Abstract

Today there is a great deal of discussion about human rights. We speak of them in reference to totalitarian regimes but also in reference to Western democracies, which is a sign, it seems, of a reconsideration of the legitimacy of the power of the State and the conception of law on which this legitimacy rests. However, we had thought this question had been settled for a long time, at least in democratic countries: a legitimate government is one elected by the people, whose sovereign will it expresses through elected representatives, retained or replaced periodically, who make the laws. In other words, the people are sovereign, and the exercise of this sovereignty is governed by a constitution, according to laws that permit the legitimacy of the State (Rechtsstaat) to be expressed concretely. The doubts that arise concerning human rights in many areas of the world would thus be signs of either a rupture between the sovereign people and the executive or legislative power, to which the people delegate the care of their interests and will, or of a resignation of the popular will, reduced to the condition of a sort of do-nothing king, doubting his own legitimacy and handing his power over to his clerks. In both cases, there is a crisis of confidence and perhaps more: a fundamental skepticism toward the very notion of legitimacy as it is usually presented, that is, as the expression of the will of the people: a capricious will, sometimes docile and sometimes rebellious, of an amorphous sovereign (rex otiosus) that it is difficult to identify in the features of its representatives, (congress, parliament or national assembly) or in the form of a ballot. In any case, the citizen, holder of a small particle of popular sovereignty, feels alienated from the State and its institutions, contrary to what we find in texts before the 18th century, when institutions were surrounded by an apparent, if not always sincere, respect and when the social hierarchy was accepted as a matter of fact.