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Essays on Values and Practical Rationality

Ethical and Aesthetical Dimensions


Edited By António Marques and João Sàágua

The essays presented here are the outcome of research carried out by members of IFILNOVA (Institute for Philosophy of New University of Lisbon) in 2016.

The IFILNOVA Permanent Seminar seeks to show how values are relevant to humans (both socially and individually). This seminar is the ‘place’ where different research will converge towards a unified viewpoint. This includes the discussion of the following questions: What is the philosophical contribution to current affairs and decisions that depend crucially on values? Can philosophy make a difference, namely by bringing practical reason to bear on these affairs and decision? And how to do it? Which are our scientific ‘allies’ in this enterprise; psychology, communication sciences, even sociology and history?

This volume shows the connection between practical rationality and values and covers the dimensions ethics, aesthetics and politics.

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Arguing, bargaining and persuading in constituent processes (Giovanni Damele / Francesco Pallante)

← 230 | 231 →

Arguing, bargaining and persuading in constituent processes1



1.  Introduction

In this essay we will outline the constituent process that took place in Italy between 25 July 1943 (the fall of Fascism) and 1 January 1948 (the effective promulgation date of the Republican Constitution), paying special attention to the debate that arose during the sessions of the Constituent Assembly between 2 June 1946 and 27 December 1947.

This essay is based on Jon Elster’s paper, Arguing and bargaining in two constituent assemblies2, which focuses on the study of constituent processes and, above all, constituent debates. The theoretical issues raised by the concept of constituent power3 will remain in the background for reasons of space. ← 231 | 232 →

2.  The Elster diagram

The summary indications in Elster’s essay can be broken down into seven main steps of constituent processes:

1) convocation of the constituent assembly

2) choice of the delegate selection procedure

3) definition of the mandate of the assembly and of the delegates

4) verification of the delegates’ credentials

5) choice of the decision-making procedure to be adopted during the assembly

6) discussion and approval of the constitution by the assembly

7) ratification of the constitution

The Norwegian scholar first distinguishes between the first two steps and the following ones, claiming that the convocation of the constituent assembly and the choice of the delegate selection procedure are performed by independent authorities who are not part of the assembly, while all of the other steps refer to assembly decisions (under penalty of establishing a puppet-body that simply enacts the will of others)4.

This point is pivotal: only a process that is possibly “self-founded” can truly be considered as “constituent”, whereas a process which follows from a decision by a pre-existing body5 should be considered as being “constituted”. ← 232 | 233 →

3.  The convocation of the constituent assembly

A) Starting from the first step, according to Elster, the authority convening the constituent assembly may be6:

the constitution itself, if it provides for periodic constituent assemblies (Thomas Jefferson’s idea). The idea that the constitution provides for its total review is similar (see Article 193 of the Constitution of the Helvetic Confederation; something similar happened in Spain in 1978)7.

an authority different from that of the State to which the constitution will apply: for example, an occupying power (as in Western Germany and Japan after the Second World War). Today, the hypothesis that a non-State authority has an international character prevails (consider Kosovo and Afghanistan).

a provisional government resulting from a revolution (as in France with the 1789 and 1848 revolutions) or a coup (the case of the Ghana Constitution of 1992). Naturally, a revolution or coup does not always involve the use of violence (since the constituent assemblies convened by bodies belonging to the previous constitutional organization – like the French National Convention which approved the 1793 Constitution – would allegedly fall under this hypothesis).

a mixed government or a seat of concertation between the old regime and the opposition (which is what happened in Poland in 1989 with the so-called Round Table Agreement).

B) In the Italian case, the convocation of the Constituent Assembly may be formally traced back to two documents:

Law Decree no. 151/1944, which provides for the election of a Constituent Assembly to pass resolutions on all aspects (including the institutional form: monarchy and republic?) of the “new State Constitution” (the so-called first provisional Constitution). ← 233 | 234 →

Delegated Decree no. 98/1946, which redefines the powers of the Constituent Assembly establishing that the institutional issue must be solved by popular referendum to be held at the same time as the election of the assembly itself (so-called second provisional Constitution).

Both documents were adopted by provisional governments of national unity, hence by external authorities according to the Elster diagram: the former was enacted by the Bonomi government, the latter by the first De Gasperi government. In both cases, there were also influences from the monarchy and the Allies.

