The legal dilemma. Rule and human rights, an insuperable paradox? A different approach from the personalist legal philosophy
| Autor | José María Seco Martínez |
| Cargo del Autor | Profesor Titular de Filosofía del Derecho de la Universidad Pablo de Olavide |
| Páginas | 199-214 |
— 199 —
THE LEGAL DILEMMA. RULE AND HUMAN RIGHTS, AN
INSUPERABLE PARADOX? A DIFFERENT APPROACH FROM
THE PERSONALIST LEGAL PHILOSOPHY
JOSÉ MARÍA SECO MARTÍNEZ
UNIVERSIDAD PABLO DE OLAVIDE, DE SEVILLA
JMSECMAR@UPO.ES
1. Introduction
Emmanuel Mounier is a sizzling author today, not only for the richness of his work but
also for the suggestions he puts forward in his major writings. His work is infused with
bold reflections on democracy and law, that we should not lose sight of. This is where the
strength of this author lies. The concept of "established disorder" (Mounier, 1992: 359,
390, 401, 414, 434 y 471) is a good illustration as it serves legal-political analysis even
today. Yet we need to further our understanding of the message Mounier wished to
convey, which is what this work sets out to do. Our objective is to shed light on how his
thoughts on the state of democracy and law influenced his historiography. The
phenomenon is in fact common to thinkers of past eras. We believe, however, that our
author is capable of triggering a paradigm change in legal reasoning.
Some may argue, justifiably, that Western society’s state of politics and contemporary
experience do not correspond to that of the author’s analysis. The paradigmatic re-
configuration of the capitalist system and the progressive depreciation of old national-
territorial arrangements underpinning the State and citizenship seem to have brought
about major changes to our interpretation of political realities, an interpretation that had
already been made by the author at the time. The world now presents a substantially
different panorama from that outlined by the French philosopher.
Naturally, we cannot expect his conceptual schema to fit recent realities. His thoughts
cannot be interpreted out of the historical context in which they originated. That would
render our understanding anachronic. For better or worse, thinkers are always hostage to
the historical contexts they live in. Let us not forget he belonged to an era that could be
classified as a paradigm crisis, i.e. the years of the West’s paradigmatic transition to
modernity. He tackled, in this context, what was until then an unusual subject in the
José María Seco Martínez
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intellectual scene of irrationalism: the critical analysis of democracy as a "historical
process" of modernity. Therefore, his proposals deserve our attention, because he also
lived in an era that could be described to be in a deep spiritual state of crisis or unrest: the
end of "European hegemony over the world" (Lefebvre,1932: 7). Unsurprisingly, the need
to rearm the great democratic tradition emerged as an essential pillar of Western culture.
Our author was specifically preoccupied with the epistemological origins of social
problems, thus democracy and, by extension, law presented an emancipating dimension
he deemed worthy of study.
Thus, we consider that Meunier deserves a place among the classics: his work helps us to
understand and transform the present. As we will see, he held disruptive views regarding
the liberal ideology that prevailed at the time. His philosophy, built methodically over
many years, centred on a quest for alternative philosophical underpinnings and aimed at
derailing democracy from its liberal tracks.
Therefore, we can begin by considering how useful his thought is for us today, because
it sheds light on the ends-means connections between law and democracy. The law-
democracy relationship issue turns out, in practice, to be an " ends-means" problem. What
would democracy mean, if the order of its ends did not influence the order of its means,
that is, the order of its own law? An end always suggests a means. If power resides in an
end, it will also be present in the methods it employs. Therefore, if the law is not an end
in itself, but is useful to achieve ends – thereby defining law’s typical pragmatic nature,
synthesized in the idea of operability (Orestano, 1997: 364) – we have no other choice
but to acknowledge its dynamic, i.e. historical character embedded in the world that
human beings live in and build. The law has no essential reality, despite the efforts of
jusnaturalism to the contrary. It is of course substantively constituted, but as legal
experience. Thus, it is possible to hold a different conception of law, that is, re-attributing
to the human being, who makes (and experiences) history, the role of basic ethical
reference. The human being can be defined as the immediate foundation of the whole
phenomenon of law, allowing to address the radical split between legal theory and praxis,
between the axiological and normative domains, between reality and the objective, as
advanced in Kelsenian rationale.
2. Liberal hegemony and the "established disorder": the democracy dilemma
Democracy, understood as a historical project, has always been politically characterised
by a quest for social justice and the distribution of power among people. E. Mounier's
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