Miguel Ayuso Torres is a Spanish jurist and researcher of jurisprudence. As an author of scholarly works, he is primarily concerned with natural law, the Catholic view of law and the theory of the state. He is a full professor at the School of Law of Universidad Pontificia Comillas de Madrid. He has served as the Chairman of The International Union of Catholic Lawyers (Rome) from 2009 to 2019. He is also Chairman of the Sectorial Group in Political Sciences of the International Federation of Catholic Universities (Paris) and the Hispanic Studies Council Philip II (Madrid). Earlier, he was the head of the Political Secretariat of H.R.H. Don Sixto Enrique de Borbón, regent of the Traditionalist Communion between 2004 and 2010. In addition, he is also the editor of the journal Verbo, which focuses on civic education and cultural action under natural and Christian law.
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You are in Budapest for the Danube Institute’s conference on the rule of law. The panel you will participate in deals with the relationship between the rule of law and constitutional sovereignty. (Editor’s note: The interview was recorded at the conference at the end of May, before the panel discussion.) These two concepts are often used in the media but frequently they have different meanings. What is your legal understanding of the concepts of rule of law and constitutional sovereignty?
If I wanted to be provocative, I could say that I am as opposed to constitutional sovereignty as I am to the rule of law. Naturally, the explanation requires many nuances.
Let’s start with ‘Rule of Law’. Which has two perfectly distinct meanings. The first, the strict one, is attributed to Anglo-Saxon law. And it is understood as the legal tradition, the legal acquis, which contains the power of the State. But there is also the ‘Rechtsstaat’, translated in Latin languages as ‘État de droit’, ‘Stato di diritto’, ‘Estado de derecho’, ‘Estado do direito’, which is the mere self-limitation of power by the rules laid down by the State itself. In this second meaning, the rule of law presupposes the sovereignty of the Constitution, whether in Kelsen’s logicist and normativist interpretation or in Schmitt’s sociological and cratological interpretation.
We come to sovereignty. If we follow its origin, in Jean Bodin’s work, sovereign is the one who depends only on his sword. It is a naked power unqualified by its respect for law. The sovereignty of the prince, national sovereignty, popular sovereignty, state sovereignty or even individual sovereignty are not essentially different. Sovereignty therefore seems contrary to law. And applied to the Constitution, it implies its omnipotence, i.e. its alienation from the law.
But what sovereignty does the title of my panel refer to? I have the impression that it refers to the independence of the perfect political community, in the face of the designs of globalism. Because globalism does not stop using sovereignty, a sovereignty that is apparently more diffuse but more effective in subjecting peoples and men to the will of the powerful and not to the rules of justice. Political power is qualified by its end, which is the common good. Not so, as we have seen, sovereign power. Be it that of the State or that of the federalist functionalism of the European institutions.
Firstly, when we speak of ‘Rule of Law’ against sovereignty, it is generally used as an instrument against the state. Although the state is a reality born in a revolutionary way in the 16th century, it has deeper roots in the political nature of man. So,
attacks on the State from below or from above, by separatism or supranationality, do not represent progress at all.
Could you explain this idea in a broader context?
Spanish traditionalism has always understood that nationalism—not patriotism—was a mistake. The confusion of the fatherland with the nation has served to obscure political theory, but also to poison certain natural feelings of men and to raise myths of great polemical virulence. It has served to reinforce the power of the state with a sentiment so deeply rooted in noble souls as love for the great family that is the fatherland, with all that goes with it—the land, history, tradition—and to this end it has sought to stifle this sentiment when it did not coincide exactly with the political sphere of nations, as if this love, which is natural and spontaneous, had to be accommodated to the despotic rule of the reason of the state.
But Spanish traditionalism has also understood that separatism and supranationalism were more serious errors. Professor Álvaro d’Ors explained that the crisis of the ‘national State’, all over the world, allows us to conjecture a future of overcoming the current state structure: ad extra, by supranational bodies, and at the same time, ad intra, by infra-national regional autonomies. But, on the one hand, those bodies have proved to be absolutely devoid of any moral idea, other than the very vague and even annihilating idea of pacifism at all costs, which only serves to promote war badly waged; on the other hand, autonomism is making its way through revolutionary channels, sometimes anarchist, but always disintegrating, which do not serve to create a homeland, but only to undo it. Thus, it still appears today that this ‘national State’ really subsists as a weak reservoir of moral integrity.
Natural law (ius naturale), as formulated by St Augustine of Hippo and St Thomas Aquinas, is a system of principles that can be recognized by human reason from the divine law (ius divinum, ius aeterna). This system of principles was superior to the law made by men (ius humanum), thus limiting legislation and the exercise of state power. Could natural law be regarded as a predecessor of the rule of law?
Natural law belongs to the classical paradigm, whilst the rule of law is linked to modern constitutionalism. The Constitution is ideological in nature, as it implicates modern features such as the separation of powers and the protection of individual rights. We all remember the definition of Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789. Today, the situation has undergone major changes. Thus, just as the Constitution displaced the law, the jurisprudence of the constitutional courts (based on supposed ‘principle’ and ‘rights’) is displacing constitutions. Thus, some embrace the latter against the so-called ‘new law’ of activist judges. This is consistent with ‘moderns’ who retain the value of the system as much as that of the decision. While others, ‘post-moderns’ attack the ‘Code’ in contrast to the ‘Constitution’ they praise. Of course, in this case, the Constitution is not the same as that of the former, but, paradoxically, the constructivist and evolutionary one of the activist judges. This is the struggle between moderns and post-moderns in the field of legal science.
