Born in a little village in Southwest Spanish Province of Extremadura, I graduated in Law at the Madrid Complutense University. I did postgraduate courses at the Instituto de Estudios Políticos (Madrid), the Institut d’Etudes Politiques (Paris) and the Institut für Soziologie und Sozialpsychologie of the Köln University. I took my Doctorate at the Madrid Complutense University with a thesis on the anthropological basis of Karl Marx Political Theory.
From 1959 until 1967 I taught as associate Professor in the Central University of Venezuela (Institute for Political Studies). Back in Spain, I entered my Alma Mater as an associate Professor, first at the School of Sociology and Political Science and then at the Law School. From 1972 and until my retirement in 2000 I was a tenured Professor at this School.
My involvement in the political change following the death of General Franco led me to abandon for some time my teaching at the University. Between August 1977 and April 1979 I was General Secretary of the Congreso de los Diputados, the House of Representatives of Spanish Parliament. From this last date and till February 1989, I headed the Centro de Estudios Constitucionales and then, between February 1980 and July 1992, I sat on the Constitutional Court.
On leaving the Constitutional Court, I went back to the University until retirement in 2000. In 2004, I was appointed President of the Consejo de Estado (State Council), which according to the constitutional definition is “the supreme consultative body of the Government.’
Many of my academic writings have been collected in the volume La forma del poder (2nd Edition, Madrid 1996).
Identifying the ten books that have most influenced the formation of my “intellectual persona” has proved a much more complicated task than I had foreseen when I accepted Professor Weiler's invitation. I have encountered the difficulties he had forewarned me about, and in addition many other unexpected ones. The first one has been that of the concept of “intellectual persona,” which is an alien one in Spain. Not being quite certain of its meaning, I have chosen to identify it as the equivalent to one's public image. My public image, in Spain, is that of a constitutional scholar having achieved a certain professional competence and standing in a more or less determined ideological posture.
To determine which ten books have been most influential in my training as a constitutional scholar, however, one must start with two hypotheses of rather dubious validity: that my professional training was set at one particular time in my life and that a distinction can be established between my “public” ideas and my personal, private conscience. The second hypothesis is resoundingly false, but it must be accepted if any attempt to answer the proposed question is intended. The first question I have resolved through bureaucratic convention, accepting that my ground education had been concluded by the time I began teaching as a university professor, a little after turning thirty. I have certainly studied and learnt some more since then and my ideas today are somewhat different, but the foundations were already in place. This is why all the books I mention here correspond to that time in my life, with only two exceptions: the works by Dworkin and Alexy.
These exceptions respond to the deep change European constitutionalism experienced in the aftermath of World War II. Under classical continental theory, whose main trends are synthesized in the idea of Rechtstaat, norms approved by Parliament occupy the apex of the legal system and constitute the main protection of liberty. In postwar European constitutionalism, the Constitution itself should assure this protection and legislative norms (leyes, lois, Gesetze) were “dethroned” and placed under the control of the judge. I had thus to complete my own formation, initially built under classical Theory, through the study of many authors, Europeans and Americans. I have learned from all of them, but Alexy's and Dworkin's works were perhaps the main source of the conceptual tools I was in need of to accomplish my tasks both as a University Professor and a member of the Spanish Constitutional Court.
In making my selection I have dispensed with classical authors, but here too there are two exceptions, the justifications of which will be found in my commentary on the Federalist Papers and the Economic and Philosophic Manuscripts of Karl Marx.
M. García Pelayo, Derecho Constitucional Comparado
“Derecho Constitucional Comparado” is an excellent handbook whose second part, dedicated to the study of some concrete constitutional systems, is today of limited interest; however, its first part, “Teoría de la Constitución y del Derecho Constitucional”, is probably the best presentation of classical constitutionalism to be found in Spanish today, sixty years after its publication in 1950. To me, as to many other young Spaniards entering University at that time, it was much more than just that.
We found in that book, for the first time, an articulated and clear presentation of the theoretical basis and the organizational techniques in constitutional democracies: something very simple but almost revolutionary in an intellectual environment strained by the official censorship and propaganda which held the democratic regimes of Europe and America to be the decadent last fruit of an error starting with the Enlightenment. It is a purely academic work that was nevertheless not born within the University, which had lost many of its teachers and was still under the pall of fear of reprisals. The author was a young professor who had been expelled from the University after the Civil War for having fought in the ranks of the Republican army.
I didn’t have a chance to meet him back then because shortly after his book appeared he exiled himself from Spain, first to Argentina, then Puerto Rico and finally Venezuela, where he spent almost twenty years. However, I started then closely following his written work, focusing mostly on the history of political models and, connectedly, the study of the role of myths in politics. I finally could benefit from his direct mastery during the eight years I became his collaborator in the Instituto de Estudios Políticos of the Universidad Central de Caracas.