Elster notes that, since it is not clear whether the new or old rules apply at the time of constituent processes, the relationships between the old and new regimes often give rise to a logic paradox by virtue of the framers’ attempt to give their actions formal legitimacy based on pre-existing legal arrangements8.

In the Italian case, a clear symptom of these problems is the different format taken by the two decrees: one is a law decree, the other is a delegated decree. The difference is explained by the fact that the document dated 1944 – adopted under Article 3 of Law no. 100/1926 – establishes the delegation of legislative powers to the government; consequently, only subsequent documents may be delegated documents. However, since law decrees are temporary, there is the problem of the conversion of Law Decree no. 151/1944 into law: the fifteenth transitory and final disposition of the Constitution did so, however, terming it a … “delegated decree”.

4.  The delegate selection procedure

A) As concerns the selection method of assembly members, Elster stresses that the deciding authority should be different from the one convening the assembly; however this would create a “puppet assembly” ← 234 | 235 → since the delegates would allegedly be selected based on their loyalty to the convening authority9. The Norwegian political scientist does not, however, linger on subjects regarding the selection of the delegates10.

B) In the Italian case, the document establishing the methods of formation of the Constituent Assembly is Delegated Decree no. 74/1946, which introduced a strictly proportional electoral law. The selection of the assembly members was referred to the people, convened on 2 June 1946 to vote by universal suffrage for the first time. It is clear, however, that the definition of the electoral system was extremely important and was largely affected by the fact that the parties were not familiar with their electoral “weight” (since they opted, Rawls-style, for the choice that would have secured them in case of defeat).

In the Italian case, two independent authorities were involved: the provisional government, which established the electoral system, and the Italian people, who elected the assembly delegates. This partly proves the Elster diagram wrong since the provisional government intervened in both phases – convocation and selection of the members – which preceded the formation of the Assembly.

5.  The definition of the mandate

A) As concerns the definition of the mandate, the question is whether there is a constraint. On the practical side, it is easy – as Elster writes – for the authority convening the constituent assembly (or, more rarely, the one selecting its members) to try to influence the outcome of the work by constraining the mandate of the delegates. It is, however, equally easy for the constituent process to get away from its “creator” (which is what happened to Louis XVI)11. ← 235 | 236 →

Aside from its practical infeasibility, the Norwegian scholar does not give a completely negative opinion of putting constraints on the mandate because it can be useful in order to strengthen the threats made during the bargaining12.

B) In the Italian case, it could be believed that a type of constraint was applied to the mandate of the Constituent Assembly members by not allowing them to decide on the institutional question.

As already mentioned, Law Decree no. 151/1944 initially stated that the selection was the responsibility of the Assembly, then Delegated Decree no. 98/1946 re-examined the issue, referring the decision to the people by referendum. This is one of the key steps of the entire Italian constituent process. Despite the fact that the 1944 decree resulted from a comprehensive agreement involving the Allies, CLN (National Liberation Committee) parties and the monarchy, Lieutenant Umberto broke the understanding, asking the people to decide on the institutional question. Along the same lines, the (mainly monarchist) Italian Liberal Party and the Christian Democracy (DC) were concerned about the gap between the Party’s positions and those of its electorate (considered more inclined to institutional continuity). De Gasperi also convinced the Allies to support the referendum as a solution. On the contrary, the left-wing parties and the Actionists favoured abiding by the original provisions of Law Decree no. 151/194413.

The issue was first raised by De Gasperi on 10 October 1945 under the Parri government. A complex debate arose which became intertwined with the two additional issues of whether or not the Constituent Assembly should also act as a law-making body and whether the Constituent Assembly should pass resolutions by a simple or a qualified majority. The Council of Ministers (and the so-called Cabinet, a selected committee made up of the ministries representing the CLN parties) was involved in these debates during the sessions held between 19 February and 2 March 1946 until the secretaries of the DC, PSI and PCI agreed to approve Delegated Decree no. 98/1946 under the De Gasperi government. ← 236 | 237 →

6.  The verification of credentials

A) Elster considers the verification of the credentials of the constituent assembly delegates a logic paradox (in addition to the paradox on the legal origin of the constituent assembly): the assembly cannot verify the credentials of the delegates without taking office, but – at the same time – it cannot take office without having first verified the credentials of its member14. An independent audit would be necessary, but this would undermine the independence of the assembly. In France, the issue was hotly debated during the Estates General convened by Louis XVI, and a solution was found on the basis of the following consideration: “It is impossible to believe that the majority of those who present themselves as delegates should not have valid credentials”15.

