Page - 83 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Authoritarian Liberalism 83 Drawing on the constitutional theory of Maurice Hauriou,94 Voegelin explains that the legitimacy of a government or of a ruler is derivative of their role in realising an institution—which was, in the case explored by Voegelin, the state. A government possesses authority to the extent that it suc- ceeds at presenting itself as representative of the leading idea of an institution.95 A government has authority inasmuch as it actively and creatively works towards the realisation of this idea. What accounts for the legitimacy of an authoritarian government is this creative task.96 A gov- ernment of this type is not bound by norms. The equivalence to legality is the impersonal idea of the institution.97 The deposit of authoritarian rule is the institution to which it gives birth as soon as it finds customary consent on the part of those who are subject to it (Consentement coutumier). These elementary ideas were reformulated—paradoxically, both more darkly and more starkly— in what was to become Voegelin’s perhaps most famous work, namely, The New Science of Poli- tics.98 In this book, the authoritarian ruler reappears in the guise of the “representative” that “ar- ticulates” society. The “articulation” of society is characterised as the process by which human beings form themselves “into society for action”.99 This cannot be done without a representative. The implicit authoritarian element of representation is revealed in the two senses in which such representation is supposedly “existential”. First, the representative brings society into existence by virtue of having his acts imputed to something that would not be there if it were not for this imputation. Second, the representative de facto succeeds in the eyes of a multitude to have his or her acts count as acts of society. This is not a matter of formal legal procedures (“elemental rep- resentation”) but of effectively generating obedience and cohesion vis-à-vis an idea.100 Voegelin underscores that a representative is not an agent. The latter receives instructions, the former not: By an agent […] shall be understood a person who is empowered by his principal to transact a specific business under instructions, while by a representative shall be understood a person who has power to act for a society by virtue of his position in the structure of the community, without specific instructions for a specified business and whose acts will not be effectively repudiated by the members of society. Evidently, the creator of the governing institutions who assigns to himself the role of the repre- sentative of society precedes all constitutional arrangements. He exercises the constituent power on behalf, not of a subject, but of an idea. Voegelin elaborates this connection between the au- thority of the representative and the idea by adding another concept of representation, namely, “transcendental representation”.101 The idea is that a society itself is “representative of something beyond itself, of a transcendent reality.”102 Not by accident, Voegelin establishes a link between the two concepts of representation by seeing the existential representative in charge of repre- senting the truth that society is supposed to live up to.103 94 Carl Schmitt presents Hauriou’s constitutional theory with great fondness in his notorious 1934 pamphlet on three types of legal thought. See CARL SCHMITT, ON THE THREE TYPES OF JURISTIC THOUGHT (J. Bendersky trans., Praeger 2004). 95 See Voegelin, note 92 at 48. (99 Eng. trans.) 96 See ibid. at 182 (249-250 Eng. trans.). 97 The source of authority remains anonymous. See ibid. at 185 (252 Eng. trans.). 98 See ERIC VOEGELIN, THE NEW SCIENCE OF POLITICS: AN INTRODUCTION (2nd ed., Chicago University Press, 1987). 99 See ibid. at 37. 100 See ibid. at 49–50. 101 See ibid. at 76. 102 Ibid. 54. 103 Ibid. at 75.