Karl Marx, The Economic and Philosophical Manuscripts
The Economic and Philosophic Manuscripts that Marx wrote in Paris between April and August of 1844 were published only in 1932, almost a century later. As a compendium of the ideas that Marx expounded upon in the works of his youth—that is to say, those preceding The Communist Manifesto—these manuscripts provide an authentic dimension of Marx's rich and complex thought, simplified to the point of caricature by the dominant positivist “economicism” of the communist movement after Lenin.
It is in these manuscripts where the object of the revolution is clearly specified as being not simply a means to abolish social classes or to create an economic system more efficient than capitalism. Of course the revolution should accomplish both of these goals, but these accomplishments, though important, are in a certain sense only instrumental. They are the means for reaching the ultimate end, the definite overcoming of the alienation in which man has lived since his appearance on earth: the emancipation of man, a feat in which, as Marx says in his Introduction to the Critique of Hegel's Philosophy of Right, the ideals of philosophy and the interests of the proletariat are united. “Philosophy cannot realize itself without the transcendence of the proletariat, and the proletariat cannot be abolished without the realization of philosophy.”
It is only this aspiration of “realizing philosophy” that lends sense to the immense sacrifices that the realization of communism demands, sacrifices which become unacceptable if the aspiration is judged to be utopian or absurd. I reached this conclusion for reasons that are explained in part in the introductory studies with which I presented in 1968 my translation of the Manuscripts and a few years before that in an Anthology of the Works of Karl Marx's Youth. I continue to believe that Marx's work is useful for the analysis of reality, and that politics should pursue equality between men to the extent possible without risking the liberty and wellbeing of society. However, the study of the Manuscripts freed me from the fascination Marxist doctrine had exerted on me, as it had on many Europeans of my time. The Manuscripts convinced me that in order not to end in horror, the fight for equality and liberty should ground itself in other terms and be brought about through other means.
Max Weber, Politik als Beruf
This short text, a conference that Weber gave in response to an invitation from the students of Munich a year before his death, consecrates the distinction between the ethics of responsibility and the ethics of conviction and for the first time does also spell the celebrated definition of the State as an institution that successfully claims a monopoly of legitimate physical violence within a territory, the notion of legitimate domination, the enumeration of the types of legitimacy, etc.
Certainly in this text, which is frequently published together with another of the same time period and the same origin, Wissenschaft as Beruf, these sociological categories are only noted in very synthetic terms. Their extensive treatment would only come to light after the author's death in the posthumous book, Wirtschaft und Gesellschaft, which his widow edited in 1922. However it was in Politik als Beruf that these ideas were first offered to a general readership. Not, however, to the Spanish speaking readers who could discover this monumental work, beginning only in 1944, in an excellent translation by a group of exiled Spaniards, thanks to a meritorious Mexican publisher, the Fund of Economic Culture. This same publisher, with the same collaboration, published in 1956 a second edition that was already adjusted to the second German version, which is the definitive one.
Weber's sociological categories, those already mentioned as well as those of a methodological character—for example that of the ideal types—have been, since I studied them, essential instruments for my work.
Together with these categories, the text also summarizes ideas about political parties and political men that continue to be thought-provoking and useful. They are, however, heavily conditioned by the time in which they were conceived—the early moments of German democracy—and consequently must be treated with care in their application to the present.
Hans Kelsen, Hauptprobleme der Staatsrechtslehre
This monumental book, which appeared in 1911—the first of Kelsen's great books—does not constitute a complete exposition of his Pure Theory of Law and of the State but it offers, with the strength of seminal ideas, that of juridical norm which is at the base of this theory and that, to a certain extent, already contains its kernel. The notions commonly used to characterize Kelsenian construction are not yet present: the idea of the Grundnorm as Constitution in the logical-juridical sense and the pyramidal structure of legislation, the Stufenbau. But as Kelsen himself suggests in the prologue to the second edition (1923), these notions emerge in answer to problems that had already been raised in that earlier work. In my judgment, and when read in light of this prologue—that is, in their second edition—the Hauptprobleme is the best introduction to the study of a thought indispensable for any jurist of our times.
This book does bring to completion the effort to establish a sharp distinction between Law and Sociology on the one hand, and between Positive Law—the only real one—and ethics or Natural Law on the other. Though an effort that ultimately fails on both fronts, it has left us nevertheless with a formidable arsenal for the analysis of reality and above all with a clear awareness of the epistemological limits of juridical knowledge.
