic.
54:43Certain systems, and law is one of them
54:46, cannot describe themselves in other
54:48terms; they cannot reintroduce symbolic
54:51elements, etc., into their descriptions
54:53. Because, eh, I was very happy when I
55:00found that Lugan used it sometimes, I
55:02like it, eh, "On Exactitude in Science,
55:09" in a story that takes up 5 lines,
55:11right? I don’t know if you know it;
55:13it talks about a country where
55:15cartography had reached its peak
55:16splendor. very detailed maps were made,
55:19and the college of cartographers, the
55:21National College of Cartographers, with
55:24capital letters, eh, decided to make
55:26the definitive map, the 1-to-1 map that
55:30covered the entire country. Eh, a map
55:33should not encompass the entire reality
55:36. The description that legal science
55:39makes of reality cannot inevitably
55:41encompass all of reality. Therefore, it
55:45cannot process symbolic elements in
55:47legal terms, but symbolic elements
55:55determine how law operates, not the
55:57meaning, uh, of legal norms, but when
56:00we have to describe certain societies
56:02and how legal systems function within
56:04them; we inevitably have to recover
56:06those elements. And that, evidently,
56:16not the whole tradition, and for
56:18example, uh, and Derrida, etc., hasn't
56:20been paid—I think it has—hasn't
56:22been paid enough attention from the
56:24point of view of...and then what I was
56:27saying briefly before about Clifford
56:29Geertz, right? to understand what
56:42communication means in a cultural
56:43context is something that hasn't
56:45reached the law, though it has reached
56:47certain parts of the law. For example,
56:49in the criminal field in Spain,
56:51Professor Tomás Vives has
56:53reconstructed the foundations of the
56:55penal system based on the theory of
56:57meaningful action very much based on
57:02Wittgenstein, not, not on Jhering,
57:04despite the name. which moves in that
57:07direction. So, there begins to be a
57:12certain field for this, but I think it
57:14is a very fruitful and underexplored
57:16line of research. Another question.
57:31Please introduce yourself. María
57:38Rosanda, from Cuba, Law. I am a
57:41professor of a philosophy course. Uh, I
57:49found it provocative, interesting, and
57:51I understood it in terms of systems if
57:53Harley didn't propose this
57:55interdependence of law in relation to
58:04to activism, culture, but especially in
58:07terms of social activism and political
58:09activism. Uh, because, for example,
58:16regarding a relevant issue like women's
58:18rights and the right to vote, like, for
58:21instance, in Argentina during the
58:23entire 19th century, there wasn't
58:24essentially a restriction within the
58:27Constitution itself, but there was
58:29within the laws. And then, well, we
58:34went through a process where the
58:36Constitution itself was modified, first
58:38a legislative process. How does it, uh,
58:43uncover or describe what you have
58:45narrated to us? if you think there is a
58:50denunciation in that sense regarding
58:52this, uh, interdependence of law, if
58:54you believe it addresses that in some
58:56way. He mentions it, right? I mean, the
59:07idea that if actions aren't exercised,
59:09the courts have nothing to respond to
59:11—I don't think that's new either.
59:14This is the struggle for law by Ihering
59:16, right? And in that sense, legal
59:19projects, just like environmental
59:21protection, have emerged first from
59:23social and activist movements that
59:25later had a normative reflection. So it
59:30is not innovative and Jhering, right?
59:33already said it, but but it is, hm, it
59:41is very decisive, uh, I don't know,
59:45examples like the one I mentioned about
59:47Japan, right? I mean, why don't
59:50citizens appeal an administrative
59:52decision that impedes the jurisdiction
59:54of a fundamental right? No, how can
59:58this, let's say, not be possible?
1:00:03That's what Car said, right? Eh,
1:00:07ironically, there are those who
1:00:09complain that religion is having less
1:00:11and less importance in social life, so
1:00:13the state has to take measures, right?
1:00:17Something like that. He says it as if
1:00:19religion could be spoon-fed, right? Of
1:00:23course, these things don't depend on
1:00:25public decisions; they depend on the
1:00:27modernization of the citizenry. He only
1:00:29acknowledges it, but as part of a list
1:00:31of things. No, I don't think he is
1:00:35precisely a promoter of social activism
1:00:37; he simply recognizes its function,
1:00:39alongside the role of the press, for
1:00:41example, or legal doctrine. He lists
1:00:47everyone involved in that
1:00:48crystallization he mentions and
1:00:50considers it, but I don't think he is
1:00:52an example. He is not a revolutionary.
