Who's Afraid of The Imperative Mandate?: Massimiliano Tomba
Who's Afraid of The Imperative Mandate?: Massimiliano Tomba
Who's Afraid of The Imperative Mandate?: Massimiliano Tomba
Massimiliano Tomba
University of California, Santa Cruz
The imperative mandate is a political system, dating back to the Middle Ages, in which
representatives enact policies in accordance with mandates and can be recalled by people’s assemblies.
The imperative mandate is expressed in a context in which power is not monopolized by the state,
but distributed in a plurality of municipalities and assemblies with specific political authority. This
system, based on the plurality of the authority of the assemblies, is incompatible with the modern
state as it was theoretically celebrated by Thomas Hobbes and historically born through the process
of concentration of power introduced by absolute monarchies and constitutionally perfected by the
French Revolution.2 Article 52 of the French Constitution of 1795 expressly introduced the ban on
the mandate: “The members of the Legislative Body are not the representatives of the department
which has selected them, but of the entire nation. No mandate can be given to them.” In their 2009
Report on the Imperative Mandate and Similar Practices, the European Commission for Democracy
through Law, better known as the Venice Commission, asserted the incompatibility of the imperative
mandate with the “European tradition of the free mandate of parliamentarians.”3 The Commission
concluded that the prohibition of imperative mandates “must prevail as a cornerstone of European
democratic constitutionalism.”4
I consider the imperative mandate not as a model to be replicated, but as an institution that
can point to an alternative political trajectory, one that is, indeed, “generally awkward to Western
democracies.” In fact, the imperative mandate is awkward only in reference to the dominant
trajectory of political modernity, characterized by representative democracy and the state’s monopoly
on power. These are, by now, the unquestionable foundations of political modernity.
Yet the imperative mandate appears in numerous events throughout modernity that have
challenged those principles. It emerges in the revolutionary assemblies of 1793 in France, in the Paris
Commune, in the German councils, and in the Zapatistas’ practice of mandar obedeciendo (rule by
obeying). The imperative mandate is the name for a democratic institutional configuration alternative
to the representative democracy of the nation-state. Unlike what has been repeated in the dogma
of the dominant canon of Western political thought, the state’s absence does not bring about chaos
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Who’s Afraid of the Imperative Mandate?
and/or a war of all against all. Rather, when state power is scaled down, groups, assemblies, and new
institutions flourish. The imperative mandate is one of these institutions. In order to understand how
it can be renewed in a different configuration in the present, one must abandon an outline held dear
by the history of ideas, according to which political concepts evolve historically in a linear way.
Reinhart Koselleck has taught us that, in the history of political concepts, words carry
semantic stratifications that can trigger different political meanings in different conceptual
constellations.5 Political words are semantically stratified and traverse history, bringing past layers
of meaning into the present to create new configurations. There are particularly weighty political
terms, such as democracy, freedom, and equality, which act as catalysts capable of producing change.
The imperative mandate has re-emerged in many revolutionary phenomena throughout modern
history, not in the form of medieval nostalgia, but as one of the dimensions included in the concept
of democracy since its inception. Those who want to initiate political change look to that beginning.
Liberal thought instead tends to hypostatize one concept of democracy, representative democracy,
which today is in crisis and contested by social and political movements as well as populist ones.
“Democracy has been kidnapped,” said the Spanish indignados outside parliament on September
25, 2012: “We are going to save it.”6 The questions that arise are, then: what does it mean to “save
democracy,” and which democracy do we want to save?
It has recently been said that populism is the shadow of democracy.7 It may be useful to read
about the concept of the “shadow” as defined and elaborated by Carl Gustav Jung, who made it one
of the keywords of his analytical psychology. In the shadow, we find everything we do not like about
ourselves, that which we do not want to recognize and so project onto others. Jung also maintained
that the shadow has to be integrated into our personality, for the more it is hidden, the more evil it
becomes. In political terms, one can say that the shadow is the “democratic excess” that challenges
the constitutional framework of the state. Of course, this excess can become destructive—in fact,
illiberal democracy is on the rise in international life.8 But the liberal alternative, that is, the caging of
democracy within the legal procedures of liberal constitutionalism, is not a solution today. It is, rather,
part of the problem, with a growing technocratic complexity to its legal mechanisms generating
dissatisfaction. Right-wing populism exploits this dissatisfaction by channeling democratic excess to
engender an authoritarian turn in the constitution.