B) In the Italian case, the Constituent Assembly established a Committee responsible for verifying the credentials of elected members, which it did, making some replacements.

The issue raised no specific debates because the Assembly worked on the basis of the parliamentary procedures of the pre-Fascist Lower House (Camera dei Deputati), which had already provided that the Council was competent for the election.

7.  The choice of the decision-making procedure

A) Elster mentions the following problems regarding the choice of the procedures to be adopted during the assembly to discuss and approve the constitution16: ← 237 | 238 →

1) the duration of the sessions

2) whether the constituent assembly should also act as a law-making body

3) how to decide on the allocation of the time between law-making and constitution-making

4) the possibility to establish constitution-drafting or problem-solving committees

5) whether to proceed in closed sessions or open the debates to the public. (Elster believes that closed sessions encourage bargaining and arguing because it is easier to change opinion.)17

6) the quorum and the voting method (by “person” or by group18? And, if by “person”, by roll call, show of hands, division of the assembly etc.?)

7) the procedure of transforming votes into decisions

B) In the Italian case, we must refer to Article 4 of Delegated Decree no. 98/1946 that applied to the Assembly the procedures promulgated for the Lower House in July 1900, as repeatedly amended until 1922. The Constituent Assembly itself made some “additions”. In short, the decision on the procedures was made by an independent authority (the provisional government, although with the Assembly’s tacit consent) in lieu, as the Elster diagram provides, of the Constituent Assembly.

Let us now look more closely at the individual profiles identified by Elster. Starting with the duration, Delegated Decree no. 98/1946 established an eight-month deadline from the first session (held on 25 June 1946). This deadline could be extended by no more than four months. After using such an extension, the Assembly applied for an additional six-month extension (plus a few days, to set the deadline at 31 December 1947) since the duration was decided partly by an independent authority (the provisional government), and partly by the Constituent Assembly itself.

As concerns law-making powers, the CLN was internally divided between the DC and PLI, which wanted, with the support of the Allies, ← 238 | 239 → to limit the competences of the Assembly to constitution-making topics (leaving ordinary law-making powers to the government) and left-wing parties, which thought it preferable to refer the decision to the Constituent Assembly. The question had to do with the fear that the left-wing parties, if they won the election, might have exploited the Assembly’s powers in order to establish “revolutionary” legislation. The problem was addressed together with those of the subject in charge of making the institutional choice and the quorum of the Constituent Assembly. In this case, the solution is also found in Delegated Decree no. 98/1946 (Art. 3). Although the provision ratified the victory of moderate parties, the Assembly was permitted to indicate bills that, though not part of its law-making competence, were to be submitted for its resolution19.

Moving on to the time of the sessions, the division between constitution-making and “ordinary” activity20 was decided with the planning of the sessions by the Constituent Assembly itself: 375 public sessions were held, 173 of which focused on the discussion and approval of the new Constitution.

Concerning the establishment of constitution-drafting committees, a Constitutional Committee was appointed under the presidency of Meuccio Ruini in order to prepare the Constitution draft. The 75-member Committee was split into three sub-committees: (1) citizens’ rights and duties; (2) constitutional organization of the State, (which was then split into two branches: one on executive power, one on judicial power and the Constitutional Court; a selected committee was also established for the regional system); and (3) economic and social relationships. The topics of the first and the third sub-committees partially overlapped, so a Coordinating Committee was established to unify their work. Eventually, a Drafting Committee (with 18 members) prepared the text of the final draft, coordinating and harmonizing the work of the three sub-committees. ← 239 | 240 →

As concerns whether the sessions were public or closed, the Constituent Assembly’s activity was public, but that of the Committee and its various sub-committees was not since the Italian people were not permitted to directly attend the entire constitution-making process21. The debate was covered by the press22 and the Ministry for the Constituent Assembly also provided extensive information.

The quorum and voting method were governed by the pre-fascist procedures of the Lower House23. Voting (by “person”) was by ballot for the final approval of the bills and by sitting and standing in all other cases (unless ten members asked for voting by division, fifteen by roll call, and twenty by ballot). The quorum was the majority of participants. Under these rules, the Constitution was approved on 22 December 1947 with voting by ballot by roll call (out of 515 participants, 453 votes in favour, 62 against).