1:01:00Please.
1:01:07Excuse me, Doctor, a question has
1:01:10arisen. What would be the role of the
1:01:12legislator in this scheme? Would they
1:01:15be a mere recipient of culture, perhaps
1:01:17a kind of architect as well, as you
1:01:19suggested? Because, eh, if they are
1:01:23just someone who reinterprets and
1:01:25legislates based on that reading, or
1:01:27would they be someone who tries to
1:01:29modify it, to change it? What would be
1:01:32that objective role we can assign to
1:01:34both the legislator and the
1:01:35constitutionalist, what would that role
1:01:37be? Well, in the example of, well, in
1:01:48the study of receptions, especially in
1:01:50the constitutional sphere I mentioned
1:01:52before regarding Celber, he says why
1:01:54did the Renaissance arise in Italy and
1:01:57spread? It's a cultural phenomenon. Why
1:02:02do constitutions, why does freedom of
1:02:04expression begin in some places and
1:02:07spread as well? We have to study these
1:02:11processes as part of the same type of
1:02:13processes, right? I mean, why do
1:02:17certain cultural ideas that are born in
1:02:19one context spread? Eh, in that sense,
1:02:26if we analyze the Renaissance, for
1:02:28example, we could ask, what role did
1:02:30the Italian artists play? Well, we
1:02:35aren't talking so much about
1:02:37individuals, but about the cultural
1:02:39movement, right? What role did those...
1:02:47who drafted the constitutions of these
1:02:49new five states that were incorporated
1:02:51into the new German Republic play? Eh,
1:02:56it's not that I deny their role, I mean
1:02:58, that is already studied in the legal
1:03:00sense. What I’m trying to highlight
1:03:05is that in these types of processes,
1:03:07there are influences, just as there are
1:03:09in other areas of culture, like art,
1:03:11and so on. it doesn’t focus as much
1:03:17on the role of Now, uh if it’s a
1:03:23matter of my personal opinion, the
1:03:29legal field is structured in a very
1:03:31classical way, right? I mean, there
1:03:34isn't comparative law as comparative
1:03:40law exists, but organizationally, few
1:03:42universities have chairs in comparative
1:03:45law, right? So it isn't studied as
1:03:48systematically as other branches of law
1:03:50, even though I believe it’s playing
1:03:52an increasingly important role in the
1:03:54contemporary world. So, why, let's say,
1:03:57since the declaration of rights, did
1:04:00the French bring in texts from the
1:04:02declarations of the British colonies in
1:04:04America, right? Uh, these phenomena
1:04:08have occurred massively and and I’m
1:04:14not just talking about the
1:04:15constitutional sphere; it means that
1:04:17legislative proposals presented by
1:04:19sponsors as novel contributions are
1:04:21later discovered to have been copied
1:04:23from a neighboring country, right? So,
1:04:28the legislator is often not as original
1:04:30as they claim to be. There is a lot of
1:04:33communication there and the drafting
1:04:39work is often, well, in Spain we have
1:04:41reached the point where the drafting of
1:04:43complex laws is entrusted to law firms
1:04:45because the legislator doesn't have the
1:04:47, doesn't dare. So, how we’re told
1:04:53the story of how it works is one thing,
1:04:55and how it really happens is another;
1:04:57in Spain, 80%of legislative initiatives
1:05:00come from the executive branch. I
1:05:03don’t know if it’s similar here,
1:05:05but it’s a general phenomenon. So,
1:05:07the bill is cooked up in the Council of
1:05:10Ministers, whose deliberations are
1:05:12secret. It is sent to Parliament with
1:05:16orders for the deputies to vote yes,
1:05:18and the deliberations of Congress are
1:05:19public because there are records of
1:05:21them, but they are irrelevant because
1:05:23the true motives were elsewhere. So,
1:05:26how does the legislator act? I am very
1:05:29interested in this subject, but how are
1:05:32surveys conducted that say "this law
1:05:35will increase our electoral
1:05:36expectations by 5%"? And that is the
1:05:40real motive for the law, which is then
1:05:41not mentioned in parliament. Uh, why
1:05:45has the legislative process moved into
1:05:47the shadows of these cliques? Uh, to me
1:05:52, it seems like one of the criticizable
1:05:54elements of our supposedly democratic
1:05:57societies, which have plenty of that
1:05:59here. So, it’s not my personal
1:06:03opinion, not really, it’s not
1:06:05generally in these types of issues, but
1:06:08these are my personal considerations.