Neoliberal policies have weakened the state, which endures by reactivating its primordial
sovereign functions—security, borders, and fast decision-making. These authoritarian functions are
intensified under the pressure of the ideology of some governments. The alternative does not lie
within the constitutional mechanism, but can instead be found in the weakening of the state machine
and in the people’s demand for democracy.
Populism is wedged in the gap that separates the demand for democratic participation
from the state establishment. To use an image of Rousseau’s, through populist movements the
population seeks to occupy the stage and not just be a mass of silent, atomized spectators. The
danger is that authoritarian governments often provide the stage, through parades, mass gatherings,
and an intensification of politics based on a pairing of identity and exclusion. But the demand for
democracy can also be articulated in new institutional forms, ones that prefigure an alternative to
the political trajectory undertaken by the modern state over the last five hundred years. Recent
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Occupy movements frequently gave rise to this kind of prefigurative politics. However, what they,
along with other new movements, were missing was a legacy that could connect political experiments
in the present to a historical trajectory full of experiments and possibilities. That is why every new
movement seems to have to start over again, when instead there are institutions that constitute
innumerable bridges to other trajectories of modernity. The imperative mandate is one of these
institutions.
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June 1789, Louis XVI opposed the mandates of the representatives of the three orders gathered in
the National Assembly: “His Majesty declares that in subsequent meetings of the États généraux
he will not suffer cahiers or mandats to ever be regarded as imperative: they must be considered as
mere instructions entrusted to the conscience and free opinion of the deputies who will make their
decision.”15 The cahiers de doléances were indeed instructions through which the États, thanks to
their authority, bound their representatives. The king, freeing the members of the Assembly from
mandates, made them “free” from all restrictions and all authority that was not that of the monarch
himself.
As Tocqueville observed, the concentration of power in the hands of the Assembly gave birth
to a power that was “more extensive, more minute, and more absolute” than the power that previous
kings had ever exercised.16 To reach this “more absolute” power it was necessary to take a further
“democratic” step: voting by head count, through which the intermediate bodies were broken down
into a multiplicity of individual atoms. Sièyes was the spokesman for this motion: “For the deputy
there is, and can be, no binding mandate, indeed no positive expression of will, but the national
will.”17 The crowning achievement of this trajectory was the replacement of the will and authority of
groups and special assemblies with the will of the nation and the sovereignty of the unified people.
This would be the dominant trajectory of political modernity in the West.
For another possibility, we should not look to the federalism of Condorcet and the Girondins.
Their emphasis on the indivisibility of sovereignty, which would lie not in some “partial union of
citizens” but in the “whole nation,” was no less than that of the Jacobins.18 Despite the differences
between Jacobins and Girondins, they shared the idea that the unity of the nation had to be
safeguarded, and that sovereignty was indivisible and thus belonged to the whole people and not to
primary assemblies. Indeed, Condorcet’s conception of federalism did not undermine the unity of the
nation-state.19 Rather, it gave greater voice to the countryside, where the Jacobins were less strong.
The conflict between the Jacobins and the Girondins was in this sense mainly tactical.
The alternative to the dogma of unity and indivisibility of national sovereignty lay elsewhere:
in the assemblies of the sans-culottes and their use of the imperative mandate. In 1792, Varlet
presented to the Convention national a pamphlet on the imperative mandate in which he advocated
sovereignty for the primary assemblies and sections where the people assembled, discussed,
controlled, and tabulated orders to the mandatories. He challenged the grammar of representation:
“Deputies, you will no longer be our representatives, you will be our mandatories, our organ.”20 He
continued by saying, “In drafting our mandate, we did not worry about whether this procedure was
followed by all the sections of free France. It was enough for us to know that we had the right to
do it.”21 The assemblies acted as sovereign entities, and in so doing put into practice a different kind
of sovereignty, one made up of a plurality of powers. It is this very plurality of powers that worries
liberal thinkers today, precisely because rather than neutralizing conflict, it accepts conflict as a
dimension of politics. From the liberal point of view, plurality exists only in the private sphere and
can flourish only to the extent that it remains deprived of any political authority. This plurality exists
under the umbrella of unified national power, an umbrella that can be restricted by the state and that
also ignores entire populations, turning difference into exclusion, and eventually hostility. Cultural
pluralism is thus powerless against the call for national unity, in the name of which polemical
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oppositions are created. In Europe, right-wing hostility against Muslims finds fertile ground in
left-wing rhetoric that accuses of intolerance those who do not accept the “civility” of secularism.
