Paradoxes of Popular Sovereignty: A View from Spanish America (JOP)

Paradoxes of Popular Sovereignty: A View from Spanish Americai Paulina Ochoa Espejo, Yale University The Journal of Politics, 74, 4 (2012), 1053-1065.

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Abstract

Democratic theorists agree that in a democracy the people should be sovereign. However they cannot give democratically acceptable criteria for telling who precisely the people are. According to some theorists this “paradox of popular sovereignty” can lead to disastrous consequences such as territorial disputes and ethnic cleansing. By contrast, others hold that this paradox is productive. Using the tools of Comparative Political Theory, this paper wages in the controversy by providing new evidence of how this theoretical paradox has influenced political practice. The article shows that the problem was already apparent in early 19th Century Spanish America, where two different conceptions of the people had contrasting consequences. The article argues that the main effect of the paradox was to bring to the fore the ineradicable discrepancies between political praxis and juridical form. This effect should be seen as an opportunity to be seized rather than a problem to be solved. Paradox of Popular Sovereignty, The People, Pueblo/Pueblos, Comparative Political Theory, Latin America 19th-century

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In recent decades, a persistent problem in democratic theory has come once again to the fore: in a democracy, by definition, the demos or people is sovereign, but it is impossible to define democratically who precisely the people are. For example, according to democratic principles, the criteria of inclusion in the people should be universally acceptable. That is, the criteria should be chosen by election or referendum. But if we need an election to delimit the demos, how do we choose the electors? Hence, we end up with a problem of self-reference that leads to a vicious circle or an infinite regress (Näsström 2007; Ochoa Espejo 2011; Whelan 1983). So, given that we cannot define the people through elections, we must rely on non-democratic criteria to determine who the people are (Goodin 2007; Miller 2009). Ideally, this non-democratic decision would be grounded on liberal principles, but in practice it may lead to unjust exclusions that threaten democracy itself (Yack 2001). Different versions of this paradox of self-reference have been well known at least since Rousseau described one in On the Social Contract (Rousseau 1978, 100), but in recent years the problem has attained new notoriety as “the boundary problem” (Whelan 1983), the “paradox of constitutional democracy” (Habermas 2001), and the “democratic paradox”(Mouffe 2000). The particular version of the paradox that I will discuss here refers to the constitution of the people, but as Bonnie (Honig 2007) has argued, all of these different versions converge in a more general “paradox of politics” (Connolly 1995; Ricoeur 1984). This general paradox becomes a practical problem when, for example, immigrants and the disenfranchised contest current practices of political membership (Benhabib 2006), when politicians and revolutionaries make direct appeals to the people to legitimize populist policies and social uprisings (Panizza 2005), or when politicians or

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armed groups confuse the ruling people or demos with an ethnic group, or ethnos. In extreme cases, this confusion can stimulate ethnic violence, or even ethnic cleansing (Mann 2005; Yack 2001; Yack 2012). In each of these cases, the practical problems seem to go hand in hand with the theoretical problem, but the precise character of this relationship and its implications remain unclear. According to some theorists the democratic paradox reveals the scope and limits of democracy (Miller 2009; Whelan 1983). For others, it shows why democratic thought leads to unjustified exclusions (Mouffe 2000), and may explain how, in practice, claims to popular sovereignty can lead to disastrous unintended consequences (Hont 1994, 173; Mann 2005; Yack 2012). However a second group of scholars believe that the paradox has positive consequences: in political theory, it has the effect of reorienting political thought away from the theoretical commitments that generate paradoxes, thereby forcing theorists to examine unquestioned assumptions and consider alternative views; and in practice, they say, it functions as a productive site of contestation that revitalizes politics and brings new democratic possibilities into being (Frank 2010; Honig 2007; Näsström 2007). In this paper I argue that the paradox’s main effect is to bring to the fore the ineradicable discrepancies between political praxis and juridical form. The doctrine of popular sovereignty requires a legal popular unification that never obtains in practice and in this gap between the legal requirement and actual political experiences there emerge new political practices and institutions. Thus, with Honig, Näsström and Frank, I hold that in practice the paradox should be seen as an opportunity to be seized, rather than a

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problem to be solved. However, following Yack, I show that the paradox’s practical consequences are not necessarily happy. I support this position by providing a historical case of how this theoretical problem in the doctrine of popular sovereignty has influenced political practice, using the tools of Comparative Political Theory (Dallmayr 2004) to illustrate the paradox in action. CPT allows us to find new solutions to old problems by comparing the dominant theories in one cultural tradition to theories found in other such traditions. In this case, comparison is useful because mainstream Anglo-American political theory’s focus on the experiences of the United States and France has unhelpfully narrowed our perspective on the problem. This narrow focus has helped entrench the view that, in contrast to the French revolutionaries, the Anglo-American colonists solved the paradoxes of the people once and for all during their Revolutionary War. For example, in her authoritative account, Hannah Arendt describes how the inhabitants of early North American townships and villages made covenants grounded on mutual promises. These promises laid the foundations of the United States, and provided a source of stability when the colonies encountered the paradox in the first years of independence. In her view, the American case “was without parallel in any other part of the world” (Arendt 1990, 176). However, defending this assertion would demand that we look at other parts of the world besides France, which Arendt does not do. Here I turn to the political and legal thought of Spain’s American colonies, and to the political problems of Spanish America’s early republican period, seeking to give an additional account of how political communities dealt with the paradoxes of popular sovereignty in the 19th C.