Like many other scholars of my generation, I was fascinated by Kelsen's thought, which I admired above all in the Hauptprobleme, and, like almost everyone else, I ended up separating myself from his doctrine. I do not believe today that Law can be understood as a purely formal structure, separated from the society that produces it and from which the ethical principles embodied in human rights may not be a necessary part. A legal science in Kantian terms is impossible, but the formidable effort that Kelsen carried out to construct it forces us to consider him the most important jurist of the 20th century.
R. Carré de Malberg, Contribution à la Théorie Générale de l’Etat
Malberg's work was written before World War I but published after, in 1920. Although its title demonstrates the author's proximity to the German doctrine of Public Law, the precision of its subtitle (“spécialement d’après les données du droit constitutionnel français”) makes it clear that this “general theory of the State” is really a theory of the constitutional state of the French variety. In a certain sense it anticipates the idea that Heller would defend years later: that it is impossible to make a General Theory of the State, or a Theory of the State in General.
His positivism, less rigorous than the German version, does not establish as the latter does an absolute separation between law and morality and, unlike the monumental General Theory of Jellinke (that, moreover, is only general in relation to the German monarchies) it is constructed from the perspective of a Republic—concretely, the French Republic. This shift in perspective leads Carré de Malberg to introduce a sharp distinction between national sovereignty and popular sovereignty and, above all, to theoretically develop the relationship between law and regulation, which is the base on which Administrative Law is built and on which the notion of a formal or legal Rule of Law is constructed.
Carré de Malberg utilizes the entire German categorical system (the notion of sovereignty, the theory of the Stateorgans, etc.), but this “French” focus renders his work more useful than that of the two great German masters for the study of the juridical and political reality of countries that, like Spain, were during the 19th and even the beginnings of the 20th century heavily influenced by the ideas dominant in France. This is not its only merit, as his work also includes a critical vision of parliamentarianism that does not lead him to reject it, but instead prompts him to propose the necessity of its reform in order to strengthen the role of the Executive. This proposal would become a reality in the Constitution of the Fifth Republic, in whose drafting a distinguished disciple of his played an important part.
David Easton, The Political System
This was the first work of empirical political science that I studied in depth. Or maybe, more precisely, the first that I studied to some benefit—having forced myself earlier to understand Talcott Parsons's complicated constructions, to no avail. This is surely to be faulted on my own limits, but I have not been able since then to shake the suspicion that, beneath their convoluted wrapping, Parson's ideas are hardly original.
Easton is certainly transparent and, moreover, his conception of the political system is framed within a very wide theoretical vision: that of the General Systems Theory whose origins are in Wiener Kreis in which one could also fit the pure theory of Kelsen.
In this book and in the later ones in which Easton developed the ideas initially presented therein, I believed to have found a formidable repertoire of tools for the analysis of the “total” reality of the State, less determined by the predominantly juridical perspective that characterizes not only Kelsen's work but also that of those who, like Heller or Schmitt, reproach him with an excess of methodological purity. The passing of time has somewhat blunted my initial enthusiasm. I find it difficult to integrate essential aspects of political reality into systemic focus, particularly so in an era in which the framework in which the “authoritative allocation of values” takes place—“society as a whole”—is itself immersed in a process of profound change due to internationalisation and globalization.
However, these insufficiencies are inherent limitations to the very notion of a system, and can in consequence be fully accepted within a systemic approach which, within its own domain, continues to be quite fertile.
George H. Sabine, A History of Political Theory
This was the book which got me started in the study of the history of political thought, but that is not my only reason to include it in this list of the ten books which most influenced my academic formation. There have been many others, in other branches of knowledge, whose greatest merit has been that of not dissuading me from looking to other books in search of the knowledge I could not find in them. As opposed to these, the “Sabine”, in school lingo, which we used in Madrid in an excellent Spanish translation gave me a very complete vision of western political theory from 5th century B.C. Greece through the end of the 19th century. The exposition is always clear and reasonably concise and although it does not usually establish connections between the theories presented and the structures of the societies giving birth to them, their historicity and their instrumental function in the power relations of their time is clearly emphasized.
Although the presentation of medieval thought is excellent and that of classical thought is fairly good, I find it loses some clarity in that of the later periods. But perhaps this assessment may be a lack of perspective, on Sabine's part or on the part of those of us who keep using his book as a reference work. Or perhaps this will be an inherent feature of any “general” history of political thought that tries to take distance from all the authors studied. In the case of Sabine maybe there is something more: the disconnect between political thought and social reality becomes almost absurd in the exposition of Enlightenment thought, and his hostility towards Hegel and the Hegelians—Karl Marx naturally included—is clearly ideological in its source.
Notwithstanding the above, I still treat this book as a work of reference, and I still direct to it those who want to begin a study of the history of ideas.
The Federalist Papers
Having been educated in European Constitutionalism, I owe to this formidable collection of essays an idea of the Constitution that, while not opposed to that proclaimed in the celebrated Article 16 of the 1789 Declaration, is also not completely coincident with it, as well as a conception of democracy that is quite far from the Rousseaunian one.
