M. Laughlin, N. Walker (Eds.) - The Paradox of Constitutionalism. Constituent Power and Constitutional Form (2007)

THE PARADOX OF CONSTITUTIONALISM
The Paradox of
Constitutionalism
Constituent Power and Constitutional Form
Edited by
M A RT I N L O U G H L I N
and
N E I L WA L K E R
1
3
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The paradox of constitutionalism : constituent power and constitutional form / Edited
by Martin Loughlin and Neil Walker.
p. cm.
Includes bibliographical references and index.
ISBN 9780199204960 (alk. paper)
1. Constituent power. 2. Legitimacy of governments. I. Loughlin, Martin.
II. Walker, Neil, 1960
K3289.P37 2007
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Acknowledgements
The origins of this book lie in a seminar convened at the European University
Institute in March 2006 on the theme of constituent power and constitutional
form. Our objective was to bring together a group of philosophers, historians,
political theorists, political scientists, and constitutional and international lawyers
to promote the idea of constitutional theory as a distinct area of inquiry by
focusing attention on an issue situated at the heart of all attempts to construct and
regulate political community in constitutional fashion. We sought to demon-
strate that what connects our constitutional past, present and future, and what
links the state as the traditional site of constitutional government to new sub-
national and transnational sites, is a constant preoccupation with the question of
the relationship between authorization and authority, politics and law, pouvoir
constituant and pouvoir constitu.
We hope that the volume that has emerged vindicates our editorial aspiration.
To the extent that it does, this is due primarily to the contributors themselves;
they came to the seminar with well developed drafts of their papers, but also ready
to engage in a fertile exchange of ideas, the fruits of which are evident in their final
set of texts. The seminar discussion was greatly facilitated by an insightful series of
initial commentaries by Julio Baquero Cruz, Richard Bellamy, Christian Joerges,
Gianluigi Palombella, Wojciech Sadurski, and Peter Wagner. To each of them we
owe considerable thanks, and also to the wider group of seminar participants for
their lively contribution over two days of intense discussion.
The general editorial support offered by John Louth and Gwen Booth at
Oxford University Press was exemplary and, not for the first time, we are much
obliged to them. We would also like to acknowledge our appreciation to the
British Academy for backing their faith in the project with a considerable financial
investment; without this, neither the conference nor this volume would have been
possible. The European University Institute also made an important financial
contribution, as well as offering considerable infrastructural support. Invaluable
administrative assistance was provided by Marlies Becker in Florence and Anna
Ljungkvist at the London School of Economics in the preparation of the seminar.
Maria Cahill and Cormac MacAmhlaighs calm and efficient presence helped
ensure that the seminar ran smoothly. Cormac MacAmhlaigh also provided
considerable editorial assistance in the preparation of the final text, Alun Gibbs
helped with the index, and Mandy Tinnams, Katherine Worthington, and
Thomas Roberts made important contributions at crucial moments.
In this global age it is no longer unusual that the co-editors of a book should be
based in different jurisdictions, nor that the contributors should range more
widely still. The fact that we came together from such diverse origins made our
task as editors all the more enjoyable and, we hope, more productive. But we
vi Acknowledgements
should not pretend that such a global effort does not carry considerable additional
costs, and we thank all involved for bearing these so readily.
Martin Loughlin (London)
Neil Walker (Florence)
October 2006
Contents
List of Contributors ix
Introduction 1
Martin Loughlin and Neil Walker
1. Constituent Power and Reflexive Identity: Towards an
Ontology of Collective Selfhood 9
Hans Lindahl
I. A CONCEPTUAL HISTORY OF
CONSTITUENT POWER
2. Constituent Power Subverted: From English Constitutional
Argument to British Constitutional Practice 27
Martin Loughlin
3. Constituent Power and Constitutional Change in American
Constitutionalism 49
Stephen M. Griffin
4. Constituent Power in France: The Revolution and its
Consequences 67
Lucien Jaume
5. We are (afraid of ) the people: Constituent Power in German
Constitutionalism 87
Christoph Mllers
6. People and Elites in Republican Constitutions,
Traditional and Modern 107
John P. McCormick
II. THE ARTICUL ATION OF CONSTITUENT

POWER: RIVAL CONCEPTIONS
7. The Politics of the Question of Constituent Power 129
David Dyzenhaus
8. Private and Public Autonomy Revisited: Habermas
Concept of Co-originality in Times of Globalization
and the Militant Security State 147
Rainer Nickel
viii Contents
9. Constitutionalisms Post-Modern Opening 169

Paolo Carrozza
10. Against Substitution: The Constitutional
Thinking of Dissensus 189
Emilios Christodoulidis
III. EXTENSION AND DIVERSIFICATION OF

CONSTITUENT POWER
11. The Exercise of Constituent Power in
Central and Eastern Europe 211
Ulrich K. Preuss
12. We the Peoples: Constituent Power and
Constitutionalism in Plurinational States 229
Stephen Tierney
13. Post-Constituent Constitutionalism?
The Case of the European Union 247
Neil Walker
14. We the Peoples of the United Nations: Constituent Power
and Constitutional Form in International Law 269
Bardo Fassbender
15. Constituent Power and the Pluralist Ethic 291
Damian Chalmers
16. The Imperialism of Modern Constitutional Democracy 315
James Tully
Bibliography 339
Index 369
Contributors
Paolo Carrozza Professor of Comparative Constitutional Law,
University of Pisa
Damian Chalmers Professor of European Union Law, London School of
Economics and Political Science
Emilios Christodoulidis Professor of Legal Theory, University of Glasgow
David Dyzenhaus Professor of Law and Philosophy, University of Toronto
Bardo Fassbender Associate Professor of Law, Humboldt University, Berlin
Stephen M. Griffin Rutledge C. Clement, Jr Professor in Constitutional
Law, Tulane Law School, New Orleans
Lucien Jaume Director of Research at CNRS; Professor, Centre de
Recherches Politiques de Sciences Po (CEVIPOF), Paris
Hans Lindahl Professor of Legal Philosophy, Department of
Philosophy, Tilburg University
Martin Loughlin Professor of Public Law, London School of
Economics and Political Science
John P. McCormick Associate Professor of Political Science, University of
Chicago
Christoph Mllers Professor of Public Law, University of Gttingen
Rainer Nickel Associate Professor of Law, Johann Wolfgang Goethe
University, Frankfurt am Main.
Ulrich K. Preuss Professor of Theories of the State, Hertie School of
Governance, Berlin
Stephen Tierney Reader in Law, University of Edinburgh
James Tully Distinguished Professor of Political Science, Law,
Indigenous Governance and Philosophy at the
University of Victoria, British Columbia
Neil Walker Professor of Law, European University Institute, Florence
and (for 2007) the Tercentenary Professor of Law at the
University of Edinburgh
Introduction
Martin Loughlin and Neil Walker
Modern constitutionalism is underpinned by two fundamental though

antagonistic imperatives: that governmental power ultimately is generated from
the consent of the people and that, to be sustained and effective, such power
must be divided, constrained, and exercised through distinctive institutional
forms. The people, in Maistres words, are a sovereign that cannot exercise
sovereignty; the power they possess, it would appear, can only be exercised
through constitutional forms already established or in the process of being
established. This indicates what, in its most elementary formulation, might be called
the paradox of constitutionalism. The aim of this book is to examine the most
significant of the puzzles associated with this paradox, in the hope that we might
be able to throw some new light on the character of the modern discourse of
constitutionalism.
These puzzles, long grounded in the institutional and cultural context of the
modern state, are presently assuming a renewed and in some measure relocated
significance. A variety of global trends that impact on the activity of governing
invite a close examination of the idea of a constitutional order. These trends
include: the short-lived triumphand triumphalismof liberal democracy at
the end of the Cold War and the subsequent revival of ethnic and otherwise
exclusionary forms of nationalism; the nurturing of a more localized politics of
identity leading to the formation of political communities below the level of the
nation-state; and, because of the globalization of capital, trade, labour, and
communications, the emergence of supranational and transnational governmen-
tal agencies and governance networks that invite increasingly insistent calls for
their constitutionalization. By returning to the resilient conundrum at the core of
constitutionalism, we hope not only to refresh our knowledge of this technique of
governing, but also to deepen our understanding of the new challenges posed by
these contemporary transformations of the legal and political landscape.
Central to virtually all formulations of the paradox of constitutionalism is that
of the tension linkingand also the question of priority betweenconstituent
power and constitutional form, politics, and law. Modern constitutional texts
aspire not only to establish the forms of governmental authority (legally consti-
tuted power) but also to reconstitute the people in a particular way. The notion of
a constitutional identity of a people, and particularly its relation to the constituent
power possessed by the people, is perplexing. It suggests, first, that insofar as any
prior socio-political identity of a people is indicated through the natural drawing
The Paradox of Constitutionalism. Martin Loughlin and Neil Walker.

Oxford University Press 2007. Published 2007 by Oxford University Press.
2 The Paradox of Constitutionalism
of boundaries that separate one segment of humanity from another, this is capable
of being reshaped by the formal constitution itself. But once it is conceded that a
constitutionalized collective political identity is necessarily malleable and fluid,
so too the constitutional form cannot be regarded as unassailable; if the influence
of constitutional form lies in its ability to refine the meaning and import of collect-
ive political identity, its authority must nevertheless in some measure depend upon
its continuing capacity faithfully to reflect that collective political identity. The
formal constitution that establishes unconditional authority, therefore, must
always remain provisional. The legal norm remains subject to the political excep-
tion, which is an expression of the constituent power of a people to make, and
therefore also to break, the constituted authority of the state.
Who, then, is the people at the centre of the paradox? In some formulations,
the people is treated as an essentially rhetorical formulation, either an inert datum
to be impressed with meaning and self-consciousness and thereby activated only
through the constitutional form or a purely symbolic and retrospectively instituted
collective entity. This is a line of argument that takes us back to Hobbes view that
the minds of the common people (the multitude) are like clean paper, fit to receive
whatsoever by public authority shall be imprinted in them. By contrast, in more
modern expressionsthose that engage directly with the precepts of constitution-
alismthe people, however constructed, is acknowledged to be an active agent of
change. This might be a happier formulation in its recognition of the democratic
possibilities of collective self-authorship and self-authorization, but it is one that
carries its own difficulties. If the people is treated as an active agent of change, is its
agency merely momentary, or is it of continuing significance? And if of continuing
significance, how is the multitude that possesses such agencysuch latent author-
ityto be accorded political or constitutional recognition?
We might note that many of the great works of political philosophy from
Hobbes to Rawls seek to identify the essential nature of collective authority and of
the realm of the political by reference to the idea of a social contract. This device is
widely used not only because it provides a mechanism that is able to account for
how the constitution of a state is founded, but also because it offers a device
through which the claims of autonomy and authority associated with that
founding may be reconciled. But let us be clear on one thing: the social contract is
such a potent and versatile tool of political philosophy precisely because it is
treated as being entirely an exercise of the imagination. No philosopher claims the
social contract to be an historical eventthe account is not an explanation.
Consequently, while intriguing counterfactuals and rich normative scenarios
abound, within political philosophy we are unable to find persuasive explanations
and projections of actually existing systems and rhetorics of government. When
we turn to the domain of constitutional theory properthe domain of reflecting
on the nature of actually existing regimeswe are obliged to focus on immanent
possibilities, and for that reason matters also become more complicated. Here,
rationality must be tempered by history, norm by fact.
Introduction 3
Modern constitutions invariably come into existence as a consequence of some

founding act. That actan historical eventpurports to establish a polity by
creating a framework of government and defining the essential form of the
political bond between the people (the citizens of the state) and its governing
authorities. Rather than some fictive social contract, therefore, it is that act, and
the social meanings it is capable of generating, which must provide the starting-
point for the investigation of the significance of the people in constitutional
theory, and of how the people-thus-signified may address and resolve the paradox
of constituent power and constitutional form. How, then, are we to make sense of
this authorizing moment? Who is its authorits constituting power or, in
modern parlance, the constituent power? What is the authority of the founding
establishment? Does that founding authority extend through time to bind
subsequent generations? Does the authorizing agent manifest itself only for the
purpose of a foundational act and, its business concluded, extinguish itself? Or
does that agent maintain a continuing presence within the polity, such that it may
reassert itself to modify, or radically alter, the terms of the original foundation?
This emphasis on the concrete act ensures that the idea of the people as a
collective entity on whose behalf and in whose spirit of self-government the text is
narrated must be an active and empirically-informed one, yet even if thus rescued
from a realm of pure normativity it remains a question-begging abstraction. It
may bear only the flimsiest connection with the actual people who deliberated on
the terms of the arrangements, or who drafted the text in a Constitutional
Convention or Constituent Assembly, or even those who ratified the text in the
name of the people. The historic events concerning the formation of constitu-
tions thus raise, in their various ways, a series of questions concerning knowledge,
consent, and imputation. In some interpretations indeed, the entire constitu-
tional performance might seem to be an elaborate confidence trick, in which gov-
erning elites invent and deploy this idea of the people to bolster their oligarchical
arrangements of government. On this view, the rhetoric surrounding the constitu-
tive moment is just so much hypocrisy and cant: behind the constitutional claims
of right and equality lies only exploitation and entrenched inequality. And if this is
correct, there is nothing much more to examine in the discourse of constitutional-
ism: the constituted authority (the power-wielders) simply use the discourse of
constitutionalism as a means of promoting their rule.
Although aspects of this strategy can be traced to the foundations of all modern
constitutions, we should also recognize that the historic circumstances of the
founding do not necessarily exhaust the significance of the event. By establishing
a unity of a people (albeit by the work of a small group) and by expressing the
purposes of this association in universal and aspirational terms, is it not possible
that the constitution acquires its mature meaning not at the foundational
moment but only in its aftermath, through continuous deliberation within the
institutions of the polity about the import of the event and the (evolving)
character of the association? The constitution is, on this interpretation, to be
treated not simply as a segment of being but a process of becoming. This mode
of understanding enables us to treat the constitution as constantly developing
while maintaining some sense of fidelity to the original compact.
It must be conceded nonetheless that while this helps us to appreciate some-
thing of the flexibility and nuance implicit in the idea of constitutionalism, it may
not take us much further. To the extent that the evolving constitutionthe
augmentation of the foundationis expressed through edicts of the instituted
authorities, the constituent power of the people would appear to remain encased
in the constituted power of the governmental forms. Once again, however, we
might note that unless it is assumed that constitutional theory is merely a form of
applied political philosophyand hence that constitutions are faithful articula-
tions of the normative design appropriate to a particular people and political
communitythis does not settle the question of the relationship between
constituent power and constituted form in favour of the latter.
Constitutions can undoubtedly be both initiated and sustained as hegemonic
toolsas ways of representing particular interests as the public interest, national
authority as universal authority, and imperial power as the only conceivable
power. But established constitutional forms are, in the name of the people, also
challenged and resisted, marginalized, and undermined, and even surpassed and
overcome. That is, constitutions can be operationalized and compromised in ways
that owe no consistent fidelity to the original compact, or which offer entirely new
interpretations of the status and content of that original compact. It is in coming
to terms with these realities of power in modern societies that constituent power
insinuates itself into the discourse of constitutionalism, whether in the form of
oppositional politics in their various guises and the (counter)constitutional
visions they implicitly or explicitly espouse or, more generally, by ensuring that
the intrinsic tension between the abstract rationalities of constitutional design and
the quotidian rationalities of governing remains exposed.
***
The essays collected in this book are designed to investigate various aspects of this
apparently paradoxical relationship between constituent power and constitu-
tional form. They are divided into three main sections: Part I considers the
historical emergence of the idea of constituent power in modern European
thought and practice; in Part II, a range of theoretical perspectives on the nature of
the relationship are examined; and finally, in Part III, the continuing importance
and (possible) reconfiguration of this relationship in the light of a series of
contemporary issues of a constitutional nature are evaluated. Before addressing
these issues, however, the core idea of constituent power must first be examined.
Thus, in the opening chapter of the volume, Hans Lindahl analyses the nature of
collective identity implicit in the notion of a political community. Taking the
debate between Hans Kelsen and Carl Schmitt on the competing claims to
Introduction 5
priority of the legal-normative and the political as exemplary of influential and

opposing positions in constitutional theory, Lindahl argues (against both) that
collective identity is reflexive identity, that self-constitution is constitution both
by (political) and of (legal-normative) a collective self, and that the paradoxical
relation of constituent power and constitutional formof democracy and
legalityis in a certain sense specious. Lindahls sophisticated statement, in
which constituent power is exercised in the very process of assuming constitu-
tional form and in the continuous flow of its refinement, sets a frame for
addressing the arguments of the papers that follow.
In Part I, the evolution of the concept of constituent power is explored initially
by examining the founding premises of the modern state, as illustrated through
the experience of revolutionary action in England, America, and France. Setting
mid-seventeenth century English constitutional conflicts in the context of
disputes over the ideas of the body politic, the crown, and divine right, Martin
Loughlin argues that in the revolutionary discourse of the 1640s, we see not only
the expression of popular sovereignty but also the drawing of a distinction
between the constituting power of the people and the constituted power of
government. Loughlin proposes that these more radical claims were suppressed,
initially to stabilize the republican revolution but later to bolster the principle of
(revived) monarchical and aristocratic rule. It is, he claims, through the conse-
quent absence of a concept of constituent power in modern British constitutional
arrangements that we are best able to appreciate its peculiar character.
The claims of the seventeenth century English radicals were bequeathed to
their American compatriots during the following century and, as Stephen Griffin
explains, it enabled the American revolutionaries to utilize the device of a consti-
tutional convention as the authoritative voice of the people to establish the
worlds first modern constitution. Griffin then tracks the question of what became
of the people once the constitution had been established, and suggests that
their influence has been felt not only through the process of formal amendment
and judicial interpretation, but also informally through politics, sometimes
crystallized as constitutional moments but often on-going and incremental.
Consequently, he concludes that while many would view constituent power as
dangerous to the integrity of constitutional forms, few would deny the resilience
of its influence in shaping American constitutionalism.
If the Americans have often sought to tame constituent power through the
veneration of constitutional formgenerating a set of political practices that are
peculiarly backward-looking in their claims to constitutional fidelityit is
evident that for the French the consequences of the founding moment have been
more treacherous. Lucien Jaume shows how the sound of revolution has echoed
across two centuries of French constitutional history: from formal constitutional
revision, referenda, and appeals to the idea of the Nation, to tumult, coups dtat,
and revolutionary insurrection. In particular, Jaume argues that, influenced by
the work of Sieys, the French developed a powerful sense that the nation is
represented in the Assembly, and indeed that it is through the claims and counter-
claims associated with that idea that we can make sense of the trajectory of major
constitutional change.
The late-eighteenth century revolutions opened the era of modern constitu-
tionalism, and the forms of the American and French constitutions have since
proved highly influential as other nations underwent the process of constitutional
modernization. But the narrative in each regime is invariably singular, not least
with respect to the German case where the path of developmentfrom
Kaiserreich, through Weimar to the Nazi regimehas rendered any attempt to
make a direct appeal to the people, or even to the authority of a representative
parliament, problematic. Christoph Mllers takes up the challenge of explaining
this dynamic. He shows how the highly legalistic constitutional culture that
evolved in the post-war Federal Republic was a product of conscious efforts to
eliminate any claim to populism in the constitutional settlement imposed by the
Allies, and suggests that the appeal to an especially formal notion of constitu-
tional patriotism has its basis in that history.
The first part of the book on conceptual history concludes with a study by John
McCormick of a critical distinction between traditional and modern constitu-
tions. In traditional constitutions the people signifies not only the body politic
but also the common people with a distinctive interest in ensuring their freedom
from oppression by the patrician class who invariably exerted a disproportionate
influence in government. In modern constitutions, by contrast, the people is
invariably treated as a unitary entity of formally equal citizens, with class-blind
representative forms that tend to shield from view the reality of elective oligarchy.
McCormicks argument points in the direction of acknowledging the necessity of
maintaining within contemporary constitutional arrangements the tension
between the instituted power of elected (patrician) rulers and the powers of the
common people to check their more reckless or restrictive projects.
A second section of the collection introduces and assesses the different types of
answers given to the question of constituent power in contemporary constitu-
tional and political theory. In our initial communication to authors, we suggested
that, in broad terms, these answers can be grouped in four categories: (i) the
juridical containment thesis, whereby constituent power is exhausted by and
absorbed within the settled constitutional form, as, for example, in much contem-
porary liberal theory based on contractarian assumptions (e.g. Rawls); (ii) the
co-originality and mutual articulation thesis, whereby the legally constituted
power of the polity operates in productive tension with a continuing background
commitment to popular sovereignty (e.g. Habermas); (iii) the radical potential
thesis, whereby constituent power is neither colonized by nor in symbiosis with
the legal, but remains a latent revolutionary possibility which lies behind and
shadows the legally constituted authority of the polity (e.g. Negri); and (iv) the
irresolution thesis, which rejects the first two forms of accommodation, but also
Introduction 7
dismisses the possibility of isolating the radical potential of constituent power