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In 1808, Napoleon I forced the Spanish King Ferdinand VII to abdicate his throne in favor of Joseph Bonaparte. Spaniards on both sides of the Atlantic refused to recognize this cession of authority, and concluded that in the absence of the King (Ferdinand VII was imprisoned at Bayonne) sovereignty reverted to the people. The question was, which people? During the early days of Independence Spanish American communities used two different conceptions of the people: an abstract unitary conception (el pueblo), and a plural and concrete one (los pueblos). The unitary view traced the path leading to politicized nationalism while striving for universality. By contrast, the plural and concrete conception of the people sought exclusivity by retaining local practices of rule and belonging, but in so doing it kept open a space for democratic contestation. Over time, the interplay of these two ideas created institutional processes that have sustained democracy in the region (albeit imperfectly).

Between Promise and Disaster: Popular Indeterminacy in Democratic Theory Michael Mann argues that ethnic cleansing “is a hazard of the age of democracy” (Mann 2005, 3). In his view, this danger arises because in a democracy the people should rule, but “the people” does not have a clear meaning. This vagueness allows for the conflation of two different senses of the term. “The people” can be both the group of equal consociates who should rule in a democracy (demos), and a group who shares a culture and a sense of heritage (ethnos). Given that the privileges of democratic citizenship require discrimination against non-citizens, the conflation of citizenship and ethnicity may produce ethnic discrimination. “At the extreme, the out-group may be excluded, cleansed from the territory of the people”(Mann 2005, 55). Mann gives

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detailed historical narratives of how the confusion has occurred throughout the world; but he does not provide a theoretical account of why the confusion between ethnos and demos takes place. Bernard Yack provides a full description of the mechanism linking democracy to politicized nationalism (Yack 2001; Yack 2012). Yack argues that the linchpin between the democratic nation-state and politicized nationalism is the doctrine of popular sovereignty. The doctrine of popular sovereignty, which became widespread after the American and French Revolutions, states that in a democracy the people should be the ultimate source of political authority in a territory. The people “is the whole body of a territory’s inhabitants imagined as the final or sovereign judge of how the state’s authority should be constructed or employed”(Yack 2001, 521). The demand that the whole people be sovereign creates a paradox, and it is this paradox that eventually leads to politicized nationalism. The paradox appears when we ask who is the sovereign people. Traditionally, the people were those who shared subjection to a ruler or to a set of institutions. But this view is incompatible with the modern conception of popular sovereignty. If “the people precede the establishment and survive the dissolution of political authority, then they must share something beyond a relationship to this authority”(Yack 2001, 524). What the people share, however, must be something other than civic ties, because relying on citizenship generates a vicious circle: in order to know who are citizens by right we need legitimate institutions, but we need those very citizens to create legitimate institutions. Moreover, one cannot establish the boundaries of an electorate democratically, because an electorate would have to be previously established. The procedure presupposes a

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people to determine who are the people, and so on, ad infinitum. The vicious circle and infinite regress, taken together, yield the paradox of popular sovereignty. According to Yack, the paradox of popular sovereignty leads democratic polities to politicized nationalism in two steps (Yack 2001, 523-530). First, democracy leads to the nation. If democracy requires popular sovereignty, and the paradox makes civic unification impossible, then democracy needs a people built upon ties that are independent of political institutions. This means that democrats must imagine a different type of community, perhaps one defined by filial or cultural ties. Thus the nation becomes the social substratum of the state. But the nation cannot be the popular sovereign yet. To make the nation a sovereign it is necessary that it be the sole source of political authority in a given territory because, in the modern view, shared sovereignty is a contradiction in terms. So, to make the nation the popular sovereign it is also necessary to make the nation exclusive within a territory. Given that a necessary requirement to have a sovereign people is to make an ethnic group, or nation, perfectly coincide with the territory of the state, active exclusion of outsiders may be required. This is the second step in the process towards politicized nationalism. When politicians and ideologists insist in closing the gap between the abstract conception of a unified ethnic people, and the actual relations that constitute a population, the effort may end badly. For Istvan Hont, as for Mann and Yack, “ethnic cleansing is the natural corollary of this line of thought” (Hont 1994, 173). The paradox of popular sovereignty, seen in this light, is an all too real problem that screams for a solution. Political theorists should envision ways to transcend the theoretical problem, and policy makers should affirm its difficulty and moderate its

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effects (Yack 2012, ch 12). But not all democratic theorists share this position. According to Sofia Näsström, for example, “contrary to what many assume the [gap between democratic legitimacy and the historical contingency of the people] is not a problem. It is productive, a generative device that helps to foster ever more claims for legitimacy”(Näsström 2007, 626). Bonnie Honig agrees; the paradox can help us to “think differently about democratic theory’s uncomfortable yet unavoidable dependence on the unreliable even phantom agency of the “people…”(Honig 2007, 2). In her view, political theorists should not set out to fix the problems that arise from the doctrine of popular sovereignty because the lack of fit between legal requirements and political experiences is, in fact, ineradicable. The paradox is not just a problem of popular sovereignty, but an essential feature of politics (Honig 2007; Ricoeur 1984). The paradox of popular sovereignty, like other logical problems in political theory, is the symptom of an underlying condition: the fact that there is always a lack of fit between the dictates of the theory and the reality of political practices. According to the thinkers who embrace the paradox, popular indeterminacy is not an exceptional problem that we must confront only infrequently, when, for example, we see the rare bouts of ethnic violence, or when crowds take to the streets during a revolution. Rather, indeterminacy is the bread and butter of political practice. In democracies we encounter the paradox of popular sovereignty everyday because everyday we encounter legitimating claims made in the name of the people, and these are always incomplete. These claims generate dilemmas of representation that are not solved once and for all, but must be negotiated one at a time. According to Jason Frank, “these dilemmas appear and reappear not simply at moments of constitutional crisis but in the

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fabric of everyday political speech and action” (Frank 2010, 33). In this fabric of political action “the underauthorized--imposters, radicals, self-created entities-- seize the mantle of authorization, changing the inherited rules of authorization in the process”(Frank 2010, 8). The paradox is not a problem to be solved but an opportunity to be seized. Unlike Mann, Yack and Hont, the theorists who embrace the paradox hold that the lack of fit between theoretical expectations and practices opens spaces for positive revision and transformation of democratic practices… but not necessarily. Even as they acknowledge that the paradox poses dangers, they celebrate the hope and promise of indeterminacy. The paradox signals the emergence of new political spaces opened up by contingency. So, contrary to how it may seem at first, the relationship between the idea of popular sovereignty and its practical problems is not deterministic: Yack’s mechanism shows a probable but not necessary connection between popular sovereignty and politicized nationalism. We know that the ambiguity introduced by the paradox gives legal leeway to decision makers and flexibility to political practices. This gap between theory and praxis has allowed for many responses to the paradox in the last two hundred years. The doctrine of popular sovereignty may have produced violent nationalism and ethnic cleansing in some circumstances, but it also gave us the self-correcting processes of democratic constitutional law (Habermas 2001), and the more uncertain (and promising) popular claims beyond established law that Frank and Honig underline. These claims are not grounded in wishful thinking. The paradox of sovereignty has in fact produced political claims and practices that fulfilled liberal and democratic aspirations. Unfortunately, these claims and political practices have yet to be explored, and they are often overshadowed by the more dramatic episodes of violence that often come to light.

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Frank exhorts us to use the paradox as a springboard to return to the concrete conditions of political practice, and urges us to explore “the theoretically illuminating dimension of these historical singularities” (Frank 2010, 34). What follows heeds this call and attempts to illuminate theory by providing a new account of concrete historical circumstances. Turning to the early days of the Spanish American republics gives us a fresh view of how “the people” can be conceived in practice.

The People in 19th-century Spanish America 19th-century Spanish America is a good place to examine the effects of the paradox of popular sovereignty because, like the US and France, it was a laboratory for early experiments in democratic rule. But Spanish America is worth considering in its own right for at least four further reasons. First, Spanish America was the first of these regions to experiment with universal male suffrage (Colomer 2004, 43), and it can thus illustrate the theoretical problem of indeterminacy as a concrete political problem in need of a solution. When the people is not only an abstract notion to be represented by an elite, but an actual group of individuals, the problem of finding the people becomes poignant and clear. Secondly, the experiment in democracy is interesting because of the peculiar juridical circumstances within which independence occurred. In both France and the US, democratic legitimization won the day after popular revolutions rejected the sovereign power of the King; in Spanish America, on the other hand, the sovereign abandoned the people while royal legitimacy remained untouched. Ferdinand VII’s abdication of power after the Napoleonic invasion of the Iberian peninsula led to a political and juridical recomposition of the Spanish nation and the subsequent breakdown of the Empire before

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any popular insurrection began. As Adelman has noted, “this sequence affected how the colonies grappled with the crises of sovereignty because nascent political communities emerged because not before the Spanish Empire imploded” (Adelman 2006, 219). This fact provides a critical contrast to the American and French cases, because it shows that the paradox is a structural feature of the theory of popular sovereignty, rather than a fruit of contingent historical circumstances associated with popular organization in revolutionary moments. Third, the tradition of political thought that arose from these events has distinctive elements that may prove interesting today, notably the mixture of ideas of liberal and modern republican coinage with older legal forms common in colonial Spanish jurisprudence which were used to deal with pluri-ethnic populations in the 16th and 17th centuries. The new republics of Spanish America had to legitimize their independence by appeal to the unified popular sovereignty of a new nation, but at the same time they resorted to local customs and old rules to govern manifold provincial and local interests, corporation, and cultural groups (whites born in Spain, whites born in the colonies or criollos, Indians, blacks, and castas, or groups of mixed racial heritage). Thus Spanish American reactions to the paradox of popular sovereignty speak to the politics of multiculturalism. And finally, from the perspective of contemporary political theory, the Spanish American experience should be of interest in the English-speaking world because the Spanish American tradition of political thought and action remains relatively alien to Anglo-American political theorists. It can bring fresh air to their discussions and highlight the existence of roads not taken. Spanish American political thinkers in the early days of independence had to deal with the same theoretical problem that troubles democratic theorists today: The people

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are the source of legitimacy and the bearer of sovereignty; but who is the people? This question remained central in Spanish American politics throughout its history. (Sábato 2007, 11) Two answers formulated in the early 19th century stand out.

