PLEBISCITE. — In Roman public law
the term denoted a resolution adopted by the plebeian assemblies on the proposal of the tribunes, and was therefore distinct from a law, whose drafting involved all citizens on the proposal of a magistrate with imperium.
Following the Lex Hortensia of 286 BC, plebiscites bound both the plebeians and the patricians, and recourse to them became more frequent as a quicker means of legislating than the centuriate assemblies, and more secure and manageable for men like Marius and Caesar, who knew themselves to be favored by popular support.
To the Roman state, as to the ancient state in general, the idea of a government founded on the consent of the governed in accordance with popular will and interests, and on the concept of political freedom within the domestic order and of the right of peoples to self-government and independence in the international sphere, remained almost entirely foreign.
The modern plebiscitary institution has its historical and logical derivation 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, with the parenthesis of the Restoration and Orléanism, then dominated the turbulent constitutional history of France for almost a century.
The principle of nationality also contributed to the favor enjoyed by the plebiscitary idea and inspired numerous implementations of II. While the Congress of Vienna made the principle of legitimacy the cornerstone of the new European international order, its acceptance began at the Congress of Paris, where European diplomacy, taking note of the progress actually made by the national idea, recognized to human aggregates, conscious of their unitary essence and of their rights, independence or external freedom—a prerequisite indispensable to the affirmation of individual freedom in relation to 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 this new national orientation. Although it is now settled in doctrine that the juridical basis 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 foundation of the unitary monarchy in Italy, nor to anything else is due the favor with which its advent was greeted. But the fortune enjoyed by the plebiscitary institution in the mid-nineteenth century was short-lived.
One reason for the discredit into which plebiscites fell is to be found in the frequent and always successful recourse to them by the first and second Bonapartes to legalize accomplished facts, even when undemocratic, and in the opportunity they offered to sanction with the authority of the people a revolution contrary to 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 had already been done by the great revolutionary assemblies, and that the appeal to the people became the watchword of the nationalist and anti-parliamentary far right, rejected by republicans of every shade and tendency.
In more recent times, more pressing and substantial reasons have been added for excluding plebiscites from political life. Thus in Italy in 1946, the solution of the institutional question by the people rather than by the Constituent Assembly was strongly opposed by democratic tendencies, while it was championed by traditional and authoritarian ones.
The arguments advanced in favor of the plebiscitary institution may be summarized as follows: 1) in the plebiscite the idea is manifested that direct participation of the people in acts of fundamental importance in the life of the state is necessary; democratic consistency requires that whoever starts from the postulate that the manifestations of state will must correspond to the general will should allow and indeed promote such participation; 2) referring fundamental political decisions directly to the people constitutes a corrective of evident efficacy to certain drawbacks of the parliamentary system, and notably to the predominance of legislative assemblies.
Arguments against it are: 1) the intractability of a mass of citizens easily swayed to decide on often very delicate questions, given also the impossibility of a calm and enlightened discussion preceding the plebiscitary decision; 2) the serious disturbances that the intervention of the plebiscitary people causes in the parliamentary system of government.
Arguments that, in one sense or the other, have only relative value, conditioned by the particular ideological values in the light of which they are considered.
Less controversial, however, is recourse to the plebiscite in the field of international relations, to resolve the question of sovereignty over a territory contested by several powers. For the first time the principle of self-determination of peoples was thus applied in the plebiscites of 1790 that transferred to France Avignon and the Comtat Venaissin; a few other rare applications occurred under the Directory and the Consulate; then, until the mid-nineteenth century, the right of conquest reasserted itself. In the decade of Italian national unification (1860–70) plebiscites came back into vogue; so too at the end of the First World War, when in several territories formerly belonging to the Central Powers the question of sovereignty was submitted to the populations concerned. After the Second World War, however, except for the 1947 plebiscite for the annexation of Briga and Tenda to France, the decision of the major victorious powers replaced popular decision in this matter.
Of notable interest is the distinction, by no means uncontroversial, between plebiscite and referendum (v. in German, respectively, Volksabstimmung and Volksentscheid). 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 utmost gravity and historical importance; some are even inclined to qualify the plebiscite as a fundamental and founding act of a new constitutional order, by which supreme powers are conferred and the first stone laid for the constitutional edifice, 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 a constituted constitutional order, and by its concern with questions of lesser importance. But, apart from the obvious error of considering an act juridical prior to the constitutional order when, however great its political significance, it is juridical only insofar as the law provides for and regulates it, the uncertainty of a criterion of distinction such as that of the greater or lesser importance of a popular consultation in the life of the state is glaring.
Others, more recently, have proposed calling plebiscite the popular approval of a historical event or fact of constitutional relevance, reserving the term referendum for popular decision on a juridical act, usually normative. This, however, is a dogmatic distinction by no means rigorous, as is shown, among other things, by the observation that one and the same factual situation may be classified indifferently as a plebiscite or as a referendum, depending on whether one considers the complex of empirical facts or the law that has subjected them to juridical regulation. It should finally be noted that, given the terminological imprecision of legislators, there is not infrequently a discrepancy between their usage and that proposed by scholarly doctrine.
BIBL.:
F. Lieber, De la valeur des plébiscites dans le droit intern., in Rev. de droit intern., 1871, p. 139;
F. Stoeck, Option und plebiscit, Leipzig 1879;
E. Rouard de Card, Les annexions et les plébiscites, Paris 1880;
T. Perassi, Il referendum, Rome 1911;
S. Wambaugh, A monograph on plebiscites, New York 1920;
C. Lipartiti, La prassi dei p. nelle sistemazioni territoriali seguite alla guerra europea, in Riv. di diritto intern., 1926, p. 205 seq.;
M. Guetzévitch, Les nouvelles tendances du droit constit., Paris 1936, p. 116 seq.;
A. Agresti, Istituzioni di democrazia diretta, Naples 1939;
P. Biscaretti di Ruffia, Lo Stato democratico moderno, I, Naples 1949, p. 463 seq.
M. Marino Bon Valsassina