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Today there is a great deal of discussion about human rights. We speak of them in reference to totalitarian regimes but also in reference to Western democracies, which is a sign, it seems, of a reconsideration of the legitimacy of the power of the State and the conception of law on which this legitimacy rests. However, we had thought this question had been settled for a long time, at least in democratic countries: a legitimate government is one elected by the people, whose sovereign will it expresses through elected representatives, retained or replaced periodically, who make the laws. In other words, the people are sovereign, and the exercise of this sovereignty is governed by a constitution, according to laws that permit the legitimacy of the State (Rechtsstaat) to be expressed concretely. The doubts that arise concerning human rights in many areas of the world would thus be signs of either a rupture between the sovereign people and the executive or legislative power, to which the people delegate the care of their interests and will, or of a resignation of the popular will, reduced to the condition of a sort of do-nothing king, doubting his own legitimacy and handing his power over to his clerks. In both cases, there is a crisis of confidence and perhaps more: a fundamental skepticism toward the very notion of legitimacy as it is usually presented, that is, as the expression of the will of the people: a capricious will, sometimes docile and sometimes rebellious, of an amorphous sovereign (rex otiosus) that it is difficult to identify in the features of its representatives, (congress, parliament or national assembly) or in the form of a ballot. In any case, the citizen, holder of a small particle of popular sovereignty, feels alienated from the State and its institutions, contrary to what we find in texts before the 18th century, when institutions were surrounded by an apparent, if not always sincere, respect and when the social hierarchy was accepted as a matter of fact.
1 It is easy to calculate that the chiefs of state and the representatives of the people in our democracies are elected by a fraction of the electorate that is about 25-28 percent, abstentions around 40-45 percent not being rare. In these conditions, can we still speak of the "popular will"?
2 We had thought the phenomenon was limited to the republics of Latin America or the people of the Balkans, but now we have the Red Brigades, Black Panthers, Red Army Faction, The Greens, the GRAPO, proving that it exists also in Europe and North America. The existence of these terrorist organizations, armed and politicized, brings about the formation of antagonist groups—groups of self-defence that, faced with the insufficiency of the State, claim to protect the security of the citizens.
3 The United States offers us the perfected example of a political class living in symbiosis with interest groups through the intermediary of very powerful business or corporation lawyers. If the phenomenon of lobbies does not bring about serious reactions, it is because the myth of the self-made man is still more powerful. The inheritance of the founding fathers, this myth would also have it that these essentially ephemeral interest groups are set up for the profit of their associates, not for political influence, which would endanger the institutions of the Republic if it were durable. It is thought, without saying so out loud, that the country is better governed by an oligarchy.
4 J. Chanteur, Platon, le désir et la cité, Sirey, 1980, p. 47. Let us not forget the participation of public opinion in the previously-mentioned symbiosis: political class, interest groups and media are the three branches of popular sovereignty in modern democracies.
5 Medieval jurists, imbued with Roman law, put themselves at the service of the emperor or the kings of France beginning with the 12th century and fought the papacy in the name of the legitimacy of the pagan emperors. For them, this legitimacy was recognized by Jesus himself and his apostles, the early Christians paid their taxes and St. Paul, a Roman citizen, had himself sent to Rome to be judged. The Letter to Diognetus (circa 130 A.D.) shows that the daily life of the early Christians was perfectly integrated into the life of the other citizens.
7 Let us note that in the Thomist doctrine, taken from Aristotle, the State helps man to fulfill himself: it is thus, in this sense, a "secondary" divine creation. Man could not live fully without the help of the State.
8 Vlachos, G., La pensée politique de Kant, P.U.F., 1962. Preface by Marcel Prelot, p. X.
9 See "L'inspiration kantienne de Hans Kelsen" by Simone Goyard-Fabre, Revue de métaphysique et de morale, April-June 1978.
10 Theetete, 176, conversation between Socrates and Theodorus.
11 De Cive, Ed. Sirey, 1981, presentation by Raymond Polin.
12 De la nature humaine, Vrin, 1971, p. 66. "Conceptions are only a stimulated movement in an interior substance of the head." (Idem., p. 64).
13 "Laws": not in the sense of their applicability in the world of nature but in the world of behavior and action, laws of practical reason.
14 Fondements de la métaphysique des moeurs, Delagrave, 1971, p. 78.
15 Goyard-Fabre, loc. cit., p. 211.
16 "Justice et droit naturel," Annales de philosophie politique, III. Le Droit naturel, P.U.F., 1959, p. 67.
17 Kelsen, op. cit., p. 122. Two things are to be noted here: 1) Kelsen's conception agrees with no matter what "juridical order," because it forbids its being criticized; 2) it may also proceed to its own liquidation and decree that from then on such or such a society no longer needs a juridical order (positive) given the fact that the citizens have become good (reasonable) and it is no longer necessary to subject them to the restraints of the law. This Utopian view is glimpsed in the Kelsenian system, which presupposes that human nature is not unchangeable when confronted by the law and the law, always adaptable to circumstance, may someday find itself in a situation that does not need restraint.
18 Society and Nature, a Sociological Inquiry, University of Chicago Press, 1943, p. 233.
19 Chanteur, op. cit., p. 64.
20 Vlachos, op. cit., p. 544.
21 The modalities of this attachment are multiple, going from the kings of India, being mutilated in frightful rites and sacrificing themselves to the spirits, to the Emperors of China and the Germanic Holy Roman Empire, linking their earthly empire to the source of transcendental perfection.
22 Chanteur, op. cit., p. 11.
23 Rousseau well understood the logic of this reasoning and believed to remedy it by calling on the postulate of "general will." He forbids the citizen to hold a similar anarchical discourse by asserting that once his freedom to decide is sacrified on the altar of general will, the citizen is incorporated into it and loses the right to criticize magistrates, the executors of the social contract.
24 Ordre et désordres, inquiry into a new paradigm, Seuil, 1982.
25 A curious symptom of this demystification was the assassination attempt on President Reagan by young John Hinckley in 1982. The affair had no follow-up, as if the assassination of a chief of state had less importance than an ordinary assassination. The absence of sanction shows to what point the presidential function is desacralized in the United States, which is presented today as a model society.
26 What is called the "American way of life" is in sum only the absolute value accorded to things and events of daily life, in a society that has lost the meaning of any external reference. All efforts, all resources are bent in more and more futile gestures, up to the idolization of the daily, the routine, automatism.
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