Constituent Power : A. Kalyvas

I. Beginnings

The verb ‘to constitute’ comes from the Latin word constitūere, which is a combination of the prefix con- and the verb statūere. The prefix con- has several grammatical meanings, the most important of which is “with” or “together.” The verb statūere, on the other hand, derives from stătūo, which means, “to cause to stand,” “to set up,” “to construct,” “to place,” “to erect,” “to establish,” “to create.”13 The word constitūere, therefore, literally denotes the act of founding together, creating jointly, or co-establishing.

In ancient Rome, the verb constitūere was used to designate an agreement with another on something in the economic vocabulary of exchange relations, an accord among a plurality of individuals. Furthermore, in Roman public law, it named a very specific kind of legislative practice that was regarded as superior to ordinary legislation, that is, extraordinary acts of establishing or altering the fundamental laws and institutions of the Republic.14 For instance, in the juridical form of rei publicae constituendae, it meant the power to initiate radical legal changes.15 The office of the dictator, the decemvirs, the triumvirates, and other regular and special commissions were treated as institutions of constituent power. However, because a higher constitutional authority authorized their power as a special commission, these magistracies were not considered sovereign. Likewise, the title of cõnstitūtor signified he who establishes, the one who orders, the founder who exercises the power and authority to reform and transform.16 After the collapse of the Republic, the power to constitute was taken by the Roman Emperor and came to describe his judicial decisions and higher executive degrees and enactments (constitutio).17

From these first etymological meanings and its various economic, political, and legal applications certain preliminary conclusions follow. The first pertains to the term’s provenance, which emerges prior to and outside the theology of the Judeo-Christian imaginary. Deeply embedded in Rome’s political and juridical world, formalized in various legal codes and official magistracies, enmeshed in the social wars among patricians and plebeians, and closely linked with the Republic’s fate, the term and its uses had strong worldly connotations, attached to civic values, and close to the productive and fine arts.

In addition, it suggests the inescapable semantic presuppositions of a collective practice. It is the practice of a plurality of actors who publicly engage with one another, associating, and acting in concert, to mutually erect and found something jointly. Finally, the term is historically associated with critical transformative episodes in the history of the Roman republic. Thus, to constitute also designates extraordinary acts of founding and re-founding, discontinuous events that transformed the constitution of the city by altering the norms, rules, and institutions that determine the space of normal politics.

During the early Middle Ages, the political use of the term ‘to constitute’ nearly disappeared; it lost its ancient legal and political significance and became purely descriptive—in the literary sense, reduced to the faculty of making or constructing. It was also invoked by various medical discourses to describe the anatomical ordering of a living being, its physical body and material constitution.18 But then, it reappears in late medieval political vocabulary, invested with a new meaning: the act of appointment. From the tenth century on, ‘to constitute’ means to appoint an officer, to invest a person with specific powers, to attribute concrete and particular public functions to an individual, to elect someone into office; in short, to authorize.

It is within this conceptual shell of the medieval use that the concept of constituent power was firstly incubated and formed. Two important innovations, however, were necessary to make this new conceptual formation possible; and both were carried out by Marsilius of Padua in the early fourteenth century. His contribution laid the foundations of a novel conception of sovereignty and opened the way for the modern reinvention of democracy.19

Marsilius’s first innovation pertains to the power of appointment and election. His renowned and controversial text, Defensor Pacis, was completed in 1324, during the turbulent conflict between Louis IV, the Holy Roman Emperor, and Pope John XXII. He meant it as a concrete political intervention in a moment of severe crisis and also as a justification of his unequivocal decision to side with the Emperor against the Pope and thus to defend secular against spiritual authority.20 The dispute between the two over the ultimate locus of sovereignty caused a temporary breakdown of legitimacy, creating a fissure from which popular sovereignty eventually came into being. Marsilius claimed that none of the two could be sovereign since they both lacked the ultimate power to self-appoint appoint or to appoint the other. Neither the Emperor nor the Pope could therefore settle this quarrel. In this extreme situation, Marsilius argued, there is always a final authority that decides the matter: it is the multitude, he asserted, that possesses the right to appoint its secular and spiritual rulers, that is, to authorize them to rule. In the space separating the two instituted sovereigns, in the void opened up by their struggle for supremacy—between the secular and the spiritual—a new political subject made its appearance: the multitude with its supreme right to appoint its Emperors and Popes.

13. Stătūo is itself derived from stăre, that is, to stand firm and still.

14. Theodore Mommsen, Le Droit Public Romain, Vol. 4 (Paris: Thorin and Fils, 1884), 425-70; Carl Schmitt, Die Dictatur (Berlin: Duncker and Humblot, 1994), 127-49.

15. Cicero, De Re Publica, trans. Clinton Walker Keyes (Cambridge: Harvard University Press, 1994), 264-67; Livy, History of Rome, trans. B.O. Foster (Cambridge: Harvard University Press, 1997), 333-34; Appian, Civil Wars, trans. Horace White (Cambridge: Harvard University Press, 2002), 185; Lucius Ampelius, Liber Memorialis, 29.1.

16. Karl Ernst Georges, Ausführliches lateinisch-deutsches und deutsch-lateinisches Handwörterbuch aus den Quellen zusammengetragen und mit besonderer Bezugnahme auf Synonymik und Antiquitäten unter Berücksichtigung der besten Hülfsmittel (Leipzig, 1869), 1151-52.

17. The Digest of Justinian, trans. A. Watson (Philadelphia: University of Pennsylvania Press, 1985), 1:1.6, 1:2.18, 1, 5.

18. Ulrich Preuss, “The Constitution as the ‘Object of all Longing,’” in Constitutional Revolution, 27.

19. Otto Gierke, Political Theories in the Middle Age (Cambridge: Cambridge University Press, 1987), 46-47; Charles Howard McIlwain, The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages (New York: Macmillan Company, 1932), 305; Alexander Passarin D’Entreves, The Medieval Contribution to Political Thought (Oxford: Oxford University Press, 1939), 59; Walter Ullmann, Principles of Government in the Middle Ages (New York: Routledge, 2010), 282.

20. In 1327, this oppositional and dissident stance caused him his condemnation as a heretic by the Catholic Church.

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