Those of us who militate under the banners of classical natural law, although we reject the Code, see the Constitution as more dangerous, and although we are far from legalist or decisionist positivism,
we view with even greater horror the denaturalization of principles through the work of rights converted into mere pretensions.
During the legendary Joseph Ratzinger–Jürgen Habermas debate in 2004, the future Pope pointed out that the natural law argument had been used too often in our day, so it had unfortunately become trite. In your view, is the tradition of natural law reasoning still alive? Is it suitable for being used in the debate against secular reason?
Classical natural law was continued by the Second Scholasticism, especially Spanish, during the sixteenth and seventeenth centuries, and the neo-Thomism of the nineteenth century. But at the same time, however, a Protestant school emerged, the so-called modern school of natural law and the law of nations, i.e., rationalist natural law. The two traditions have sometimes been confused. The first is certainly alive from an intellectual point of view and, for example, I direct the Jornadas Hispánicas de Derecho Natural, which have been in existence for more than half a century. The second, on the other hand, is at the origin of legal positivism. When the exhaustion of the intellectual tradition of natural law is suggested, sometimes the classical and modern traditions are confused, as evidenced by the case of John Finnis. Others refer to a certain decadence of the order of reason because of fideism. Ratzinger was right in his observation, though he was not always consistent with its implications. Even as pope, in Caritas in veritate he asserted that the foundation of the Church’s social teaching was charity. When, in the Thomistic tradition, he should have found it in the natural law.
In his Summa Theologica, St Thomas Aquinas argues that the best form of government is the ‘regiment mixtum’, which looks like a limited monarchy. How do today’s European monarchies conform to this ideal of St Thomas in your opinion?
The monarchical principle has disappeared from the landscape of Western political regimes. Only some ancillary aspects of monarchy remain, but constitutional or parliamentary monarchy, which are essentially democratic, have nothing to do with true monarchy. That is popular but not democratic and is based on family legitimacy. Democracy is the regime where only the individual counts politically. Aristocracy corresponds to a situation where only a few families have political weight, but not the majority. Only in monarchy does the family have general political weight: society is a collection of families ruled by another family, the royal family.
You come from a country that is currently a kingdom. However, in the Kingdom of Spain, there are still those who do not accept the ruling Bourbon branch. This is not just a criticism of the Republicans but also of the pro-monarchy Carlists. What is Carlism, and what is its relevance in 21st-century Spain?
Carlism is the political embodiment of the continuity of the Catholic monarchy, that is, of the Hispanic monarchy. In the 19th century the liberal revolution made its way into Spain through dynastic usurpation in 1833, while the defenders of the old order embraced the cause of legitimacy around King Don Carlos. Since then, Carlism has been the bulwark of the Spanish political tradition against liberalism, socialism and fascism. Today its representative is H.R.H. Don Sixto Enrique de Borbón (Prince Sixtus Henry of Bourbon-Parma), second son of King Javier. Incidentally, he is the nephew of the Empress Zita, so beloved in Hungary.
Without Carlism it is impossible to understand the Spanish history of the 19th century, with three wars and countless uprisings, with a dense network of newspapers and magazines, and even with a significant presence in the liberal Parliament. In the 20th century, of course, its influence extended to the Second Republic (1931–1936), for without the participation of the Carlist militias, the National Uprising of 18 July 1936 is inconceivable. When the Falange was no more than a small group, the Traditionalist Communion was a solid organisation.
After the war Franco deprived it of the support of its Circles, i.e. its property and means of communication, and unleashed a persecution that was sometimes relentless, and other times mixed with some tolerance. It can be said that until the sixties of the 20th century Carlism was an important organization. It was the religious change of the Second Vatican Council and the internal dynastic problem, when Franco chose as his successor the representative of the liberal dynasty (Juan Carlos), with the ill-advised reaction of Carlos Hugo de Borbón, elder son of King Javier de Borbón, that caused its decline. At the time of Franco’s death it was divided and weakened. But it should not be forgotten that the Falange itself, which grew inorganically and opportunistically in the heat of Franco’s regime, fared no better. The policy established on the right after the general’s death was none other than that of liberal conservatism in its different versions. Today Carlism, although it enjoys considerable intellectual prestige, and has delegations in part of Europe and throughout Hispanic America, has no electoral weight whatsoever.
You took part in the meeting in Fontgombault convened by French Benedictine abbots in 2001, which also dealt with the Rite of Trent. Cardinal Joseph Ratzinger as prefect of the congregation for the doctrine of the faith also attended the meeting. How do you see the importance and situation of the traditional Latin Mass?
King Xavier was a friend of Archbishop Lefebvre, and his son and successor Prince Sixtus Henry, were present at Archbishop Lefebvre’s episcopal consecrations in 1988. The Traditionalist Communion embraces an integral traditionalism, which includes theological as well as liturgical aspects, so that in this sense it follows the traditional rite of the Catholic Church. The Mass imposed by Paul VI in 1969 has had devastating effects on the Catholic world. Benedict XVI, in his motu proprio Summorum pontificum, wanted to facilitate, albeit imperfectly, the celebration of the traditional liturgy. He also stated, and this is the most important thing, that it was never abolished. However, appearances may contradict this. Francis, for his part, has taken a step backwards, partly for demagogic reasons. The impact of his motu proprio Traditionis Custodes, with its insulting title, has been negative above all for celebrations in the dioceses, apart from the institutes that have the ancient Roman rite as their exclusive rite, which have either suffered less, or, as in the case of the Society of St Pius X, not at all.
You may be interested in reading the remarks of other speakers at the Danube Institute conference:
