Tradition and Revolution

Can tradition, the most intensely and profoundly epistemological sense of tradition, tend towards the configuration of revolutionary approaches? Can the sense of tradition guide revolutionary paths? In other words, can tradition fuel that critical thinking aimed at challenging what is widely accepted by the majority and especially by the ruling power? Can it even be its foundation? These are many questions that I will try to address in the book and that I have particularly pondered over the last twenty years, since I felt the need to combine my work as a jurist with civic engagement. I gradually felt the need to unite the classical studies of legal categories with the attention to facts, or rather, the real implications of classical institutions on real data and material conditions. This approach immediately appeared to me as reciprocal and osmotic, as one dimension could nourish the other. Traditional studies helped me analyze the phenomena, initiatives, and proposals I tried to follow from committees, associations, movements. In particular, their innovative potential could be transformed into structured legal proposals, starting from classical categories. I immediately realized that the innovative hodgepodge was moving on very slippery ground. It was ready to be exploited by facile and primitive populisms, or conversely, to be transformed into proposals and decisions of a critical nature and with a highly revolutionary content. Traditional legal categories can and must play a revitalizing role, especially when the present appears mediocre and disappointing¹. This approach of legal culture to the facts of the present must be vigorous, courageous, ready to confront post-modern, liquid, weak metaculture. However, it conceals a project, that of weakening thought and especially criticism. Erudite and formalistic views of history apparently seem to avoid the most substantial and burning issues² of our civilization. They are actually oriented towards preserving hegemony over such complexities with attitudes of conformity and conservation. They have nothing to do with true culture, the one that is willing to engage with the sense of tradition, attempting to provide answers to social and material issues. It is the thought of small reforms, small shifts, subtle changes that do not require a confrontation with the sense of tradition, as it does not seek to measure itself against a renewed critical and strong thought. Trying to capture revolutionary tensions in the sense of tradition means wanting to create breakwaters against forms of populism, communities of power, and the various forms of governance reformism. All of this requires an extraordinary commitment of thought and action, a confrontation with real and everyday problems, trying to solve them by comparing them with the sense of tradition. This way, revolutionary tensions can be based on solid pillars and strong, non-submissive thinking. There needs to be a necessary and ongoing critical engagement with the sense of tradition, which sees history always as critical and never as monumental or antiquarian history.

As Nietzsche emphasizes, through the sense of tradition, one must understand, break, and dissolve the past in order to live the present and its material, social, and economic conditions³. Bringing the past before a court means, first and foremost, developing a critical spirit and putting it at the permanent service of current issues. It needs to be interrogated and judged; every past is worth condemning. The strength of present critical thinking should be measured in its ability to interpret the past; only then can we grasp what in the past is great and worthy of being known and preserved in a prospective and revolutionary tendency.

That said, I also want to make it clear that the book is not autobiographical. It will be deeply appreciative of the experiences I have been able to live firsthand, which have, on the one hand, enriched my legal method of approaching issues and, on the other hand, influenced national and local public policies. There is a necessary link that interconnects studium, verum, factum with a common thread. An epistemological approach that, as we will see throughout the book, opposes what we will define as governance reformism, a purely political project that hides behind managerial categories such as efficiency, effectiveness, and result-oriented activities. To proceed in this direction, one must engage with the past and tradition; one must impose the goal of immediate and contingent results with an apparently positivistic approach⁴. Historian Eric Hobsbawn, in this regard, particularly referring to the legacy of the 19th century, states: “The destruction of the past, or rather of the social mechanisms that link one’s contemporary experience to that of earlier generations, is one of the most characteristic and eerie phenomena of the late 20th century. Most young men and women at the century’s end grow up in a sort of permanent present, lacking any organic relation to the public past of the times they live in”⁵.

In a climate of widespread dissatisfaction and impatience, we often hear words and expressions such as “revolutions” and “revolutionary approach”, usually opposed to the concept of tradition, or aimed at causing discontinuity and rupture with the past. A revolution aims to shape a new form of State, a new arrangement of powers and form of government. It restructures the relationship between authority and freedom, especially concerning the recognition and guarantee of civil, political, and social rights. A revolution would abruptly break with the past, and therefore tradition, without going through the season of reforms, which is a complex of political actions that gradually determine a change of regime in an attempt to balance opposing positions. Thus, rather than being opposed to the category of tradition, revolution is dichotomous to the reformist approach, at least in its functional tension. The fundamental question, therefore, is how to rethink and rewrite the State, and by what method. Is it through a sudden rupture or through a gradual movement?⁶ This approach mitigates the opposition between revolution and tradition, also from a semantic point of view; the former expresses the function and objectives, while the latter primarily represents the method.

Indeed, during the course of this investigation, I will not speak of tradition but of the sense of tradition, which primarily signifies a methodological research on how to address content, in harmony with the evolution of times, needs, and demands. Tradition and revolution aspire to a process of integration that would find its Vichian synthesis in verum and factum⁷. Thus, in this sense, there would not even be an opposition between tradition on one side and modernity and progress on the other; the former becomes particularly functional to the deconstructive and foundational processes inherent in revolutionary processes. Methodological structure and function find their fragile yet potentially strong synthesis precisely in the interplay between tradition, as an epistemological dimension, and revolution. On the other hand, reformist processes, as they are not aimed at deconstruction and discontinuity but rather at a contained and balanced modification of power relations, and are more closely tied to contingency, require a reduced reliance on the sense of tradition. In short, throughout this work, I will not only attempt to demonstrate that tradition and revolution do not constitute a dichotomy. On the contrary, revolutionary processes, understood as factum, require an in-depth understanding of the structure to be deconstructed. Today, especially in the legal field, the terms “revolution” and “revolutionary processes” are primarily used with the intention of rethinking the State, its power organization, authority-freedom relationships, public ownership, and the classical categories of constitutionalism. This is done in an attempt to align more directly with the needs and demands of citizens. It is a perspective that aims to express forms of more radical democracy and, to quote Arendt⁸, so-called militant democracy. A radicalism that is far removed, in its structure and function, from the idea of reformism. This is expressed, on the one hand, with the declared intention to break with the mainstream, and on the other hand, reacting to pressing phenomena of authoritarianism. The radical dimension of this approach manifests itself in its revolutionary intentions, particularly through the representation of actions, contents, and forms⁹. An approach far removed from that expressed, since the late 1980s, by the so-called Third Way of Blair’s New Labour, which later found wide acceptance among Western social democracies. A vision that, as is known, weakened, among other things, the category of public ownership, undermining its original function through a wave of privatizations. It had a political impact on the scope of representative democracy, diminishing the role of Parliament in favor of increasingly technocratic tendencies. A so-called governance reformism¹⁰, devoid of roots, but above all, foreign to structural aspects related to the sense of tradition. It aims to impact the very form of State through its effects, transforming the welfare State into a workfare State, based on the principles of competition and horizontal subsidiarity.

The elaboration of facts and contents presupposes a medium-to-long-term vision, aiming to achieve a shared set of new principles and values for a horizon that is capable of improving the material conditions of people. The personalist principle blends with, or rather feeds on, principles such as solidarity and equality; the facts elaborated through the sense of tradition go far beyond, and often against, customary data, as they constitute the platform for a new structure. Governance reformism operates within the contingency, without needing analysis and contamination with tradition, since it expresses function rather than structure. It does not intend to deconstruct and build a new world but rather tries to capture the needs of the moment, also in electoral terms, with the intention of providing immediate answers. The first democratic constitutionalism of the 20th century in Europe, following World War I¹¹, was born with a very specific vision: to limit politics and, above all, to subordinate the political action of nation-States to overarching legal principles. It aimed to create a hierarchical structure among norms and to safeguard civil and political rights from politics, especially from its authoritarian, totalitarian, and nationalist deviations, through constitutional justice bodies. As is known, it was a noble and necessary attempt that, however, did not prevent the subsequent and immediate emergence of authoritarian systems (Germany, Italy, Spain, Portugal). As is known, the goals of democratic constitutionalism, expressed especially in the three Central European Constitutions of Germany, Austria, and Czechoslovakia, failed to prevent the outbreak of a second world war. However, from the analysis of these experiences, the sense of tradition represented, from a methodological point of view, and above all, as a continuous interweaving of facts and contents, the prerequisite for a common thread: the path towards democracy. Just think of how the Austro-Hungarian Constitution of 1867¹² formed the basis for the reasoning that led to the Constitutional Court of Vienna in 1920 and how these debates were then reflected in the Constitutions of Rome in 1948 and Bonn in 1949. In any case, issues related to the means of limiting political power through law constituted the major theme of the 20th century, also at the international level.

All the founding, structuring, and deconstructing moments, from an epistemological perspective, can only be based on the sense of tradition. All projects that have a vision and rely on guiding principles, direct their function towards a structure, which, as mentioned, can also be deconstructed. For the examples I have given, the underlying theme remained the relationship between politics and law, outlining a liberal but democratic view of the organization of power and its relationship with freedoms. However, even when shifting the focus from liberal-democratic systems to different models (e.g., the Russian revolution), all reasoning about property, cannot escape the foundational study of forms of State and government, and the social, economic, and legal role of public goods. In short, the more structure and function are oriented toward revolutionary processes, the more they require, from a methodological perspective, the use of the sense of tradition.

The foundational categories of democratic constitutionalism are subject to constant reconsideration, but not always with the awareness that such complex and profound themes deserve. In these phases, reform projects reveal all their structural limitations, especially in recent years. Within the framework of economic (neo-)globalization, they seek to respond to these changes with a technocratic and business-oriented approach of efficiency, dominated by economic theology (the sanctity of the market). They no longer aim to engage with representative democracy but rather to embrace neoliberal models of a decision-making democracy.

Thus far, the greatest tensions challenging the achievements of representative parliamentary democracies and the primacy of Parliament¹³, in its most inclusive composition, have arisen from the long-lasting influence of Blair’s Third Way. They have also emerged from the neoliberal and technocratic drift in that world, historically situated within the broader galaxy of social democracy. The drama of governance reformism unfolded precisely in the weakness of a thought devoid of structure, flattened by the processes of globalization and the idea of making both public and private property subservient to these processes. The study of public ownership, within the folds of its tradition and, in a broader sense, of public goods, allows us to decipher the distortion of state forms, such as those based on the welfare State and the guarantee of social rights. This happens without a vision but only with the idea of creating a proprietary structure that is more useful and subservient to the affirmation of the economic theology of financial globalization.

The opposition to technocracy and the distortions of democracy¹⁴ – driven by an increasingly wild financial capitalism, towards which the European Union has not only failed to react but has too often supported – has led to political, economic, and social reactions. These reactions, beyond their contents, aim to defend the dignity of people, their material conditions, and, more broadly, to assert the social role of public institutions that are subjected to relentless privatization processes. This has evoked new forms of popular sovereignty¹⁵. Criticism has been directed at the mechanisms of democratic representation. More broadly, it has focused on delegative democracy, its limitations, and the configuration of an increasingly evident gap between representatives and the represented, accentuated by the crisis of mass parties and the diminishing effectiveness of institutions of direct democracy¹⁶.