Two Conceptions of the People The term “the people” as used in current English could be translated into 19th century Spanish as either el pueblo or los pueblos (Annino 2003b; Ferreira 2009; Roldán Vera 2007). The first conception, el pueblo, refers to a collection of individual consociates under law. According to this conception, a unified people is the bearer of sovereignty in the state. Given that this unified people is a social substratum of the state, the term was used interchangeably with “the nation.” But besides being a nation or cultural unit, this conception of the people was often identified with the concept “demos,” or the sum total of the citizens of a state. This term played an important role during the crisis of legitimacy in the Spanish Empire in 1808, and it remains important to this day in Spanish America. The second conception is plural: los pueblos. This second conception emerged from a mixture of early liberal ideas with idiosyncrasies of the Spanish colonial regime. Within the Spanish Empire, los pueblos designated the “the peoples”: the kingdoms and realms that were subject to the sovereignty of the king. However, it also referred to “the towns”: A collection of geographically bound corporations with specific institutions and delimited population. These towns (pueblos), often composed of one or several villages or neighborhoods, were the result of a prior colonial juridical structure that gave juridical privileges to provinces and villages, including Indian communities (repúblicas de indios) (Guerra 1999, 38-39). In the first conception those who compose

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the people are citizens or individual members of the nation, but in the second those who compose the people are neighbors (vecinos), participants in the social and political life of the villages (Annino 2003b, 162-165; Guerra 1992, 354; Roldán Vera 2007, 3-5). These two conceptions, I claim, are both modern, even if historians have often described pueblos as a conceptualization stemming directly from early colonial juridical forms (Annino 2003b, 159; Guerra 1992, 354). However, this distinction is facile and misleading, as the recent literature on Spanish American republicanism has shown (Aguilar Rivera and Rojas 2002; Breña 2000; Castro Leiva and Pagden 2001, 182). Both conceptions are products of the historical evolution of traditional political institutions out of the intellectual ferment of the 18th and 19th centuries. This ferment, according to Anthony Pagden and Luis Castro Leiva, included several different political languages: liberalism, classical republicanism, the natural law, the derecho indiano (or the law governing the former Spanish-American colonies) and the ius commune (civil law based upon custom, as well as Roman and canon law) (Castro Leiva and Pagden 2001). The mixture of languages was modern, to the extent that it included enlightenment thought, and contemporary Spanish American reactions and adaptations to those new political ideas in the context of a pluri-ethnic society. Let us examine these conceptions in turn.

El pueblo: The Unitary People The first conception of the people, “el pueblo” refers primarily to a collection of individual consociates under law. The consociates are all those individuals who are governed by a set of laws and institutions and have a say in how these laws and

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institutions are made and applied. This people, then, is the collection of individual citizens traditionally associated with the Rousseauian version of the social contract and the doctrine of popular sovereignty. But the Spanish American formulation of the people stands out because the way in which the concept was first used reveals clearly the theoretical problem of popular unification as an actual political problem. As I will argue below (and as Yack would have predicted), the idea of the people had to be supplemented with the concept of the nation in order to establish the legitimacy of the state. But in the Spanish empire the nation did not exist already, and a fortiori, it did not exist in the new American countries. In these conditions the vicious circle of foundation set in: the new countries required new institutions to create new citizens, but it needed those very citizens to create new institutions. The new governments required a political escape from the logical conundrum. This theoretical problem became obvious after the independence of the new Spanish American republics, but it first appeared during the historical crisis that preceded independence: the abdications of Bayonne, and the constitutional convention in Cadiz. The idea of el pueblo played a crucial role as the ground of sovereignty after the 1808 abdication of Ferdinand VII in favor of Joseph Bonaparte. This cession of the crown produced a type of legal crisis that was unheard of, as it broke the principle of inalienability of the kingdom, a central tenet of kingship in all European monarchies. The abdication created a very special type of vacatio regis because it posed the basic questions of the legitimacy of rule in the empire: Who will govern? On what grounds? The empire-wide crisis was solved by recourse to an old legal formula: “In the absence of the king, sovereignty reverts to the people.” But, of course, sovereignty did not revert to

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autonomous individuals in the state of nature. It in fact reverted to the existing local governments and officers throughout the empire. These officers organized in local juntas who elected representatives to participate in a constitutional convention in Cadiz, which was to give a new political order to the Empire. In the political and legal discussions that accompanied this process “the Spanish people” became interchangeable with “the Spanish nation.” This conception of the people as a collection of individuals with common cultural ties, or a nation, figured centrally in the debates over the new constitution. The draft of the Cadiz Constitution of 1812 stated in its first article, that the Spanish nation “is the Union of all Spaniards of both hemispheres” and also, in the third, that “sovereignty resides essentially in the nation” (Varela Suanzes-Carpegna 1983, 59). The liberal deputies preferred the term “nation” because it gave legitimacy to the constitutional assembly. If new political institutions were to be established from scratch, then the Constitutional assembly could not appeal for its legitimacy to a political people (a body of citizens); it had to appeal to a social body, or the pre-political substratum of the state, that is, a nation. However, the term “nation” was contentious, because a pre-political people or nation did not exist either culturally or legally in the Spanish empire (Chust 2003, 232). The Constitution of 1812 introduced the idea of a unified nation as the source of legitimacy, but in doing so, it introduced other difficulties that would have momentous consequences for the empire. Before the Cadiz Constitution, Spain was not a single nation, either legally, or socially. The empire was legally conceived of as a collection of kingdoms, which were unified only by their individual pacts with a common king (Eliott

