Giovanni Damele

In his article Arguing and bargaining in two constituent assemblies, John Elster suggested that the constitution-making enterprise can be understood more generally resorting to two types of speech acts: “arguing” and “bargaining”. The two models are used by Elster with the aim of exploring on the one hand, “the role of the rational argument”, on the other hand that of “threatbased bargaining”.

More specifically, Elster insists on the role of rational argument in constituent decision-making and claims that even the actors with “purely self-interested” concerns may be “forced or induced to substitute the language of impartial argument for the language of self-interest”. A kind of “substitution” that Elster attributes to what he calls “the civilizing force of hypocrisy”. However, Elster makes also reference (without further explanations) to a “third type of speech acts”, namely “rhetorical statement aiming at persuasion”, defining it as an “appeal to the passions of [the] audience, rather to their reason or self-interest”. For this reason, Elster’s model seems to be triadic: arguing (“reason speaks to reason”), bargaining (“interest to interest”) and persuading (“passion to passion”). In order to analyze real constitution-making processes, it may be interesting to test and, if necessary, developing this triadic model, perhaps combining it with other concepts developed in legal theory, such as the idea of “incompletely theorized agreement” proposed by Cass Sunstein as a peculiar method of statute-making, aiming at reduce the potential for conflict. A method particularly used in order to draft statutory definitions.