PLEBISCITO. — In Roman public law
p. denoted a deliberation adopted by the concilia plebis upon the proposal of the tribunes, and therefore distinct from a law, in the drafting of which all citizens took part upon the proposal of a magistrate cum imperio.
Following a Lex Hortensia of 286 B.C., p. bound both the people and the patricians, and recourse was made to it more frequently, as a means of legislating more rapidly than through the centuriate assemblies, and one more securely and easily handled by men such as Marius or Caesar, who knew themselves to be supported by popular favor.
The Roman State, like the ancient state in general, nevertheless remained almost entirely untouched by 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 sphere.
The modern plebiscitary institution derives historically and logically from the democratic theories of the French Revolution, when, on 21 September 1792, the Convention declared « that there can be no constitution unless it has been accepted by the people »; and plebiscitary practice, apart from the interlude of the Restoration and Orleanism, subsequently dominated the turbulent constitutional history of France for almost a century.
The principle of nationality helped to foster the plebiscitary idea and inspired numerous applications of II. While the Congress of Vienna adopted the principle of legitimacy as the cornerstone of the new European international order, p. found acceptance beginning with the Congress of Paris, at which European diplomacy, taking note of the progress actually made by the national idea, recognized in human communities conscious of their unitary essence and their rights external independence or freedom, an indispensable prerequisite for the affirmation of individual liberty vis-à-vis the State. The annexationist p. that sanctioned the unification of the peninsula in the territories of the former Italian states were the most conspicuous manifestation of the new national orientation. Although it is now generally accepted in legal doctrine that the juridical basis for the incorporation of those territories into the Kingdom of Sardinia was not constituted by the p., but by unilateral expressions of will on the part of the Sardinian State, no other basis underlay the moral and political foundation of the unitary monarchy in Italy, nor is anything else responsible for the favor with which its advent was greeted. But the fortune enjoyed by the institution of p. in the mid-nineteenth century was short-lived.
One reason for the discredit into which p. fell was the frequent and consistently successful recourse made to it by the first and second Bonapartes, in order to legalize an accomplished fact, even when antidemocratic, as well as the opportunity it offered to sanction with the authority of the people a transformation antithetical to the « republican tradition » and to the interests of the democratic political class. It is certain that on 28 January 1875 the French National Assembly rejected a proposal by 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 nationalist and antiparliamentary extreme right, rejected by republicans of every degree and tendency.
In recent times, more current and substantial reasons have been added for excluding p. from political life. Thus in Italy, in 1946, the resolution of the institutional question by the people rather than by the Constituent Assembly was vigorously opposed by democratic tendencies and instead advocated by traditional and authoritarian ones.
The arguments advanced in favor of the plebiscitary institution may be summarized as follows: 1) in the p. is manifested the idea that the people must participate directly in acts of fundamental importance in the life of the State; democratic consistency requires anyone proceeding from the postulate that expressions of the State’s will must correspond to the general will to permit and indeed promote such participation; 2) referring fundamental political decisions directly to the people constitutes an evidently effective corrective to certain shortcomings of the parliamentary system, and especially to the excessive power of legislative assemblies.
The arguments against it are: 1) the inability of a mass of citizens, easily influenced, to resolve questions that are often extremely delicate, given also the impossibility of a calm and illuminating discussion preceding the plebiscitary decision; 2) the serious disturbances that the intervention of the plebiscitary people introduces into the parliamentary system of government.
Arguments which, in either direction, possess only relative value, conditioned by the particular ideological values in whose light they are considered.
Less controversial, on the other hand, is recourse to p. in the field of international relations, for resolving the question of sovereignty over a territory disputed among several powers. For the first time, the principle of the self-determination of peoples was expressed in this manner by the p. that transferred Avignon and the Comtat Venaissin to France in 1790; it received a few other rare applications under the Directory and the Consulate; thereafter, until the middle of the nineteenth century, the right of conquest once again prevailed. During the decade of Italian national unity, 1860–70, p. returned to prominence; likewise at the end of the First World War, when in various territories formerly belonging to the Central Empires the question of sovereignty was submitted to the populations concerned. After the Second World War, however, apart from the p. of 1947 concerning the annexation of Briga and Tenda to France, the decision of the major victorious powers replaced the popular decision in this matter.
The distinction, far from undisputed, between p. and referendum is of considerable interest (v. tedesco, rispettivamente, Volksabstimmung e Volksentscheide). The older doctrine commonly regards the p. as an entirely extraordinary, rare, and solemn application of the principle of nationality, occurring when the people decides questions of the greatest gravity and historical importance; some are even inclined to characterize the p. as a fundamental and foundational act of a new order, by which supreme powers are conferred and the first stone of the constitutional edifice is laid in the aftermath of a revolution. The more modest institution of the referendum, by contrast, would be distinguished by its normal and ordinary character, by its operation within an established order, and by its relation to questions of lesser importance. But, leaving aside the evident error of considering an act prior to the legal order when, however great its political significance, it is juridical only insofar as the law provides for and regulates it, the uncertainty of a distinguishing criterion such as the greater or lesser importance of a popular consultation in the life of the State is immediately apparent.
More recently, others have proposed calling p. the popular approval of an event or historical fact of constitutional significance, reserving the term referendum instead for the popular decision concerning a juridical act, generally a normative one. This, however, is a far from rigorous dogmatic distinction, as is shown, among other things, by the observation that the same set of facts may be classified indifferently as either a p. or a referendum, depending on whether one considers within it the complex of empirical facts or the law that subjected them to juridical regulation. Finally, it should be noted that, given the terminological imprecision of legislators, there is not infrequently a discrepancy between their language and that proposed by the doctrine one adopts.