from the constituted forms of sovereign power, and instead views constituent
power as an irreducible supplement which irritates and challenges rather than
transcends the specific forms of constituted power (e.g. Benjamin, Agamben).
In responding to the challenge that we set, the contributors to the second
section align themselves more or less directly with one or more of these options.
David Dyzenhaus mounts a robust defence of a liberal constitutionalism in which
constitutional architecture is treated as eclipsing constituent power, not on the
basis of the empirical inevitability of the legal taming of the political, but on
account of the impossibility of developing normative accounts of how we might
live together except on the basis of such a working assumption. Rainer Nickel
develops a theoretical perspective that is in basic sympathy with the Habermasian
idea of the symbiosis of the legal and the politicalof (private) rights and (public)
democracybut supplements this by showing that the productiveness of the
tension between the two remains no less precarious than it has ever been, always
likely to become skewed in favour of the rigid priority of rights or of communitar-
ian excess. Paolo Carrozza focuses on the radical potential of contemporary
constitutionalism, but argues that this need no longer be seen in terms of a
revolutionary paradigm. Rather, under conditions of fragmented or multi-level
authority in which the state is no longer the dominant level, constitutional form
continues to structure but no longer determines political possibilities. Emilios
Christodoulidis is also concerned to conceive of the supplement of constituent
power as more than a mere irritant, but insists both that its radical openness
depends on its occupying a domain independent of constitutional structure and
form and that it is possible to imagine and activate such a domain as something
other than the ante-room of constitutional initiative and authority.
The final section examines the question of constituent power in various
contemporary settings, and against a background of diverse challenges to the state
as the monopoly site for the mobilization of political power and legal authority. To
begin with, in what ways, if at all, are the terms of the problem of constituent
power in its paradigmatic state setting altered by new challenges to state authority?
This question is addressed first by Ulrich Preuss in the acute setting of Central
and Eastern Europein the context of recently reconstituted post-Communist
states. For Preuss, the peculiarity of constitutionalism in this region lies precisely
in the fact that in such well embedded political communities its traditional constitu-
tive role is unnecessary, but that it nonetheless remains vital as a way of allocating
and checking power. Paradoxically, however, such a one-sided constitutionalism
may face significant opposition from those very embedded forces of community
which make its constitutive role redundant. Stephen Tierney then addresses the
challenge to state authority from the perspective of sub-state nationalism. He asks
how such movements might find constitutional voice, whether such voice is likely
to affirm or compromise their constituent autonomy, and, more generally,
whether and in what circumstances we might conceive of the relationship

between the constituent potential of sub-state and state demoi in either zero-sum
or positive-sum terms.
In the second place, the question of the relationship between constituent power
and constitutional form is asked in the context of new or shifting non-state
political configurations themselves. Neil Walker and Bardo Fassbender look at
two of the most prominent of such sitesrespectively, the European Union and
the global community of international law (and the UN in particular). Both seek
to develop positions asserting the possibility of a transnational constitutionalism
that retains at least some constituent qualities without undermining the continu-
ing constituent authority of states. Yet both are aware of the danger of a cheapen-
ing of constitutional currency in such an exerciseof constitutionalism as hubris
or empty fantasy. The question of the relationship between constitutionalism and
the alternative political imaginaries of post-national formations is also the subject
of our two final essays by Damian Chalmers and James Tully. While one offers a
reconstruction of the idea of state constituent power in the face of the diversifica-
tion of political authority, the other offers a deconstruction. For Chalmers, while
constituent power at the nation state level undoubtedly has its dark side, it also
retains an unparalleled potential for emancipation and for the energization of the
political. For Tully, on the other hand, the very idea of constituent power is a
(vital) component of the deep structure of imperial authority, one that denies and
seeks to suppress the always/already constituted way in which political commu-
nity and authority is experienced and practised in other contexts.
There are two reasons why Chalmers and Tully represent a particularly apt
pairing with which to conclude our collection. In the first place, as befits constitu-
tional theory as an activity distinct from political theory, both are firmly grounded
in constitutional practices, extrapolating from concrete constitutional acts and
processes to the broader horizons of political meaning these acts and processes
reflect or generate. In the second place, they come to starkly different conclusions
about the quality and potential of these wider political horizons, so underlining
the enduring contestability of the very idea of constituent power in particular and
the vocabulary of modern constitutionalism more generally.
1
Constituent Power and Reflexive Identity:
Towards an Ontology of Collective Selfhood
Hans Lindahl *
In his Verfassungslehre, Carl Schmitt argues that modern constitutional states are
the assemblage of two different and ultimately antagonistic components, namely
a system of political activity, and a series of legal restrictions imposed on that
activity with a view to the protection of individuals. The thrust of the book, which
relentlessly moves to recover the primacy of constituent power over constituted
power, and of democracy over the rule of law, is captured in the following
sentence: the concrete existence of the politically unified people is prior to every
norm. Schmitts reference to the concrete existence of the people is polemically
oriented against normative readings of the constitution and constitutionalism, the
most powerful of which is Hans Kelsens pure theory of law. According to Kelsen,
the people in a democracy has no distinct and prior political existence, because its
unity is but the unity of a legal order. By denying the prior existence of the people
as a political unity, Kelsen, in Schmitts eyes, collapses constituent into constituted
power and politics into law, thereby hypostatizing the legal order into a self-
grounding, self-serving, and self-sustaining system of rules.
Drawing on the debate between Kelsen and Schmitt about the existence of
political unity, this paper elucidates the ontology called forth by the relation
between constituent and constituted power. This ontological inquiry is organized
around two theses. The first is that collective identity is the key to the problem of
the mode of being of a political community. Indeed, identity comes into the
picture as soon as the exercise of constituent power is characterized as the self-
constitution of a polity. Against both Kelsen and Schmitt, I will argue that the
self of self-constitution speaks to reflexive identity, to identity as collective self-
hood in contradistinction to identity as sameness. My second thesis is that a
remarkable ambiguity governs the mode of being of collective selfhood. In effect,
* I appreciate helpful comments to this paper by Andy Schaap, Bonnie Honig, Christian Joerges,
Frans van Peperstraten, Bert van Roermund, and Nils Lindahl.
C. Schmitt, Verfassungslehre [1928] (Berlin: Duncker & Humblot, 1993), 121.

collective self-constitution means constitution both by and of a collective self. An

incident at the European Social Forum convened in Florence in 2002 reveals that
this ambiguity is irreducible, and haunts every conceivable political community.
It will be my task to describe the ontology of collective selfhood disclosed by the
equivocal status of self-constitution, and to assess, on its basis, Schmitts claim
concerning the antagonistic relation between democracy and the rule of law.
Kelsen and Schmitt on Collective Agency: A Conceptual Impasse
The Kelsen-Schmitt debate by no means exhausts the scope of an inquiry into the
ontology of collectives. Studies of collective intentionality in contemporary
analytical philosophy have contributed decisively to this general line of inquiry by
recognizing that We-intentions are irreducible to I-intentions. As Searle puts it,
[c]ollective intentional behavior is a primitive phenomenon that cannot be
analyzed as just the summation of individual intentional behavior. This insight
is crucial for our theme because it suggests that the concept of identity appropriate
to constituent power only appears from the first-person plural perspective.
Collective self-government entails that the creation of norms involves a We as a
unity in action. But while the aforementioned studies correctly highlight that the
exercise of constituent power requires the invocation of a We as a collective
agent, they largely overlook the inverse issue, namely that what it means to invoke
a We as a collective agent cannot be understood independently of an inquiry into
the conditions governing the exercise of constituent power. This is the core of the
debate between Kelsen and Schmitt, to which I now turn.
The most striking feature of Kelsens approach to constituent power is his deci-
sion to confront this concept indirectly, by way of an inquiry into constituted power.
This approach is perhaps best illustrated by a passage in the second edition of The
Pure Theory of Law, in which he introduces the idea of the state as an acting subject:
If the state is presented as an acting subject, if it is said that the state has done this or that,
the question arises which is the criterion according to which certain acts performed by
certain individuals are attributed to the state, are qualified as acts or functions of the state,
or, what amounts to the same, why certain individuals in performing certain acts are
considered to be organs of the state.
Kelsen effectively argues that from a legal perspective there is no access to the acts
of a collectivelegislation in the broad sense of norm-creationother than
J. Searle, Collective Intentions and Actions in P. Cohen, J. Morgan, and M. Polack (eds.),
Intentions in Communication (Cambridge, MA: MIT Press, 1990), 401. See also J. Searle, The
Construction of Social Reality (New York, NY: Free Press, 1995), 236, and P. Pettit, A Theory of
Freedom (Oxford: Polity, 2001), 10424.
H. Kelsen, The Pure Theory of Law [1960] M. Knight, trans. (Berkeley, CA: University of
California Press, 1970), 291.
Towards an Ontology of Collective Selfhood 11
through the acts of its officials. The law, Kelsen correctly argues, can only make
sense of collective agency in terms of constituted power, power exercised in
conformity with the law.
The key to constituted power is the attribution (Zuschreibung) of the act of an
individual to a collective: the problem of the state as an acting person . . . is a
problem of attribution. Kelsens introduction of the notion of attribution allows
him to link constituted power to representation. In effect, attribution has a repre-
sentational structure: the essence of an organ is that it represents the state. The
quotation marks do not convey conceptual qualms about the appropriateness of
qualifying the acts of officials as representational acts but rather signal Kelsens
willingness to extend the notion beyond its traditional domain of parliamentary
representation: to attribute an act to the state is to claim that an officials act stands
for the act of a collective.
Representation is intimately related to a second essential feature of legislation,
empowerment. Attributing an act of norm-creation to the state implies that the act
is authorized by a higher-level norm. Hence attribution has a regressive structure:
one moves from the act of norm-creation to the norm that authorizes it, and so
on. Crucially, this regression is not infinite: relations of empowerment lead back
to a first constitution, enacted by an assembly or an individual. But whoever
enacts the first constitution cannot be empowered to do so by a norm of positive
law. Thus the assembly referred to in the historically first constitution, by adopt-
ing this constitution establishes itselfaccording to this constitutionas the
Constituent National Assembly provided for by the constitution. This, he imme-
diately adds, is tantamount to the self-creation of the organ concerned, that is, a
self-empowerment. As Kelsen recognizes, self-empowerment is a contradiction
in terms. Hence his analysis unveils a paradox at the heart of the law: legislation, in
its most powerful manifestation, is the exercise of constituent power, an act that
creates the first constitution without being empowered to do so; but because the
law can only think of power as legal power, an act can only initiate a legal order if it
is retroactively interpreted as an empowered actthe exercise of constituted
power. Such is the function of the basic norm, the Grundnorm.
This insight will shortly require our further attention. For the moment, I will
conclude my discussion of Kelsen by considering what happens to the notion of
collective agency in the pure theory of law. Kelsens indirect approach to con-
stituent power is dictated by his desire to avoid postulating a We as the subject of
a legal order. It would take us too far afield to discuss here the epistemological
arguments Kelsen invokes in support of this thesis. What is most important for
Ibid. 297.
H. Kelsen, Allgemeine Staatslehre [1925] (Vienna: sterreichische Staatsdruckerei, 1993), 310.
Kelsen, above n. 3, 1545.
The analysis I am developing here is akin to the interpretation of the basic norm defended by
B. van Roermund in Law, Narrative and Reality: An Essay in Intercepting Politics (Dordrecht: Kluwer
Academic Publishers, 1997). See further, my essay Dialectic and Revolution: Confronting Kelsen
and Gadamer on Legal Interpretation (2003) 24 Cardozo Law Review 769.
our theme is the political argument he marshals in its favour. If democracy, he

argues, is the identity of the leader and the led, of the subject and the object of
rule, then the unity of the people as the subject of rule seems to be a necessary
presupposition of democracy. Yet even a cursory survey reveals that the alleged
unity of a collective subject is deeply problematic: Split by national, religious and
economic conflicts, that unity isaccording to sociological findingsmore a
bundle of groups than a coherent mass of one and the same aggregate state
(Aggregatzustand ). Thus only in a normative sense can one speak of a
unity . . . the unity of the states legal order, which rules the behavior of the
human beings subject to its norms.
This line of reasoning, whatever its merits, has a severe drawback: if we must
relinquish the idea of a collective subject as a unity in action, then we must also
renounce the claim that legislation can be attributed to a subject. Kelsens response
to this quandary is heroic. Attribution is simply the reference of an act to a legal
order: the attribution of a function determined by the legal order and performed
by a certain human being to the state as a person is only a way of expressing the
idea that a function is referred to the unity of the legal order which determines this
function. So, Kelsen effectively collapses collective subjectivity into the legal
order itself. Having closed off the possibility that the legal order refers to an end
point of attributive relations beyond itself, the only alternative is to convert the
legal order into the end point of those attributive relations. Consequently, it is
meaningless to talk of attribution in the law, which can be scrapped altogether
from theoretical inquiry without any loss of explanatory power. For there is no
attribution properly speaking without a subject to whom norms are attributed.
But if this is the case, then one must go the whole way, and also jettison the associ-
ated notions of empowerment and representation. Ironically, it seems that the
move to parry substantialism ends up by hypostatizing the legal order, making of
the law a self-grounding, self-sufficing, and self-serving system of norms.
Such, at any rate, is Schmitts objection. Taking issue with Kelsen, Schmitt
notes that a consistently normative account of a constitution would derive the
latters validity from a set of substantive principles. But this, of course, is to engage
in natural law theory. Barring this move, which Kelsen himself rejects, the only
option is a positive account of a constitution, where positive means that a
constitution is posited by a political subject: a constitution is valid because it flows
from a constituent power . . . and is posited by [this powers] will. Schmitts
insistence on constituent power as the subject of a constitution aims to deny the
possibility of a closed, purely normative constitutional system. The concept of a
legal order contains two entirely different elements: the normative element of the
law and the existential (seinsmige) element of the concrete order. The unity and
H. Kelsen, On the Essence and Value of Democracy [1927] in A. Jacobson and B. Schlink
(eds.), Weimar: A Jurisprudence of Crisis (Berkeley, CA: University of California Press, 2000), 89.
Ibid. 90. Ibid. Kelsen, above n. 3, 292. Schmitt, above n. 1, 9.
order lies in the political existence of the state, not in laws, rules or whatever
normativity.
This insight paves the way for several objections to Kelsens normative account
of constitution-making. The first concerns the approach to collective agency
germane to constitutional theory. Whereas Kelsen approaches collective agency
regressively, as the end point of attribution, Schmitt emphasizes that agency is a
beginning, an initiating or inaugural act. Schmitt points out that the regressive
operation of attributing a constitution to a collective agent only makes sense if a
constitution is the manifestation of agency in a strong sense, namely an act of
constituent power that inaugurates a legal order. The constitution in a positive
sense arises through an act of the constituent power. The second concerns the
nature of empowerment. Whereas Kelsens discussion of attribution moves from
constituted to constituent power, Schmitt inverts the sequence, asserting that an
act of constituent power is the indispensable presupposition of any legally
meaningful sense of constituted power: the constituent power is . . . the compre-
hensive basis for all other powers and distributions of power. The third
objection spells out what is involved in the necessary presupposition of political
subjectivity: the attribution of a constitution to a collective presupposes an act of
collective self-rule. The enactment of a constitution is a conscious decision that
the political unity takes through the bearer of the constituent power for its own
sake and that it gives itself . Fourth, whereas Kelsen underlines the central role of
representation for collective agency, Schmitt retorts that the democratic self-
constitution of a polity is incompatible with representation, even though no
actual political community is possible without some form of representation. In
effect, whereas constituted powers represent the people, the latter, when exercising
constituent power, is immediately present to itself. The notion of representation
contradicts the democratic principle of the identity of the people that is present to
itself as a political unity. Fifth and last, if democratic self-rule means the iden-
tity of the governed and governing, then the people is identical to itself in that the
governed and the governing are the same. Democratic identity, however, has
nothing to do with an abstract notion of sameness, such as the sameness of being
human; the political sameness implied in citizenship is always a concrete or
substantive equality (Gleichartigkeit), such as the sharing of certain physical or
moral qualities, which it is the task of the constitution to protect. In fact, Schmitt
argues, a political concept of the constitution precedes its legal notion, both
chronologically and conceptually: prior to having a legal constitution, a state is a
constitution, a status: the concrete aggregate state [Gesamtzustand] of political
unity and social order. This existential status, not a basic norm, grounds the
validity of a constitution.
Ibid. 10. Ibid. 21. Ibid. 77. Ibid. 21. Ibid. 262.
C. Schmitt, The Crisis of Parliamentary Democracy [1923] E. Kennedy, trans. (Cambridge, MA:
MIT Press, 1985), 91. See also Schmitt, above n. 1, 234. Schmitt, above n. 1, 4.
This final objection returns us to square one, for, in a thinly veiled reference to
Schmitt, Kelsen vigorously rejects the assumption that democracy presupposes
the subjective unity of the people as an aggregate state (Aggregatzustand ). In short,
the Kelsen-Schmitt debate confronts us with an impasse. If one follows Kelsen,
then a strong notion of collective agencythe first-person plural perspective of a
We acting as a constituent poweris elided from a theory of democratic consti-
tution-making. This move exposes Kelsen to Searles objection: the self of self-rule
refers to a We, which is irreducible to an I or an aggregation of Is. If one fol-
lows Schmitt, then the first-person plural perspective is rendered synonymous to a
substantive equality between the members of a polity. But, as Kelsen rightly notes,
it is more than doubtful whether the members of a polity can identify any set of
qualities, moral or otherwise, which univocally and uncontroversially defines
them as a political unity. So, neither Kelsen nor Schmitt are able to explain the
first-person plural stance of a We as a unity in constituent action. As a result, they
cannot adequately address the question concerning the mode of being of a polity,
as implied by collective self-rule. How, then, can we move beyond this impasse?
Identity as Sameness and as Selfhood
Closer consideration suggests that, despite their sharp opposition, Kelsen and
Schmitt share a common understanding of the concept of identity implied in
political self-rule. Both interpret the self of self-rule as meaning that the rulers
and the ruled are the same. To borrow van Roermunds expression, Kelsen and
Schmitt subscribe to a co-referential reading of identity. This co-referential
interpretation of identity, is, however, reductive. Indeed, Paul Ricur has pointed
to two different but interrelated notions of identity, which he terms idem- and
ipse-identity, identity as sameness and as selfhood. These two forms of identity
reverberate in two distinct kinds of questions that, as Arendt reminds us, had
already been formulated by Augustine: if idem-identity evokes the question What
am I?, ipse-identity evokes the question Who am I? This distinction is, of
B. van Roermund, First-Person Plural Legislature: Political Reflexivity and Representation

(2003) 6 Philosophical Explorations 236. This co-referential reading of identity, is pervasive in the
literature. See, amongst others, J. Habermas, Between Facts and Norms [1992] W. Rehg, trans.
(Cambridge, MA: MIT Press, 1996), 120; C. Castoriadis, The Greek polis and the creation of
democracy in The Castoriadis Reader, D. Curtis, trans. (Oxford: Blackwell, 1997), 276; J.-F. Lyotard,
The Differend, G. van den Abbeele, trans. (Manchester: Manchester University Press, 1988), 98;
A. Kalyvas, Popular Sovereignty, Democracy, and the Constituent Power (2005) 12 Constellations 223.
P. Ricur, Oneself as another [1990] K. Blamley, trans. (Chicago, IL: Chicago University Press,
1992), 13; 11525.
H. Arendt, The Human Condition (Chicago, IL: Chicago University Press, 1958), 1011.
Augustine, Taylor notes, introduces what the latter calls radical reflexivity or the first-person stand-
point, which consists in shifting the focus from the field of objects known to the activity itself of
knowing . . . To look towards this activity is to look to the self . . . . See C. Taylor, Sources of the Self:
The Making of the Modern Identity (Cambridge: Cambridge University Press, 1989), 130.
course, the cornerstone of Heideggers Fundamental Ontology: Beings are a who

(existence) or else a what (objective presence in the broadest sense). Whereas
the identity of a thing can only be established in terms of what it is, the identity of
a human being is also reflexive in that this being relates to itself as the one who acts
and who is ultimately at stake in such acts. Heideggers preliminary characteriza-
tion of Dasein in the opening pages of Being and Time evokes this reflexive form of
identity: Da-sein is . . . ontically distinguished by the fact that in its being this
being is concerned about its very being. Thus it is constitutive of the being of
Da-sein to have, in its very being, a relation of being to this being. Importantly,
whereas sameness stands in contradistinction to difference, selfhood stands in
contradistinction to the other. But as we shall see, it also stands in a more radical
contradistinction to the alien or strange.
Although his analysis focuses primarily on individuals, Ricur recognizes that
Augustines questions can also be posed in the first-person plural: What are we?;
Who are we? Contemporary studies of collective intentionality, and Michael
Bratmans in particular, go a long way toward making sense of these two distinct
forms of identity with respect to collectives. Bratman is concerned to clarify the
kind of unity implied in the idea that individuals act together. He argues, in a
nutshell, that shared intentional activity turns on reciprocity: reciprocity of
intentions, to the extent that my intention to act is co-determined by your inten-
tion to act and vice versa, and that we know this of each other; reciprocity in the
meshing of our individual acts, in view of bringing about the shared activity.
The purpose or interest defining what the group is doing, and what it is about, is
determined through reciprocal behaviour. This purpose or interest enables a col-
lective to identify itself as the same over time, or as becoming different, to the
extent that, along the way, its members readjust their understanding of what they
are doing. Hence, although Bratman does not employ this term, collective agency
deploys a form of idem-identity. Importantly, he distinguishes shared intentional
activity from shared cooperative activity: whereas the latter rules out coercion in
the attainment of the collective purpose or interest, the former, of which law is an
instance, does not. By pointing out that coercionand a fortiori the existence of
national, religious, and economic conflictdoes not of itself rule out collective
intentionality, Bratmans insight allows us to deal with Kelsens thesis that, as a
matter of sociological fact, no sense can be made of the people as the subject of a
legal order.
The first-person plural perspective of a We brings us to the second mode of
identity: ipseity or collective selfhood. As van Roermund points out, shared
M. Heidegger, Being and Time [1927] J. Stambaugh, trans. (Albany, NY: SUNY Press, 1996),
42. This ontological distinction also underpins Strawsons claim that bodies and persons are the
two basic particulars. See P. F. Strawson, Individuals [1959] (London: Methuen, 1984).
Ibid. 10.
M. Bratman, Faces of Intention (Cambridge: Cambridge University Press, 1999), 142.
Ibid. 100, 118, 133, 142.
intentional activity is reflexive in a twofold sense. First, the members of a group

view themselves (and are, therefore, the object of an intention) as the unity that
intends to act collectively, hence as the collective subject of an act. Second, the act
is undertaken for the sake of the collective. Not only is a collective the subject of
an act, but also the object thereof in the sense of the collective that claims to have a
preferential interest in the act. This twofold sense of reflexivity comes to the fore
in references to the peoples own constitution, in contradistinction to an alien
constitutiona constitution imposed on the people. Notice that this notion of
ownership is not legal; it is thoroughly political, and expresses the reflexivity
involved in collective self-constitution.
These considerations vindicate Schmitts claim, against Kelsen, that collective
self-rule is irreducible to individual self-rule, hence that no sense can be made of
the unity of a legal order without the political unity implied in the first-person
plural perspective of a We as a subject in constituent action. Schmitt is right,
moreover, when he objects to Kelsen that the attribution of legislation to a
collective is, first and foremost, self-attribution, an act by which the members of a
community view legislative acts as their own (joint) act. Schmitt correctly argues
that empowerment and attribution immediately forfeit their legal and political
meaning unless the distinction between the own and the alien functions as a
collective distinction, that is, unless the members of a collective can view norms
and authorities as being their ownor alien. Finally, Schmitt rightly insists that
the first-person plural perspective of a collective as a unity in (constituent) action
is concrete, in the sense that it involves a determination of what binds together the
members of a community in mutuality and reciprocity.
This last insight also marks the point at which Schmitts account of collective
agency breaks down. Although selfhood is concrete in virtue of being related
to sameness, selfhood cannot be collapsed into a substance that functions as
the bearer (Trger) of a number of qualities and attributes. The following passage
illustrates in a particularly explicit manner the effacement of this crucial ontic
distinction: because each being is a being with a concrete and determinate
nature, a constitution belongs to each concrete political existence. Hence,
although Schmitts references to the self-constitution of a polity point the way
to an ontology of collective selfhood, his theory of constituent power becomes
the celebration of an ontology of substances. The parallel with Descartes is
unmistakable:
Descartes carries out the fundamental reflections of his Meditations by applying medieval
ontology to this being which he posits as the fundamentum inconcussum. The res cogitans is
ontologically determined as ens, and for medieval ontology the meaning of the being of the
van Roermund, above n. 20, 2424.