The purpose of the Constitution, the telos that gives meaning to it, is not the guarantee of a concrete repertoire of rights, however important they might be, but instead the assurance of a general principle of liberty that encompasses a much larger domain than that of any particular Declaration of Rights. And not just individual liberty, but also that of groups.
And this is the second great lesson that I owe to the work of these great learned statesmen: society, the people, or—if you will—the nation should not be seen as just an aggregate of individuals, but rather as a structured whole, an aggregation of groups holding diverse values and above all different interests that are sometimes conflicting or otherwise only compatible with difficulty. These groups are bearers of their own will, as particular and selfish as the individual, but which—due to being collective—can be considered by the members of the group as a general will oriented towards the good of the community. The occasional aggregation of some of these wills sometimes forms a majority, but this does not change their individual nature. This majority does not express the volonté générale, but rather la volonté de tous: it lacks the ethical dignity that Rousseau attributed to that other entelechy, and can become tyrannical.
Constitutionalism, as a protection against this risk of tyranny by the majority, is not just a corrective to democracy but is instead its indispensible complement. The authors of The Federalist Papers do not ground the defenses of representative democracy (what they call the Republican Constitution) by invoking, as Sièyés did, purely technical reasons or rationales based in the division of labor; instead, they ground it in this system's moral superiority over direct democracy, which is more prone to degenerate into tyranny.
Ronald Dworkin, Taking Rights Seriously
This was my first contact with Dworkin's thought. The effort to construct a theory of law from the judge's point of view and one based in the notion of rights, rather than in an “objective” idea of justice, dazzled me. I had more difficulty in trying to grasp not just its minute details, but also some of its more important theoretical elements. It is difficult to discern how the right to receive equal attention and respect, which grounds all of his theories’ other elements, differs from the more simple and general idea of human dignity; and the figure of an omniscient and omnipotent Herculean judge evokes the image of God; maybe to be right the judge must also act sub species aeternitatis.
But perhaps it is not necessary to adhere to each of the categories of Dworkin's theoretical edifice to accept his proposal for a moral reading of the Constitution and to share his preference for decisions based on principles, faced with those inspired only in “policies” or in pragmatic considerations.
The concept of a “moral reading” of the Constitution does not seem capable of producing a “conception” that fits within those of ontological positivism, but it is not incompatible with methodological positivism and therefore permits the introduction of points of view into the process of judicial reasoning that, although going beyond positive law, are not identified with Natural Law. It is an extremely complex concept through which, so to speak, the theory of a concrete legal system would incorporate its entire history. This incorporation is surely more easily comprehensible for common law judges than for civil law ones, who nonetheless can still find within it an inspiration to avoid brusque jurisprudential shifts.
The formidable critical commentaries that Dworkin has been doing year after year of the decisions of the Supreme Court of the United States, which are followed by jurists from the entire world, owe much to his mental acuity but also demonstrate the fertility of the theory that supports them.
Robert Alexy, Theorie der Grundrechte
Although the author presents this as a theory based on German constitutional practice, its real purpose is not to achieve a dogmatic reading of the Constitutional Law of the Federal Republic but, instead, a Theory of Fundamental Rights with universal reach. It is a theory that moreover contemplates those rights from a triple perspective: philosophic, political, and strictly judicial.
The substantial influence that the constitutional doctrine based in the German Grundgesetz has had on the European constitutionalism of the post-war period is well known and, therefore, Alexy's work surely would have been studied outside of Germany even if it did not have a universal scope. But it is possible to absolutely dispense with this realization and analyse it intrinsically, for it is one of the most formidable juridical constructions of the second half of the 20th century.
Like Dworkin, Alexy sees in rights the necessary connection between morals and law but gives rights, in my view, a more sound justification through discursive theory (or reasoning), as categories of practical reason. As norms of positive law, the norms consecrating Fundamental Rights can sometimes take on the character of rules, adherence to which cannot be a matter of degree; but in the majority of cases they are presented as principles that, unlike rules, are mandates of maximization or optimization. Satisfying these mandates requires that one not only take into account specific circumstances—that is, to contemplate the necessity of reconciling the realization of different principles in a given situation—but also to ponder the degree of limitations on a given right imposed by the realization of another right. The scheme for the judgement on proportionality offered by Alexy, articulated in three distinct phases, has become almost a required instrument of European jurisprudence. The broad echo that Habermas's critiques on Alexy have had, in particular on the weighing between rights, until now has not affected its practical relevance.
Much, of course, remains to be said. I take it for granted that no one can undertake a definition such as this without a pang of conscience. But I have already exceeded the editors’ word limit by fifty words.