In the name of the values of the secular state, the left opens the way to the right, and increases the
polemical intensity of the contrasting values at stake.
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be created by the unity of the representative. As Hobbes writes: a “multitude of men are made one
person when they are by one man, or one person, represented … For it is the unity of the representer,
not the unity of the represented, that maketh the person one.”28 In other words, Schmitt observes, the
people as unity does not exist until it is made visible by representation: “To represent means to make
an invisible being visible (sichtbar machen) and present through a publicly present one.”29 The people,
as a political subject, is the absent being that becomes present and visible through the representative
who acts in the name of the people and transforms the multitude into a unity. The president is not
a mere figurehead, but the one who, in the singularity of her or his person, makes visible the unity
of the people in the name of whom she or he speaks and acts. It is in this logic of representation, of
making visible what is invisible, that the true nature of political theology resides.
The imperative mandate is incompatible with this political logic. If in fact sovereignty
resides in the people, who exercise it through their representatives, then the will of the people can
only emerge from the deliberations of deputies pursuant to legislative procedures defined by the
constitution. In order for state law to be issued in the name of a sovereign people, and therefore
oblige every individual to obey, it is necessary to replace the imperative mandate with a free mandate,
so that each deputy represents the entire nation and the majority decision expresses the will of the
nation.
The imperative mandate was practiced in historical and political contexts in which sovereign
power was limited by plural authorities, and it has reappeared every time the unity of the state and
its monopoly on power have broken down. At these moments, the state’s power has been limited by a
plurality of powers, assemblies, districts, associations, councils and soviets whose power is distributed both
horizontally and vertically. This is the power of many units against unity. The imperative mandate has
been revived every time the political practice of democratic excess went beyond the legal form and
the constitutional framework of democracy. To the objection that these insurrections are necessarily
short-lived, and therefore that the imperative mandate can only appear in the context of mass
mobilization and political participation, I say that this alternative political legacy emerges when
the dominant temporality of the nation-state is interrupted. But the nation-state, as a centralizing
political machine for the accumulation of power, is militarily much more effective than the plurality
of powers. Hence their repeated defeat, or their adaptation to the dominant temporality, proceeding
then to the concentration of power, synchronizing with the trajectory of the modern nation-state.
The institutions that emerge in that rupture are fugitive,30 not because they are incapable of lasting,
but rather because they have clashed with organized state violence.
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the estates, but the demos that exercises sovereignty as a plurality of assemblies and councils. In this
plurality, the democratic excess, which modern constitutionalism seeks to tame, can express itself.
This excess holds open the form of politics and does not neutralize conflict. This democratic excess
and the instability that can always arise from it give rise to a kind of political anxiety—an anxiety
that liberals try to suppress in their constitutional machine, and that so-called populists turn into
aggression and new forms of exclusion.
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and tried to reorient the course of political modernity. In light of these traditions and their repeated
returns, the imperative mandate is not obsolete; rather it expresses a new possible configuration
of our political institutions. Indeed, what is obsolete today is representative state democracy.
“Surprisingly,” writes Sheldon Wolin, “despite the attenuation of democracy at the level of national
politics, there still exists a highly flourishing archaic political culture that is democratic, participatory,
localist, and, overall, more egalitarian than elitist in ideology.”37 These archaic institutions represent
a “democratic counterthrust to statism.”38 In my terms, they contain possible futures, which are still
encapsulated in what-has-been. The imperative mandate, this medieval institution that re-emerged in
the French Revolution, in the Paris Commune, and in the council experience, was always reactivated
in new forms, showing us other possible trajectories of modernity. In today’s crisis of representative
democracy, the imperative mandate can give alternative shape to the democratic excess, which is
caught up in populist movements and is opposed by liberals.