In different ways, the contributions to this volume by Preuss (ch. 11), Walker (ch. 13),
Christodoulidis (ch. 10), and Tully (ch. 16) acknowledge the central importance of the relation
between constituent power and collective selfhood. Schmittt, above n. 1, 23.
ens is established in the understanding of it as ens creatum. As the ens infinitum God is the
ens increatum.
The parallel is far from fortuitous; it is vouchsafed by Schmitts famous thesis that
the central concepts coined by modern theories of the state are secularized
theological concepts. Indeed, Schmitt construes law and state in line with the
conceptual pair ens creatum and ens increatum. In his view, the passage to modern
democracy secularizes the transcendence of God vis--vis the world, such that this
transcendent relation is rendered immanent: with the democratic thesis of the
identity of the ruler and the ruled, the people, in its relation to the legal order,
takes over the position God had formerly occupied in relation to the world.
Once this equivalence has been set up, medieval ontology can run its full political
course: to claim that the people exists is to claim that it is an ens, a thing that
bears a legal order. To be sure, Schmitt is correct in asserting that the modern
relation between constituent and constituted power is unthinkable without
medieval theology. He also rightly argues that the notion of constituent power is a
modern political articulation of the theological insight that the act that gives rise
to a legal order is not itself part of that order. The question, however, is whether
there is a reading of the relation between constituent and constituted power in
modern politics that is sensitive to those insights, yet avoids reducing an ontology
of collective selfhood to a secularization of the ens increatum.
The Equivocal Self-Constitution of Political Community
As noted earlier, Schmitt articulates his politico-theological reading of constituent

and constituted power in terms of the simple opposition between presence and
representation. The untenable character of this simple opposition and the key to
an alternative ontology of collective selfhood is wonderfully captured by an
incident that took place in the European Social Forum in Florence in November
2002. This incident is particularly apposite to a discussion of constituent power
because, arguably, the meetings of the European Social Forum are the most visible
and radical sites of resistance by the multitude to the project of European integra-
tion, as given form by the European Union. Be that as it may, the Forum of
Florence witnessed the effort of a revolutionary faction to marginalize an institu-
tional faction composed primarily of NGOs. Our movement is not reformist;
it is radical, declared Vittorio Agnoletto, former spokesman of the Genoa
Heidegger, above n. 23, 212.

C. Schmitt, Political Theology [1922] G. Schwab, trans. (Cambridge, MA: MIT Press, 1985),
36. See H. Blumenberg, The Legitimacy of the Modern Age [1976] R.W. Wallace, trans. (Cambridge,
MA: MIT Press, 1983), 89102, for an incisive critique of Schmitts political theology in the broader
framework of a critique of the secularization theorem. My paper can be read as a collectivization and
critical reinterpretation of what he calls the passage from medieval transitive conservation to modern
intransitive conservation: self-conservation or self-affirmation (Selbstbehauptung).
movements and member of the International Committee of the World Social

Forum, thereby forgetting the charter of principles of Porto Alegre, which
stipulates that the Forum is an open meeting place, and that no one is authorized
to express . . . positions that claim to be those of all participants. Notice the
dilemma: a space remains open only if no claim is made in the name of a whole;
but without such a claim, no alternative political and legal order can be founded,
by revolutionary means or otherwise. The price of radical openness in politics is
the loss of constituent power. For revolt is a conditio sine qua non but not the
conditio per quam of revolution. Unless the multitude becomes a unity in action,
unless it ceases to be a multitude and becomes a collective subject, it cannot
constitute itself as a political community.
Crucially, Agnolettos invocation of a We, when referring to our move-
ment . . . , reveals a remarkable equivocity that goes to the heart of collective self-
constitution. On the one hand, there is no first-person plural perspective in the
absence of an act that effects a closure by seizing the political initiative to say what
goal or interest joins together the multitude into a people, and who belongs to the
people. Accordingly, Agnolettos invocation fails not merely because there is no
subject to whom his speech-act can be attributed, but because the author to whom
the act would be attributed is authored by his attribution: there can be no
people prior to the imputation of a will to them. So, although Schmitt is right
to assert that foundational acts elicit a presence that interrupts representational
practices, this rupture does notand cannotreveal a people immediately
present to itself as a collective subject. I interpret Kelsens indirect approach to
collective agency, centred on the notion of attribution, as suggesting that a We is
ever absent as a unity in action.
Schmitts view that in a democracy the people acts as a constituent power also
requires critical scrutiny. Far from marking a moment of pure spontaneity or
activity, in which a collective acts in the strong sense of exercising its constituent
power in view of enacting a legal order ex novo, Agnolettos invocation of a We
reveals a fundamental passivity at the heart of political unity: instead of initiating,
the collective is initiated by a constituent power. Returning to Bratman, the
reciprocity of shared intentional activity presupposes a non-reciprocal, non-
collective act. The exercise of constituent power signals the self-constitution of
political community first and foremost in the objective form of the genitive: the
constitution of a collective self.
But this is only part of the story. Agnolettos speech-act also reveals that
whoever exercises constituent power must claim to act in the name of the collect-
ive, that is, must claim to act as a constituted power: he not only speaks about but
L. Caramel, Forum de Florence: offensive de la gauche radicale, Le Monde, 16 November

2002.
E. Christodoulidis, The Aporia of Sovereignty: On the Representation of the People in
Constitutional Discourse (2001) 11 Kings College Law Journal 130. Christodoulidiss further
development of this idea in his contribution to this volume (ch. 10) falls prey, in my view, to the
also on behalf of our movement . . .. Hence, Agnolettos assertion denies

Schmitts simple opposition between presence and representation: an act can only
originate a community by representing its origin. This paradox governs the attribu-
tion of legislation to a collective, for assigning acts of individuals to a collective
involves following a regressive strategy that takes us from the present to the past.
But the end point of attribution is not the initiating act of a collective subject
existing in an original present; instead, attribution leads back to a past which has
never been a present. This is the profound meaning, I believe, of Kelsens caveat
about the aporetic character of attribution. But his analyses of attribution, how-
ever perceptive, remain incomplete to the extent that he only views attribution as
a regressive operation. There is no attribution without the retrojection of an
inaugural act into the past, but there is also no attribution without the projection
of community into the future, such that what is held to have already taken place is
what is yet to come.
The paradoxical relation between constituent and constituted power suggests,
furthermore, how the attribution of legislation by constituent power to a
collective can take on the form of collective self-attribution. The act of constituent
power institutes political community, and does so not only by positing an interest
that is held to be common to all members of a community, but also by positing
who has a stake in that interest. This is tantamount to an act that at once identifies
and empowers individuals as members of a community. But this identification/
empowerment only succeeds if individuals retroactively identify themselves as the
members of a polity in constituent action by exercising the powers granted to
them by a constitution. Notice the inverted symmetry: if the activity of
constituent power discloses an irreducible passivity in political unity, a no less
irreducible passivity is embedded in constituent powers activity. This insofar
as this activity only constitutes a polity if taken up again and carried forward
by further acts. Thus, an act of constitution-making can only be viewed
retroactivelyand provisionallyas an act by the collective.
We can now return to Kelsens remarkable insight, expressed in the basic norm,
that an act of constituent power gives rise to a legal order only retroactivelythat
is, when it is viewed as an act of constituted power. As is the case with Schmitt,
Kelsens approach to constituent power is a modern articulation of the theological
insight that no legal order can be a closed normative system because the act that
gives rise to the law is not part of that order. True, Kelsen is primarily concerned to
develop the epistemological implications of this point. But I submit that, when
grafted onto a theory of reflexive identity, the basic norm offers the key to an
ontology of collective selfhood: the collective self exists in the form of self-attributive
metaphysics of presence that governs Western constitutional orthodoxy: a collective subject is either
represented by constituted powers or directly present to itself as a constituent power.
M. Merleau-Ponty, Phenomenology of Perception [1945] C. Smith, trans. (London: Routledge,
1989), 242.
acts by individuals. By exercising their constitutional rights, they retroactively

take up the first-person plural perspective of a We that has (already) enacted a
constitution in its own interest.
This insight makes room for an ontology without reification. In effect, no
collective self exists independently of the individuals that compose it because, as
noted earlier, acts of self-attribution are in each case individual acts. But the self to
which they attribute these acts is a political unity, a We, the existence of which is
not simply the summation of a manifold of individual acts of attribution. In a
nutshell, the significance of an ontological reading of Kelsens theory of the basic
norm is that it both confirms and destabilizes the thesis by Schmitt cited at the
outset of this paper: the concrete existence of the politically unified people is prior
to every norm. Indeed, whether or not a collective subject exists politically can
only be established retrospectively, from within the unity of a legal order: political
unity does not admit of a pre-legal existential judgment.
This temporal dcalage is of the greatest consequence for the further ontological
characterization of collective selfhood. Instead of being a fundamentum inconcus-
sum, as suggested by Schmitts secularization of the ens increatum, the collective
self has a finite mode of being, and this in at least four related senses. First, the
collective self is dependent because political unity not only acquires existence
through individual acts of self-attribution but also depends on the renewal of such
acts to continue in existence. Second, it is dependent because the collective self
must rely on a past that never has been present and a future that never will become
a present, hence on a past and a future that elude its control. These radical forms
of past and future condition the possibility of history, in the strong sense of a
temporality riven with unpredictability and improbability, the very features that,
according to Arendt, define human action. Third, self-inclusion, through a legal
actualization of political unity, is co-originally a self-exclusion, the exclusion of
other possible legal instantiations of political unity. An ontology of collective
selfhood can, with due caution, profit from Heideggers Analytic of Dasein: the
question Who are we? can only be raised and answered because the collective self
exists as possibility. Because a collective has not only included but also excluded
itself in a beginning it cannot recover directly, the collective must incessantly
relate to its possibilities, determining time and again what interests are its own and
who is a member of the political community. Hence, the question Who are we?
The paradox of constituent power, as outlined heretofore, suggests an alternative to the simple
disjunction between the monistic and dualistic readings of the relation between law and politics
proposed by Dyzenhaus in his contribution to this volume (ch. 7). This paradox also makes for a very
different reading of the significance of Kelsens basic norm to democratic theory than that
propounded by Andreas Kalyvas in his recent article, The Basic Norm and Democracy in Hans
Kelsens Legal and Political Theory (2006) 32 Philosophy and Social Criticism 573.
Arendt, above n. 22, 2312.
This mode of being of collective selfhood could mark the point of departure for a
(critical) engagement with Agambens analysis of potentiality. See G. Agamben, Potentialities,
D. Heller-Roazen, trans. (Stanford, CA: Stanford University Press, 1999).
does more than merely open up the realm of collective ipseity; more fundamen-
tally, questionability is itself part of the ontology of collective selfhood. Fourth,
the finitude of collective selfhood implies an ontological determination of
collective agency that is prior to and encompasses both terms of the distinction
between constituent and constituted power: to act is to respond. Constituent
power is never a pure decision that emanates from nothingness, in the manner of
a secularized actus purus. A collective can only act by re-acting to what, preced-
ing it at every step, never ceases to confront it with the question, Who are we?.
Constituent power comes second, not first: from the very beginning, and as its
beginning, collective selfhood is eccentric, decentred with respect to the other as
well as to the strange. Here, then, is the main contribution of the paradox of
constituent power to an ontology of collective selfhood: the collective self exists in
the modes of questionability and, by way of its acts, of responsiveness.
Democracy and the Rule of Law
We can now turn to examine Schmitts thesis concerning democracy and the rule
of law. As noted at the outset of this paper, by moving to recover the primacy
of constituent power over constituted power, Schmitt aims to rescue the primacy
of democracy over the rule of law. He does not tire of insisting that the system of
limitations of state powermost notably its division into the three branches of
government and the protection of individuals by the constitutional entrenchment
of a catalogue of fundamental rightsis not intelligible of itself. The three
branches of government presuppose on the one hand the unity of a constituent
power whence they derive their competences. On the other hand, fundamental
rights can only be invoked as legal rights if they lead back to the constituent act of
the people, which, as a collective, granted those rights to individuals. The state
itself, which is to be controlled, is presupposed by this system [of limitations].
By reminding his readers of the conceptual and chronological primacy of
constituent power over constituted power, and of democracy over the Rechtsstaat,
Schmitt strives to unmask the neutralization of politics that, as he sees it, drives a
purely normative account of the constitution: the liberal state under the rule of
law (brgerliche Rechtsstaat) operates on the assumption that it can completely
encompass and circumscribe all exercise of state power within written laws, such
that no political action of a subject . . . is possible any longer. I will conclude
this paper by assessing this passage in the light of the two fundamental ontological
determinations of collective selfhood: questionability and responsiveness.
Schmitt, above n. 31, 38.

See B. Waldenfels, Antwortregister (Frankfurt: Suhrkamp, 1994) for a radical analysis of respon-
siveness to which I am much indebted. Schmitt, above n. 1, 200.
Ibid. 107, 41.
For Schmitt, liberating democratic politics from its liberal containment

requires acknowledging that a legal constitution is valid because it is the political
decision of a people. Whereas the question concerning validity and legitimacy can
be posed with respect to the legal order, it cannot with respect to the people as a
unity in constituent action: [t]he distinctive manner of political existence need
not and cannot legitimate itself . Yet the paradox of constituent power indicates
that self-constitution begins as the constitution of a political unity through a legal
order, not as the constitution of a legal order by a political unity. Someone must
seize the initiative to determine what interests are shared by the collective and who
belongs to it. Schmitts explicit denial notwithstanding, political unity first arises
through the enactment of a constitution. Consequently, the problem of
legitimating a legal order is from the very beginning the problem of justifying the
inclusion and exclusion required for political unity. Ironically, having excoriated
Kelsen for transforming the law into a self-grounding, self-serving, self-sustaining
order, Schmitt ends up doing just that with respect to political unity. Schmitt, not
Kelsen, is the positivist. Rejecting Schmitts move by exposing the equivocal self-
constitution of political community amounts, ontologically speaking, to
recognizing that the collective self exists in the mode of questionability.
Democracy, in my reading of the passage from medieval theology to modern
politics, emerges as the form of political organization that embraces this onto-
logical status of the collective self, institutionalizing the principle that the
distinctive manner of political existence must always be legitimated. From this
perspective, the division of powers underpins rather than undermines the
democratic principle. For a division of powers (of which the triad common to
nation-states is but one possibility) is a way of acknowledging that a people is
never directly present to itself as a unity: whoever claims to speak on its behalf may
only do so if the claim can be questioned by another power. The so-called counter-
majoritarian paradox that has so perplexed Western constitutional doctrine is
thoroughly specious: while an elected legislature is closer than the judiciary to the
electorate, and hence to the ever shifting play of majorities and minorities, it by no
means has an exclusive or even privileged access to the people as a political unity.
By shielding the judicial branch from electoral politics, and empowering it to
protect the rights of minorities in the face of potential encroachment by majorities
that claim to act on behalf of the whole, the rule of law gives institutional form to
the ontology of collective selfhood underpinning democratic politics. The
countermajoritarian paradox only appears to be such when identity and citizen
participation are opposed to representation, that is, when political theory
succumbs to a metaphysics of presence.
Schmitt, above n. 1, 87. Ibid. 21.

In this vein, see McCormicks contribution to this volume (ch. 6) for a discussion of
Machiavellis proposals concerning the division of powers in the early sixteenth century Florentine
polity.
These considerations cast new light on Schmitts denunciation that the

Rechtsstaat neutralizes democratic politics by replacing political action of a
subject with action in the name of a subject. For the democratic reception of the
paradox of constituent power turns on acknowledging the aporetic character of
the possessive preposition of , precisely because it is indissolubly linked to in the
name of . On the one hand, because a people is never directly present to itself as a
subject in constituent action, an act can only be identified as its act by raising a
representational or attributive claim; on the other, the paradox of constituent
power renders the attribution of action to the people irredeemably problematic.
The Rechtsstaat is the manner in which modern democracy deals with this aporia:
the division of powers and the constitutional entrenchment of a catalogue of
fundamental rights are the minimal conditions governing the attributability of an
act, such that it can be viewed as the peoples act. In this sense, and returning to
Schmitt, the rule of law does not neutralize democratic politics: it spells out the
institutional conditions for political action of a subject, of a people as a unity in
action.
But Schmitts denunciation cuts deeper. For this is arguably not the strong
sense of political action he has in mind, namely the normative innovation which is
the obverse of a normative rupture. This deeper sense of his objection can be
parried to a certain extent. For the democratic Rechtsstaat is the form of political
organization that suspends, up to a point, the initial and subsequent closures in
view of determining anew what interests are shared by a community and who is an
interested party thereto. Moreover, this suspension and redefinition of closure are
only possible because the legal order, as posited, does not exhaust the possibilities
of political community. By embracing the insight that the collective self exists in
the mode of questionability, the democratic Rechtsstaat also embraces and seeks to
liberate the insight that the collective self exists as possibility. So, in response to
Schmitt, innovation and rupture are possible within and also positively elicited by
democratic states under the rule of law.
This stance is valid, but only up to a point. A collective with infinite possibil-
ities is not a collective. The collective self exists in the form of a finite responsive-
ness to what questions it. Nietzsches well-known dictum holds for collectives no
less than for individuals: One only hears those questions to which one is able to
find an answer, even though only retroactively does it become apparent what
questions a collective can respond to. Although a collective can integrate what it
has excluded, this does not imply that what has been excluded is rendered legal in
its own terms, such that, in a dialectical movement, however painful and long in
the crafting, the collective and what subverts it are reconciled in a higher-order
legality. Agnolettos rejection of reformism reminds us that responsiveness is
radically finite because legislation does not merely integrate the strange into a legal
F. Nietzsche, The Gay Science, J. Nauckhoff, trans. (Cambridge: Cambridge University Press,
2001), 140.
order; it also always neutralizes strangeness, levelling down the extraordinary to a

variation of the ordinary.The strange is the remainder that resists inclusion in
Ricurs dialectic of the self and the other. To lose sight of this is to strip strange-
ness of its ambiguity, collapsing the threat posed by subversion into a mere oppor-
tunity for and celebration of legal change.
This limited responsiveness entails that there is a form of constituent powera
normative innovation and rupturethat proceeds from a radical outside no
political community succeeds in domesticating. Schmitt clearly understood this
when he noted that no democracy can avoid including the figure of treason
among its criminal provisions. For, in the perspective of a theory of constituent
power, treason is revolutionary activity. Not surprisingly, Kelsen also alludes to
treason and constituent revolutionary activity as the watershed leading from one
legal order into another. In effect, the first-person plural perspectives governing
these two qualifications are incommensurable: the problem is not that the act of
the revolutionaries cannot be interpreted within the legal order they attempt to
overthrow; it is that this material fact can only be interpreted as treason, not as the
exercise of constituent power. Treason, on this reading, has an ontological import:
it attests to an impossible possibility, a possibility that lies beyond the reach of a
collective self because to embrace it would be to destroy the conditions of its own
possibility. The Rechtsstaat is an irreducibly ambiguous achievement, because it
both enables and sets limits to the contestation of representational claims.
In this sense, then, Schmitt rightly denounces the assumption that the
Rechtsstaat can circumscribe all political action within the unity of a legal order.
The extreme question posed by an ontology of collective selfhood is how to
understand a political responsiveness that neither presupposes nor aspires to the
reciprocity of self and other; only this non-reciprocal understanding of
responsiveness is adequate to political pluralism, in the strong sense of the
expression. But to agree with Schmitt on this is not to say that casting off the rule
of law means liberating democratic politics. For democracy only comes first by
dint of coming second. If, as noted, collective self-constitution begins as an act
that constitutes the collective self in the very process of claiming to act on its
behalf, a political community is only democratic if it recognizes that this claim
always comes too soon. Modern democracy is not unmediated political action by
the people, as Schmitt would have it, because there can be no such action; it is the
form of political organization that, appealing to the rule of law, postpones acts of
attribution by establishing the minimal conditions under which such acts may be
viewed, ever provisionally, as acts of the people.
Schmitt, above n. 1, 119.

