Constituent Power : A. Kalyvas
Εί δή τις έξ’αρχής τά πράγματα φυόμενα βλέψειν, ώσπερ έν τοίς άλλοις καί έν τούτοις κάλλιστ’ άν ‘ουτω θεωρήσειεν.
—Aristotle, Politics Book I.i.4, 1252a, 5.
Constituent power is the truth of modern democracy. For two main reasons, a historical and an analytical one. First, the birth of the modern doctrine of popular sovereignty coincides with the conceptual advent of constituent power. They are co-original and coeval.1 The political supremacy of the multitude over princes, kings, emperors, and popes was initially formulated in terms of the originary power of a community to determine the political forms of its collective existence. It is during the volatile period between the late middle ages and early modernity that the multitude was identified as the sovereign constituent subject. It is during the volatile period between the late middle ages and early modernity that the multitude was identified as the sovereign constituent subject and, respectively, democracy was re-imagined as the politics of popular foundings.
From a historical point of view then, constituent power and modern democracy are intrinsically associated from their beginnings in the idiom of popular sovereignty. Secondly, there is a profound systematic and conceptual analogy between constituent power and democracy, insofar as they both describe collective acts of self-legislation and public events of self-alteration. From this elective affinity, democratic constituent politics evokes the principle of liberty as political autonomy, whereby the members of a collectivity deliberately constitute the political forms of authority in order to organize and institutionalize their common life.2 The addressees of the law become its authors. Hence, formulating popular sovereignty as constituent power is to affirm the basic democratic value of self-government.
This mutual historical and conceptual articulation of constituent power and democracy must be emphasized. Sovereignty, as the power to constitute, is misrecognized by contemporary democratic discourses, and for this reason lacks a place in our political vocabulary. Often it is regarded as elusive and indeterminate, barely a concept, bordering on the ideological: either a pure fact or a metaphysical fiction, and thus of minor theoretical interest and political significance.3 Ever since Carré de Malberg identified sovereignty as “the capital problem in public law,” it has been treated as a legal anomaly, a disturbing irregularity, and a political threat.4
In fact, over the long history of modern political thought in the Western world, sovereignty as constituent power was systematically overshadowed by the competing doctrine of sovereignty as “the highest power of command,” proudly pronounced in 1576 by Jean Bodin in his celebrated treatise.5 His new absolutist and unitary definition spread quickly across various political and juridical discourses, appearing in diverse historical contexts and the distinct theoretical systems of several canonical thinkers. Thomas Hobbes, for example, concurred that “Sovereign Power” is “this Right to give Commands,” a view also propagated by Samuel Pufendorf and later inherited by Jeremy Bentham, John Austin, and Max Weber. This view was even adopted by Baruch Spinoza who—while discussing absolute democracy, like many others—formulated the question of sovereignty in light of whoever “has the sovereign right of imposing any commands he pleases.”6
This paradigm of sovereignty, which transverses both natural jurisprudence and legal positivism (albeit in diverse ways) identifies the sovereign as the one who commands without being subject to the commands of another, that is, to a superior.7 Bodin’s sovereign is an ‘uncommanded commander’. The essential political relationship is vertical, between “him who commands” and “him who owns obedience,” that is, between sovereigns and subjects, rulers and ruled.8 This power to command is absolute, inalienable, and perpetual, grounded in divine right. It remains subordinated to natural and divine law; it is hierarchical, unitary, and personified; and it is often identified with executive prerogatives. Internally, it cannot be divided or shared; externally, it should not be surpassed or downgraded.
1. Ernst-Wolfgang Böckenforde, “Die Verfassungsggebende Gewalt des Volkes-Ein Grenzbegriff des Verfassungsrechts,” Staat, Verfassung, Democratie. Studien zur Verfassungstheorie und zum Verfassungsrecht (Frankfurt-am-Main: Suhrkamp, 1991), 11-12; Andrew Arato, “Forms of Constitution Making and Theories of Democracy,” Cardozo Law Review 17 (1995): 202–54; Antonio Negri, Insurgencies: Constituent Power and the Modern State (Minneapolis: University of Minnesota Press, 1999), 1; Martin Loughlin, “Constituent Power,” in The Idea of Public Law (Oxford University Press, 2004), 100; Martin Loughlin and Neil Walker, The Paradox of Constitutionalism: Constituent Power and Constitutional Form, ed. Martin Loughlin and Neil Walker (Oxford: Oxford University Press, 2007), 6.↩
2. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press, 2008), 101-2, 105, 112, 115, 120-21, 128-29, 136-39, 145-46; Cornelius Castoriadis, “What Democracy?” in Figures of the Thinkable, trans. Helen Arnold (Stanford: Stanford University Press, 2007), 122-24.↩
3. Hans Kelsen, Pure Theory of Law, trans. Max Knight (Gloucester: Peter Smith, 1989), 204; Hans Kelsen, General Theory of Norms, trans. Michael Hartney (Oxford: Oxford University Press, 1991), 256; Jacques Derrida, “Force of Law: ‘The Mystical Foundation of Authority,’” in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell (New York: Routledge, 1992), 3-67; Claude Klein, Théorie et pratique de pouvoir constituant (Paris: PUF, 1996), 194-99.↩
4. Raymond Carré de Malberg, Contribution á la Théorie Générale de l’État, Vol. 2 (Paris: Librairie de la société du Recueil Sirey, 1922), 483.↩
5. Jean Bodin, On Sovereignty, trans. Julian Franklin (Cambridge: Cambridge University Press, 1992), 1; Julian Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: Cambridge University Press, 1973), 23 and 54-68.↩
6. Thomas Hobbes, On the Citizen, ed. Richard Tuck (Cambridge: Cambridge University Press, 1998), 73; Benedict de Spinoza, A Theologico-Political Treatise, trans. R.H.M. Elwes (New York: Dover Publications, 1951), 207.↩
7. Antonio Negri and Michael Hardt, “Sovereignty,” in Reflections on Empire, trans. Ed Emery (Cambridge: Polity, 2008), 48-59. ↩
8. Jean Bodin, On Sovereignty, 49. Hannah Arendt, The Human Condition (Chicago: The University of Chicago Press, 1958), 234-35. “The doctrine of sovereignty,” according to L.H.A. Hart, “asserts that in every human society, where there is law, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as in an absolute monarchy, this simple relationship between subjects rendering obedience and a sovereign who renders obedience to no one. This vertical structure composed of sovereign and subjects is, according to the theory, as essential a part of a society which possesses law, as a backbone is of a man.” L.H.A. Hart, The Concept of Law (Oxford: Oxford University Press, 2012), 50.↩