As concerns the “procedure for transforming votes into decisions”24, once approved, the Italian Constitution was enacted by the provisional Head of State, Enrico De Nicola, on 27 December 1947 and published immediately in an extraordinary edition of the Official Gazette no. 298 of the same day. It came into effect on 1 January 1948.

8.  The discussion

A) Elster believes that constitution-making projects represent a “paradigmatic case” useful to highlight two types of dialogue: arguing and bargaining. Those “types” are exhibited in “their most striking forms”25 in constituent assemblies, which are more polarized than ordinary law-making bodies and oscillate between “higher law-making” ← 240 | 241 → and “sheer appeal to force”. Elster also introduces a third type of (in Elster’s words) “speech act”: “rhetorical statements aiming at persuasion”, though he is uncertain about its proper analytical characterization. However, it seems that the distinction between the three types is a question of “motives”. Not those of the speakers, which Elster distinguishes as “reason”, “passion” and “interest”, but the motives that the speakers ascribe to their audience. Rhetoric may perhaps be defined “by the feature that its practitioners appeal to the passions of their audience rather than to their reason or self-interest” since “in some debates reason speaks to reason; in others, interest to interest; in still others, passion to passion”26. Somehow, Elster’s triadic model seems to reflect Aristotle’s three-part division of persuasion modes, where logos can easily be matched with arguing, ethos can refer to bargaining (where the criterion of credibility is key) and pathos could match “rhetoric” within the meaning given by Elster, i.e. an appeal to the passions of the audience. However, Elster does not develop this parallelism, nor does he develop the analysis of the more genuinely pathetic components of assembly discussions.

A.1. (Arguing and bargaining). For Elster, rational arguing is subject to criteria of validity, and promises or threats to criteria of credibility27. The former recalls Habermas’s theory of communicative action, binding a speaker aiming at understanding and not sheer success to “three validity claims: propositional truth, normative rightness, and truthfulness”. Even speakers who are not “genuinely moved by impartial considerations of the common good”, but whose concerns are “purely self-interested”, may still be forced or induced “to substitute the language of impartial argument for the language of self-interest”28. This substitution would be the fruit of the civilizing force of hypocrisy, thanks to which “a speaker who wants to appear as aiming at understanding must also appear to be committed to these claims”29. Consequently, “one need not always oppose impartiality and self-interest” since “one may offer an argument from self-interest for impartiality”. Such a typical argument is the ← 241 | 242 → so-called “veil of ignorance”30, or, in general, represents all those cases in which “apparently self-interested behaviour” may actually be guided “by impartial concerns”31. Authenticity, or sincerity, on the other hand may be traced back – at least in one of its versions – to consistency, which is not incompatible with what could be defined as argumentative hypocrisy32. It would be important to distinguish between authentic changes of opinion, which per se would not reveal an inconsistent argument, and actual opportunism33.

As concerns arguing, Elster distinguishes arguments as “tending to be” either consequentialist or deontological. Roughly speaking: appealing “to overall efficiency” or “to individual rights”. The latter, as well as those “based on the public good” and those “which rely on some version of utilitarianism”, are considered impartial because of their generalizability34. Starting from these arguments, the framers would somehow prove that they are motivated by impartial reason, despite being permeable to self-interested considerations, as we have noted. Elster qualifies framers as imperfectly rational35.

While rational discussion is supposed to be based only on the “power of the better argument”, constitutional bargaining, by contrast, rests on “resources that can be used to make threats (and promises) credible”. Such resources may be extra-political or intra-political. The latter include the exchange of concessions36. The use of these resources is strictly dependent on the framers’ ability to make them credible: the framers’ credibility affects the credibility of their threats and/or their promises.

A.2. (Pure and impure types). In the analysis of the actual arguments of the two assemblies, the two types seem to translate in a sequence of “mixed” or “impure” cases. On the one hand, a strategic use of (apparently) non-strategic arguments is not only possible but common, and in some cases desirable: in these cases, “self-interested actors often try”, ← 242 | 243 → in their own self-interest, “to ground their claims in principle”. On the other hand “bargainers often try to present their threats as warnings”37. The difference between threats and warnings would lie in the fact that the former “are statements about what the speaker will do”, whereas the latter are “statements about what will (or may) happen, independently of any actions taken by the speaker”38. In the former case, “self-interested actors” appeal to an impartial equivalent. In the latter case, bargainers substitute a factual equivalent of a threat.