H. Kelsen, Introduction to the Problems of Legal Theory [1934] B.L. Paulson and S.L. Paulson,
trans. (Oxford: Clarendon Press, 1992), 59.
2
Constituent Power Subverted: From English
Constitutional Argument to British
Constitutional Practice
Martin Loughlin
Although constituent power received its first clear articulation through the
mouths of English political actors, the concept has been almost entirely eradicated
from the constitutional discourse of modern Britain. The objective of this chapter
is to explain and justify each of these claims. My argument will be that the concept
of constituent power was explicitly expressed during the revolutionary debates of
mid-seventeenth century, and it exerted a powerful (though not prevailing)
influence over the framework of rule within the English republic. The fact that it
now serves no juristic function is attributable mainly to the subsequent collapse of
the republic and the restoration of the monarchy, together with the gradual
institutionalization of the modern practices of parliamentary government. This
subversion, it will be argued, was the product of a conscious effort of British state-
craft and it has led to the idea of a constituting power becoming entirely
absorbed into the doctrine of the absolute authority of the Crown-in-Parliament
to speak for the British nation.
This argument rests on three broad contentions. The first is that a fundamental
shift in thought occurred as a result of the mid-seventeenth century constitutional
conflicts. Until this moment, constitutional safeguards in the English system had
been devised through an evolving juristic discourse that magnified, idealized, and
institutionalized the authority of the crown. During the unfolding crisis, a critical
innovation was made: many of the most influential protagonists claimed that
sovereign right was not bestowed from above (by God), but was conferred from
below (by the people). And while this claim did not necessarily lead to a dimin-
ution in the authority of the crown, it did require a rotational shift in the logic of
justification of constitutional authority, since it rested on a belief that the ultimate
power to make or alter the framework of government vests in the people.
This shift brings us to the second general contention: that during the debates
fuelled by these constitutional conflicts we see the formation of the concept of a

constituting power located in the people. This idea of constituent power not
simply as a rhetorical symbol but as an active force emerges for the first time in
modern European discourse and as a product these English constitutional
conflicts.
But if the second claim is that mid-seventeenth century English conflicts
formed the crucible in which the concept of constituent power was forged, the
third contention is that after the restoration of the monarchy in 1660, govern-
mental practice developed so as to suppress the significance of the concept in
British constitutional understanding. This was achieved by eulogizing the status
of parliament in the modern constitution; by standing as an omnicompetent
representative forum of the community of the realm, parliamentthe grand
inquest of the nationhas usurped the role of the people in the constitutional
imagination. Consequently, despite having a strong claim to have given birth to
the concept of constituent power in modern political discourse, the British today
seem to have little use for the concept within the frame of their present, rather
unusual, constitutional arrangements. To the extent that presently there is a
generalized sense of dissatisfaction about the nature of this modern settlementa
settlement forged in the decades following the Revolution of 1688it might be
said that the constitutional questions raised during the English civil war have
never entirely been resolved, and that we are still living with these ambiguities.
Constitutional Conflict in Early-Seventeenth Century England
The implications of the claim that the people possess a constituting power can be
appreciated only against the backcloth of prevailing beliefs. Before examining the
challenge that parliamentary representatives posed to the kings authority to rule
by divine right, then, the medieval ideas of the body politic and the crown
should first be explained.
The Crown and the Body Politic

The concepts of the crown and the body politic lie deeply buried within the
scholastic writing of medieval jurists. By the end of the twelfth century a distinc-
tion had come to be drawn in English legal thought between king and crown, and
by the fourteenth century the coronation oath required kings to swear to maintain
unimpaired the rights of the crown. Although it may be tempting to identify the
origins of the distinction between private and public, or between the personality
of the ruler and the impersonal office of rule, in this differentiation, it would be
misleading to push this too far. Within the feudal ordering of the high middle
ages, public and private were deeply intertwined and it was universally acknow-
ledged that the common good could be promoted only through the expression of
a single authoritative will, intrinsically contained in the person of the king.
English Constitutional Argument 29
Consequently, although in the English system it had long been accepted that
the kings will had to assume an institutional form, this regal will was mainly
expressed through the kings council. Parliaments remained of marginal import-
ance and, to the extent that parliaments performed any constitutional role, this
was a by-product of the high degree of governmental centralization achieved by
the Normans and Angevins that had made possible the emergence of the idea of
the community of the realm. The formation of the English parliament possessed
with full powers to bind their communities (the principle of plena potestas)
emerged as a device of effective government. Rooted in the localities and receiving
its institutional voice at the centre, parliament nevertheless became an unusual
expression of national consciousness, and this was later proved to be a critical
factor in the formation of the modern English state.
The more general point is that the concept of the crown remained a flexible
institutionalized expression of governmental authority, one which could assume a
variety of forms including those of the king-in-council or even the king-in-
council-in-parliament. And although a basic objective of medieval statecraft was
to strengthen the authority of the crown, the very flexibility of the concept meant
that this remained a highly ambiguous enterprise, especially since any attempt to
separate the king from his crown would amount to treason.
These ambiguities were reinforced by the reliance of medieval jurists on the
organological symbolism of the body politic. In the highly influential form of
John of Salisbury, the king and the realm formed parts of one single body (the
persona publica). In Policraticus, John likened the king to the head, parliament to
the heart, judges and provincial governors to the senses, the treasury to the stom-
ach, and the peasants to the feet. Inferiors cohered with superiors to form integral
parts of a single body politic, in which not only was the whole felt to be greater
than the parts, but the head was to be accorded a special role. John had borrowed
extensively from canon lawyers, who conceived the church to form a hierocratic
regime in which all Christians (the congregatio fidelium) belonged to a single
corporate entity (the Ecclesia) and were impressed with the basic duty of working
to ensure its preservation. Within the Ecclesia, the head occupied a singular pos-
ition. As head of the corporation, the pope was vested with all power in persona
Ecclesiae; he was the fons et origio, the source from which all rivers of power flow.
The head is the microcosm, in which is reflected the total ordering of the world.
Inclusion of all in one entailed the supremacy of one over all.
This was a controversial analogy to apply to secular government, and its
significance was not lost on those jurists offering an explanation of the nature
of English government. Theological borrowings undoubtedly reinforced the
John of Salisbury, Policraticus [c.11546] C. Nederman (ed.) (Cambridge: Cambridge
University Press, 1990), v. 6, 9, 11, 15.
M. Wilks, The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with
Augustinus Triumphus and the Publicists (Cambridge: Cambridge University Press, 1963), 31.
See, e.g., Sir John Fortescue, De Laudibus Legum Anglie (In Praise of the Laws of England)
[146871] S.B. Chrimes, trans. (Cambridge: Cambridge University Press, 1942), ch. 13: just as
authority of the king: the king could not die, the king could do no wrong, the king
was omnipresent throughout the body politic, and (in an analogy with the
Trinity) the king had two inseparable bodies within his personall are theological
appropriations. Of particular significance for this study is that of the corporate
character of the crown, or the idea of the kings two bodies.
Coke CJ concisely outlined this argument in his judgment in Calvins case in
1608, in which he claimed that in addition to a natural body, which is the cre-
ation of Almighty God, and is subject to death, infirmity, and such like, the king
possesses a politic body which is framed by the policy of man and in which
capacity the King is esteemed to be immortal, invisible, not subject to death,
infirmity, infancy, nonage, etc. This politic body is given legal form in the
concept of the crown, which, says Coke, is an hieroglyphic of the laws, signifying
that the crowns function is to do justice and judgment, to maintain the peace of
the land, &c. to separate right from wrong, and the good from the ill. The
crown, in short, is a symbol of what today we would call the state.
The Divine Right of Kings

Theological bolstering of kingship reached its apogee in the early seventeenth
century. The argument is laid out extensively in the writing of James VI of
Scotland, who in 1603 ascended to the throne of England as James I. James
claimed that from the law of God is derived the duty and allegiance of the people
to their lawful king . . . as Gods Lieutenant in earth, obeying his commands in all
things, except directly against God . . . acknowledging him a Judge set by God
over them, having power to judge them, but to be judged only by God.
Although James is sometimes blamed for having provoked a constitutional strug-
gle by propounding a novel idea of the divine right of kings replete with absolutist
overtones, this is not obviously the case. When James claimed that kings are Gods
Lieutenants on earth, he was arguably doing no more than expressing the Tudor
view of state sovereignty. In the early seventeenth century, the doctrine of divine
right was a commonplace which would not have been doubted by the great
majority of James subjects.
the physical body grows out of the embryo, regulated by one head, so the kingdom issues from the
people, and exists as a body mystical (corpus mysticum), governed by one man as head.
(1608) 7 Co.Rep.1, 10a. Ibid. 11b.
The Trew Law of Free Monarchies (1598) in King James VI and I, Political Writings,
J. P. Somerville (ed.) (Cambridge University Press, 1994), 62, at 72.
See, e.g., the Act in Restraint of Appeals 1533 (24 Henry VIII c.12.), the provision cutting off
appeals to Rome, which asserted that the king was furnished by the goodness and sufferance of
Almighty God with plenary, whole and entire power, preeminence, authority, prerogative and juris-
diction to render and yield justice and final determination to all manner of folk, residents or subjects
within this realm.
If divine right was being advocated more vigorously than in the high Tudor
period, this was not just because James had a good conceit of himself as a political
philosopher but because doctrines of resistance had lately been so much in the
air. Political exigencies dictated that the doctrine of divine right be aggressively
promoted. Against the arguments of counter-Reformation scholars, divine right
was required as ideological support for Protestant states seeking to defend their
autonomy from the claims of the papacy. According to James, God had directly
conferred authority on legitimate rulers, and he promoted the claims of
Protestantism by arguing that, contrary to the claim that monarchical legitimacy
flowed through papal sanction, the pope was nothing other than the Antichrist.
Divine right was the ideology through which nation states proclaimed their
independence.
Notwithstanding this link between divine right and state sovereignty, it might
be noted that the revolutionary act through which Henry VIII asserted his
absolute sovereign authority was one in which he made full use of the instrumen-
tality of parliament. In Henrician statecraft, crown and parliament united to
challenge any rival jurisdictions. In the course of making full use of his regal
powers, Henry acknowledged that we at no time stand so highly in our estate
royal as in the time of Parliament; wherein we as head and you as members are
conjoined and knit together into one body politic. Divine right did not resolve
all issues concerning the authority structure of the state; acceptance of divine right
could simultaneously be claimed to mark the triumph of the institution of the
king-in-parliament. The stage was set for the drama of a caput/corpus struggle.
The Parliamentary Challenge

The contests between king and commons form the centrepiece of constitutional
struggle during the first three decades of the seventeenth century. Basically, they
concerned the Commons refusal to vote supply without redress of grievances, or
their limiting of supply as a means of maintaining control over the king, with the
result that the king felt driven to find innovative ways of raising revenues (special
import duties, ship money, forced loans, etc.) that parliamentarians claimed
amounted to abuses of the royal prerogative. Charles I tried to win this game by
Austin Woolrych, Britain in Revolution, 16251660 (Oxford: Oxford University Press, 2002),
201.
See James, Triplici nodo, triplex cuneus, or An Apologie for the Oath of Allegiance in his
Political Writings, above n. 6, 85, esp. at 11314.
See J.N. Figgis, The Divine Right of Kings (Cambridge: Cambridge University Press, 2nd edn.,
1922), 237: divine right was the popular form of expression for the theory of sovereignty;
J.P. Somerville, Royalists and Patriots: Politics and Ideology in England, 16031640 (Harlow: Pearson,
2nd edn., 1999), 39: Absolutists magnified royal power. They did this to protect the state against
anarchy and to refute the ideas of resistance theorists.
Ferrers case (1543); excerpted in G.R. Elton, The Tudor Constitution: Documents and
Commentary (Cambridge: Cambridge University Press, 1960), 267, at 270.
ruling without parliament, and after dissolving parliament in 1629 he did so for
eleven years. But he eventually realized that the claim of divine right did not of
itself generate cash, and when he was required to convene parliament in
November 1640 in order to raise revenue, the Commons acted decisively to
control the king. They did so mainly by punishing his agents.
Of particular interest is the way in which divine right was used as a means of
establishing parliamentary control. If the kings powers were divine and vested in
him for the purpose of maintaining the common good, then such powers could
not be shared with or delegated to others. Parliament found its role as that of a
guardianto ensure that the kings counsellors did not usurp these divine powers.
While the king could do no wrong, they argued, nothing could be more ruinous
to the state than the committal of wrongs by those who presumed to act in the
kings name.
As the highest court in the land, Parliament therefore set about punishing those
who had misled the king, by reviving the technique of impeachmenta process
that culminated in the attempted impeachment and eventual act of attainder, in
1642, against Charles Is favourite minister, the Earl of Strafford. In signing the
act contrary to his strong personal convictions, the king had become trapped
within his public capacity. By both institutionalizing and elevating the office, the
commons were in effect seeking to separate his politic and natural bodies. By
isolating the person of the king in his majesty, they presumed to know better than
the king himself what the common good required.
Attacking the Kings ministers while pretending to revere his person, Clayton
Roberts noted, may be good politics, but it is dishonest political philosophy. In
truth, the fiction of divine right could no longer be sustained. Having been
stretched to breaking point, divine right came to be replaced by another fiction
that of the sovereignty of the people.
The Birth of Constituent Power
In his answer to the Nineteen Propositions made by parliament in 1642, and

which sought severely to circumscribe the kings powers, Charles I appealed to the
need to maintain Englands mixed and balanced constitution of the three estates.
He warned that any attempt by parliament to destroy this balance and subvert the
fundamental laws of the kingdom will beget eternal factions and dis-
sentions . . . since so new a power will undoubtedly intoxicate persons who were
See C. Roberts, The Growth of Responsible Government in Stuart England (Cambridge:

Cambridge University Press, 1966), chs. 13.
See Speech or Declaration of John Pym after the recapitulation or summing up of the charge of
High-Treason against Thomas, Earle of Strafford, 12 April 1641 in J.L. Malcolm (ed.), The Struggle
for Sovereignty: Seventeenth Century English Political Tracts (Indianapolis: Liberty Fund, 1999)
vol. 1, 127. Roberts, above n. 12, 99.
not born to it. The common people, he prophesied, will call parity and
independence, liberty; . . . will destroy all rights and properties, all distinctions of
families and merit; and by this means this splendid and excellently distinguished
form of government, [will] end in a dark equal chaos of confusion, and the long
line of our many noble ancestors in a Jack Cade or a Wat Tyler. This chaos and
confusion was not to be averted, and the dispute disintegrated into civil war.
Initially, many on the parliamentary side continued to operate with the old
fiction of the kings two bodies: Parliament kept on pretending that the king as
king was on their side, his regal and legal body [the body politic] remaining with
them at Westminster while his misled person marched an army against theirs.
Nevertheless, it was becoming clear that the parliamentary claims could not easily
be sustained within the framework of the old ideology. A break was necessary, and
this breach was filled by the argument that governmental authority (whether
monarchical or parliamentary) had its ultimate source in the will of the people.
The Concept of Popular Sovereignty

Although the conviction that governmental authority was rooted in the opinion
of the people did not dictate a particular form of government, it was used in the
context of the English crisis to strengthen the parliamentary case. This argument
was bolstered by the representational practices of the English parliament, where
the principle of plena potestas ensured that although members represented specific
localities they spoke for the entire community of the realm. Once the claim was
made that governmental authority ultimately rested in the people, the significance
of plena potestas was transformed: without the question being remitted to the
people, their parliamentary representatives immediately assumed this power.
This argument was expressed most clearly by Henry Parker, a lawyer who
promoted the parliamentary case throughout the 1640s. Parker argued that since
power is originally inherent in the people, the kings power had been created for,
and must be directed towards, the benefit of the people. And in the English
system, the voice of the people found its expression in parliament: vox populi was
ever reverenced as vox Dei, and Parliaments are infallible, and their acts
indisputable to all but Parliaments. Where so many are gathered together for
Gods service in such a devout manner, he elaborated, we cannot but expect that
God shall be amongst them and that the common body can affect nothing but
Charles I, XIX Propositions made to both Houses of Parliament to the Kings Most Excellent
Majesty: With His Majestys Answer in Malcolm (ed.), above n. 13, vol. 1, 145, at 1701. Wat Tyler
led the peasants revolt in 1381, and Jack Cade led the Kentish rebellion of 1450.
E.S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America
(New York: Norton, 1989), 55.
Coke, 4 Inst. 14: Though one may be chosen for one particular county, or borough, yet when
he is returned and sits in parliament, he serveth for the whole realm, for the end of his coming thither,
as in the writ of his election appeareth, is general.
the common good. For Parker, parliament was, to all intents and purposes, the
state:
The judgment of the major part in Parliament is the sense of the whole Parliament,
and that which is the sense of the whole Parliament is the judgment of the whole Kingdom;
and that which is the judgment of the whole Kingdom, is more vigorous, and sacred, and
unquestionable; and further beyond all appeal, than that which is the judgment of the
King alone, without all counsel, or of the King, with any other inferior clandestine
counsel.
Parker thus located the source of governmental power in the people, and assumed
that that power was located in the parliament. As parliament became more
assertive in its use of power without the kings consentby not only legislating
but also taxing the people more heavily than any king hadParker reinforced the
claim that the institution of parliament itself was sovereign.
Thus, a parliament that had come into existence as an act of the royal will, and
whose representativesbeing elected on a limited franchise determined by the
king and being summoned to advise the king and consent to the actions of the
kings governmentwas now assuming all powers of government, including
those of altering the basic framework of government. Having been created by the
crown, parliamentby invoking the principle of popular sovereigntywas able
to assume a power of self-creation.
This became the point of the royalist counter-challenge. Even if political power
rests with the people, where is the evidence that the people have chosen to locate it
in the Commons rather than the king? And just as divine right had assumed an
ideal form that could be used to impose restrictions on the conduct of royal gov-
ernment, did not the principle of popular sovereignty similarly impose conditions
and limitations on the powers of the institution of parliament?
Popular sovereignty thus became the medium by which a narrow elite (the
gentry in the commons) justified to themselves the arrogation of governmental
power. In the name of the people, Edmund Morgan wrote, the parliamentarians
became all-powerful in government, shedding as much as possible the local,
subject character that made them representatives of a particular set of people.
The Long Parliament elected in 1640, remained the key institution of
H. Parker, The Case of Shipmoney briefly discoursed [1640] in Malcolm (ed.), above n. 13,
vol. 1, 93, at 117.
H. Parker, Some few Observations upon his Majestys late Answers to the Declaration or
Remonstrance of the Lords and Commons, May 23, 1642, 9, cited in M.A. Judson, Henry Parker
and the Theory of Parliamentary Sovereignty in Essays in History and Political Theory in Honor of
Charles Howard McIlwain (Cambridge, MA: Harvard University Press, 1936), ch. 5, at 146.
See Judson, ibid. esp at 1534.
Parkers argument is therefore every bit as radical as that of Sieyes in the French revolutionary
debates of the following century: see E.J. Sieys, What is the Third Estate? [1789] in his Political
Writings, M. Sonenscher, trans. (Indianapolis: Hackett, 2003), 92162, esp. ch. 1 The third estate is
a complete nation. See further Jaume in this volume (ch. 4). Morgan, above n. 16, 50.
government throughout this turbulent period until 1653, surviving losses of

