The Liberal Alternative: A State with Limited Powers and Controlled by an Economic Elite
The social classes wielding political power during the revolutionary period were unwilling to accept any return to the situation which had prevailed under the Ancien Regime. Despite the efforts being made by leaders to restore the traditional order of the absolute monarchy, economic power in the western states no longer rested in the hands of the old aristocratic and privileged classes, who had been superseded as the ruling classes by a new bourgeois financial and industrial oligarchy.
This new elite would not settle for just economic hegemony, but would also strive to obtain political power to secure governments serving their interests. Hence, they endeavored to exclude the lower classes from the political arena (Wallerstein 2011, 24),[854] and did their utmost to prevent the restoration of monarchical authority and to impose a new regime in which the liberty of individuals (understood as the powerful individuals now atop the social pyramid), would be spared from state interference and control.16.3.1 Legal Limits on State Power: Constitutions
and Fundamental Rights
The instigators of the political revolutions of the nineteenth century (1820, 1830, 1848), sought to limit monarchical power, at the very least by placing legal or customary checks upon it. The restraint of power through the application of legal mechanisms was nothing new. As we have seen, in the Middle Ages there arose texts curbing the king’s power, such as England’s Magna Carta in 1215, or the privilegios of the kingdoms under the Crown of Aragon. We have also seen how even during the apogee of absolute monarchy, kings were bound to respect
unwritten rules such as “fundamental laws”. Under the Ancien Regime power was restrained, to varying degrees, by law through fundamental, unwritten rules, which in some instances continue to form today the basis of constitutional order, as is still the case in the United Kingdom.
Legal restrictions on power, however, took on a new dimension after the American and French revolutions, as they advanced the idea rooted in Natural Law of a social contract between government and the people that legitimized state power, a principle reflected in the adoption and ratification of written constitutions (King 2013, 75-77). The drafting of these foundational documents was the result of processes expressly undertaken to this end, with France drawing up documents in 1791, 1793, 1795, 1830, 1848 and 1875; the United States in 1787; and Spain in 1808 (Statute of Bayonne), 1812, 1837, 1845, 1869 and 1876.
There were also cases in which constitutions were granted by the state whereby monarchs accepted and placed limitations on their own power. Such was the dynamic when France’s Louis XVIII issued a charte in 1814,[855] Regent Maria Cristina of Spain signed a Royal Statute in 1834 (Villarroya 1985, 11-15), Frederick William IV endorsed a Prussian Constitution in 1850,[856] and Tsar Nicholas II, the Russian constitution of 1906.[857]
In addition to these two constitutional patterns there was the Napoleonic model of a constitution drafted by the executive power and submitted to a plebiscite (as in the case of the French constitutions of 1799, 1802 and 1804)[858]
Aside from the limits set down by the constitution, in some states there appeared formal declarations of fundamental rights drafted and promulgated so that those in power would be compelled to respect them. Some of these texts were included in constitutions and actually represent legally binding documents, such as the 1791 U.S. Bill of Rights (the first ten amendments to the federal constitution), in which case, legal recourse may be pursued when they are violated. Others, however, even if they were meant to be universal, were not legally binding, but rather mere intellectual manifestos, such as the Declaration of the Rights of Man and of the Citizen, advanced during the French Revolution in 1789.
16.3.2 The Politicization of the Term “Nation”
Another important feature of the new model of state that the liberals fought for was the idea that political power must be legitimized by the “nation”.
As we have seen, some contemporary historians, prompted by nationalistic enthusiasm, maintain that the term “nation” actually dates far back in European history, at least for European nations such as France, England and Germany, which trace their names back to the Germanic peoples—or “nations”—that settled on the Continent after the fall of the Western Roman Empire. In fact it was much later, during the Middle Ages and even into the modern era, that the term “nation” was used to designate a people united by their linguistic affinity or geographic proximity. Thus, for example, the kingdom of the Franks was transformed under Philip II into the kingdom of “France”, and its inhabitants came to be called “French”. It was not, however, until the last third of the eighteenth century when the term acquired a manifest political meaning, in the contexts of the American and French revolutions, whose leaders, acting to form, devise and uphold the principles of their respective “nations”, claimed that national sovereignty lay with the citizens, not with the monarch, as Machiavelli, and above all, Bodin had contended.