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1992). There were no horizontal legal ties between kingdoms, and few cultural or social connections between individuals throughout the empire. (Guerra 1992, 56-62) A Basque shared very little with a native of the Yucatán, just as a native of Manila had little in common with a native of Buenos Aires. They did not share national identity or customs; their only tie was their subjection to the same monarch. Moreover, the royalists claimed that in the monarch’s absence, the Cortes (constitutional assembly) lacked all legitimacy (Varela Suanzes-Carpegna 1983, 76-81). To answer this objection, the liberal majority in the constitutional convention created a nation by decree. In the first three articles of the constitution, the deputies at Cadiz defined the nation, and what counted as a Spanish citizen, extending equal citizenship to all free men in the current Spanish territories. Thus, the nation was born at the same time as the people.ii Yet, old legal and social standards of legitimacy and citizenship lingered for decades in Spain and America (Herzog 2007, 157). The creation of the nation by the stroke of a pen, and the dissonance of this new view with traditional standards of legitimacy, both had important consequences. On the one hand, the legal changes brought juridical equality to all individuals in the empire and facilitated universal citizenship and the political independence of the colonies. On the other, the changes also brought a perennial deficit of legitimacy to the new countries. First, the Constitution precipitated the political independence of the colonies. Just as the idea of the people as a unified liberal nation gave new strength to the resistance to royal absolutism, so it also gave a new impetus to the independence movements that were already well under way in South America. Formerly, the Spanish American territories had been attached personally to the King, but now they belonged to the nation. Now, all

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members of the nation had equal dignity as Spanish citizens. According to the new constitution, the Spanish “pueblo” was the union of autonomous individuals, hence each individual in the Spanish American population acquired more political influence than he had when the empire was a collection of towns and corporations, joined in kingdoms united under a monarch. Thus, the new constitution gave individuals and colonies more autonomy from the crown and facilitated political independence. By 1825, most of the provinces had broken away from the metropole and established republics that appealed to popular sovereignty as the basis of their legitimacy. However, the juridical changes in the Cadiz Constitution also brought a perennial deficit of legitimacy to the new countries. The very principle of popular sovereignty would constantly challenge the legitimacy of the new countries throughout the 19th century, because there was not enough cultural and social cohesion in the newly invented nations. One of the most important consequences of the introduction of el pueblo, or the people as a nation is that the new definition broke down ethnic barriers. Before independence, most individuals living in the colonial territories were not equals, and they had differentiated participation and influence in political life depending on whether they were criollos (American born Spaniards), mestizos, Indians, or black freemen. After independence they were all equal citizens: the liberal-republican principles that justified independence defined them as consociates under law. However, in the eyes of the elites, Indians and castas lacked the capacity for individual and political autonomy (or “civic virtue”, according to the republican language of the time) that was necessary to govern themselves, or have a real say in how the laws and institutions that governed them were made and applied (Castro Leiva and Pagden 2001, 182-192; Escalante Gonzalbo 1992,

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53, 290).iii For this reason, the governing elites could not envision the actual population as the origin of democratic institutions and legitimacy. For political leaders the idea of an ideal unified nation had been a useful fiction to enact the liberal Cadiz constitution and mobilize the masses against Peninsular oppression and the French invasion, however, these very leaders saw the actual population in the colonies and the new independent countries as incapable of political autonomy (Roldán Vera 2007, 4). In their eyes, the collection of individuals constituted a mob, rather than the ideal unified people that legitimized the new republics. The new Spanish American governments needed citizens to legitimize rule, however, the ruling elites could not trust them as the makers of institutions. Conversely, the newly minted citizens in rural areas were suspicious of the legitimacy of their new rulers in the new national centers (Guardino 2005, 249-261). Even as indigenous peasants and rural town dwellers used their new citizenship status to their advantage, they retreated to traditional customs and local forms of government, and often resorted to rebellion to defend their independence, putting the unity of the nation at risk (Ducey 2004, 5-9; Rodriguez O. 2003, 300-305). Thus, the novel idea of the people as the nation created as many problems as it solved. This unitary conception of the people as a nation was especially problematic because it enacted the theoretical vicious circle discussed in the previous section: republican citizenship presupposed republican institutions; and republican institutions presupposed citizenship. How could individuals develop the qualities required to be the citizen that creates institutions, if the development of those qualities depended on the existence of those very institutions? Vicente Rocafuerte, an ideologue of independence,

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reported the opinion of the republican faction in the first Mexican independent congress in 1822, providing us with an eloquent statement that best captures the problem: To ask that the ground of the republic be the virtue or enlightenment that is fruit of this very republic creates a vicious circle, it wishes the effect to be the foundation of the cause that should produce it. The sensible patriot should content himself with finding in the constituted people disposition to sow, and to allow the seed of virtue to bear fruit: that should suffice to erect a republic that will soon be worthy of admiration. (Rocafuerte 1822)iv The problem for “sensible patriots,” like Rocafuerte, was that the National People was not already constituted. So, the need for a constituted national people gave the new central governments a justification to “create” one from above, from the state. In the eyes of national elites, “the state was the only instrument capable of generating civility.” (Castro Leiva and Pagden 2001, 182). However, if the state was to take on this task, it could not rely on the concept of the people as a collection of individuals or a nation, because this concept is pre-political, and a nation created from the state presupposes a political foundation. So, the new governments had to legitimize the state with the concept of a new people of citizens, at the same time that they adapted it to the ties and values that already existed. (Guerra 2003, 11) This leads us to the second conception of the People.

