Constituent Power : A. Kalyvas

IV. A Democratic Concept

This brief, cursory conceptual history of the constituent power, incomplete as it is, suggests a clear distinction between state sovereignty as command and popular sovereignty as the power to constitute. Their differences are substantial as they are separated by distinct histories, ontologies, normative orientations, and political objectives.

As Martin Loughlin has correctly pointed out, “constituent power as a ‘power to’ is different from ‘power over.’”⁷⁵ It is very different, indeed. In the statist paradigm the emphasis is on the moment of (coercive) command, while the constituent version privileges the act of establishing and instituting. The one is repressive and static when contrasted to the dynamic and productive dimension of the other. Consequentially, whereas the principle of command is based on the model of ruling, that of constituent sovereignty evokes a founding event. The sovereign is not a ruler but a lawgiver.

Instead then of fixating on a superior command emanating from the top, the notion of the constituent sovereign redirects attention to the underlying sources of the instituted reality located at the bottom. The first relies on a vertical structure, while the second operates horizontally. Moreover, contrary to the paradigm of the sovereign command that invites personification—from the ancient imperatore to the king to the modern executive—the constituent power conveys the collective and impersonal attributes of sovereignty, its associative public dimension, and its federative inclinations. All these contrasts illustrate how the constituent power has, in modern times, reimagined democracy against the regal paradigm of command.⁷⁶

This juxtaposition between the two competing versions of sovereignty makes it hard to miss the regularity in the concept of constituent power. By looking carefully at how it was theorized and evoked, it is possible to outline in a consistent fashion its discursive rules. In the following, I consider some of the themes that recur most frequently in theories of constituent power in order to try and define the rules that account for the semantic continuity, analytical consistency, and normative singularity of the concept. However different its historical experiences might have been, in its numerous trajectories and variations, in the mode of means of its respective realizations formed by diverse intellectual influences, it nonetheless presupposes certain shared meanings and a common orientation that defines and organizes its intelligibility. I am referring here to the concept’s immanent principles of recognition. These principles are internal to the concept, which they construct and help to identify.⁷⁷

To begin with, the constituent power speaks of a collective practice, involving a plurality of actors coming together to co-institute, to establish jointly. Two crucial aspects are involved in the semantic composition of the concept, indicative of its first two immanent principles.

First, there is equality. An emphasis on the prefix co- presents the concept descriptively: on the one hand, as a negation, that is, the impossibility that one could ever co-institute anything by oneself; on the other, positively, prescribing that if one wants to co-institute, one has to do it in co-operation with others. Acting together in concert, means to “do certain common acts as a society, which are acts not of a certain part but of the whole.”⁷⁸ These acts point at a federative and associative structure of public authority that defies centralization, hierarchy, and monopoly of coercion. They are egalitarian to the degree that the coming together is articulated in terms of equal participation.

In all theories of constituent power, the politics of new foundations are undertaken jointly and voluntarily, free from asymmetrical power relations and arbitrary interferences, that is, free of inequality and exclusion, in true co-operation. Sidney accurately grasped this egalitarian presence when he claimed that, “every number of men, agreeing together and framing a society, became a compleat body, having all power in themselves over themselves, subject to no other human law than their own. All those that compose the society, being equally free to enter it or not, no man could have any prerogative above others.”⁷⁹ The egalitarian meaning of the concept indicates how the act of constituting is performed among peers by mutual association.

^{75. Martin Loughlin, The Idea of Public Law, 112.↩}

^{76. Andreas Kalyvas, “Popular Sovereignty, Democracy, the Constituent Power,” Constellations 12:2
(2005): 223–244.↩}

^{77. On the normative content of these immanent principles, see Andreas Kalyvas, “The Basic Norm and Democracy in Hans Kelsen’s Legal and Political Theory,” Philosophy and Social Criticismm 32:5 (2006): 587-92.↩}

^{78. George Lawson, Politica Sacra et Civilis, 24.↩}

^{79. Algernon Sidney, Discourses Concerning Government, 99.↩}