It was not until the triumph of the Romantic ideal, however, that, as a reaction to the Enlightenment, liberals defended the idea of “nationality”, just as the twentieth century would spawn “nationalism”.[859] Thus, peoples’ right to politically and legally organize themselves in accordance with the precepts of Enlightenment revolutions was followed by the flourishing of national sentiments within European groups united by their linguistic, cultural and historic ties. This is what Smith (2009, 61) considers the forming of the “core doctrine” of ideological nationalism.[860]
As a result of this movement, European historians began to search for the origins of their peoples’ national identities, with scholars such as the brothers Grimm[861] that besides gathering and publishing traditional legends and tales encouraged the work of these early “germanists” (Ziolkowski 1992, 108).
This trend impacted the legal organization of nations, thanks to the rise of the German Historical School of law, advanced by jurist Friedrich Carl von Savigny (1779-1861), who rejected the adoption of Napoleonic legal codes, arguing that jurists ought to discover and apply, through historical research, the nation’s own, unique law, which was to be rooted in the spirit of the people (Volksgeist) (Reimann 1990, 851-858).[862] Thus did linguists, historians and jurists forerun politicians by conceiving of and envisioning a Europe of nationalities, which in some cases contributed to the formation of new states, while causing the disintegration of others, as with the Austro-Hungarian and Ottoman empires. In the late nineteenth and early twentieth centuries, regionalist sentiments intensified in Spain—principally in Catalonia and the Basque Country (Conversi 1997)—as well as in Ireland. In both cases this development led to separatist movements, successful in the latter case, an ongoing struggle in the former (Hall 1993, 1-28).16.3.3 From Absolute Monarchy to Liberal Oligarchy:
The Era of Censitary Suffrage
The seizure of power by the wealthy bourgeoisie was achieved by imposing representative, parliamentary-based regimes which replaced (as in the case of the French Republic) or at least restricted royal prerogative. In theory, legitimate power lay in the “nation”, that is, the citizens as a whole. Though having embraced some democratic and egalitarian notions and values, it ought to be noted that most of the liberal states in nineteenth-century Europe featured constitutional systems dominated by a wealthy, liberal bourgeoisie.
In fact, these regimes only represented the affluent, as delegates were elected through a system of censitary suffrage under which citizens were required to have a certain level of income or property to vote,[863] and even higher levels to stand for office—a practice which ensured that representative assemblies were controlled by the new oligarchic ruling classes.[864] In this way, the financial and commercial bourgeoisie managed to control the state apparatus, enforcing its rules and poli- cies.[865] This meant that the new public power restricted itself to maintaining order, leaving everything else in the hands of the new ruling class, especially economic policy.[866] It was the “liberal” principle of laissez faire which developed a specific constitutional model that allowed the new European nation-states to achieve impressive levels of economic development.[867]
Under the model of the liberal state, at least initially, the middle class wielded barely any clout, and the poor were effectively non-existent in political terms.
It was, thus, the high bourgeoisie (gentry) who controlled the nation-states, via censitary, indirect and weighted electoral systems, which assured their ascendency. Even in those cases in which universal male suffrage theoretically existed, the representative system was designed to exclude the middle classes and the most disadvantaged citizens. Such was the case, for example, with the Prussian Constitution of 1850.[868]The wealthy bourgeoisie’s political stranglehold on power in the liberal state, however, would be threatened by the momentous social changes which the liberal revolution had triggered in Europe, leading, on the one hand, to the growth of a significant middle class which clamored for political representation; and, on the other, to the advent of a new social group: the “proletariat”, the poorest and most numerous portion of society. The European nation-states’ extraordinary economic expansion over the course of the nineteenth century would be jeopardized by the unfair distribution of wealth within them, which bred festering social tensions.
This “social question” would precipitate a crisis of the liberal state model and bring about the resurgence of strong public power—already portended by the model of state conceived by Bismarck for the Second Reich, called upon to play a decisive role to restore social balance. These changes were the direct consequence of the mounting conflicts which pitted European nation-states against each other during the era of colonialism and brought on World War I, a turning point in Western constitutional history. We shall analyze these essential constitutional changes in the next chapter.
16.4