Los pueblos: The Plural People The second conception of the people is plural and concrete. According to it, the bearer of popular sovereignty is the collection of pueblos (towns or villages) (Annino

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2003b, 164). That is, the people is the collection of independent municipal corporations in a given geographical area. These pueblos are juridical persons, with local authorities and institutions, communal property, and local law. In addition to their legal status, pueblos have specific customs, traditions, meeting places etc. According to Antonio Annino, this conception is the result of adaptation of the idea of the people, as it first appeared in the debates leading to the 1812 Spanish Constitution, to the traditional structures of political organization available in the colonies (Annino 2003b). These structures organized power through corporations mediating between individuals and the state, and actualized the political autonomy of the communities by emphasizing local authority.v This was particularly clear when dealing with Indian communities. The adaptation was possible because the 1812 Constitution left it to the towns to determine who counted as a citizen, and hence who could vote. This allowed local communities to enfranchise their own members, lay claims to the legitimacy of their own local governments, and make good on the historical legal rights to their lands. Thus, this second conception of the people was crucial to recomposing the legitimacy of government after the imperial crisis of 1808, and it was also the basis for the municipal and federal organization of Spanish American countries in the 19th century (Annino 1995; Chiaramonte 1995; Herzog 2007, 160). While this conception allowed the central governments in the new Spanish American republics to extend their authority to the countryside and bypass some of the theoretical problems discussed in the previous section, some of the legal consequences of holding this view may also explain the difficulty in unifying national territories throughout the 19th century. In the rest of this section I will describe these consequences by contrasting the second conception of the

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people, los pueblos, to el pueblo. The main differences are in its components, and how the conception helps us to deal with the problem of popular indeterminacy in democratic theory. The first difference between el pueblo and los pueblos is over their chief components. On the first conception, those who compose the people are citizens or individual members of the nation. On the second, the people’s chief components are vecinos (neighbors or residents). The usage of the word vecino “connotes the grounding of the abstract citizen in the particular territorial and social conditions of a concrete community.” (Aljovín de Losada 2009; Sábato 2001, 1296) This view of membership has deep roots in Spanish legal history, where the community of each kingdom was defined as a community of locals. (Herzog 2007, 151) Traditionally, Spanish citizens (including those in the colonies) acquired their political rights by residence and participation in the life of the communities. Rights of citizenship were not given by virtue of being a subject of the king (vasallos), rather, they were given to natives of their communities (naturales) (Herzog 2003). Subjects did not have political rights by virtue of being Spanish; they had them by virtue of being natives of a town in Castile, Aragon, Sicily etc. However, nativeness “was not a fixed condition,” a matter of origin or identity. “Rather than depending on birthplace, vassalage, or descent, nativeness was acquired, and lost, by way of performance” (Herzog 2003, 62-63; Herzog 2007, 154). This idea of performance in local life as the criterion of political belonging remained important after independence. Vecinos, then, are the chief components of the second conception of the people. Thus, it may seem at first that los pueblos is the continuation of the settled communities and their traditional customs, while el pueblo is a modern notion that allows for equality

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of individuals. However, the continuity of the conception of los pueblos in Spanish America was not only due to traditionalism. In fact, the concept can be traced to a resistance to centralization of power in the years of absolutism. This can be seen in the dispute over the rights of citizenship of Indians and Blacks during the debates at Cadiz. In the discussions, most deputies believed that Indians should be granted full citizenship as members of the Spanish nation, while Blacks should be classified as foreigners (on the grounds that they were originally natives of Africa and their residence in the colonies was not voluntary, failing thus the criterion of performance). However, these debates were inconclusive (partially due to the pressure of the liberal faction who wanted to include all free men) and the delegates did not define citizenship precisely. In the end, the Constitution authorized the towns to determine who were citizens and who were not. (Herzog 2007, 160). So, after independence, the mixture of old juridical forms in the towns, and new liberal ideas produced a type of citizenship based on the idea of equal freedom for all (thus, in most American countries political participation was not restricted by wealth, property, literacy or ethnic distinction), vi but rather than being abstractly universal, it was grounded in the concrete life of towns and villages, and it was applied as the villages saw fit. The second important difference between the conceptions of el pueblo and los pueblos concerns the consequences of the paradox of popular sovereignty. The consequences vary when the concept has a grounded conception of political membership and depending on whether the concept is unitary or plural. (Regarding the question of pluralism, it is important to make a distinction before moving along: The second conception of the people is plural, but this pluralism is very different from the pluralism

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of Anglo-American federalism.vii Anglo-American federalism appeals to a unified people, “We the people”, and federalist pluralism in the United States comes from divided sovereignty at the federal and state levels. Conversely, according to the theory embedded in the concept of los pueblos, sovereignty remains unitary, but the people itself is plural. “We the people” is the pre-political, or social, substratum of the United States; by contrast los pueblos is a political sovereign, resulting of pacts among collective juridical persons (Bellingieri 1993, 71; Guerra 1999, 36). The bearer of sovereignty, according to this conception is the conglomeration of self-governing towns with independent government, customs, and traditions. Thus, los pueblos retains the idea of unified sovereignty, while it is itself plural.) This plural conception can avoid both the vicious circle and the philosophical regress. In this view the vicious circle in the constitution of the state does not arise, because the community is originally conceived as a political unit. There is no circularity between citizens and institutions, if the members of the state are considered to be always already embedded in local political institutions. On the second conception, the political continuity with the colonial order in the towns establishes a political ground for a republican re-founding. However, this political ground does not rely on the authority of the colonial order (or the authority of the King), rather it relies on the authority of town institutions which springs from the collective participation of the villagers. The claim to legitimacy, then, does not appeal to a nation-wide collection of individuals who are unified in their consent to a constitution, rather, it appeals to the concrete political processes that give continuity to self-governing towns. According to this conception popular sovereignty is the political outcome of a pact between corporations. This pact

