Plebiscite

PLEBISCITE. - In Roman public law

"p." indicated a resolution adopted by the concilia plebis on the proposal of the tribunes, and was therefore distinct from a law, in the drafting of which all citizens took part on the proposal of a magistrate cum imperio.

Following a Lex Hortensia of 286 B.C., plebiscites bound the people and the patricians, and recourse was had to them more frequently, as a means of legislating more rapidly than the centuriate assemblies, and of surer and easier management for men such as Marius or Caesar, who knew themselves to be supported by popular favor.

To the Roman State, as to the ancient State in general, there nevertheless remained almost completely foreign the idea of a government founded on the consent of the governed in conformity with the popular will and interests, and on the concept of political liberty in the internal order and of the right of peoples to self-government and independence in the international field.

The modern plebiscitary institution has its historical and logical derivation from the democratic theories of the French Revolution, when, on 21 Sept. 1792, the Convention declared "that there can be no constitution unless it has been accepted by the people," and plebiscitary practice, with the interlude of the Restoration and of Orleanism, then dominated the troubled French constitutional history for almost a century.

The principle of nationality contributed to favoring the plebiscitary idea and to inspiring numerous implementations of it. While the Congress of Vienna adopted the principle of legitimacy as the cornerstone of the new European international order, the plebiscite found acceptance beginning with the Congress of Paris, at which European diplomacy, taking note of the progress actually achieved by the national idea, recognized in human aggregates conscious of their own unitary essence and of their own rights the independence or external liberty that is the indispensable precondition for the affirmation of individual liberty in the face of the State. The annexationist plebiscites that in the territories of the former Italian States sanctioned the unification of the peninsula were the most conspicuous manifestation of the new national orientation. Although it is today undisputed, in doctrine, that the juridical foundation of the incorporation of those territories into the Kingdom of Sardinia was not constituted by the plebiscites, but by unilateral manifestations of the will of the Sardinian State, no other was the moral and political basis of the unitary monarchy in Italy, nor to anything else is owed the favor with which its advent was greeted. But the fortune enjoyed, in the middle of the 19th century, by the institution of plebiscites was short-lived.

One reason for the discredit into which plebiscites fell is due to the frequent and always successful recourse had to them by the first and the second Bonaparte, in order to legalize the accomplished fact, even an antidemocratic one, and to the opportunity they offered of sanctioning with the authority of the people an upheaval antithetical to the "republican tradition" and to the interests of the democratic political class. It is certain that on 28 Jan. 1875 the French National Assembly rejected a proposal of the radical Naquet to regulate the plebiscitary institution by constitutional law, as the great revolutionary assemblies had already done, and that the appeal to the people became the watchword of the extreme nationalist and anti-parliamentary right, rejected by republicans of every shade and tendency.

In recent times, more timely and substantial motives have been added for excluding plebiscites from political life. Hence in Italy, in 1946, the solution of the institutional question by the people, rather than by the Constituent Assembly, was energetically opposed by democratic tendencies, and instead championed by traditional and authoritarian ones.

The arguments adduced in favor of the plebiscitary institution may be summarized: 1) in the plebiscite there is manifested the idea that the direct participation of the people in acts of fundamental importance in the life of the State is necessary; democratic coherence imposes - on anyone who starts from the postulate that the manifestations of the will of the State must correspond to the general will - the duty to consent to and, indeed, to promote such participation; 2) referring fundamental political decisions immediately to the people constitutes a corrective of evident efficacy for certain drawbacks of the parliamentary system and especially for the overbearing power of legislative assemblies.

Against it stand: 1) the unsuitability of an easily influenced mass of citizens to resolve often very delicate questions, given also the impossibility of a calm and illuminating discussion preceding the plebiscitary decision; 2) the grave perturbations that the intervention of the plebiscite-voting people induces in the system of parliamentary government.

Arguments which, in either sense, have a relative value, conditioned by the particular ideological values in whose light they are considered.

Less controversial, on the other hand, is recourse to the plebiscite in the field of international relations, for resolving the question of sovereignty over a territory contested among several powers. For the first time the principle of the self-determination of peoples manifested itself in this manner with the plebiscites that in 1790 transferred Avignon and the Comtat Venaissin to France; some other rare application of it occurred under the Directory and the Consulate; then, until the middle of the 19th century, the right of conquest reasserted itself. In the decade of Italian national unity 1860-70 the plebiscites returned to favor; likewise at the end of the First World War, when in various territories formerly belonging to the Central Powers the question of sovereignty was submitted to the populations concerned. After the Second World War, on the other hand, if one excepts the plebiscite of 1947 for the annexation of Briga and Tenda to France, the decision of the major victorious powers replaced, in this matter, the popular decision.

Of notable interest is the distinction, anything but undisputed, between plebiscite and referendum (v. in German, respectively, Volksabstimmung and Volksentscheide). The older doctrine commonly sees in the plebiscite a wholly extraordinary, rare and solemn application of the principle of nationality, which would occur when the people decide on questions of the greatest gravity and historical importance; some are even inclined to qualify the plebiscite as a fundamental and founding act of a new order, by which the supreme powers are conferred and the first stone of the constitutional edifice is laid, on the morrow of a revolution. The more modest institution of the referendum would instead be distinguished by its normal, ordinary character, by its taking place within the framework of a constituted order, and by its pertaining to questions of lesser importance. But, apart from the evident error of considering as prior to the order an act which, however great its political significance, is juridical only insofar as the law provides for and regulates it, there stands out the uncertainty of a distinguishing criterion such as that of the greater or lesser importance of a popular consultation in the life of the State.

Others, more recently, have proposed to call plebiscite the popular approval of an event or historical fact of constitutional relevance, resorting instead to the term referendum to indicate the popular decision relating to a juridical act, for the most part normative. This, however, is a dogmatic distinction anything but rigorous, as results among other things from the observation that one and the same case can be classified, indifferently, as a plebiscite or as a referendum, according as one considers in it the complex of empirical facts or the law that has subjected them to juridical regulation. Note, finally, that, given the terminological inconsistency of legislators, there is not infrequently a discrepancy between their language and that proposed by the doctrine one adopts.

Marino Bon Valsassina