The Prussian constitutional crisis of 1862 and the real factors of power

When King Friedrich Wilhelm III promised a constitution and popular representation in 1815, he marked a precedent that would be remembered by the people, even though this promise was forgotten after expelling Napoleon from Prussian territory. So, In 1920, he was forced to institute a provisional Diet; that is, a deliberative assembly in the eight Prussian provinces. However, this measure was not useful, since Prussia required a constitution that regulated the situation of the State's creditors. Later, the monarch's son, Friedrich Wilhelm IV, assumed the throne, but he did not intend to fulfill the promise made in 1815, so he tried to appease the discontent of the bourgeoisie for a while longer.

However, Prussia's finances were deteriorating, so In 1847, the unification of a Diet was called to bring together the provinces so that they could authorize a loan.. The monarch's plan was to dissolve the Diet as soon as the government obtained the credit and it would only be reunified if new financial support was necessary in the future.

What Friedrich Wilhelm IV intended to avoid at all costs happened; the Diet demanded corporate rights and the authorization of the loan was subject to the guarantee that it would be called periodically. The monarch did not accept these conditions and the loan was denied by two thirds of the assembly. In this way, finally, the king ended up accepting the conditions in 1848. However, this decision was made too late. On March 18 of that same year, an uprising of the proletariat against the Guard and the king arose.. Power fell into the hands of the bourgeoisie and a new Ministry was formed that convened the unified Diet for the creation of the institutional bases and the electoral law.

View: The German revolution of 1848

Likewise, a pact was agreed between the Crown and the National Assembly so that a Constitution would be created jointly. Meanwhile, the aristocracy, the bureaucracy, the Crown and the Army began to silently prepare a counterrevolution. This situation alarmed the Assembly, which threatened a civil war, but this was not enough and the forces of the counterrevolution were present on October 31, 1848.

View: The bourgeoisie and the counterrevolution

The National Assembly was forced to move from Berlin, the capital of Prussia, to the provincial city of Brandenburg. The attempt at passive resistance by the Assembly was useless and on December 5 of the same year it was completely dissolved. Terror was established and the right to freedom of the press and assembly was eliminated.

The Crown resumed the constitutional project that had been prepared by the Assembly, but did not respect the principles established therein and on May 30, 1849, through a new coup d'état, imposed the three-class electoral system in which the class with Purchasing power concentrated almost all political power and universal suffrage was cancelled. This would be what the philosopher and jurist, Ferdinand Lassalle, would later call pseudo-constitution.

View: The Belgian and the Prussian Electoral Systems

When Friedrich Wilhelm IV died, he was succeeded to the throne by the then Prince Regent, William I, in 1861. Without a change of attitude on the part of the new monarch in constitutional matters, elections were held in which the Progressive Party was the winner, which requested Parliament to audit the State budget, but, at first, the Chamber was reluctant to face this demand.

Finally, the budgets were presented and The House was forced to disauthorize the expenses generated by the military reforms. The conflict caused by the budgets became a constitutional one and the king even considered abdicating the throne. In this situation, on September 23, 1862, the then Prussian ambassador to the court of Paris, Otto von Bismarck, was called to serve as prime minister.

Bismarck soon found a “loophole” in the Constitution; The budgets had to be approved by the Senate and the Chamber of Deputies, however, the latter did not have the necessary titles to approve them. Given this, the House was forced to declare as unconstitutional any government expenditure that was disauthorized by Parliament. 

This is when the aforementioned, Ferdinand Lassalle, a prominent jurist born in 1825 in the Prussian city of Breslau, intervenes. The constitutional conflict of 1862 was decisive for the development of German public law and the lectures given by Lassalle at that time laid fundamental foundations for constitutional law. In this sense, Lassalle carries out an analysis with which he intends to explain the true constitutional essence, as well as pointing out the precariousness of the Prussian Constitution of the time.

constitutional law

Maurice Duverger, French political scientist and jurist, describes constitutional law , the “the part of the law that regulates the political institutions of the State” (Duverger, p. 23-24). Therefore, this branch of public law It is responsible for defining, through legal norms, the State, its structure and its relations with public power, that is, individuals. (Vega, p. 105).

In this way, constitutional law starts from politics and establishes the legal system with which the government regime of a country is determined (Pérez, p. 57). To this end, it is divided into an organic part, in which the distribution of power and its execution mechanisms are instituted, and a dogmatic part, in which the rights of individuals and social groups are ruled.

However, despite the fact that the State is the legal-political institution, possessor of the ius imperium par excellence, there are other types of forces that emanate from society, which exercise significant power. These forces can become coercive to the point of influencing the rest of the legal institutions, as well as the values ​​and principles that define the State.

Factual power relations

In the magnum opus collected from the two conferences given by Lassalle, translated into Spanish as “What is a Constitution?”, mention is made of the constitutional essence, which is characterized by possess a power superior to that of the rest of the normative documents of a country. However, this requires the act of legislative promulgation, which is why it is also considered a law. However, a constitution is not comparable to other laws; refers directly to the fundamental law with which the foundations of the State are established. As the main differentiator, the constitution is characterized by being the product of an active need of society and the elemental basis of ordinary laws, which derive from it and become its mechanism of action.