1:06:15Any other considerations? Let's see, I
1:06:20wanted to ask you a question. Uh, don't
1:06:29you think that this idea of considering
1:06:32constitutional norms as a project, as a
1:06:34, uh, it leaves constitutional
1:06:36interpretation very much adrift, more
1:06:38than, uh, the cultural issues that are
1:06:41latent, to whatever the judges may
1:06:43eventually say? That would be one
1:06:52question. And the second thing is
1:06:55perhaps a counterexample regarding what
1:06:57you were proposing, which I saw. Uh, it
1:07:04doesn't have to do with Habermas, but
1:07:06indirectly, uh, the idea of equality is
1:07:09appropriated or appears in France with
1:07:11the revolution, and yet, the French
1:07:13Assembly did not recognize all rights
1:07:16to universality; that is, equality was
1:07:18not truly extended. A paradigmatic and
1:07:24little-studied example is that the
1:07:26Assembly granted the rights of man and
1:07:28of the citizen to the Jews of the south
1:07:30and not to the Jews of the north.
1:07:33Something that today might be. Sure,
1:07:40because let's say it does refer to
1:07:44those types of things, right? The
1:07:46pre-understanding of who they are is
1:07:48culturally determined, right? The legal
1:07:52status of Jews in European courts,
1:07:54right? As protégés of the powers, but
1:07:58without rights—I mean, going back
1:08:00from there, it's an interesting history
1:08:02. But of course, you say, how is it not
1:08:05considered that women are included in
1:08:07equality? Uh, or why it doesn't imply
1:08:12the evolution of youth in the United
1:08:14States, right? Well, it's just not
1:08:18culturally conceivable, right? Uh, it
1:08:24is a limitation of our capacity for
1:08:26pre-understanding. And well, in making
1:08:32the, let's say, it marks a lot, I mean,
1:08:42it exercises much caution by saying: "
1:08:44What I am trying to describe is how a
1:08:46complete understanding of the
1:08:48phenomenon that is a Constitution can
1:08:50only, uh, can only be done if we take
1:08:52into account this dimension that does
1:08:55not invade, uh, the legal
1:08:56interpretation in the strict sense,"
1:08:58right? In that crystallization, the
1:09:05legal dimension is one thing, but if we
1:09:07are talking about the self-description
1:09:09that the law makes of its norms, that
1:09:11is not altered by that sense of
1:09:13cultural interpretation. Regarding the
1:09:20judges, I always say, right? Uh, the
1:09:23judge signs the ruling. Often, judges
1:09:28uh, assume the argumentation of one of
1:09:31the parties. So, just because the
1:09:34ruling bears this gentleman's signature
1:09:36does not mean that the legal
1:09:37argumentation is purely continuous.
1:09:41Legal argumentation is open, right? And
1:09:44legal doctrine may not be affected by
1:09:46the law. Doctrine obviously influences
1:09:49the law and influences its reasoning.
1:09:53So, uh, I don't think that He gives an
1:10:01excessive role to them because when he
1:10:03speaks of an open society of
1:10:05interpreters of the Constitution, he
1:10:07insists precisely on all those who, in
1:10:09a cultural sense, can exert influence,
1:10:11and there are many who can, from the
1:10:13press to artists. So, it doesn't give
1:10:22an excessive role to the judge, nor do
1:10:24I think that today—we are going to
1:10:26talk about legal argumentation—we
1:10:28simply use the figure of the judge as a
1:10:30placeholder, but no one believes that
1:10:32everything depends on the judge. Very
1:10:43well. So, two minutes before 8:00 PM,
1:10:47we will bring the session to a close. I
1:10:52appreciate everyone's presence,
1:10:54especially the students who have joined
1:10:56us here. And I thank Professor Juan
1:11:00Pablo Alonso, member and President of
1:11:02the Association for the Philosophy of
1:11:04Law, who has done a major logistical
1:11:06task in this regard. And, of course, we
1:11:11thank Naya for her reflections this
1:11:13evening. Good night. Thank you very
1:11:16much.

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