Constituent Power : A. Kalyvas

Marsilius attributed the power of appointment to the multitude, rather than to constituted authorities, magistracies, or persons. He articulated this power in terms of a collective right that empowers the ruled to appoint the heads to which they voluntarily submit. The ruled appoint their rulers, the subjects elect their leaders, and the multitude establishes its kings. In addition to the elements of consent and contract that his arguments invoked, Marsilius’ intervention had far-reaching consequences, as it directly questioned the normative foundations of the medieval political edifice. Although earlier jurists, canonists, glossators, and theologians had already touched upon this topic, especially since the crisis caused by the Investiture Controversy, Marsilius was the first to explicitly proclaim and systematically present the core principles of a new theory of (popular) sovereignty:

The efficient power to establish or elect the ruler belongs to the legislator or the whole body of the citizens . . . And to the legislator similarly belongs the power to make any correction of the ruler and even to depose him, if this is expedient for the common benefit. For this is one of the more important matters in the polity; and such matters pertain to the entire multitude of the citizens.²¹

Marsilius’s second novelty marks another contribution. He recognized the multitude not only as the real and true subject with the supreme authority to appoint their rulers; he also extended its scope to include the formation of government, the establishment of its fundamental laws, and the creation of public offices. For, he asserted, “it pertains to the legislator [i.e. the multitude] to correct governments or to change them completely, just as to establish them.” Marsilius, in fact, transforms the act of appointment to an act of founding, thus introducing the idea of sovereignty in terms of a productive multitude, “a universal active causality” that “forms,” “establishes,” and “differentiates” the parts of the state.²² He defined this sovereign power, which resides in “the whole body of citizens or of its weightier part,” as an originary and productive “power to generate” (generare formam) new legal forms and political institutions:

Since, therefore, it pertains to the whole body of the citizens to generate the form, that is, the law, according to which all civil acts must be regulated, it will be seen that it pertains to the same whole body to determine this form’s matter, that is, the ruler, whose function is to order, according to this form, the civil acts of men . . . For to whomever pertains to generate some form, it also pertains to determine the subject of that form.²³

This singular formulation of the sovereign power of the multitude as form-giving suggests an extra-institutional force that institutes political authority, determines the form of government, and establishes a just constituted order. It is noteworthy to observe here that Marsilius’s theory of popular sovereignty departs from the theological ideology of the Middle Ages. Instead of relying on the logic of transcendence and the model of a demiurgic divine figure as an external ordering power, he turned to ancient materialist traditions with a strong biological orientation.²⁴ Creatively blending Aristotle’s On Animals (De partibus animalium) and Galen’s treatise On the Formation of the Foetus (De formatione foetus), Marsilius described the power to constitute in terms of physical natality and compared the creative sovereign act to that of animal birth. The political constitution of a community is similar, “in an analogous manner,” to the organic constitution of the animal. The sovereign action, he argued, “in appropriately establishing the state and its parts was proportionate, therefore, to the action of nature in perfectly forming the animal.”

His incipient theory of the constituent power of the multitude is informed by a physico-biological materialism and grounded on a naturalistic reasoning, devoid of any transcendentalism, successfully displacing the theological and mystical Pauline metaphor of the sacred body politic. In a bold gesture, he described the institution of political community in terms of animal anatomy and physical desire, thus initiating the most ambitious de-sacralization and de-theologization of the political in the context of medieval philosophy.²⁵ The political body, through the animal metaphor, expresses its immanence to the material and mortal world of living beings and their relationships. With Marsilius, the modern advent of democracy results from a profane, anti-religious theory of politics and is carried out by means of a materialist method.

With these two major innovations, Marsilius introduced the general idea of constituent power as popular sovereignty. It is important, therefore, to clarify these novel elements that remain present in the subsequent political trajectories of the concept.

^{21. Marsilius of Padua, Defensor Pacis, trans. Alan Gewirth (Toronto: University of Toronto Press, 1956), 61 (emphasis added).↩}

^{22. Marsilius of Padua, Defensor Pacis, 87, 26, and 63-64 (emphasis added).↩}

^{23. Marsilius of Padua, Defensor Pacis, 62, 64, and 65 (emphasis added).↩}

^{24. Alan Gewirth, Marsilius of Padua: The Defender of Peace (New York: Columbia University Press, 1951), 50-56.↩}

^{25. Marsilius, Defensor Pacis, 63, 64, 62, and 27.↩}