many of its members who sided with the king, or who died, or who were purged
by the army in 1647 and again (in Prides Purge) in December 1648. At this point,
a rump of around 200 MPs, elected for the most part in 1640 on a franchise that
had been determined by the kings government, exercisedalbeit within the
shadow of the armys powerthe full powers of sovereign authority.
Leveller Discourse
With such a small and partial group of parliamentary representatives exercising
the supreme powers of government in the name of the people, how were the
many in local communities to hold them to account? Parliamentary power had
evolved within the English constitution through the need to hold the king to
account when he acted contrary to the public good. Who was to perform this task
when parliamentin the name of the peopleitself assumed the powers of
government? With the people of England looking on as the king was first tried by
a parliamentary committee of forty-three MPs and then executed and a republic
formed, such questions took on a pressing significance.
In this revolutionary climate, a wide range of viewsmainly generated by
radical religious convictionswas expressed not only on constitutional arrange-
ments but also on social formation. Many of these sects exerted little influence
over the debate on the constitutional framework of English government. But the
movement called the Levellers did. The Levellersmisnamed since they explicitly
repudiated any desire to eliminate social or economic distinctionsalso
addressed directly the issue of the constituent power of the people to make and
break a system of government. Although ultimately unsuccessful, Leveller ideas
owing mainly to their influence within the armyformed a powerful strain of
political discourse during the revolutionary period.
Many within the ranks of the parliamentary army had expressed dissatisfaction
with the policies of the existing parliament, and engaged in more fundamental
This is why the events are sometimes referred to as the Puritan Revolution, and why there has
been debate over the question of whether the English Revolution was the first of the modern revolu-
tions or the last of Europes religious wars: see J. Morrill, The Religious Context of the English Civil
War (1984) 34 Transactions of the Royal Historical Society 155.
These groups included the Fifth Monarchists who, following the Book of Revelations, argued
the necessity of establishing a system of theocratic rule by the saints pending the arrival of Christs
kingdom on earth; the Ranters, who advocated individual liberation through discovery of the
godhead within them; and the Diggers, sometimes called the true levellers, who called for an end to
private property and advocating community control over land. See C. Hill, The World Turned Upside
Down: Radical Ideas during the English Revolution (London: Penguin, 1972).
See, e.g., The Humble Petition to the Right Honourable, The Commons of England in
Parliament Assembled, 11 September 1648 in W. Haller and G. Davies (eds.), The Leveller Tracts,
16471653 (New York: Columbia University Press, 1944), 147, at 153 (listingapprovingly
Parliaments achievements) 18. That you have bound your selves and all future Parliaments from
abolishing propriety, levelling mens Estats, or making all things common.
inquiry into the nature of the authorizing power. Entering this debate, the
Levellers argued that since all power emanates from the people, it was necessary
not only to examine the relationship between the people and their parliament, but
also the ways in which the people might express their ultimate authority outside of
that institution. Here we see the drawing of a clear distinction between the consti-
tuting power of the people and the constituted powers of government. Contrary
to parliamentarians like Parker, the Levellers did not equate parliament with the
people. If government derives its authority from the people, they asked, how is the
people to express its will and to control and direct a government that purports to
act in its name?
The answers the Levellers offered were radical and modern. They argued first
that all government involved an exercise of trust, a power delegated by the people
for their several weals, safeties and freedoms and no otherwise. That is, since
the sovereign or legislative power is only from the represented to the representers,
and cannot possibly legally further extend, the power of the king cannot be
legislative but only executive. They claimed secondly that given the nature of
this governmental power it was essential that the views of the people were fully
reflected in the composition of the constituted authority. They therefore
advocated the abolition of any property qualification for the franchise, extending
voting to all except women, children, criminals, and paupers.
But for the Levellers a democratic foundation to government was a necessary
but not sufficient condition for ensuring that government acted in the interests of
the sovereign people. To protect their continuing sovereignty, the people must be
given certain sovereign rights, and for this purpose a formal compact between the
people and the government was needed. This the Levellers promoted in their
Agreement of the People of 1647, which called not only for proportionate represen-
tation and regular elections but also reserved in the people certain basic rights
including equality before the law and, most significantly, freedom of religion. In
relation to this latter right, they claimed that the ways of Gods worship are not at
all entrusted by us to any human power, because therein we cannot remit or
See D. Wootton, The Levellers in J. Dunn (ed.), Democracy: The Unfinished Journey 508BC to
AD 1993 (Oxford: Oxford University Press, 1993), 7189, at 71 the Levellers were . . . not merely
the first modern democrats, but the first to seek to construct a liberal state. Not only do their object-
ives have a contemporary ring, but the very language they use is often indistinguishable from our
own. We cannot have any sense of how extraordinary their proposals are unless we remind ourselves
that not a single one of their key demands had previously been recognized by any actually existing
government in the Old World.
R. Overton, An Arrow against all Tyrants [1646] in A. Sharp (ed.), The English Levellers
(Cambridge: Cambridge University Press, 1998), 54 at 56. Overton, ibid. 63.
See K. Thomas, The Levellers and the Franchise in G.E. Aylmer (ed.), The Interregnum: The
Quest for Settlement, 164660 (London: Macmillan, 1972), 5778. The democratic character of
Leveller claims is challenged in C.B. Macpherson, The Political Theory of Possessive Individualism
(Oxford: Oxford University Press, 1962), ch. 3. But Macphersons thesis is rebutted in J.C. Davis,
The Levellers and Democracy (1968) 40 Past & Present 174.
exceed a tittle of what our consciences dictate to be the mind of God, without
wilful sin. Once it is recognized that there exist certain basic rights that the
people cannot delegate to their governments, the idea of inalienable rights enters
the stream of constitutional discourse.
Once the kings cause had been defeated, the Levellers asserted that England was
now starting afresh, and that a new constitutional settlement could only be autho-
rized by the sovereign body. They therefore proposed the Agreement of the People be
signed by every Englishman. Parliament responded by claiming that, being
destructive to the Being of Parliaments, and Fundamental Government of the
kingdom, the Agreement was seditious. But the determinative force of the time
was the New Model Army, which had been recruited by parliament in 1645, and it
was within the Army Council and its committees that the terms of the Agreement
were seriously discussed. After the Putney debates, however, the armyunder
the control of Cromwell and his son-in-law Iretondetermined that the most
effective means of rule was through the Rump Parliament, and the Leveller cause
was suppressed. In March 1649, Lilburne, Overton, and other Leveller leaders
were arrested, and in May a mutiny of their supporters within the army was easily
put down. Thereafter, the Leveller cause lost its political coherence, its organization
was broken up, and its constitutional claims were suppressed.
The conditions in which the Levellers emerged were unusual. It has been
suggested that they could only have emerged in a society in which Puritanism and
commerce had encouraged the spread of literacy among the common people and
where official censorship had broken down. But David Wootton also notes that
the movement was flawed by certain fatal weaknesses. These included its limited
support (within religious sects that wanted toleration and the ranks of the army
that wanted fair treatment) and the fact that its leaders lacked the arts of political
compromise. Thus, although the Levellers were calling for democratic elections,
all evidence suggested that the radicals would lose in such a contest. The Levellers
therefore had no effective strategy for consolidating power and preparing the
ground for elections; they were, in short, unwilling to sacrifice what they saw as
fundamental principles in the pursuit of power.
An Agreement of the People for a firm and present peace upon grounds of common right and
freedom [1647] in Sharp (ed.), above n. 27, 92, at 94.
Cited in Morgan, above n. 16, 73.
See S.D. Glover, The Putney Debates: Popular versus Elitist Republicanism (1999) 164 Past &
Present 47; Woolrych, above n. 8, 38193; Sharp, above n. 27, 10230, especially Col. Thomas
Rainboroughs plea (at 103): For really I think that the poorest he that is in England has a life to live
as the greatest he; and therefore truly, sir, I think its clear that every man that is to live under a
government ought first by his own consent to put himself under that government.
See H.N. Brailsford, The Levellers and the English Revolution (London: Cresset Press, 1961),
esp. chs. 2432.
D. Wootton, Leveller democracy and the puritan revolution in J.H. Burns (ed.), The
Cambridge History of Political Thought, 14501700 (Cambridge: Cambridge University Press, 1991),
412, at 414. Wootton, ibid. 415, 424.
Whatever their limitations as revolutionaries, the Levellers had at least been

able to articulate a coherent constitutional theory. By drawing a distinction
between socio-economic and political levelling, they recognized the autonomy of
the political sphere as a secular and egalitarian space founded on the (public)
person as the bearer of certain basic rights. Most significantly for present purposes,
Leveller constitutional thought placed the constituting power of the people at its
core; it recognized that republicanism was not inherently egalitarian and demo-
cratic and therefore, against the more oligarchic tendencies of Cromwell and the
Rump Parliament, it advocated the need to ensure that the voice of the common
people was heard in government.
As a form of constitutional thought, their main limitation was that of refusing
to accept the intrinsically representative character of political discourse; the
Levellers therefore took the idea of the authorizing power of the people in highly
literalistic fashion. When in 1648 William Sedgwick argued that this [new
model] army are truly the people of England, and have the nature and power of the
whole in them and that they were the soule and life of the nation, he was invok-
ing an aesthetic language in place of the Levellers mimetic formulations. This has
been the ground on which subsequent arguments have been made: in the modern
world, constitutional struggles have arisen from the competing claims of various
groups authentically to represent the constituent power of the people.
The Subversion of Constituent Power
The English Republic

After the execution of the king in January 1649, the Rump Parliament established
a Council of State to perform the executive function, abolished the office of the
king together with the House of Lords in March, and in May proclaimed that the
people of England, and of all the dominions and territories thereunto belonging
are . . . a Commonwealth and Free State . . . governed . . . [by] the representa-
tives of the people in Parliament. For the purpose of legitimating these
revolutionary changes effected in the name of the people, the Rump Parliament
Cited in Morgan, above n. 16, 75.
We might also note Christopher Hills assessment that Milton rejected the Leveller plea for a
wider franchise, on the realistic ground that it would increase the power of the men of property, by
bribery and corruption, to return their own nominees. Given the influence of landlords and parsons,
in the absence of a secret ballot, a free vote of the electorate proposed by the Levellers would probably
have established a Royalist government, and would certainly not have established a democracy:
C. Hill, Milton and the English Revolution (London: Faber, 1977), 170.
See S.R. Gardiner (ed.), The Constitutional Documents of the Puritan Revolution, 16251660
(Oxford: Clarendon Press, 1906) nos. 86 (Council of State), 88 (King), 89 (House of Lords), 90
(Commonwealth).
See, e.g., the Act abolishing the House of Lords, 1649: The Commons of England assembled
in Parliament, finding by long experience that the House of Lords is useless and dangerous to the
people of England. . . .: Gardiner, ibid. no. 89.
in January 1650 required all men over 18 to take an Engagement, promising that
they will be true and faithful to the Commonwealth of England as it is now
established without King or House of Lords. The Engagement sought entirely
to absorb the constituting power of the people into the constituted form of
governmentthe Rump, and the army that underwrote its existence. This
measure was bolstered by the Treason Act of 1649, which declared that it is
treason to publish or openly declare that the said Government is tyrannical,
usurped, or unlawful; or that the Commons in Parliament assembled are not the
supreme authority of this nation.
The task of persuading the people to take the Engagement, and confer author-
ity on parliament retrospectively, was allotted to Marchamont Nedham. His case
rested centrally on an argument against the Leveller Agreement. This, he claimed,
would have resulted in unlearned, ignorant persons, neither of learning nor
fortune, being put in authority, since the self-opinionated Multitude would
elect the lowest of the people who would have engaged in milking and gelding
the purses of the rich. The response of some resisters indicated that the distinc-
tion between constituent power and constituted authority was by now one that
was well understood. In the words of one pamphleteer, it was beyond the power
of the constituted, and only in the Constitutors to make such an alteration in the
fundamental Constitution. But this resistance could not prevail against the
power of the army, who had assumed full authority to speak for the people, and in
1653 the Army Council drafted a constitution for the republic, the worlds first
written constitution.
The Instrument of Government of 1653 declared that the supreme legislative
authority of the Commonwealth of England, Scotland, and Ireland, and the
dominions thereunto belonging, shall be and reside in one person, and the people
assembled in Parliament: the style of which person shall be the Lord Protector of
the Commonwealth of England, Scotland, and Ireland. Cromwell in effect
acquired the governmental powers of the king. Having such powers, Cromwell
was in 1657 invited to assume the title of king, but this he refused.
After Cromwells death in 1658 the title of Lord Protector went to his son,
Richard. But the work of the protectorate was rapidly dissipating and, after a
number of reforms which included the recall of surviving members of the Long
Parliament, it was determined in 1660 to restore the monarchy.
See Gardiner, ibid. no. 92. See Gardiner, ibid. no. 91.
M. Nedham, The Case of the Commonwealth of England Stated (1650), 749: cited in Morgan,
above n. 16, 79. Cf. Milton, above n. 37.
An Exercitation concerning Usurped Powers (1650), 73. See also A Plea for Non-Scribers (1650),
267: A Power to constitute a new fundamental and supreme govt was never committed, granted or
entrusted, either anciently or lately to that House, that ever wee heard or can believe. All that . . . they
can claime from the People is a power to be of the Government and Constitution, as one integral; not
to be the Constitutors of it, as efficients, or the sole and plenipotentiarie transformers of it, or the
founders of another. Pamphlets cited in Morgan, above n. 16, 801.
Instrument of Government 1653, art. 1: see Gardiner, above n. 38, no. 97.
The Humble Petition and Advice, 1657: see Gardiner, ibid. no. 102.
The Restoration
In 1660, the recalled Long Parliament dissolved itself to enable a parliament on
the old franchise to be elected. Since this parliament had not been summoned by
the king, it was designated a convention, and this convention restored the king
and affirmed his powers to rule in accordance with the ancient and fundamental
laws of the constitution. Charles II then returned from Dutch exile in triumph.
Thereafter the parliament restored the established Church, which in turn
reaffirmed the divine right of the king. Even though it was generally recognized
that popular sovereignty did not dictate a particular form of government, the
rudimentary constitutional questions that these events raised went unaddressed.
Throughout the Restoration period public discussion of constitutional
arrangements from the perspective of popular sovereignty were suppressed. In
1657, George Lawsona conforming cleric who had supported the parliamen-
tary cause but was in no sense a radicalwrote a learned treatise that reached a
limited audience, in which he tried to work through the constitutional questions
that the earlier period of turbulence had thrown to the fore. In Politica Sacra et
Civilis, Lawson was able to clarify the distinction that the Levellers arguments had
entailed. He explained that it was necessary to distinguish between ordinary law
and constitutional law, and between personal sovereignty and real sovereignty.
By real sovereignty Lawson meant the power to constitute, abolish, alter, reform
forms of government. This power to model a state is vested in the community
and is inherent and can never be separated. This sovereigntyconstituent
powermust be differentiated from personal sovereignty which is the power of a
commonwealth already constituted.
The significance of Lawsons argument was that the power of constitution
is above the power of a parliament because the existence of a parliament
doth necessarily presuppose a form of government already agreed upon.
Consequently, the parliament cannot meddle with the fundamental laws of the
constitution. If the system of government disintegrates but the community
remains in existence, Lawson argued, the people may make use of such an assem-
bly as a parliament, to alter the former government and constitute anew; but this
they cannot do as a parliament, but [only] as an immediate representative of a
community, not of a commonwealth. Lawson here had provided a reasoned
explanation of the restoration process but, precisely because of its use of the
See J.H. Franklin, John Locke and the Theory of Sovereignty (Cambridge: Cambridge University
Press, 1978), 87: Lawsons contribution to the theory of sovereignty was not to be appreciated widely
or even widely read. . . . A manuscript of the Politica sacra et civilis was sent to the printer in 1657 but
was lost. By the time Lawson was able to provide another copy and get it into print, the Protectorate
was almost at its end.
G. Lawson, Politica Sacra et Civilis [1660] C. Condren (ed.) (Cambridge: Cambridge
University Press, 1992), 47. Ibid.
Ibid. 48. Ibid.
principle of popular sovereignty, this was one that the governing establishment
felt obliged to ignore. Institutional continuity, they asserted, had been resumed,
and royal authority, being intrinsically a relation of superior and inferior, had no
basis in popular grant.
These constitutional questions resurfaced only because of the Exclusion crisis,
when the Whigs tried to alter the line of succession because they feared that
Charles brother James was overly sympathetic to Catholicism. The Whigs revived
the idea of popular sovereignty but in a limited form, since their objective was to
bring about a change in the succession without opening up deeper questions
about the constituted form of government. They thus walked a tightrope between
the historical argument which was conservative, and the argument from reason
which . . . was revolutionary. The crisis led to two important works on popular
sovereignty to be written, but neither was published at the time, and the Whig
argument went no further than to suggest that the peoples will was that expressed
by parliament.
The Revolution of 1688

In 1685 James II succeeded to the throne, and when he proceeded to rule without
parliament and tried to circumvent the Test Acts (which excluded Catholics from
holding public office), the Protestant ruling elite felt threatened. After the queen
gave birth to a son in June 1688, the conflict came to a head and, at the instigation
of members of the English ruling elite, William of Orangewho was married to
James Protestant daughter, Marylanded in England with an army. William
pledged to uphold a free parliament, and was willing to negotiate terms that
enabled James to maintain the throne with reduced powers, but in December
James fled the country. The ruling elite determined that James had forfeited
his crown, held a convention parliament (without a king who should have
summoned it) and invited William and Mary to reign jointly.
These were revolutionary changes. The convention was not strictly a parlia-
ment, though it had been chosen in the same way as the old parliament. Having
been newly elected by the people, however, it mightfollowing Lawsons
logichave seized the opportunity to reconstitute the English system of
government. But some Tories argued that the convention was merely a meeting of
the third estate and therefore was unable to speak as the voice of the entire
B. Behrens, The Whig Theory of the Constitution in the Reign of Charles II (1941) 7
Cambridge Historical J. 42, at 45.
J. Locke, Two Treatises of Government (1680; first published in 1690); A. Sidney, Discourses
Concerning Government (first published in 1698).
In 1682, Locke escaped to Holland and in 1683 Sidney was hanged for treason, simply on the
basis of a few pages of notes, seized in his quarters, in which he assigned the origin and limitation of
government to the people, with a right to depose rulers who betrayed their trust: Morgan, above
n. 16, 1045.
community, and none amongst the governing elite felt it advisable to clarify the
constitutional position. The convention therefore claimed that the king had not
been deposed, but had deposed himself. In accordance with the doctrine that the
king never dies, the office should have been filled by his infant sonand this
could not be contemplated. The constitutional questions were therefore fudged.
The Declaration of Rights thus claimed that James had only endeavoured to
subvert and extirpate the protestant religion, and the laws and liberties of this
kingdom and the throne had a vacancy. In a rather awkward compromise, the
convention offered the throne to William and Mary jointly.
The constitutional obfuscation of the convention meant that the distinction
between constituent power and ordinary power, which is not only important as a
statement of the right of the community but also is fundamental for the theory of
public law remained a matter of confusion. Since Locke in his Second Treatise had
followed the basic argument of Lawson, it does not seem plausible to suggest that
the Whigs were unaware of the issue. This was deliberate, being designed not to
cause division with the Tories or offence to William of Orange. The obfuscation
the invocation of popular sovereignty but located only in a parliamentary form,
and the characterization of this revolutionary change as being designed to restore
the ancient constitutionis one on which the modern British system has thrived.
Parliamentary Government in the British State
The settlement forged in 1688 led to a Whig supremacy in government for the
following eighty years. During this period the main conventional practices of
modern parliamentary government were shaped, and these ensured that the kings
government was exercised through parliament. This was also a period in which
not only was England able to institutionalize its dominance over the British isles
by forming the kingdom of Great Britain, but Britain itself was transformed
from an insular society with a largely agricultural economy into an industrial and
commercial nation underpinned by a fiscalmilitary state of considerable imperial
might.
Bill of Rights, 1689: E.N. Williams (ed.), The Eighteenth Century Constitution: Documents and
Commentary (Cambridge: Cambridge University Press, 1965), no. 10. Note that the status of the
Declaration itself remains ambiguous. The convention, just before being dissolved by royal proclam-
ation, changed the Declaration into a Bill of Rights and, when William signed it in December 1689,
it became legislation. But it retains its title as the Bill of Rights.
Franklin, above n. 46, 124. See esp. J. Locke, Two Treatises of Government [1680] P. Laslett (ed.)
(Cambridge: Cambridge University Press, 1988), II. 149. Franklin, ibid. 89.
By the Treaty of Union 1707 between England and Scotland the kingdom of Great Britain was
established and later, in 1800, by the Act of Union with Ireland the United Kingdom of Great Britain
and Ireland was formed.
See J. Brewer, The Sinews of Power: War, Money and the English State, 16881783 (New York:
Knopf, 1989).
This growth in the modern system of parliamentary government has been

accompanied by a steady attrition in any clear sense of constituent power in
British constitutional discourse. Late seventeenth century radical Whig thought
rested on the beliefs that there can be but one supreme governmental power in a
community and that is the legislative, that this power is held in trust to act for the
good of the people, and that the people therefore retain a supreme constituent
power not only to remove the legislative power but to also to change the constitu-
tional framework of government. During the course of governmental develop-
ment over the last 350 years, the more radical aspects of each of these claims have
been eroded.
This has been achieved mainly through the suppression of any militant sense of
the people as the originating power of government, which has been replaced by a
more aristocratic conviction that governors should act for the benefit of, and be
responsive to the concerns of, the people. This adjustment has been made in
conjunction with the tendency to conflate the constituent power of the people
with that of the constituted authority of the commons; while the idea of the
people must always be re-presented in political discourse, there has been an
unusually strong proclivity to confer on the commons the monopoly of speaking
as the vox populi. There has also been an almost deliberate fudging of the issue of
who holds the supreme legislative power. It is not held strictly by the peoples
representatives in the commons, as expressed by Henry Parker in the 1640s.
Rather, it rests in the king, lords, and commons representing the three estates and
acting as the crown-in-parliament.
The basic adjustment is signalled by Sir William Blackstone, the first lawyer to
elaborate the basic precepts of British constitutional law and from whose author-
ity the modern treatment of the subject flows. Blackstones Commentaries on the
Laws of England is an institutional work that claimed that the common law was
uniquely English, that it formed a system of national law, and was superior to all
other systems of law (notably canon law and civil law). At the heart of
Blackstones scheme was a doctrine of parliamentary sovereignty that was unitary,
absoluteand based on divine authority. In place of the earlier Whig constitu-
tional rhetoric of checks and balances, J.C.D. Clark argues that Blackstone
candidly emphasised sovereignty, the unity of King, Lords and Commons in
Parliament. By conceiving law to be a species of command rather than custom,
Blackstone was able to cut off any appeal to the fundamental liberties of the
freeborn Englishman within the discourse of the ancient constitution. In its
These claims are all expressed by Locke in 149 of his Second Treatise, above n. 55.
W. Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 17659),
4 vols.
J.W. Cairns, Blackstone, an English Institutionalist: Legal Literature and the Rise of the
Nation State (1984) 4 Oxford J. of Legal Studies 318.
J.C.D. Clark, The Language of Liberty 16601832 (Cambridge: Cambridge University Press,
1994), 83.
place, he presented a Hobbesian account of law as an orderly arrangement