Thus, Lassalle goes on to define the constitution not only as a fundamental law, but as “the sum of the real power factors that govern a country”. With the above, it refers to the forces that prevail actively and effectively within every society, so that They influence the legal, political and social sphere, due to their great financial capacity, organizational volume or sociopolitical importance. (Vega, p. 1). In the case of the Kingdom of Prussia, Lassalle identifies six real factors of power: a) the monarchy, b) the aristocracy, c) the big bourgeoisie, d) the bankers, e) the collective conscience and culture, and f) the small bourgeoisie and the working class. In descending order, the first four enjoy great financial capacity and sociopolitical importance, while the last two have organizational volume.

The real factors of power permanently predominate in any society, so All countries have always had a real and effective constitution. Although, on the other hand, this pure expression has not always been reflected in a supreme normative document, so it is with written constitutions that the real factors of power can be formally considered as legal institutions.

The real factors of power not only constituted the sectors of Prussian society in the mid-19th century, but also a fragment of the constitution., as Lassalle stated. So, A written constitution must adjust to the prevailing social reality, in a way that promotes legal equality between the real factors of power, for the same reason, Lassalle proposed universal suffrage before the three-class electoral law implemented in Prussia in 1849.

Instruments of power: the organic and the inorganic

The real factors of power are groups of individuals who pursue their own interests and who, due to their economic, political or social preeminence, manage to influence the creation of legal norms. However, despite being organized conformations, the power they possess is inorganic or disorganized.

An example of organized power in the context of Lassalle that continues to be valid is the army as the ruler's main political instrument. Likewise, justice officials, public administration and finance are an example of organic power, within which weapons are also included as an instrument of legitimate force, exercised by the official holders of power. However, the inorganic power that resides in the nation is superior to the organic, which has been reflected, throughout history, in the emergence of written constitutions as a product of a transformation in the organization of real power factors. In this sense, the political and economic preeminence that the bourgeois class gained in the 18th and 19th centuries led to great revolutions in which the legal-political basis of the States was modified.

A revolution of this type entails an inevitable alteration in social, production and organizational relations. So, despite the transcendental change in the structure of the forces in force in a country, private law remains the guiding axis of legal relations between individuals. However, it becomes necessary to develop new public law laws that adjust to the newly established system.

In these cases, the primary issue will be adaptation of the written constitution to the real constitution.Therefore, although constitutional problems are not problems of law, but of power, as Lassalle states, constitutional law will be in charge of resolving this conflict.

pseudo-constitutionalism 

The constitution in force in Prussia, prior to the Bismarckian era, was the practical example of a supreme power opposed to the ideas expressed by Lassalle; It was a façade for the absolutist regime. This normative document did not have a principle of representativeness of the collective conscience, nor a binding force between the State and the real lower power factors (petty bourgeoisie and working class). Truthfulness and transparency in constitutional matters are two aspects that form the basis on which the thought of this 19th century German jurist and philosopher is built. A constitution must fully reflect the social reality where it prevails, since it maintains a dialectical relationship with the people.

Consequently, the value of a legal system rests on the fundamental principles that give it solidity, such as legitimacy, supremacy, rigidity and inviolability, among others. The above will inevitably lead again to the question of power, which must be governed by law to avoid falling into arbitrary tendencies. In this way, democracy is finally reached.

Conclusions

The constitutions mentioned by Lassalle fit within the ontological classification proposed by the German philosopher, Karl Loewenstein. In this way, the Prussian pseudo-constitution can be classified as a semantic constitution, that is, a constitutional disguise, and the true constitution that reflects the real factors of power is classified as a normative constitution in which the established laws are adapted to reality. social of the country.

Power is subject to asymmetric social relations that must be regulated by constitutional norms to prevent abuses in the pursuit of particular interest.. In this sense, Lassalle makes great contributions to the philosophical aspect of normativity, by highlighting the political nature from which all law emanates.

As society evolves, the legal-political system must evolve with it. Currently, it is possible to point out as real factors of power the unions, non-governmental organizations (NGOs), the media, national and transnational companies, the Church and drug trafficking. Therefore, an organized society with collective interests is the first step to demand norms that regulate excess power in the legal and political system. 

Highlighted

Carpizo Jorge, “New constitutional studies”, México, Porrúa, 2000, p. 324.

Duverger Maurice, “Political institutions and Constitutional Law”, Barcelona, ​​Ediciones Ariel, fifth edition, 1970, p. 23-24.

Mejía Suárez Mariela, “An approach to the concept of Constitution from the thought of Ferdinand Lassalle”, Barranquilla, Actualidad Jurídica, s/date of publication, p. 3.

Lassalle Ferdinand, “What is a constitution?”, Barcelona, ​​Ariel, 2004, 192 p.

Pérez Royo Javier, “Constitutional law course”, Madrid, Editorial Marcial Pons, 2005, p. 57.

Vega Mauleón Sandra Teresa, “Influence of real power factors in the creation of legal norms”, Mexico, UNAM FES Aragón, 2017, p. 105.