From the point of view of arguing, what happens in reality is not actually a “perfect fit between partial interest and impartial arguments” but a “maximal fit”39. The reasons for this substitution between partisan arguments and impartial arguments may vary. First, “if others believe that one is truly arguing from principle, they may be more willing to back down”. Second, “legislative coalitions tend to use public-regarding language as a ‘subterfuge’ for what is in reality a deal among special interests”40. Third, “by citing a general reason one might actually be able to persuade others”41.

In any case, thanks to the civilizing force of hypocrisy, arguing “tends to yield more equitable outcomes than bargaining”, even when it is purely strategic and based on self-interest, because it will prevent “the strong from using their bargaining power to the hilt”. In this case, “the optimal impartial equivalent”, able to “yield more equitable outcomes”, will be the one that “dilutes” the self-interest of the strong by “taking some account of the interest of the weak”42.

B) Elster believes that “the most important requirement” of a bargaining theory should be “that we are able to specify what will happen during a temporary breakdown of cooperation”43. In short, how the constituents can get out of an impasse caused by a non-cooperative – even ← 243 | 244 → if temporary – situation. An example is the debate which led to the final version of Article 29 of the Constitution44.

It is known that this article was the result of a difficult writing process that significantly affected its text (and its subsequent interpretations). This is due, on the one hand, to the relevance of the topics (family and marriage) for the members of the DC Party and, in general more for Catholics, and on the other, to the difficult position of the Communist Party, which was not willing to be confined to markedly secular positions in view of the future political election (in which Catholic votes would have been critical) and could not ignore that a significant portion of its electorate (and PCI members) held positions very similar to DC Party members on some aspects of the matter, and divorce in particular.

The drafting of Article 29 was marked by a series of “temporary breakdowns of cooperation” that were overcome through exchanges of concessions, recourse to “intra-political” resources (for example a strategic placement of available votes of a certain parliamentary group) and the strategic use of procedures. A first impasse caused by the opposing positions of the sub-committee on the indissolubility of marriage and the definition of family as a “natural and fundamental unit of society” was overcome by Moro and Togliatti through an exchange of concessions which translated into a new version that divided the theme into two articles, included a (more ambiguous) definition of “natural society” in the article on the family and a (more vague) reference to “unity” (in lieu of indissolubility) in the article on marriage. The second breakdown of cooperation occurred because of Togliatti and the PCI members’ failure to take strategic recourse to the “intra-political” resource of voting. In the Constitutional Committee, in keeping with the compromise reached with Moro, Togliatti led his group to approve the formula “family as natural society”. However, when the vote was cast for the second article, the amendments against the clause of “indissolubility of marriage” were ← 244 | 245 → not approved. Therefore, the result could be re-balanced only in the last voting session through the strategic use of the Assembly’s procedures. The request for secret voting by twenty Assembly members allowed the compromise to be re-established, leading to the approval by three votes of an amendment by Socialist Party member Grilli to remove the reference to “indissolubility”. As for bargaining and the recourse to warnings, it is interesting to consider the speech by Lelio Basso in the 7 November 1946 session of the I Sub-committee, during which the Socialist Party member warned that the “categorical request for the indissolubility of marriage” might have “led to a break-up of the Sub-committee”.

As concerns the arguments used, the trend was not so much to argue on principles, but to present consequentialist arguments. In both cases, the objective was to present a general and impartial point of view. This is especially clear in the speeches by DC Party framers, whose main concern was to prove that the need for inclusion of “indissolubility” in the constitutional text went beyond compliance with certain religious principles. Corsanego declared that “the authentic Italian population, even in its humbler classes, has clear, well-defined and tangible arguments” on the family, recalling the authority of “common sense”. He also resorted to a consequentialist argument, noting that “divorce represents the dissolution of the family and a poisonous germ for its establishment, as is proved in all the countries where it is accepted”. La Pira also claimed to insist on permanence because he had been persuaded by “an increasingly determined confirmation in the scientific field of the indissolubility of marriage considered as a structural element of the family”. He then stressed that the DC Party members wanted to include indissolubility in the Constitution because it should concern marriage as such, and not as a sacrament (hence, also civil marriage). Thus, he considered important “to overcome the question of the parties, so that the claim made is not the claim of the DC Party, but of the entire Italian population”.