underpinned by a constitution founded on an Anglican conception of sovereign
power whose enemy was Dissent, and thereby was able to cut off all constitutional
claims rooted in the radical religious ideas of the Puritan revolution.
We acquire some sense of the manoeuvre Blackstone was making by examining
his treatment of the 1688 Revolution. His analysis begins by appearing to
recognize that the events had dissolved the system of government since they
amounted to an abdication of the government; which abdication did not affect
only the person of the king himself, but also his heirs, and rendered the throne
absolutely and completely vacant. This, he argues, required resolution by the
act of the nation alone since whenever a question arises between the society at
large and any magistrate vested with powers originally delegated by that society,
it must be decided by the voice of the society itself . But later he notes that
the convention avoided with great wisdom the wild extremes into which the
visionary theories of some zealous republicans would have led them and
recognized that James action was an endeavour to subvert the constitution, and
not an actual subversion, or total dissolution of government which would have
annihilated the sovereign power, and in consequence have repealed all laws; and
would have left the people at liberty to have erected a new system of state upon a
new foundation of polity. Instead, the convention very prudently voted it to
amount to no more than an abdication of the government, and a consequent
vacancy of the throne; whereby the government was allowed to subsist, though the
executive magistrate was gone, and the kingly office remain . . . And thus the
constitution was kept entire.
Having apparently recognized that the convention came into being because of
the dissolution of government, Blackstoneostensibly choosing to consider this
great political measure, upon the footing of authority, than to reason in its favour
from its justice, reason and moderationthen explains that the convention
actually found no dissolution, and simply filled a vacancy. He thus manages to
retain intact the tripartite scheme of sovereign authority, to maintain that the
edicts of the sovereign are omnipotent and may not be questioned, to defend the
revolution as one which restored the checks of the ancient constitution arrange-
ments and, having fulfilled his duty as an expounder of . . . this constitution, to
assert the duty of every good Englishman to understand, to revere, to defend it.
The authority which Blackstones Commentaries acquired in the late-eighteenth
century signalled the death knell for natural law claims that sought to inscribe the
basic rights of the citizen into the fundamental law of the realm, and therefore of
a broad political discourse that has juristic purchase.
After the French revolution, such claims also largely disappeared from British
political discourse (except as the cry of the oppressed). During the eighteenth
Clark, ibid. 834. Blackstone, above n. 60, i.205. Ibid. 204, 205.
Ibid. 206. Ibid. 205. Ibid. 211.
century, the only vaguely popular part of the constitution was to be found in
virtual representation through the commons, and the reform initiative was
geared towards restoring the status of the peoples representatives through
extension of the franchise. But after the people had asserted their claims in the
American and French revolutions, the reaction in Britain was one of profound
distrust of the masses and fears for safety of the countrys venerable and ancient
institutions in the face of popular sovereignty. The manner of unfolding of the
French revolution put off the cause of reform in Britain for over forty years. It also
contributed to a transformation in the prevailing constitutional discourse. To this
stage, the language of liberty in the English tradition had been one of the people
struggling to contain and, if necessary, overthrow arbitrary or tyrannical govern-
ment. From the late-eighteenth century onwards, the ruling elite used the French
experience to overturn these claims: now, it was asserted, the matchless English
constitution had to be preserved in the face of pressures from the actual people.
The deployment of vox populi had always required careful management; the
emergence of the vox plebis needed, in one way or another, to be stamped out.
The consequence of this reaction was that the growth of nineteenth century
nationalismwhich in many parts of Europe was a populist and progressive
causewas in Britain a more ambiguous phenomenon. Our modern symbols of
national identity did not evolve from those historic claims to the rights of the
freeborn Englishman; they were constructed from the symbols of monarchy, the
established church, and its accompanying aristocratic, inegalitarian, and anti-
populist institutions and commitments. This shift was reinforced by the
extension of the imperial claims of the English with the formation of the British
Empire. When Lawson talked of the constituent power of the people, he meant
the community of the realm organized through the forty counties of England.
With the formation of the United Kingdom through treaties that take the form of
M. Philp, English Republicanism in the 1790s (1998) 6 J. of Political Philosophy 235, at 238.
This is seen most obviously in relation to the Chartists of the 1830s and 1840s, who can be
claimed as the natural heirs of the Levellers. See especially Gareth Stedman Jones restoration of a
political reading of Chartism against those who have treated it purely as an expression of class con-
sciousness: G. Stedman Jones, Languages of Class: Studies in English Working Class History 18321982
(Cambridge: Cambridge University Press, 1983), ch. 3. Stedman Jones argues that, having used the
old radical language of attributing economic ills to the unreformed governing arrangements, the
Chartists found that their alliance was broken when Peels administration began to introduce social
and economic reforms without undertaking a parallel process of constitutional reform. Here we see
the essence of the British parliamentary approach to reform over the following 150 or so years.
See L. Colley, Britons: Forging the Nation, 17071837 (London: Pimlico, 1992);
D. Cannadine, The Context, Performance and Meaning of a Ritual: The British Monarchy and the
Invention of Tradition, c.18201977 in E. Hobsbawm and T. Ranger (eds.), The Invention of
Tradition (Cambridge: Cambridge University Press, 1983), 101.
In his Examination of the Political Part of Mr Hobbes, his Leviathan [1657] (London: Routledge,
1996), George Lawson had argued that the community could not act through parliament to alter
government because parliament is part of the commonwealth: the people must return to the original
state of liberty, and to a community, which in England is not a Parliament, but the 40 counties
(at 15).
compacts between equal nations but which in effect incorporate Scotland and
Ireland into the English forms of government, the people or the nation became a
much more ambivalent notionone that the governing elite would have good
reasons to stifle. And from an imperial perspective, all discussion of compacts and
popular sovereignty became dangerous.
These trends go some way towards explaining the highly tentative steps that
were taken towards democratizing constitutional arrangements. It was not until
1776 that John Wilkes could move in the Commons that leave be given to bring
a Bill for the just and equal Representation of the People of England in
Parliament. But such proposals were essentially for a more proportionate
allocation of seats rather than a general extension of the franchise, justified by the
need to eliminate corruption from parliament, and argued for alongside paeans of
praise for the historic constitution and the sacrosanct status of the crown. The
Act to amend the Representation of the People (the Reform Act 1832) was
innovative not by virtue of its enlargement of the electoratewhich was min-
imalbut simply because the principle of statutory reform of the constitution
was conceded. So when, over 200 years after the Levellers claim, Gladstone in
1864 argued that every man who is not presumably incapacitated by some
consideration of personal unfitness or of political danger is morally entitled to
come within the pale of the Constitution, his claim caused shock and outrage.
At that time the wage-earners [who contributed almost half the national income
through indirect taxes] were, uniquely in Europe, virtually represented in
Parliament by a self-taxing class of income-tax paying electors, and it was not
until well into the twentieth century that voting was recognized to be a right to be
claimed rather than a privilege to be earned.
Finally, we might return to the status of the member of parliament. In the
middle ages, the plena potestas of parliamentary representatives had been a burden
imposed by the centre to bind the localities to governmental decisions, and only in
the seventeenth century was the principle used to make the case that, since the
entire nation is represented in the commons, the commonsaccording to the
principle of popular sovereigntyis the supreme source of government authority.
After the 1688 revolution, this principle made it easier to develop a party system
that did not threaten the stability of the state. During the eighteenth century we
see the formation of political parties within a parliamentary structure of
government and opposition and underpinned by a common loyalty to the state.
This is a point tellingly exploited by C. Schmitt, The Crisis of Parliamentary Democracy [2nd
edn. 1928] E. Kennedy, trans. (Cambridge, MA: MIT Press, 1985), 1011.
See C.S. Emden, The People and the Constitution (Oxford: Clarendon Press, 1933), 2.
L. Colley The apotheosis of George III (1984) 102 Past & Present 94.
Emden, above n. 74, 34.
H.C.G. Matthew, Gladstone, 18091898 (Oxford: Oxford University Press, 1997), 1278.
W. Bagehot, The English Constitution [1867] (Oxford: Oxford University Press, 2001), 16: It
has been said that England invented the phrase Her Majestys Opposition, that it was the first
In the process we see the triumph of the representative role of the MP,
championed by Edmund Burke in his speech to the electors of Bristol in 1774, in
which he explained that, while he might owe his constituents the courtesy of
listening to their opinions, they had no authority to impose instructions and
mandates; although the member for Bristol, his duty was to act for the best
interests of the whole country. The creation of this space for opposition within the
parliamentary form (with an alternative government constantly standing at the
ready), nevertheless, came at a price. That price was the formation of an elitist
regime which, though it might claim to govern for the people (salus populi), was
not government by the people (vox populi). In the modern era, the principle of
plena potestas was used essentially to disenfranchise the people except for their role
as periodic voters in general elections, a trend reinforced during the twentieth
century when the independent member came to be replaced by the modern
party delegate.
Conclusion
The concept of constituent power provides the key to unlock the mysteries of
modern constitutional arrangements in Britain. Although the concept received its
first clear expression by the Levellers in the 1640s, their claims raised a series of
fundamental questions that those seeking to manage the unfolding English
revolution felt it necessary to repress. Thereafter, with the subsequent failure of
the English revolution and the restoration of the old order, even the more
elementary precepts of constitutional ordering based on the principle of popular
sovereignty came to be obfuscated. As a consequence, all the most basic constitu-
tional ideassuch as sovereignty (does it vest in the commons, or in the crown-
in-parliament?), the people (do they speak through their local communities, or
the several nations, or is this purely as an abstraction?), or rights (are these a set of
fundamental claims or simply concessions conferred by law?)has remained in
a state of irresolution. The basic message the Levellers advancedthat the power
government which made a criticism of administration as much a part of the polity as administration
itself.
This point had most famously been expressed by J.-J. Rousseau, The Social Contract (1762)
iii. 15: The people of England regards itself as free; but it is grossly mistaken; it is free only during the
election of members of parliament. As soon as they are elected, slavery overtakes it; it is nothing.
See J. Schumpeter, Capitalism, Socialism and Democracy (London: Allen & Unwin, 3rd edn.,
1950). See also R. Miliband, Parliamentary Socialism: A Study in the Politics of Labour (London:
Merlin Press, 2nd edn., 1972), 13: Of political parties claiming socialism to be their aim, the Labour
Party has always been one of the most dogmaticnot about socialism, but about the parliamentary
system . . . the leaders of the Labour Party have always rejected any kind of action (such as industrial
action for political purposes) which fell, or which appeared to them to fall, outside the framework
and conventions of the parliamentary system.
vested in the people as equal, rights-bearing citizens can be ceded to governmental

authorities only for limited purposes and only within the terms of formally
adopted compactwas thus bequeathed mainly to their American compatriots
during the course of the following century.
Within Britain, this perennial obfuscation, which the governing elite initially
had deemed necessary for the purpose of bolstering the authority structure of
the British state, later came to be adopted as a main characteristic of the British
genius for statecraft. While the people retained unquestioned allegiance to the
parliamentary system and the unwritten constitutionas they did right through
to the latter half of the twentieth centuryscholars could continue to write
accounts of the British constitution that managed to avoid analysing any of its
basic characteristics too closely, while at the same time celebrating its matchless
character. In recent decades, however, this faith has waned, and many reforms
have been introduced that rub against the grain of the constitutional arrange-
ments that have evolved over the last 350 years. One dubious legacy of the modern
settlement is that the question of constituent power has become buried so deeply
that scarcely any of the recent self-styled radical reformers have managed to find
their way back to the basic precepts from which the Levellers started and, even as
an exercise in constitutional imagination, to conceive the exercise afresh.
The only movement that came close was Scotlands Claim of Right (see O. Dudley Edwards
(ed.), A Claim of Right for Scotland (Edinburgh: Polygon, 1989)). But in the course of transition from
constitutional claim to statutory reform in the Scotland Act 1998 virtually all the constitutional
issues concerning Scotlands position within the United Kingdom had become fudged. See further
Tierney, ch. 12 of this volume.
3
Constituent Power and Constitutional Change
in American Constitutionalism
Stephen M. Griffin
Modern constitutionalism involves a tension between the constituent power of

the sovereign people and the constitutional forms that are intended to express and
check this power. The idea of the people as constituent power, as the active
creators of the constitutional order, is familiar in American constitutionalism. The
importance of this idea to the distinctiveness of the American experiment has
been described by historians such as R.R. Palmer and Gordon Wood. The idea
was that the constitutional convention was the concrete, operational form of the
sovereignty of the people. Through the device of the convention, the people as a
whole adopted the Constitution. The convention made the Constitution superior
to the laws enacted by legislatures.
Such was the idea. What was the argument that the convention gave the
Constitution the status of supreme law? The answer had to do with the unique-
ness of the convention as a political device. The convention was a one-off, a special
political body that existed solely for the purpose of creating a constitution. It was
elected by the people, but it was this single-mindedness that gave it a special
status. Wood concludes: [o]nly a Convention of Delegates chosen by the people
for that express purpose and no other, as the South Carolina legislature after four
years of bitter contention finally admitted in 1787, could establish or alter a
constitution. It was an extraordinary invention, the most distinctive institutional
contribution, it has been said, the American Revolutionaries made to Western
politics. It not only enabled the constitution to rest on an authority different from
the legislatures, but it actually seemed to have legitimized revolution.
Having established the Constitution, what became of the people? Their
passions and interests were channelled and contained by the institutions created
by it. Of course, under Article V they could amend the Constitution or even
See R.R. Palmer, The Age of Democratic Revolution (Princeton, NJ: Princeton University Press,
1959), 21335; G.S. Wood, The Creation of the American Republic, 17761787 (Chapel Hill:
University of North Carolina Press 1969), 30643. Wood, ibid. 342.

constitute another constitutional convention. Thus, the conventional meaning

of constituent power within American constitutionalism is the power of the
people to change the Constitution through amendment or a constitutional
convention.
Members of the founding generation did not see frequent recourse to Article V
as desirable. James Madison argued that frequent recourse to amendment would
imply that the Constitution was seriously defective. Madison noted that the
Constitution would benefit from that veneration, which time bestows on every
thing, and that this veneration would enhance the stability of the government.
The most serious danger of frequent change through amendment was that of
disturbing the public tranquility by interesting too strongly the public passions.
Madison thought that the commendable deliberation that had attended the
adoption of state constitutions was due to the unique characteristics of the
revolutionary era. Because it was unlikely that those circumstances would recur,
frequent recourse to amendment would engage the passions of the public, not its
reason. Making amendment of the Constitution relatively easy would have the
effect of constantly placing the fundamental structure of the government up for
grabs. Ordinary political struggles might be transformed into constitutional crises.
While Madison saw that provision had to be made for amendment, he believed
that it would be appropriate only on certain great and extraordinary occasions.
After the Constitution was ratified, it might appear that there was no further
opportunity for the exercise of the primordial constituent power. Constituent
power could be exercised only through the forms specified in the Constitution
and the people themselves would rarely be found on the constitutional stage.
This states the understanding of most American constitutional lawyers. Because a
second constitutional convention is so unlikely, the only practical way for con-
stituent power to influence the Constitution is through the Article V amendment
process. This understanding informs a conventional view about how constitu-
tional change occurs. Constitutional change can take place only through Article V
amendments or judicial interpretation. Lawyers differ over which cases exemplify
constitutional change, but all would agree that it has occurred primarily through
doctrinal interpretation by the Supreme Court.
Contrary to the conventional view, from the beginning of the American republic
constituent power has changed the constitutional order through informal
Article V of the US Constitution requires that, before they can take effect, amendments be
approved by a supermajority of both houses of Congress and by a supermajority of state legislatures.
J. Madison, The Federalist No 49, in Jacob E. Cooke (ed.), The Federalist (Middletown, CT:
Wesleyan University Press, 1961), 340. Ibid.
Ibid. 3403.
Ibid. 339. For discussion see S.M. Griffin, American Constitutionalism: From Theory to Politics
(Princeton, NJ: Princeton University Press, 1996), 2846.
See Madison, above n. 4, Federalist No. 63 (total exclusion of people in their collective capacity).
See L.D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review
(New York: Oxford University Press, 2004).
American Constitutionalism 51
constitutional change. Indeed, the conventional view has been extensively

critiqued and revised by scholars interested in the process of constitutional change.
These scholars have put forward a new approach to constitutional change
that involves highlighting the importance of institutions and the constituent
power of the people.
Three ideas are fundamental to understanding the role of constituent power in
constitutional change. First, political constitutions are self-enforcing documents.
Second, how constitutional change occurs is influenced by the degree to which
the Constitution has been legalized. Third, change can be constitutional without
being legal; that is, a significant amount of constitutional change occurs through
the ordinary political process. In this chapter, I first describe each idea briefly and
then provide a more detailed discussion by situating the relationship between
constituent power and constitutional change in the context of the early republic.
I then discuss some of the methodological issues raised by the study of non-legal
or informal constitutional change. Finally, I use the example of presidential power
to illustrate how the study of informal constitutional change can serve as a lens for
understanding contemporary American constitutionalism.
Constitutions as Self-Enforcing
When an ordinary law is violated, some external agency stands ready to enforce
the law and remedy the violation. By contrast, constitutions must be self-
enforcing. In the constitutional sphere, there is no external agency available (if
there were, it would not be subject to the constitution). Lacking an external
agency, constitutions must ultimately be enforced by the operation of the entire
political system or, one might say, by the people as a whole.
There is some evidence that the founding generation understood this point.
This was popular constitutionalism, the idea that the Founders expected
constitutional limits to be enforced through politics and by the people rather than
in courts . . . Their history, their political theory, and their actual experience all
taught that popular pressure was the only sure way to bring an unruly authority to
heel.
See, e.g., B. Ackerman, We The People: Foundations (Cambridge, MA: Belknap Press, 1991);
B. Ackerman, We The People: Transformations (Cambridge, MA: Belknap Press, 1998); Griffin, above
n.7; Kramer, above n.9; K.E. Whittington, Constitutional Construction: Divided Powers and
Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999). See also the work of
scholars aligned with the American political development perspective. See, e.g., K.I. Kersch,
Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law
(New York: Cambridge University Press, 2004); S. Skowronek, The Politics Presidents Make:
Leadership from John Adams to Bill Clinton (Cambridge, MA: Belknap Press, 1993).
For discussion, see R. Hardin, Liberalism, Constitutionalism, and Democracy (Oxford: Oxford
University Press, 1999), 89, 98. Kramer, above n. 9, 91.
The enforcement of the US Constitution by the judiciary does not alter this
fundamental reality. The judiciary enforces the Constitution from within the
constitutional system, not by acting as an external enforcement agency. The
judiciary derives its authority from the Constitution, not the other way around.
But this purely legal point does not get to the heart of the matter. As part of the
constitutional system, the judiciary is subject to the reality of self-enforcement.
The structure and composition of the judiciary can be altered in the course of
ordinary politics and in response to judicial decisions. The judiciary thus has to
swim in the same political sea as other constitutional institutions.
The Legalized Constitution
A constitution is legalized to the extent it is made cognizable by lawyers and

courts. The US Constitution was legalized in the first decades of the new republic
in the course of a struggle fought over the boundary between law and politics.
The process of legalization involved assimilating the Constitution and its inter-
pretation into the structure of ordinary law. Lawyers of the founding generation
argued, for example, that the Constitution should be interpreted according to the
principles used to construe other legal documents.
Within the sphere of the legalized Constitution, decisions by the judiciary are
regarded as authoritative. But the institutional limits of the judiciary affect the
scope of the legalized Constitution. The federal courts cannot create cases and
depend on the other branches to enforce judgments. The judiciary thus cannot
supervise everything in the political system that might affect the meaning and
operation of the Constitution. Legalizing the Constitution made it enforceable,
but it also made large areas of the constitutional order subject to ordinary political
change.
Constitutional Change and the Political Process
Constitutional change can occur through either a legal (formal) or non-legal

(informal) process. Legal change, change within the legalized Constitution, can
occur through amendment or judicial interpretation. Non-legal constitutional
change occurs through the political process. The crucial conceptual move is to
recognize that the way the Constitution interacts with political institutions and
actors creates a category of change that is constitutional without being legal. Legal
actors cannot control fully the flow of constitutional change because political
actors and institutions have a strong interest in constitutional meaning.
See Griffin, above n. 7, 1619.