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founds and limits the political authority of the state. This conception of the people, then, disrupts the vicious circle because the people is always already political, and because there is no question of which comes first, the people or the institutions. However, this response opens the question of what is the legitimacy of the existing town institutions vis-à-vis the individual, particularly if these institutions were not established by popular vote, or by explicit individual consent in some kind of original foundation. The attraction of the first conception of the people is its ability to capture what many think of as a requirement of democracy: individual autonomy, manifested in the possibility of refusing consent to a political order considered illegitimate. The idea of los pueblos did not satisfy this requirement in 19th century Spanish America because the male elites in each town dominated local politics. However, it highlights the possibilities for negotiation that arise between strict juridical form and actual political praxis. This form of organization underplayed political participation as a legal status and emphasized citizenship as an extended process of political practice. This leads to the second feature. The second feature of this conception is that it does not lead to a philosophical regress when determining who is the people that governs itself. This happens because the criterion of belonging is neither a universal right, nor a privilege of identity; rather, the criterion of belonging is performance as a neighbor. As long as an individual actually participates in the self-governing of the town, she participates in making its institutions and she is thus a member. This occurs because the town is a civil institution, not a “natural” or pre-political community. Thus, the idea of los pueblos presupposes a criterion of exclusion that democrats could accept because it does not discriminate on the basis of a person’s natural traits. In the case of actually existing 19th-century Spanish

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America this criterion was not met, because it officially excluded servants; but the conception allows for the possibility of reform given that membership is not already determined, it is open to change, on the basis of performance (female heads of household, for example, could be considered vecinas). Even if in practice the concept of los pueblos did not solve all the problems of Latin American democracies throughout the 19th and 20th centuries, it helped the towns to avoid the violent conflation of ethnicity and nationalism that permeated politics in some regions of Latin America in the 19th C, like the Argentinean pampas or the Mexican Northwest. In addition to avoiding the regress in terms of participation, los pueblos also dealt with the theoretical paradox in a different fashion. Los pueblos have a concrete physical boundary. This means that it is not necessary to decide democratically who is part of the people, and thus one need not have a prior people to determine who counts as the people. Towns are delimited by geographical and institutional criteria. In the case of el pueblo, or the people conceived as a collection of individuals, a geographical criterion of exclusion would be unacceptable because it excludes people without giving a reason that all those affected by rule could accept. However, if one conceives of the people as pueblos, a geographical criterion of exclusion is acceptable because every individual could in principle be a member of the community she inhabits--where the territory is defined in terms of private and communal property as well as the frequency of relations. You belong to the place where you dwell. According to traditional Spanish jurisprudence those active in the life of the town for an extended period acquire all legal rights of political participation (Herzog 2007). Given that entry is not restricted by birth but by performance, the only legitimate reason for exclusion is not participating in self-rule.

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Now, in practice, this conception of the people was useful for communities who wanted to restore their ancient rights of property. It was also necessary to supplement the idea of the people as the nation and actually legitimize the state--the central governments of the new republics could not govern without the support of the towns, as can be seen by the heavy rural component of 19th-century Spanish American politics (Annino 2003a, 430). However, in practice, the conception also had problems. Two of these stand out. First, the conception may have led to political instability; second, the conception can protect the rights of the community at the expense of the individual. The conception can lead to instability because when the town is a contractor in the basic social pact, it has the right to withhold its consent to state authority and thus refuse the authority of any centralized government. Thus, this conception of the people grants immense authority to the smallest unit of government in a state, and not surprisingly, this independence makes nation-states especially prone to political instability. National-states could only restore their authority by enlisting the consent of individual communities, or “conquering” back those that withheld their consent “in the name of the (unified) people.” Unlike France, the central governments in the Spanish American republics did not inherit the right to rule from the king; rather, they had to recover the right and build it from the ground up. Because of the term “the people” referred ambiguously to the conceptions I am discussing, both nation-states and towns, were partially in the right. The central government could seek to impose their power in the name of el pueblo, while the towns could withhold their allegiance in the name of los pueblos. Thus, mild political discord could have big consequences, because each tension between town and provinces or provinces and capitals was a threatened secession. In sum, justifying the new republics

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relying on the towns gave new legitimacy to local institutions, but it undermined the authority and the stability of central states. Throughout the continent, the new states descended into violence. In the words of Simón Bolívar: The legitimate authorities are overthrown, the provinces rebel against the capital, brothers wage war on brothers (an atrocity that even the Spaniards had not inflicted) and it’s war to the death. Towns attack towns, cities attack cities, each one claiming its own government, each street declaring itself a nation. In Central America nothing but bloodshed and terror! (Bolívar 2003, 98). So, justifying the state through popular sovereignty on the basis of los pueblos was one of the factors leading to political instability between the towns and the provinces, as well as between the provinces and the national states. This instability gave an ideological justification to national political elites who sought to impose their preferred legitimizing ideology centered on the idea of el pueblo, or the people as a nation. Moreover, the conception of los pueblos could raise some eyebrows for another reason. While el pueblo is abstract and universal in character, los pueblos are concrete and particular. According to the second conception, individual political rights are contingent on concrete performance and local commitments. This makes it hard for individuals to appeal to a higher constitutional authority in charge of protecting a statewide commitment to the rule of law and the defense of individual political rights over the rights of local communities. Local elites can easily become local tyrants. In Mexico and the Andean region this could be seen in the enormous difference in wealth and power

