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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) b. INDEPENDENCE OF DEMOCRACY OF HISTORY 25. Like Locke, 4 and Kant, 5 I consider that legislative power is the most important function of the state, to be exercised by none but the people. However, unlike Locke and Kant, who look at the "people" from the perspective of individuals, I look at it from the perspective of "groups," without the exclusion of the prerogatives of individuals. And unlike Rousseau, and Kant, who justify the government respectively as a "general will,” 6 and a "united will," 7 of the people, 8 I justify the government as the people's thought. Whereas the former conception, under Rousseau 9 and Kant, 10 considers the government as integration or realization of its people's will, the latter conception, under Democracy of History, considers the government as people’s historical participation. Accordingly, although I agree with Montesquieu, 11 and with Rousseau 12 and Kant, 13 that the separation of branches is a fundamental tenet of democracy, I disagree, however, with the fact that they are only for the protection of equality and liberty for all, because the common good of the people under Democracy of History is not concerned only with equality and liberty, but also with historical participation. 26. Also, I agree with Hobbes, 14 Locke, 15 and Rousseau, 16 in stating that a civil state must be conceived for utilitarian reasons, be it for security, moral freedom, or civil liberty reason. Yet, I disagree with them with respect to the origin of their utilitarianism. For where all consider that the civil state should be formed because what is gained, namely, security, moral freedom, or civil liberty, is greater than the state of independence men had enjoyed in the state of nature, I consider that the establishment of the civil state is a matter of moral imperative, required of groups for historical participation. It is only from this angle that I agree with Kant 17 who considers that what men should do is a matter of duty, rather than a matter of ends to be achieved. But, I disagree with all because 4 TREATISE OF CIVIL GOVERNMENT, supra note 3, Chap. XI ("Of the Extent of the Legislative Power"), para. 134, p. 88: “The great end of men’s entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive <strong>Law</strong> of all commonwealths, is the establishing of the legislative power...” 5 THE SCIENCE OF RIGHT, para. 46 ("The Legislative Power and the Members of the State"), 166-169 (Scribner and Welford, N.Y.: 1887). 6 ROUSSEAU, LE CONTRAT SOCIAL, supra note 3, Bk. I, Chap. VI ("Du pacte social")["On the Social Compact"], 30: « Chacun de nous met en commun sa personne et toute sa puissance sous la suprême direction de la volonté générale, et nous recevons en corps chaque membre comme partie indivisible du tout. » [Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole] Bk. II, Chap. III (“Si la volonté générale peut errer”) [“Whether the General Will Can Err”], 41-42; Bk. IV, Chap. I (“Que la volonté générale est indestructible”) [“That the General Will Is Indestructible”], 110-112. 7 THE SCIENCE OF RIGHT, supra note 5, para. 46, 166: “The legislative power viewed in its rational principle, can only belong to the united will of the people.” 8 See ROUSSEAU, supra note 3, Bk. II, Chaps. VIII-X ("Du peuple") ["On the People"], 55-62. 9 Id. 10 THE SCIENCE OF RIGHT, supra note 5. 11 See THE FEDERALIST PAPERS, supra note 3, No. 47: Madison, 300-308. 12 LE CONTRAT SOCIAL, supra note 3, Bk. III, Chap. IV ("De la démocratie") ["On Democracy"], 76-78. 13 THE SCIENCE OF RIGHT, supra note 5, para. 49 ("Distinct Functions of the Three Powers. Autonomy of the State."), 171-173. 14 LEVIATHAN, supra note 3, Part I, Chap. 14, 115: “[I]n a civil estate, where there is a power set up to constrain those that would otherwise violate their faith, [...] fear is no more reasonable.” 15 Supra note 3, Chap. IX ("Of the Ends of Political Society and Government"), para. 123, p. 82: “If man in the state of nature be so free...if he be absolute Lord of his own person and possessions, equal to the greatest, and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which, it is obvious to answer, that though in the state of nature he has such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasions of others...This makes him willing to quit this condition, which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties, and estates, which I call by the general name, property.” 16 LE CONTRAT SOCIAL, supra note 3, Bk. I, Chap. VIII ("De l'état civil") ["On the Civil State"], 33-34. 17 THE SCIENCE OF RIGHT, supra note 5, para. 61 ("Perpetual Peace and a Permanent Congress of Nations"), 224-225. DR ANWAR FRANGI - DEMOCRACY OF HISTORY 13
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) departing from the state of nature 18 to form civil societies is not in contradiction with the state of nature as such. For all men by nature are inclined to be in groups. The real difference is that under civil society the "people" manifest a historical maturation and awareness that they did not have in the "state of nature." War is created when this historical awareness is at its lowest level in people's thought, and can be eliminated only by being aware of how a group should make a historical participation. 27. Having defined what is true about Democracy of History, I must now examine the issues with which Democracy of History is concerned. B. THE ISSUES UNDER DEMOCRACY OF HISTORY TAKEN IN SE 28. The reason issues must be brought up under this subject is because the other theories of democracy have neglected the approach I take, and because this democracy, if it is to be a contribution, must be in the line of precedent theories of democracy. Thus, the identification of the issues will be addressed, first; their justification, second. 1. IDENTIFICATION OF THE ISSUES UNDER DEMOCRACY OF HISTORY 29. In examining the issues that Democracy of History raises, I will consider, first, the general, and then the particular issues. Where the first type of issues relate to the principles behind Democracy of History, the second refer to their application. 30. Thus, in general, we must ask (i) whether determining a group’s historical participation is possible for Democracy of History. If so, there follows the question whether this democracy is concerned with the group's participation in the evolution of the highest and most dignified form of thought, or of all, or some forms of its manifestation. 31. There is also the question (ii) whether participating in their government is possible for historical groups based on their historical participation. 32. If this is possible, we must investigate (iii) whether historical groups should be given national popular participation in proportion to their gradual standing into historical participation. If this is granted, we must further investigate whether this national popular participation should be in proportion to historical groups' gradual standing into historical self-consciousness, or historical existence, or historical dignity, or historical experience. 33. There is also the question (iv) whether historical groups should be given national political representation in proportion to their 18 See, e.g., ROUSSEAU, LE CONTRAT SOCIAL, supra note 3, Bk. I, Chap. VI ("Du pacte social") ["On the Social Compact"] at 29. DR ANWAR FRANGI - DEMOCRACY OF HISTORY 14
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