The intention of the DC Party members to present a theme from an impartial point of view is clear. Such a theme, they admitted, was essential for their political and religious position. The position of those opposing inclusion of the phrase “natural society” with respect to the family in the Constitution, and those opposing the introduction of the indissolubility of marriage appeared more delicate. Following the ← 245 | 246 → compromise between Moro and Togliatti, the PCI Party members opposed the latter but not the former. On the other hand, the Socialists and some Liberals opposed both. However, neither the Socialists nor Togliatti posed the question of divorce. In a way, because of the necessary tactic in view of the future election, the position of the left-wing parties appeared more “defensive” and ambiguous, which exposed them to the accusation of inconsistency and opportunism.

Concerning the “exchange of concessions” between Moro and Togliatti, we should note the recourse to the strategic use of ambiguity, which allowed for an agreement on a formulation sufficiently ambiguous to provide different interpretations that were more or less directly consistent with the actors’ different points of view. For Moro, keeping the expression “natural society” in the article allowed him to overcome a merely confessional position and affirm the “natural rights” of the family, while the definition of “natural society” had no legal effect for Togliatti and did not imply per se the conclusions that La Pira wanted to draw (i.e. “the indissolubility of the bond”).

9.  Modes of ratification

A) The modes of ratification – Elster states – are necessary to confer “downstream” legitimacy on the constitutional document approved by the constituent assembly.

The following possible modes can be identified45:

right of veto of the independent convening authority (but how can a constituted power influence the constituent power?)

ratification by the people through referendum or an ad hoc convention

no additional ratification to the final vote of the constituent assembly.

B) In the Italian case, the approval by the Constituent Assembly was sufficient. However, it should be considered that there had already been ← 246 | 247 → popular involvement because of the institutional referendum in whose wake the Constituent Assembly operated.

10.  Conclusion

As concerns the execution of the constituent proceedings, we can say that the Elster diagram shows actual endurance capacity as applied to the Italian constituent process. Some steps may be overestimated (such as the verification of delegates’ credentials), others underestimated (like the definition of the assembly’s powers). However, as a whole, the steps appear to match and the most critical profiles identified by the Norwegian scholar are present in the Italian case.

The conclusion from the arguing theory perspective appears more critical. The analysis of the debate on Article 29 highlights some weaknesses of Elster’s model. The first is the role played by rhetoric and more generally the concept of rhetoric he refers to. The second problem is the articulation of the debates according to the arguing/bargaining opposition and the analytical utility of such an opposition. A third problem could be the strategic use of ambiguity. As concerns the latter two, we can supplement Elster’s model with analytical instruments from arguing theory and bargaining theory.

Qualifying bargaining and arguing as “types of dialogue” appears to provide a better description of their characteristics and especially their co-presence within the same dialectic interactions through the concept introduced by Walton of the “dialectical shift”. In this case, it is not just a “combination” of types of dialogue but a more-or-less gradual transition from one type of dialogue to the next. It may be a legal or illegal transition, and in the first case, the second type of dialogue is included in the first, thereby further developing, constructively, a dialectical shift46. Thus, bargaining can be transformed (more or less accidentally) into a persuasive dialogue. These transitions then make it ← 247 | 248 → possible to assess the context within which a certain argument may be fallacious or not, replacing a rigid concept of fallacy with a dynamic one linked to the use of an argument in a set type of dialogue. Considering the Elster concept of bargaining, for example, and the central role played by threats or warnings within it, it may be interesting to recall Walton’s analysis of the argument ad baculum, according to which the criterion distinguishing between a fallacious and a non-fallacious use of the threat is exactly the type of dialogue since it may be legitimate in bargaining but not in a persuasive dialogue47.

Strategic use of ambiguity plays a key role in overcoming “temporary breakdowns of cooperation”. As Eric M. Eisenberg noted, strategic ambiguity favours agreement on an abstraction without committing the bargainers on their potential future interpretations48. This is even more important when considering that arguers (or bargainers) in a deliberative setting may have multiple objectives, some of which may even be (partly) contrasting. One can see that this is very similar to what Cass Sunstein defined as “incompletely theorised agreements49 in a juridical setting, i.e. a communicative strategy that does not minimize but manages ambiguity50.