However, tertium semper datur. Democracy is not a matter of constitutional forms and
procedures but a matter of that excess, of the possibility of dis-ordering the existing order and
reinventing new institutional frameworks, even if this may generate instability. This is an instability
that does not loom over individuals as an inescapable fate, as in the case of emergency laws or an
economic crisis that makes us lose our jobs and homes. Rather, it is an instability that derives from
politics and its unavoidable implication: the possibility of conflict. This means that we must learn
to live with some degree of instability. In other words, we must learn to be truly democratic. That
requires a new formulation of the critical question of modernity. Kant’s renowned answer to the
question, “What is Enlightenment?” establishes modernity as the way out of the condition of self-
incurred immaturity, which is the condition of individuals when, like children, they consider it more
comfortable to walk with the help of the “walker” of the state.39 Today’s exit from the condition
of immaturity requires that we face the anxieties of democracy without seeking to have them
managed by the nation-state.40 It requires that we allow for a plurality of powers and their possible
disagreements rather than a unity upheld by the nation-state. This would mean allowing for a certain
degree of instability rather than stability, of conflict rather than its neutralization by the state. Such
a task requires a kind of democratic maturity that can only be pursued if people learn how to live
together without the permanent presence of the state, which has become unbearably pervasive. It is
the everyday practice of self-government that gives rise to this process of self-education.
Today it is clear that the price to pay for stability, security, and unity is too high. An
authoritarian turn that involves an increasing number of states is visible to everyone. Constitutional
mechanisms and the rule of law can be systematically suspended in the name of national emergencies
and public safety. The alternative can no longer be found in liberal constitutionalism, which is in
crisis today. Instead we must seek a different way of practicing politics, one that takes the question
of crowd democracy seriously. This is the democratic excess that is expressed in the various forms
assumed by the plurality of powers. The imperative mandate is, then, happily “awkward to Western
democracies.” It is not a danger to ward off, but rather a chance to go beyond the nation-state and its
monopoly on power.
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Notes
1 European Commission for Democracy through Law, Report, art. 11.
2 Müller, Das imperative, 29-32.
3 Ibid., art. 37.
4 Ibid., art. 39.
5 Koselleck, Zeitschichten.
6 AFP, “Manifestación en Madrid.”
7 “Populism is something like a permanent shadow of modern representative democracy, and a constant peril.”
Müller, What Is Populism?, 11.
8 Zakaria, “The Rise.”
9 Zimmerman, Recall.
10 Holden, “The Imperative Mandate,” 897.
11 Müller, Das imperative, 161-204; Triepel, Delegation und Mandat.
12 Holden, “The Imperative Mandate,” 900.
13 Althusius, Politica, XVIII, § 66; Hueglin, Early Modern Concept, 149.
14 Müller, Das imperative, 32-50.
15 “Sa Majesté déclare que dans les tenues suivantes des États généraux elle ne souffrira pas que les cahiers ou
mandats puissent être jamais considérés comme impératifs: ils ne doivent être que des simples instructions confiées
à la conscience et à la libre opinion des députés dont on aura fait choix.” In Buchez and Roux, eds., Histoire
parlementaire,14.
16 Tocqueville, The Ancient Régime, 61; 183.
17 Quoted in Baker, Inventing, 249.
18 Condorcet, “Projet,” 276-7, articles 25-28.
19 Hintze, Staatseinheit, 417-8.
20 Varlet, “Proposal,” 154.
21 Ibid.
22 Durkheim, Professional, 91-92.
23 Schmitt, Constitutional Theory, 289.
24 Venice Commission, Report, article. 5.
25 Schmitt, Constitutional Theory, 289.
26 Ibid.
27 Schmitt, Political Theology, 36.
28 Hobbes, Leviathan, chapter XVI.
29 Schmitt, Constitutional Theory, 243; Leibholz, Strukturprobleme, 90.
30 Wolin, Fugitive Democracy.
31 Ukr. Const., art. 81, para. 6: “Where a National Deputy of Ukraine, as having been elected from a political party
(an electoral bloc of political parties), fails to join the parliamentary faction representing the same political party
(the same electoral bloc of political parties) or withdraws from such a faction, the highest steering body of the
respective political party (electoral bloc of political parties) shall decide to terminate early his or her powers on the
basis of a law, with the termination taking effect on the date of such a decision.”
32 Rodriguez, “Spanish State.”
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33 Sartori, “La libertà degli eletti” and “Una violazione macroscopica.” See also Bordignon and Ceccarini, “Five Star
Movement.”.
34 Vetter, “Furori rivoluzionari.”
35 Krastev, “Populist Moment.”
36 Müller, “People.”
37 Wolin, Presence 81.
38 Ibid.
39 Kant, “What is Enlightenment?” 18.
40 Katznelson, “Anxieties of Democracy.”
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