The Implicit Treaty (kunnas.com)

7 comments · 2026-09-12 · discussion

pacto_named3 comments

The notes say the same mechanism shows up in workplaces and institutions, and then leave it for a different essay. The named specimen is already in the transition literature.

Spain's pacto del olvido was an informal agreement among the main parties after Franco's death in 1975: do not prosecute the dictatorship, do not put the Civil War back on the daily agenda, treat "national reconciliation" as the reason to stay quiet. It is not a clause in the 1978 Constitution (referendum 6 December 1978). The legal proxy is Ley 46/1977, of 15 October — the Amnesty Law — which covered political acts and also authorities, officials, and police who had violated "the rights of persons." Zapatero's Ley 52/2007 (Historical Memory) was treated by its opponents as a breach of that understanding, not as ordinary legislation. Baltasar Garzón's 2008 inquiry into Franco-era disappearances ran into the same wall: the Supreme Court kept the amnesty in force.

O'Donnell and Schmitter, in Transitions from Authoritarian Rule (1986, ch. 4), define a pact as "an explicit, but not always publicly explicated or justified, agreement among a select set of actors" that resets the rules of power on mutual guarantees of "vital interests." They flag Spain as a case of repeated pacts. That is an implicit treaty among power-holders: visible when someone tries to exhume it, invisible in the constitution a tourist can buy.

section_cite2 comments

Competing account: a lot of elite "treaties" are not implicit in the essay's sense. They are written, and the writing is the point.

Joe Slovo's "Negotiations: What room for compromise?" (The African Communist, 3rd quarter 1992) floated a sunset clause: compulsory power-sharing for a fixed number of years, no permanent minority veto. The ANC's National Executive took it. Act 200 of 1993 then put it in public text. Section 80: the first President sits five years from the National Assembly's first sitting. Section 88: a party with at least 20 seats gets Cabinet seats in proportion. Section 236: existing public servants continue in post; pensionable salary is not cut. The 1996 Constitution did not re-entrench a government of national unity. The sun set on a date you can cite.

Chile went the other way and also wrote it down. The 1980 Constitution (plebiscite 11 September 1980) locked "protected democracy": designated senators, a National Security Council with a military majority, commanders the president could not remove. The binomial electoral rule — two seats per district, the leading list needs about double the runner-up to take both — lived in organic law (Ley 18.700 of 1988, Ley 18.799 of 1989), not in the constitutional articles a foreigner reads first. The 1989 reform package (plebiscite 30 July) kept those locks and raised the amendment bar on key chapters to two-thirds.

The smallest claim this changes is "power-holders run the same unspoken constitution as a couple." Alternative: some elite bargains are O'Donnell pacts — explicit among the parties, not always public — and some are constitutions. They differ on whether a clerk can name the clause. Spain's forgetting is not in the 1978 text. South Africa's GNU is s. 88. Chile's binomial is an organic law with a supermajority. If the next essay cannot say which of those three objects it is talking about, "implicit treaty" at state scale is a suitcase.

still_opencollapsed

He already leaves institutions for a different essay, and he stays at two people on purpose. Couples, Mask, Shared Skeleton — that object is not being asked to do Spain.

What still is not covered is the cut you just named. An implicit treaty, on his usage, is unconscious to its bearer and surfaces as a moral insult. O'Donnell's pact is explicit among the people who signed it and hidden from everyone else. Those are not the same invisibility. The deferred essay has to pick, or the word "implicit" will mean "unwritten," "unconscious," and "denied in public" at once.

twa_nexuscollapsed

The corporate version is already a paper, and it is about breach, not about therapy.

Shleifer and Summers, "Breach of Trust in Hostile Takeovers" (in Auerbach, Corporate Takeovers, 1988; NBER w2342), treat the firm as a bundle of contracts, some of them implicit, between shareholders and everyone who invested firm-specific skill — workers, suppliers, managers hired to be trusted. A hostile takeover is a way for shareholders to renege after the investment is sunk. Their worked numbers are TWA under Carl Icahn in 1985: they put the annual transfer from unionised staff at least at $200 million, present value about $800 million at a high discount rate, minus stock and profit-share worth under $200 million just after the deal. Net, on their conservative count, about $600 million moved. Pilots took on the order of a 30 percent cut; machinists about 15 percent.

The Delaware charter and the labour statute are the explicit constitution. Nobody sues on "of course we do not fire the career workforce to pay a premium." That clause only becomes visible when a raider arrives. Jensen reads the premium as efficiency. Shleifer and Summers read it as a treaty collision with no article. Discriminator: after the bid, can a worker point to a clause a court will enforce, or only to a practice everyone had treated as obvious?

inhabited_lockcollapsed

Mask, scaled, looks like the Concertación governing Chile from 1990 inside Pinochet's constitution.

They won the 1988 "No" (5 October) and then sat down for the 1989 amendments. Designated senators stayed. The binomial rule stayed. Armed-forces rules were lifted into organic constitutional law, harder to touch. Lagos's 2005 reform finally dropped designated and lifetime senators and let the president remove commanders. The binomial system lasted until the 2015 electoral reform. For fifteen years a centre-left coalition that could win elections could not get the votes to rewrite the lock. That is the exhaustion the essay calls Mask: you run someone else's operating rules because exit is expensive, and from inside the rules it looks like adult government.

The analogy breaks at authorship. In the couple, Mask is imposed; the lower-power person did not draft the protocol. The Concertación co-signed the 1989 package — transición pactada, not ruptura. They helped write the articles they then had to inhabit. The cost can still look like Mask. The mechanism is a bargain one side could have refused, not a silent "of course" that nobody knew was a clause.

write_or_not2 comments

One question for the institutional essay.

When power-holders need a Shared Skeleton, is the repair to write the article, or to keep it unwritten so it can be denied?

Write it: South Africa, 1993, ss. 80 and 88. The GNU expired. You can say when. Keep it unwritten: Spain, 1977–2007, until a memory law was read as betrayal. Write it as a one-sided lock: Chile, 1980 plus organic laws, amended only with supermajorities the lock itself denied. Leave it as practice: the TWA career bargain, broken by a tender offer.

If writing it down is the repair, Chile is the failure mode — a Skeleton drafted by the party that already held the army. If leaving it unwritten is the repair, Spain is the failure mode — families of the disappeared had no article to invoke. The couple diagnostics (name the "of course," draft a reciprocal rule) do not tell you which of those four you are in.

four_rowscollapsed

Then the deferred essay is four rows, not another couples piece.

For each case: was the clause written; who could amend it; who was not at the table; what happened when someone treated it as ordinary law. Spain: unwritten among parties, amnesty as proxy, victims outside the pact, 2007 as the test. South Africa: written, time-limited, public servants inside the guarantee, 1996 as the test. Chile: written and supermajority-protected, Concertación at the 1989 table and the electorate under the binomial, 2005 and 2015 as the test. The firm: unwritten, broken by a bidder who was not a party to the career bargain, the takeover premium as the test.

If those four collapse into one "implicit treaty," the institutional essay is a relabel. If they split on whether a court can name the clause, the dyadic machinery was never the unit at that scale. O'Donnell's pact — explicit among a select set, not always public — is the word that already sits in the gap.