The role of rhetoric remains to be defined. Elster’s dyadic model appears to be a triadic model, which is missing a component: “rhetorical statements aiming at persuasion”. This is because Elster considers the term “rhetoric” to essentially have a negative meaning, i.e. the common meaning of manipulation, appeal to passions (and not to reason) and demagogy. However, it is reductive to confine rhetoric to a sheer appeal to passions because it is actually the reference theoretical framework of any persuasive discourse. In a deliberative setting, the persuasive purpose combines both arguing and bargaining and eventually the appeal to emotions. As a technique of persuasive discourse, rhetoric expands its scope well beyond a mere appeal to the audience’s passions. The point is not even the strategic use of arguments but, more generally, strategic arguing as a discourse technique whose purpose is to persuade ← 248 | 249 → the audience. Therefore, Elster’s hierarchy should be overturned since both strategic arguments and bargaining could develop in a deliberative framework and resort to persuasive (rhetorical) discourses.


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1 Giovanni Damele is the author of section 8; Francesco Pallante is the author of sections 3–7 and 9. Sections 1, 2 and 10 are the fruit of a shared reflection.

2 ELSTER 2000 (the paper was based on a conference held at Yale University in 1991).

3 In Italian constitutionalist doctrine, see at least: BARILE 1966, DOGLIANI 1986 and 1990, MORTATI 1972, GRASSO 1985, PACE 1997, RESCIGNO 1996. In international literature, the following writers have recently worked on standardizing constituent processes with regulatory intents: GINSBURG-ELKINS-BLOUNT 2009, ELKINS-GINSBURG-MELTON 2009; GINSBURG 2012.

4 ELSTER 2000: 358–59 (in addition to 361–62, 364 and 366).

5 RESCIGNO 1996: 34 et seq.

6 ELSTER 2000: 358, note 64.

7 Contra PACE 1997: 8 et seq., in his opinion these hypotheses amount to the practice of a constituted power.

8 ELSTER 2000: 360.

9 ELSTER 2000: 359, in particular note 65, which gives the example of “the body of 66 men convened in China by Yuan Shikai in 1914 to give his rule a semblance of legality through a ‘constitutional compact’”.

10 ELSTER 2000: 359.

11 ELSTER 2000: 361–62.

12 ELSTER 2000: 363.

13 The event is carefully re-enacted in RICCI 1996: 449–459.

14 ELSTER 2000: 366.

15 ELSTER 2000: 366.

16 ELSTER 2000: 367 and 404–405.

17 ELSTER 2000: 410–411 (on the usefulness that the involved parties may change their ideas, also see p. 385).

18 The question was hotly debated during the French Constitutional Assembly (ELSTER 2000: 367–368).

19 For a re-enactment of the event, see RICCI 1996: 449–459.

20 In addition to the opinions on the draft legislative decrees, the Assembly’s main non-constituent activities were the vote of confidence for the De Gasperi Governments II, III and IV; the approval of the budget laws for 1947 and 1948; and the ratification of the peace treaties signed in Paris on 10 February 1947.

21 PALDIN 2004: 46 (and 48–49) writes, on the other hand, that the sessions were often “quite confidential”.

22 POMBENI 1995: 93–96.

23 RICCI 1996: 449–459.

24 ELSTER 2000: 367.

25 ELSTER 2000: 347.

26 ELSTER 2000: 371, no. 116.

27 ELSTER 2000: 372.

28 ELSTER 2000: 349.

29 ELSTER 2000: 373.

30 ELSTER 2000: 374.

31 ELSTER 2000: 388.

32 ELSTER 2000: 413.

33 ELSTER 2000: 377.

34 ELSTER 2000: 378–379.

35 ELSTER 2000: 380.

36 ELSTER 2000: 392.

37 ELSTER 2000: 405–406.

38 ELSTER 2000: 415.

39 ELSTER 2000: 406.

40 ELSTER 2000: 408.

41 ELSTER 2000: 408.

42 ELSTER 2000: 413.

43 ELSTER 2000: 398.

44 CAPORRELLA 2010. The documents of the Constituent Assembly are available online in the “Previous legislatures” section of the website of the Lower House (“Constituent Assembly” section) or on the “Birth of the Constitution” website, by Fabrizio Calzaretti: The debates leading to the final drafting of Article 29 were held on 26 July, 13 September, 30 October, 5–7, 12–13 and 15 November 1946 and 15 January 1947, as concerns the I Sub-committee; 4–8, 10–11 and 17 March, 15, 17–19, 21–24 April 1947, as concerns the Assembly.

45 ELSTER 2000: 371.

46 WALTON 1992: 138 and MACAGNO 2011: 106.

47 WALTON, MACAGNO 2007: 75. More in general on the topic, see WALTON 2002.

48 EISENBERG 1984: 231.

49 SUNSTEIN 2007.

50 EISENBERG 1984: 238.