Constituent power has thus reshaped the Constitution and the various
government institutions and political orders that it created. Roughly speaking,
the ratification of the Constitution created internal and external contexts for
non-legal constitutional change. The internal context involved the different
institutions created by the Constitution and their mutual effort to work out
various sorts of understandings and accommodations. The external context was
the rapidly evolving sphere of democratic politics and the realization by political
actors that constitutional meaning could be determined through political
argument and contestation.
Constitutional Change in the Early Republic
A self-enforcing constitution with a limited sphere of legalization creates both the

necessity and opportunity for change outside the legal process. The Constitution
of 1787 created institutional uncertainties and gaps that were addressed through a
process of informal constitutional change. Did advice and consent mean that the
President was supposed to go to the Senate and literally ask for it? President
Washington thought so (but the Senate disagreed). Did the requirement of Senate
approval for presidential appointments mean that approval was required for
removals? The presidents power to remove executive officials was the subject of a
famous debate in the House of Representatives in 1789.
These instances of informal change can be described using the categories of
ordinary legal change. Thus, the practices followed in President Washingtons first
administration are sometimes referred to as precedents arising from constitu-
tional interpretation. The use of terms drawn from ordinary law to describe con-
stitutional change shows the influence of the legalized Constitution. It would be a
mistake, however, to think that we can understand constitutional change solely in
this way. Of course, these practices do not literally have the status of judicial
precedents, but the problems with this approach go beyond this point. These
changes occurred in a political and institutional context that cannot be captured
through concepts drawn from ordinary law. They involved reasons and argument
that go beyond standard methods of constitutional interpretation. In addition,
change arising from the political process may be inadvertent and justified in legal
terms only after the fact.
These changes are best understood as alterations to structuring rules and
practices that are the functional equivalent of those written in the Constitution.
Their legal status is uncertain and they are not best understood as extra-
constitutional, as if there were a clear dividing line between the rules inside and
See S. Elkins and E. McKitrick, The Age of Federalism: The Early American Republic,
17881800 (Oxford: Oxford University Press, 1993), 508.
outside the Constitution. Certainly they are easier to modify than the rules
contained in the text, but once they are established, changing them is not the stuff
of ordinary politics.
Another kind of constitutional change in the early republic consisted of
struggles over constitutive rules, those that were believed to be fundamental to the
purpose of the Constitution. An excellent example was the decades-long conflict
over the establishment of a national bank. During President Washingtons admin-
istration, his Secretary of the Treasury, Alexander Hamilton, argued that such a
bank was necessary to constitutional powers. But the bank was opposed in
Congress by James Madison, one of the key members of the Federal Convention
that had written the Constitution, and in Washingtons administration by
Secretary of State Thomas Jefferson and Attorney-General Edmund Randolph.
Washington followed Hamiltons advice and signed the bank bill, but Madison
and Jefferson became convinced that Hamiltons designs threatened the constitu-
tional order. The conflict intensified after Chief Justice John Marshall upheld the
constitutionality of the bank, following Hamiltons arguments, in McCulloch v.
Maryland. Despite Marshalls magisterial opinion, President Andrew Jackson
finally killed the Second Bank of the United States by means of a controversial
veto in 1832.
On one level, the conflict over the national bank was an exercise in interpreting
a specific provision of the Constitution, the necessary and proper clause.
Lawyers who find Hamiltons interpretation sound might argue that there was no
constitutional change involved. This might be a persuasive doctrinal argument,
but it is poor constitutional history. In every decade after President Washingtons
signing of the original bank bill, the issue of the bank was highly controversial.
This was because the bank implicated the constitutive issue of the scope of the
powers of the national government and its relationship with the states. This issue,
much like the constitutional conflicts over internal improvements and the power
of Congress to prohibit slavery in new territories acquired by the United States,
could not be settled by judicial precedent, nor, indeed, by any single act of
interpretation.
Students of US constitutional history are often struck by how much constitu-
tional debate occurred in the antebellum Congress. Important constitutive
issues revolving around the power of the national government and federalism were
fought out in the political arena. An approach that focuses solely on the legalized
Constitution tends to ignore this sort of constitutional change.
The constitutional order was changed also by external events, circumstances
that went beyond institutional accommodation or debates inside the government.
Despite occasional uses of this term, US constitutional law does not have an established under-
standing of what counts as an extra-constitutional rule or practice.
17 US 316 (1819). See US Const, Art. I, sec 8.
See, e.g., D.P. Currie, The Constitution in Congress: Democrats and Whigs, 18291861 (Chicago:
University of Chicago Press, 2005).
A primary example in the early republic was the development of political parties.
The founding generation did not foresee the impact that developments abroad
such as the French Revolution would have on American politics. When war broke
out between France and Great Britain, Americans were affected as the combatants
tried to affect the ability of Americans to trade. As the government tried to find its
way between the combatants, it reached a low point when Federalists passed the
Alien and Sedition Acts of 1798 which put severe restrictions on the freedoms of
speech and the press. These Acts were certainly unconstitutional but appeared
expedient at the time and in opposition James Madison and Thomas Jefferson
authored respectively the Virginia and Kentucky Resolutions, which advocated
strict construction of the Constitution and the theory that came to be known as
states rights. Two embryo parties, Federalists and Republicans, developed and the
election of 1800 seemed to many a revolution in that it introduced party politics
into presidential elections and signalled a new order of things in the federal gov-
ernment. Federalists were opposed to parties, indeed opposed to the very idea of
opposition in government, but they lost the initiative and eventually their party
disappeared.
The advent of political parties had such far-reaching implications for US
constitutional government that it is hard to believe the Constitution would have
been written in the same way had the founders known of them in advance. This is
the best way to understand the idea that the Constitution was antidemocratic or,
at least, was adopted in a predemocratic era. Parties meant a role in government
for ordinary people, not just leisured gentlemen, and created the possibility of
presidential government and the control of Congress by means of party influence.
Constituent power now had an everyday role in government. Parties changed the
way the Constitution worked and was expected to work.
Consider the relationship between constituent power and the legalized
Constitution in these early examples of constitutional change. True believers in
the legalized Constitution would wish each significant change to be marked by an
amendment. Proposing an amendment would ensure that the implications of
each change would be debated openly and made legitimate in the same way as the
1787 Constitution. But constitutional change in the United States has not
typically happened in this way and there are important reasons why it could not,
aside from the considerable obstacles to amendment contained in Article V.
The self-enforcing character of the Constitution means that it is up to each
citizen, if they are so inclined, to decide what it means. If there is a desirable policy
in view that might be argued to conflict with the Constitution, it is of course in
the interest of the party in favour to argue that it does not. If amendment is
For a recent involving account, see B. Ackerman, The Failure of the Founding Fathers: Jefferson,
Marshall, and the Rise of Presidential Democracy (Cambridge, MA: Belknap Press, 2005).
See, e.g., R.E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton,
NJ: Princeton University Press, 2003).
perceived as difficult, they might choose to represent what should count as

amendment as an ordinary interpretation. However, the logic driving informal
change goes deeper. The constitutive and ideological power of the Constitution,
its ability to embody the identity of the polity, means that citizens will tend to
regard even significant changes as realizations of its ultimate purposes. Hamilton
certainly believed that the national bank was constitutional, despite strong
objections. The sincere belief that potentially radical changes accord perfectly
with the Constitutions ultimate purposes has played a much larger role in US
constitutional history than duplicitous efforts to change the document through
interpretation rather than amendment.
The politics of the early republic showed that it was difficult to draw a sharp
line between what counted as an interpretation and what counted as an amend-
ment. Advocates of constitutionally controversial policies (like the bank) and
institutions (like political parties) argued with perfect sincerity that they were
consistent with the Constitution. Their opponents could not show them to be
clearly wrong. Because no obvious legal line had been crossed, the debates
occurred in the realm of ordinary politics, and no amendments were proposed. At
the same time, the intense and lasting character of these debates left few doubts
that the institutional ordering established in 1787 had changed. Constitutional
change had occurred through a process that was primarily political, not legal.
This conception of constitutional change has important implications for how
we understand American constitutionalism. The relative lack of formal amend-
ments and the limited scope of judicial power means there is no legally certain way
to track constitutional change. However, the history of the early republic suggests
another approach. We might attempt to track constitutional change through a
better understanding of changes in governing institutions and political orders.
Understanding Constitutional Change
Identifying structural political changes as constitutional in the absence of formal

amendments can make people uneasy. How are we to tell the difference between
changes that are merely political and changes that are truly constitutional? We
require some way of tracking constitutional change outside of formal amend-
ments and judicial precedents.
Any sustained inquiry into constitutional change thus raises questions of
method. It is important to realize, however, that there is no escaping the reality
of constitutional change outside the legalized Constitution. It is a key element of
American constitutionalism. Keith Whittington lists eighty-seven examples of con-
stitutional changes made outside of amendments and legal precedents, including
For this argument with respect to the New Deal period, see S.M. Griffin, Constitutional
Theory Transformed (1999) 108 Yale L.J. 2115.
the presidents cabinet, independent regulatory commissions, congressional sub-

poena and contempt power, the military draft, the Louisiana Purchase, establish-
ment of the Federal Reserve System, development of the welfare state, and
entrance into the United Nations. Whittingtons list is by no means comprehen-
sive. Various factors, including the difficulty of enacting formal amendments,
have created a practical situation in which changes are often made through non-
legal processes. While questions of method are important, we should recognize
that this phenomenon exists regardless of how we seek to understand it.
Consider that American constitutional law has no standard doctrine of what is
extra-constitutional. Such a doctrine would provide an avenue to understand
structural changes outside of amendment and judicial precedent in a legal fashion.
While this term is used occasionally by scholars, it has no set meaning within the
American legal community. This suggests that in American constitutionalism
there is a strong boundary between the sphere of the legalized Constitution
(understood roughly as text plus judicial precedent) and what is sometimes called
the political constitution. The methodological issue is how to understand the
concept of the political or non-legal Constitution.
Two cautionary notes before I proceed further. The inquiry into constitutional
change can be easily misunderstood. From a conventional legal perspective, it can
appear as if scholars interested in constitutional change wish to add one or two
more items to a canonical list of methods of altering the Constitution (amend-
ment, interpretation, and so on). In reality, what these scholars are aiming at is a
different understanding of the Constitution and American constitutionalism
generally. This is one reason they emphasize understanding the Constitution in
terms of regimes, orders, and institutions.
In addition, an emphasis on constitutional change can lead to an understand-
able reaction that mischaracterizes the approach as all change, all the time. The
American constitutional order of course exhibits continuities as well as discon-
tinuities over time. The initial point is simply that the absence of formal
amendment does not tell us whether the meaning of the Constitution and its
practical operation have changed.
A first step toward tracking informal constitutional change is to stress the
importance of structuring rules and practices that are functionally equivalent to
the rules in the Constitution. Here a comparison with the movement in American
political science known as American political development (APD) is helpful.
Karen Orren and Stephen Skowronek have written of a deep skepticism about
master ideas or processes alleged to arrange political affairs for extended periods of
time. This scepticism extends to the idea that the Supreme Court is the final
See Whittington, above n. 10, 12.

See, e.g., K. Orren and S. Skowronek, The Search for American Political Development
(New York: Cambridge University Press, 2004). Ibid. 16.
arbiter of changes in the constitutional rules of the game. Correcting the

distortions introduced by a Court-centred view of who is in charge of these rules
and pointing to the full variety of sources of constitutional innovation affords a
new multisided picture of constitutional politics, one in which states, representa-
tives, executives, and judges are all in charge, vying with one another to determine
the Constitutions meaning.
This vision of multiple actors contesting the Constitutions meaning
(sometimes called the Constitution outside the courts) moves us part of the way
toward a fully developed understanding of constitutional change. However,
understanding change as a contest over meaning tends implicitly to import a
legalized model, complete with an emphasis on executive and legislative prece-
dents and individual interpretive struggles, into an inquiry that is intended to
achieve a comprehensive view of the non-legalized Constitution.
The Constitution itself suggests another path. It created institutions and
structural relationships intended to last through history. To understand constitu-
tional change we should focus on the development of constitutional institutions
within historical time. Focusing on institutions forces us to pay attention to how
structures influence political action and interpretive contexts. Focusing on
historical time forces us to confront the myriad ways in which constitutional
institutions interact with the world outside constitutional doctrine and especially
with politics.
APD scholarship has recently emphasized the multiplicity of ordering relation-
ships that affect constitutional institutions. According to this view, there is
an interinstitutional environment characterized by patterns of intercurrence,
where different institutional rules and norms will abut and grate as a normal state
of affairs. The task of understanding the Constitution at any particular point
in time thus becomes a matter of establishing the ways in which multiple structur-
ing institutions, orders, and rules intersect to establish a pattern for political
action. Understanding the Constitution across time involves recognizing patterns
of interaction and proposing theories to explain constitutional development.
Consider, as an example, presidential impeachment. If we study impeachment
in the same way we study doctrine, we focus on the clauses of the Constitution at
issue and how they were interpreted by Presidents Andrew Johnson, Richard
Nixon, Bill Clinton, and their adversaries. Given that the impeachment process
occurs outside the courts, this is also the approach of scholars interested in the
Constitution as interpreted by the political branches. By contrast, using consti-
tutional change as a lens for understanding American constitutionalism enables a
much richer approach to the context of impeachment, the issues at stake, and the
implications for future constitutional and political action.
Ibid. See Kersch, above n. 10, 8.

First, in understanding any particular impeachment, we should consider

institutional relationships in timewith respect to Johnsons impeachment, for
example, how Congress and the presidency had been affected by the experience of
the Civil War. Second, the influence of party, electoral results, and conflicts over
policy preceding the impeachment must be layered over institutional structures.
Third, we should examine how institutional and political realities, such as the
need to achieve consensus by focusing on indictable crimes, constrain otherwise
valid legal interpretations of the Constitution (that the constitutional standard of
high crimes and misdemeanors does not refer solely to crimes, but a larger class
of political offences). Fourth, we should consider how the results of the impeach-
ment shaped future understandings of the proper role of the executive and
legislative branches.
These multiple dimensions of understanding highlight aspects of the Clinton
impeachment missed by purely interpretive approaches. In general, scholars tried
to evaluate the impeachment through methods of interpretation such as textual-
ism and originalism, consulting primarily the eighteenth-century background of
the adoption of the Constitution. They could have achieved greater insights had
they used a comparative historical or developmental approach. That approach
would have employed the Johnson and Nixon impeachments to shed light on the
situation that developed after Republicans won control of Congress in 1994.
The parallels were striking: Congress controlled by the opposition, a political
context of bitter partisanship and policy disagreements, presidents challenged by
their own unusual personalities and errors of judgment, and an impeachment
process driven ultimately by questions of criminality rather than constitutional
abuse of power and suitability for high office.
Bruce Ackermans well-known works on American constitutional transform-
ation have been exemplary in advancing the developmental approach.
Ackermans most striking claim is that the Constitution has been marked by a
series of unconventional changes outside the text, but having the same legal status
as formal constitutional amendments. While insuperable barriers of legal con-
ventionalism stand in the way of acceptance of this proposition, Ackermans
consistent emphasis on patterns of unconventional change during his three key
periods of the founding, Reconstruction after the Civil War, and the New Deal,
have proven remarkably suggestive for many scholars. For example, Ackerman has
called attention to how the interpretive labours of the Supreme Court followed
rather than led changes initiated by the political branches. And Ackerman has
properly emphasized the importance of the New Deal in marking a key
US Const, Art. II, sec 4.

This is suggested by the account in Whittington, above n. 10, 11357.
See Background and History of Impeachment, Hearing of the Subcommittee on the
Constitution, House Judiciary Committee, U.S. House of Representatives (9 Nov. 1998).
See Skowronek, above n. 10, 4426. See works of Ackerman, above n. 10.
See Ackerman, Foundations, above n. 10.
unconventional turning point, not just for constitutional doctrine but for the
structure of American constitutionalism as a whole.
My developmental theory of constitutional change differs from Ackermans in
not placing so much stress on a few periods of change. While change is not
necessarily occurring all the time, Ackerman has gone too far in emphasizing just
three key constitutional moments, to the exclusion of other important periods in
American constitutional history. Historian Gordon Wood sums up this view
when he says that many scholars, especially historians, would not agree with
Ackerman that the major constitutional changes occurred only at his three
extraordinary moments of transformation. Instead, they say, the changes have
been ongoing, incremental, and often indeliberate. Indeed, ultimately they have
made our Constitution as unwritten as that of Great Britain.
Woods comment raises a problem for a developmental theory of constitutional
change. If change occurs through the ordinary political process and is ongoing,
how are we to distinguish change that is truly constitutional from the ordinary ebb
and flow of policy and politics? We may appreciate the practical point that there
are rules and practices outside the Constitution that are functionally equivalent to
those in the text. But do these rules and practices have the same normative force as
those in the text?
A developmental approach rests on the idea that informal constitutional
change can occur through the political process. Such change can constitute a
norm that guides action. So, for example, Supreme Court opinions have taken
notice of executive and legislative practice in making constitutional decisions.
However, norms derived from informal constitutional change are not legal norms
in the first instance. Again, norms can be constitutional without being legal.
Tracking non-legal constitutional change requires a conceptual shift from a
normative perspective grounded in doctrinal analysis to a historicist perspective
focused on institutional change that is the functional equivalent of formal
constitutional rules and practices. Further, a historicist perspective involves
examining change as a self-conscious process. We take into consideration whether
the participants thought constitutional change was going on but check to see
whether later developments confirmed that the changes had staying power.
Constitutional change outside the legalized Constitution is thus concerned with
constitutional institutions in development through history. Return to the example
of political parties. Their creation might be said to express the constitutional prin-
ciple that there should be a loyal opposition in a democracy. We would be badly
misled, however, if we were to treat this principle as the causal reason why political
parties formed in the first few decades of the early republic. Political parties formed
See Ackerman, Transformations, above n. 10; Griffin, above n. 2.

G.S. Wood, The Founders Rule! The New Republic, 7 Nov. 2005, 32.
See L. Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton, NJ:
Princeton University Press, 1988), 23747.
for all sorts of reasons, but the point from a developmental perspective is that they
made a substantial difference to how the constitutional order operated. It is appro-
priate to conclude that they changed the Constitution itself.
Finally, we might ask whether a developmental perspective is relevant to the con-
ventional understanding lawyers and judges have of constitutional change. If a
developmental perspective does not generate legal-constitutional norms (at least in
the first instance), what is its status relative to the standard project of interpreting
the Constitution to make judicial decisions? It is important to appreciate initially
that the primary goal of a developmental perspective is not to resolve cases but to
understand how the constitutional system works. This is the same point of view the
founding generation had as the Constitution was being written, ratified, and put
into operation. They were concerned with the constitutional order as a whole, not
specific judicial decisions. While Americans do not face the prospect of a second
Federal Convention, they always face the challenge of understanding how the
constitutional order works and adapting it to new historical circumstances.
This should not be taken to imply that a developmental perspective has little
relevance to the legal interpretation of the Constitution. Every constitutional law
case involves a determination, however implicit, that relevant historical circum-
stances and background institutions have or have not changed since the adoption
of the Constitution. This determination of course influences the interpretation of
the Constitution and its application to specific fact situations. In the famous
school segregation case of Brown v. Board of Education, Chief Justice Earl
Warren wrote, we cannot turn the clock back to 1868 when the [Fourteenth]
Amendment was adopted . . . We must consider public education in the light of
its full development and its present place in American life throughout the
Nation. In deciding Brown, the Supreme Court recognized that the nature of
public education had changed since the nineteenth century and that this made a
difference to how the case should be resolved.
After the September 11, 2001 terrorist attacks on the United States, the issue of
constitutional change was raised anew. President George W. Bushs administration
asserted that the world had changed and the old rules no longer applied. The
presidents attorneys argued that this was a new kind of war and a new paradigm
that renders obsolete some provisions of the third Geneva Convention.
President Bush and Vice President Richard Cheney had already signalled their
intent to restore the balance among the branches of government by increasing
executive power prior to the terrorist attacks. But the events of 9/11 triggered
institutional changes with momentous constitutional implications. These
implications are best grasped through the lens afforded by a theory of constitu-
tional change.
347 US 483 (1954). Ibid. 4923.

