Constituent Power : A. Kalyvas

Bodin’s theory of sovereignty became paradigmatic for political modernity, an essential property of the modern understanding of the state, its authority, and its unity.9 In proposing a theory of state sovereignty in the closing of the sixteenth century, he set the foundations for what came to be the exemplary theory of sovereign power in western political and legal thought. Bodin’s sovereign discourse was also consequential for the formation of international law and the European interstate system: the institution of the state is sovereign over its own territory and has absolute jurisdiction over its subjects. The codification of the principle of non-intervention by one state in the affairs of another—brought about by the Peace of Westphalia (1648)—introduced the mutual recognition among sovereign states, thus consecrating the power of command as the organizing norm of international law and politics. Bodin’s definition is the first authoritative statement of the modern theory of state sovereignty where every delineated political community possesses supreme political authority—a determinate, absolute, and supreme power of command, which is not itself subject in any way to the command of another.10

When it comes to account for the advent of modern democracy, the paradigm of command tends to explain it in terms of a transfer of sovereignty from the king to the people, from the One to the Many.11 The modern inauguration of democracy qua popular sovereignty amounts to a passage of command from one holder to another, whereby personal rule is transformed into collective rule. In this passage, democratic sovereignty inverts the monarchical paradigm: the people appropriate the king’s power, turning the sources of political authority upside-down. Democracy is portrayed as post-monarchical, insofar as the abolition of kingship does not necessarily eliminate the absolutist discourse of sovereignty as command but replaces one supreme commander with another. Sovereignty changes hands but essentially it remains the same. In this manner, the discourse of command not only treats constitutional norms as external constraints, but it also tends to reduce modern democracy to the state form. The doctrine of the nation-state is also a story about the gradual democratization of the absolutism of monarchical sovereignty.

Bodin’s theory of sovereignty successfully dominated modern political theory and practice, shaping the prevailing understandings of democracy. Its commitment to the primacy of coercive command suggests a statist, static conception of sovereignty that consists of a repressive force, emanating from the top, hierarchical and unitary, supported by a centralized administration, and in need of external checks and balances. Michel Foucault described this juridical model of sovereignty as “anti-energy . . . a power that only has the force of the negative on its side, a power to say no; in no condition to produce, capable only of posting limits.”12

The conceptual history of constituent power speaks directly against this grand narrative of command and subjection. It illuminates important but neglected dimensions of the democratic experience and discloses another understanding of sovereignty. Negatively put, the modern advent of democracy cannot and should not be treated as a mere transfer of sovereignty from the king to the people, immanently unfolding within the uninterrupted continuity of the statist paradigm of supreme command. In positive terms, democracy qua constituent power discloses a different idea of sovereignty, not only historically prior but also analytically distinct from the regal paradigm, opposed and antagonistic to it: the power of the people to constitute. Political modernity can thus be viewed as consisting of two forms of sovereign power and two visions of politics: the democratic and the monarchical, the constitutional and the absolutist, the federalist and the statist, the power of the Many to constitute versus the power of the One to command.

In what follows, I seek to recover this alternative theory of sovereignty as constituent power that significantly departs from the canonical paradigm of command, in order to investigate its democratic implications. In the first section I trace the conceptual beginnings of the concept, from the etymological meanings of the Latin verb ‘to constitute’ to its initial medieval articulation that is set against the regal model. The second and third sections revisit formative episodes in the conceptual history of constituent power and consider its diverse but overlapping theoretical and political trajectories as they coalesced around the ideas of disobedience, resistance, and revolution. The last part attempts to reconstruct the discursive rules and immanent principles that organize the intelligibility of the concept over time and consider the challenges they pose to inherited (mis)understandings of democracy.

9. Otto Gierke, Natural Law and the Theory of Society (Boston: Beacon Press, 1957), 40; Julian Franklin, “Sovereignty and the Mixed Constitution: Bodin and his Critics,” The Cambridge History of Political Thought, ed. J.H. Burns (Cambridge: Cambridge University Press, 1991), 307.

10. Jean Bodin, On Sovereignty, 11.

11. Hannah Arendt, On Revolution (New York: The Viking Press, 1963), 154-58.

12. Michel Foucault, The History of Sexuality, Vol. 1 (New York: Vintage Books, 1990), 85.

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