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between whites, mestizos and Indians; as well as in the hierarchical organization and traditionalism within Indian and peasant communities. In sum, just like the conception of el pueblo, the conception of los pueblos helped to solve some theoretical difficulties while producing others. Throughout the 19th century, these two conceptions of the people existed side by side, both were a hybrid of new liberal ideas and old colonial institutions. El pueblo was the ground of popular sovereignty: it justified a central state on the basis of the equal dignity of individuals, both Indians and Spaniards. This opened up the possibility of democratic rule, based on universal male suffrage. However, this conception was subject to the logical problems I discuss above, its abstract character made it hard to attain in practice, and it may have led to some of the abuses that Yack warns us against. Los pueblos, instead, concretely legitimized rule and embodied the new institutional reform by allowing local communities to run their affairs. But the plural conception had disadvantages too; it made it very difficult to unify the nation-state and create the economic change that liberal elites wanted. Over the years, the first conception prevailed, and the second was forgotten. Once the national states took root, the question of local legitimacy lost urgency. However, the question of who is the people and how can the people legitimize the state would come back periodically in the next century in the form of populist politics (Panizza 2005).

The People in Process The idea of popular sovereignty may seem inherently dangerous at first. Over the years, liberal critics of the French revolution and its epigones have decried the overly

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ambitious, hubristic, nature of the popular sovereign; they have pointed out how it creates false expectations and breeds political disaster. The idea may have spurred territorial conflict and the desire to achieve cultural homogeneity by destroying traditional communities and generating ethnic conflict and even ethnic cleansing in the process. Yet the idea of the sovereign people may not only be a problem to be solved but also an opportunity to be seized. The theoretical difficulties in the concept of the people may create ambiguity, but this ambiguity is itself creative. Ambiguity houses within itself a tendency towards openness and a tendency towards closure. Both tendencies can be found in the newly created countries of Latin America: Popular sovereignty grounded new democratic polities; but it also gave way to a politicized nationalism that produced much chagrin in the name of a national people. Popular sovereignty allowed communities to resort to ancient rules and new local practices to contest homogenizing tendencies at the national level; but it also reinforced inherited injustices in the towns. The interplay of tendencies towards exclusion and towards openness created an institutional process that has given a ground to democracy over the long term, but never completely solved the ambiguities of inclusion and exclusion. The two Spanish American conceptions of the people do not provide a precise mechanism explaining how the doctrine of popular sovereignty leads to a particular political outcome (to provide such a mechanism is well beyond the scope of this paper). Hence they cannot prescribe a precise solution to the paradoxes of popular sovereignty. However, they do provide clear historical examples of how a theoretical problem can turn both into a new source of practical problems, and into a creative source of revision and transformation. These two conceptions show that embracing the ineradicable ambiguities

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in democratic theory allow us to better understand political processes and perhaps steer them away from violence. Moreover, these two conceptions are illuminating because they ask us to reevaluate interpretations of other historical cases. Despite very different historical circumstances, the responses to the paradox of popular sovereignty in Spain’s American colonies were quite similar to the responses in the emerging United States. In both cases the response to the paradox appealed to a concrete and plural people grounded in townships (Arendt 1990, 141-178). These parallels, then, seem to challenge the widely held view that the United States solved the paradoxes of popular sovereignty once and for all due to its exceptional “good fortune” in terms of wealth, ease of communication, and political organization. In fact, these striking parallels seem to offer evidence to support the view that, just like the Spanish-American responses, the Anglo-American solutions to the paradox were partial and incomplete. Every concept of “the people” introduces ambiguity to democratic practices because it highlights the discrepancies between political praxis and juridical form. However, this ambiguity is not necessarily bad. It can be a source of creativity that, in both positive and negative ways, opens democratic processes to the future.

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Endnotes

i

This paper was written with the support of the División de Estudios Políticos,

CIDE, Mexico City. Special thanks to José Antonio Aguilar Rivera, Víctor Alonso Rocafort, Thomas Donahue, Claudio López-Guerra, Pablo Mijangos, Erika Pani, Faviola Rivera Castro, Joshua Simon, Lasse Thomassen, and Corina Yturbe. ii

This account puts into question Benedict Anderson’s view that elite national

consciousness predated independence movements. (Anderson 1991, 53-60) iii

Elites held strong racist views at this time, but it is interesting that their

reticence to share the polis with Indians and people of African descent was already couched in terms of the universalist language of the Enlightenment and the civic language of Republics. iv

Rocafuerte talks about “virtue,” but in this discussion the term was equivalent

to modern citizenship in a representative democracy (Ochoa Espejo 2011, 18-19). v

This authority was religiously sanctioned. The 1812 Constitution established the

Catholic religion and relied on parishes to establish voting districts and representatives. vi

Universal male suffrage was restricted in the 1820’s and 30’s. See (Sábato 2001,

vii

American Federalism became a source of inspiration later in the 19th century.

1297)

However, in early independence American views were incompatible with Spanish American thought which remained committed to monarchical rule. (Varela SuanzesCarpegna 1995, 244-245)

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