These are quotations from a memorandum by Alberto R. Gonzales, Counsel to President Bush,
25 January 2002. See <http://www.msnbc.msn.com/id/4999148/site/newsweek/>.
The Lens of Constitutional Change
Occasionally, Supreme Court justices focus on the development of constitutional

institutions and the degree to which they have changed over time. The circum-
stances of the famous Steel Seizure case, decided during the Korean War, led
Justice Robert Jackson to focus on changes to the presidency in his justly praised
concurring opinion:
[I]t is relevant to note the gap that exists between the Presidents paper powers and his real
powers. The Constitution does not disclose the measure of the actual controls wielded by
the modern presidential office. That instrument must be understood as an Eighteenth-
Century sketch of a government hoped for, not as a blueprint of the Government that is.
Vast accretions of federal power, eroded from that reserved by the States, have magnified
the scope of presidential activity. Subtle shifts take place in the centers of real power that do
not show on the face of the Constitution.
Here Justice Jackson used the lens of constitutional change to better understand
the presidency and thus, the Constitution itself. He focused on the presidency as
an institution and the difference that existed between the institution described in
the text (paper powers) and the real power the presidency had acquired over time.
Jackson might have had in mind the changes that occurred during the New Deal
administration of President Franklin Delano Roosevelt (in which he served as
Solicitor General and Attorney General) and those that followed entry of the
United States into World War II and the development of the Cold War.
In the years following 9/11, US lawyers and legal scholars have had a similar
vertiginous sense that their constitutional universe has changed in unexpected
ways: a war of indefinite duration (the global war on terror) fought against a non-
state opponent; the use of torture and other cruel interrogation techniques,
military tribunals and indefinite detention without judicial review; the develop-
ment of a domestic dimension to the presidential Commander-in-Chief power;
domestic surveillance by intelligence agencies in violation of law without judicial
scrutiny; and all this marked by an absence of congressional oversight or
legislation and the most aggressive advocacy of unilateral presidential power yet
seen in US history.
As Jackson suggested, it is impossible to track constitutional changes such as
those that have affected the presidency by examining the text of the Constitution
(there are no relevant formal amendments) or even through judicial precedent.
After all, not all actions of the president are subject to judicial review. A theory
that understands constitutional change in institutional terms offers a more
promising approach. Of all the institutions established by the Constitution, the
presidency is the most protean. The accumulation of power in the presidency
343 US 579 (1952). Ibid. 653.

during the twentieth century, to which Jackson refers, would not have been
possible had it not been supported by the constituent power of the people. The
changes that have occurred in the institution of the presidency are part of a larger
story in which a more democratized American polity informally changed the
constitutional system in many respects.
President Roosevelts New Deal is a paradigmatic example of constitutional
change through constituent power. An older constitutional order based on ideas
about the proper role and function of the national government collapsed under
repeated legislative hammer blows, backed by FDRs enormous electoral
majorities. FDR had the advantage of a personal relationship with the American
public and the people came to view the presidency as a sort of national tribune.
In national crises such as the Great Depression and World War II, the American
people expected presidential action, sometimes without regard to what the
Constitution said. This is significant because the increased power of the
presidency is often portrayed as something that presidents have done alone. In
part, this reflects a mode of thinking inherited from the eighteenth century
presidents seek to increase their power because that is what ambitious men in
office tend to do. But it is at least equally the case that increased power has been
something forced on the presidency by an aroused constituency of the people.
Increased presidential power was also a consequence of the institutional
weaknesses of Congress in new circumstances. In the years prior to World War II,
Congress discredited itself by adhering strictly to a policy of isolationism and
stridently refusing to follow presidential leadership in foreign affairs. After the
outbreak of the war, it seemed to many that Congress feckless attitude had placed
the United States in greater peril. If Congress was the danger, increased presi-
dential power and authority appeared to be the solution.
Increased presidential power led to a new series of constitutional dangers.
Presidents assumed they had the unilateral power to lead the United States into
war, a problem many thought exemplified by the Vietnam War. The indefinite
nature of the Cold War led presidents to apply tactics suited to foreign affairs to
the domestic sphere, a phenomenon which contributed to the great scandal and
constitutional crisis of Watergate during the administration of President Richard
Nixon. Informal constitutional change appeared to offer flexibility at the price of
unanticipated and unwelcome side effects.
The party system played an important role in shaping how the constitutional
lessons of Vietnam and Watergate were perceived by political actors. The lessons,
such as they were, were absorbed principally by elites associated with the
Democratic party. They believed that the presidency had become imperial and
had to be reined in by an assertive Congress cognizant of its role as the true reposi-
tory of constituent power. The Republican party, however, remained relatively
See A.M. Schlesinger Jr, The Imperial Presidency (Boston, MA: Houghton Mifflin, 1973),
979, 1226.
unaffected by these supposed insights. For Republican elites, the lesson of the
1970s was that Watergate led to an overreaction against presidential power. They
continued to see the president as the natural leader of government, especially in
foreign affairs, and set forth the theory of the unitary executive during President
Reagans administration in the 1980s. Many of these Republicans would later play
key roles in the 9/11 administration of President George W. Bush.
At one level, the unitary executive was a way to counterbalance the legacy of
Watergate and reintroduce the need for energy and unitary action in the executive
branch. But in the circumstances of the 1980s it provided a theme for
Republicans in their efforts to keep congressional Democrats in check, to strike
back at the frequent appointment of independent counsel to investigate the
executive branch, and provide breathing room for the president in foreign affairs.
There was a natural link between emphasizing a unitary executive and the presi-
dents power as commander-in-chief of the armed forces. During this period,
Republicans developed closer relations than Democrats with the military and
intelligence agencies.
When terrorists struck on 9/11, there were two basic paths open for an
American response. One would treat the attacks as a colossal crime against the
United States and emphasize bringing those guilty to justice and preventing
future attacks through limited military action and a renewed emphasis on intelli-
gence. The second would treat the attacks as if they were akin to the 1941 attack
on Pearl Harbor and the start of a major world war. President Bush and the
Republican party sent the United States careening down the second path so
quickly that some Americans were left behind gasping in disbelief. Using the lens
afforded by constitutional change, we can see that the constitutional perspective
the Republicans had developed on the presidency left them well prepared to
respond to the 9/11 attacks. President Bush immediately categorized the attacks
as a military operation, akin to an invasion by a foreign state. The President told
his advisers were at war just hours after the attacks occurred and made a global
war on terror the official policy of the executive branch. And at one and the same
time, it was unconventional warfare, warfare beyond the standard laws of war. In
addition, it could be construed as warfare going on inside the country. As the
commander-in-chief responding to a surprise attack, he was at the zenith of his
constitutional power. In the next few months, the executive branch set into
motion all of the questionable doctrines that would later come to light: indefinite
detentions, military tribunals, and extreme interrogation techniques.
Understanding the constitutional changes wrought by the Bush presidency is
thus a matter of describing the state of constitutional institutions and practices
prior to 9/11 and noticing the range of institutional opportunities that was
The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks
Upon the United States (Washington DC: US Government Printing Office, 2004), 326.
See ibid. 3308.
available as a result of the attacks. The lens afforded by the study of informal
constitutional change helps us to do this. But an institutional analysis can take us
only so far. The crucial role of constituent power should not be overlooked.
President Bush enjoyed the immediate support of the American people and easily
obtained congressional authorization to wage war against Al Qaeda and their
Taliban supporters in Afghanistan. The legitimacy provided by constituent power
allowed President Bush to expand the power of the presidency far beyond its
normal limits.
The legal battles that followed over the Bush administrations 9/11 measures
illustrate the tensions between formal and informal constitutional change. To
those inside the sphere of the legalized Constitution, constituent power and,
indeed, the presidency itself can appear to be dangerous wild cards within the
constitutional order. How to bring these wild cards safely under legal control is
not obvious. Consider that the Bush administration has consistently opposed
judicial review of its wartime measures. When cases are brought, the administra-
tion has argued that the judiciary has no role supervising its conduct of the war on
terror. Subjecting presidential initiatives to judicial review means legalizing
wartime measures that the executive branch sees as exercises of discretion. But
lawyers outside the administration have been struggling consistently to legalize
the war and thus bring it within the sphere of formal constitutional change.
Asking whether the Bush administrations wartime measures are consistent
with the Constitution is thus a more complex question than first appears. As
Justice Jackson noted, the powers of the presidency have developed informally
without necessarily receiving judicial or legal approval. They are matters of
practice, of informal constitutional change. American lawyers are often surprised
by the reality that constitutional institutions that can change informally have the
capacity to create their own reality, so to speak. Using judicial or ordinary legal
criteria as the sole means of evaluation misses the role informal constitutional
change plays within American constitutionalism. Bushs wartime measures can be
evaluated, but not by criteria drawn from ordinary legal practice. This may seem
problematic from a conventional legal perspective, but that is precisely the
dilemma created by the development of informal constitutional change within
American constitutionalism. The reality of constitutional change means that the
use of ordinary legal baselines to judge presidential actions will always fall short of
an effective critique.
Concluding Remarks
Consider some common opposed observations about American constitutional-

ism. It is based on a designed order expressed in the Constitution. It has changed
informally in such significant ways that it now resembles the unwritten tradition
characteristic of British constitutionalism. The constituent power of the people
plays no direct role in American constitutionalism, other than through the

amendment process. The interpretation of the Constitution is influenced by
public opinion and the constituent power of the people can change the
Constitution through informal means.
Perhaps it would be too much to expect that the lens of constitutional change
could help us solve these paradoxes. But we can make some headway if we use the
study of constitutional change to help us understand how all of these statements
shed some light on the nature of American constitutionalism. Portions of the
original constitutional design survive today, but no part has been immune from
the effects of history and informal constitutional change. And institutions such as
the presidency that have undergone the greatest change still bear marks of their
original design and the hopes of the founding generation. While the constituent
power of the people is still seen by many as dangerous to the integrity of constitu-
tional forms, there are very few who would deny that it has had a role in shaping
American constitutionalism. Progress would be for constitutional theory to
achieve a greater historical understanding of these phenomena before moving on
to its perennial normative projects.
4
Constituent Power in France:
The Revolution and its Consequences
Lucien Jaume*
Constituent power has been a highly controversial question in France, as much for
lawyers as for French political history. The matrix of controversy originated
during the Revolution, under the Constituent Assembly of 1789 to 1791. From
the beginning, the moderate actors behind the Revolution believed that a separ-
ation between constituent power and constituted powers could both provide the
foundation of legitimacy of governmental institutions and also offer a guarantee
for the protection of individual rights. Through this separation, constituent
power was able to enthrone the Nation in its sovereign place, whilst at the same
time ensuring the moderate characterin Montesquieus senseof representative
government. Because of the way in which the revolutionary process unfolded,
however, these liberal-spirited actors soon came to fear the force that had been
unleashed by the idea of the constituent power of the Nation. Constituent power
thus came to be viewed as a dangerous force that, so far as possible, had to be
limited and restricted.
But what is constituent power? Is it simply the insurrectionist cry of the sover-
eignty of the people? Notwithstanding Condorcets attempt to restore a certain
sense of order in his constitutional draft of February 1793, this belief was to grow
during the period between September 1792 and the spring of 1793 as the
Montagnards worked to seize and maintain power. From this moment onwards,
the idea of constituent power has, within a series of French constitutional debates
of considerable volatility, generally evoked a sense of the exteriority of the
* This is a revised and updated version of a paper published as Il potere costituente in Francia dal
1789 a De Gaulle in Paolo Pombeni (ed.), Potere costituente e riforma costituzionale nellItalia contem-
poranea, 18701990 (Bologna: Il Mulino, 1992).
Montesquieu wrote: I say it, and methinks I have undertaken this work with no other view than
to prove it, the spirit of a legislator ought to be that of moderation; political, like moral good, lying
always between two extremes. (De lesprit des lois XIX, 1). See the chapter on Montesquieu in
L. Jaume, La libert et la loi. Les origines philosophiques du libralisme (Paris: Fayard, 2000), esp. at
11314.

sovereign people in relation to their institutions. Whilst providing, on the one

hand, the basis of legitimacy, the sovereign people were at the same time
recognized as being capable of assuming a concrete form (through clubs, demon-
strations, and petitions) and, in such guises, to constitute the source of all
dangera revolutionary breeding ground for the possible resumption of the
French Revolution. Whether denied in the Charters, or skilfully used by
Bonapartism, or neatly harnessed in the Constitution of 1875 which had
completely excluded citizens from any role in constitutional revision, this active
exteriority of the people was regarded by many as threatening to undermine the
principle of representation.
This conflict between the sovereignty of the people and representation has
reverberated across two centuries of French history. In these conflicts, the con-
stituent power of the people has invariably been treated with apprehension, and
often been felt to provoke demagogy. It was not until the rise to power of de
Gaulle in 1958 that it could be shown that, far from undermining the stability of
the state, an appeal to constituent power might even lead to the strengthening of
the states authority. This conviction was institutionalized in the Gaullist constitu-
tion of 1958 and its revision in 1962, which established a president directly
elected by universal suffrage as the keystone of the constitution, and thereby
required an acknowledgement of the exteriority of the sovereign people vis--vis
the system of constituted powers. De Gaulle aimed to modify the ingrained
perception of fear of demagogy both by recognizing the exteriority of the sovereign
people vis--vis the typical parliamentary powers (the two Chambers), and also by
integrating popular intervention into the constitutional machinery for the
purpose of creating a regular and direct dialogue between the head of state and the
people. These Gaullist reforms thus invite a reassessment of the last two centuries
of French political and constitutional history.
Constituent Power under the Constituent Assembly:

From Principle to Practice
When one considers the debates in the Constituent Assembly between spring
1789 and autumn 1791, it is surprising to note the extent to which praise for the
lawas in the idea of the rule of law succeeding over despotismis also
accompanied, in the mouths of some at least, by the need to be vigilant about the
dangers of assemblies. Such concern was even being expressed by Sieys before the
A good account of this fear from the Restoration to Jules Ferry is to be found in F. Furet,
La Rvolution de Turgot Jules Ferry (Paris: Hachette, 1989).
Napoleon III rarely hesitated to invoke the judgment of the sovereign people every time he
wanted to legitimize a policy change of his regime and reaffirm his popularity.
The French Revolution and its Consequences 69
Estates-General. In an essay entitled Dlibrations prendre dans les assembles de

bailliage (1789), he wrote:
The individual should not fear that his will militates against his interest. . . . A nation is
exposed to those dangers. His representatives might, if badly constituted, create an interest
of their own, and this is the main reason why it was demonstrated that, in the last instance,
the constituent power needed to be different from the constituted power.
This use of it was demonstrated referred to Sieys himself, who in his pamphlet
Quest-ce que le tiers-tat? had devoted a separate chapter to the question of
constituent power. In this, he asserted that: Recourse should not be made to the
Notables, but to the Nation itself. If we lack a constitution, then a constitution
must be made, and the Nation alone has the right to do so. For Sieys, however,
this reliance on the nation could only be assured through representation: extraor-
dinary representatives, bound by no prior constitutional form, would decide
freely as an individual would will in the state of nature, and their common will
has the same worth that of the nation itself . Sieys here was arguing that if we
were carefully to isolate the moment and the body devoted exclusively to the
drafting of the Constitution and the Declaration of the Rights of Man, the
supremacy of these founding texts over all later laws would be solemnly affirmed.
The ordinary representatives, later elected, would therefore be deputies charged to
realize their mission according to limits set out in the founding texts.
Sieys, then, was very clear on this point (as he would reassert in the year III):
to strongly mark out the separation of constituent power and constituted powers
was to do justice both to the nation recognized in its supremacy and to human
rights protected from legislative omnipotence. So understood, constituent power
became the key to recognizing the two faces of 1789: revolutionary and founding;
innovative and protective. But right from the outset things did not go according
to plan: Sieys bemoaned the fact that, since the Estates-General were convened in
their ordinary form, the constituent power [will be] confused with constituted
legislative power, and [that] we will have to suffer this usurpation. At the very
E.-J. Sieys, Dlibrations prendre dans les assembles de bailliages [1789], s. l, 39; reproduced in
uvres de Sieys, M. Dorigny (ed.) (Paris: EDHIS, 1989), vol. 1.
First published in January 1789, it was followed by three further editions in 1789a stunning
success.
E.-J. Sieys, Quest-ce que le tiers-tat? [1789] E. Champion (ed.) (Paris: PUF, Collection
Quadrige, 1982), 64; What is the third estate? in Sieys, Political Writings, M. Sonenscher (ed.)
(Indianapolis: Hackett, 2003), 92 at 133.
Ibid. Champion, 71; Sonenscher, 139.
Sieys reiterated in 1795 (Speeches of 2 and 18 Thermidor, year III) his insistence on the dis-
tinction between the two domains: that of the direct power of the nation (the constituent power), and
that of the organs of power subjected to the Constitution (legislature and executive).
Not according to elections, which were almost universal and constituted a significant step
forward wanted by Necker, but for the purposes for which the Estates-General were convened,
traditionally regarded as to enable the imposition of taxes. It was not a question of redrafting a consti-
tution: one was already supposed to exist.
Sieys, above n. 4, 39. Also wanting to correct the confusion between deputies and con-
stituents, Sieys wrote several months later: The representatives of the French nation . . . declare that
least, he noted, it will then be apposite for these Estates-General to declare

themselves the National Assembly, and therefore to ignore any privileged orders.
It will also be necessary that in attributing themselves the right to grant us a
constitution, they include in it a principle of reform capable of self-development,
always in line with the progress of the Enlightenment, and serving as a reminder
of the Constitutions true origins. This principle of reformation must involve
the convocation of assemblies for revision of the Constitution (roughly once every
thirty years according to Sieys) in order to adapt the Constitution to the needs of
each generation.
But in granting themselves, as Sieys says, the rights to declare and to consti-
tute, the Estates-General were to enter into a conflict over sovereignty with the
king. Indeed the kingwhatever the Cahiers de dolance (list of grievances) might
sayhad convened the three estates (clergy, nobility, and the third estate) to
achieve certain unique financial reforms, and not for the purpose of overturning
the monarchical constitution. In appropriating sovereignty, and by affirming that
such sovereignty was none other than that of the nation (possessed by the nation
and exercised by its representatives), the Constituent Assembly entered into a
struggle in which the distinction between constituent power and constituted
powers could only become more blurred. The urgency of the situation, and the
escalation of conflict with both the nobility and with the king, would lead the
Assembly to enact laws even before the Constitution had been drafted: the self-
proclaimed constituent power was also the legislative power from June 1789 to
September 1791.
In addition, for this separation to be symbolically sanctioned and engraved in
the peoples hearts, a procedure for ratification of the Constitution, once drafted,
would have been required. In short, the nation would have to be consulted in
order to express the view of whether this Constitution was really theirsthat is to
say, the expression of their constituent power. Despite calls from the outset by
Sieys and Condorcet for precisely this, the majority of the Assembly refused to
adopt such a procedure. Through his first draft of the Declaration of the Rights
of Man, Sieys had spoken for the Constituents: they declare that the
Constitution they will give to the nation, despite being provisionally obligatory
for all, will not be definitive until after a new constituent power, exceptionally
the constitution that they want to give to the nation, though provisionally binding on all, shall only
become definitive once consented to by a new constituent power, convened extraordinarily for this
one task and guided by the rigour of principles.
Ibid.
As has already been noted, Sieys called for this ratification in his text of July 1789, entitled
Prliminaires de la Constitution. On this opinion of Condorcet, see in particular: Sur la ncessit de
faire ratifier la Constitution par les citoyens in Oeuvres, A. Condorcet OConnor and F. Arago (eds.)
(Paris: Firmin-Didot, 18479), vol. IX, 411. For an overview of the debates: P. Colombo, Riforma
legale e potere costituente nelle costituzioni rivoluzionarie francesi (1985) 3 Il Politico 461.
convened for this sole purpose, has given the consent demanded by the rigour of
principles.
Finally, it is on the question of revision that one sees more clearly how far the
majority of the deputies distrusted the power that they would no longer control.
Following the debate conducted as to the possibility of American-style
Conventions in August 1791, the Constitution of 1791, under Title VII, made
revision difficult and in practice improbable. In particular, a unanimous decision
was required of three consecutive legislatures. The revision Assembly, where the
deputies of the ordinary legislative body would also sit, was to swear on oath to
rule only on those wishes previously submitted. The revision initiative, the
revision schedule, the subject of revisionnothing was left to chance, and even
less so to the unarticulated aspiration of citizens for a revision. Moreover, the
adoption of a nevertheless clause in Article 1 of Title VII speaks volumes as to
the fears of the Constituentsfears which caused them to extend and entrench
those clauses in the Constitution concerning its revision.
From 1789 onwards, Condorcet (who did not sit in the Constituent Assembly)
had insisted that a method for periodical revision, perhaps even at fixed intervals
(every twenty years for example), be established by the Constitution. He had
supported the request of Mathieu de Montmorency, issued on the 27 August
1789, that the Declaration assert the need for a means of periodic, peaceful, and
formal revision. If one were to accept the suspension of ones will in favour of the
future will of the Assemblies and of the Prince, wrote Condorcet, it would be to
declare that there would be no reforms other than those that served to increase the
power of the Assemblies and the Prince to the detriment of citizens rights.
Determined to entrench the initiative and to limit the extent of the power of
revision, the National Assembly considered that the exercise of constituent power
would no longer have a place: the Revolution is finished said Le Chapelier in
September 1791, as there are no more injustices to overcome, or prejudices to
contend with.
E.-J. Sieys, Prliminaire de la Constitution. Reconnaissance et exposition raisonne des droits

de lhomme et du citoyen, 2021 July 1789, Archives Parlementaires, 1st series, vol. VIII, 256.
Debate held between 29 August and 1 September 1791, reproduced in vol. XXX of Archives
parlementaires 1st series.
The Constituent National Assembly declares that the nation has the inalienable right to change
the Constitution; and nevertheless deems it to be most in accordance with the national interest only to
exercise this right, through the means provided by the Constitution itself, to change its articles . . ., in
J. Godechot, Les Constitutions de la France depuis 1789 (Paris: Flammarion, coll. GF, 1979), 65.
Condorcet, Letter to Count Mathieu de Montmorency, Paris, 30 August 1789. I must thank
Odile Rudelle for having drawn my attention to this text. The theory of periodical conventions was
developed by Condorcet in several speeches given in 1791, in particular to the Amis de la Vrit
(Friends of the Truth). The idea is the same in Sieys case, despite differences in application: A people
always has the right to review and revise the Constitution. It is even wise to determine fixed periods,
when revision will take place, whether or not required. Sieyes, Prliminaire de la Constitution,
above n. 13, 261.
See an analysis of Le Chapeliers proposed decree (on popular associations) in L. Jaume, Le dis-
cours jacobin et la dmocratie (Paris: Fayard, 1989), 5965.
The drafters thus considered that they had completed a definitive text, founded
on the indestructible rock of natural rights. But in reality the work of the moder-
ates in the Assembly served only to bolster popular agitation of all types, driven
along by clubs such as the Jacobin Society. They thus ended up provoking quite
the opposite of what they had intended; that is, to restrain public debate within
parliamentary circles and within the frame of a purely representative system
without elements of direct democracy and popular initiative, and equally to
reduce public opinion only to the circulation of newspaper articles. In the end, the
agitation in Paris led by clubs and popular associations and controlled by leaders
such as Robespierre, the conflict with the King (though not taken up by the
deputies after Varennes), and the Champ-de-Mars affair where blood flowed,
led to a growing divide between the deputies and the democratic movement or
those with subversive tendencies.
At the close of the Constituent Assembly, it would appear that the die had been
cast for some time, as much for the duration of the revolutionary period up until
the arrival of Bonaparte in 1799, as for the rest of French history. In France, the
legitimacy of representation and parliamentarism, as well as the force of the
executive power, came to foment an upsurge in disagreement and create constitu-
tional instability. That is, the radical elements were able to conflate the issue of
constraint on constituent power with that of the idea of representation as a means
of alienating the will of the people (in the sense of Rousseaus Social Contract).
Robespierre maintained this confusion between representation and constituent
power in the debate of 10 August 1791 in the constituent Assembly, during a
discussion on the draft constitution. The draft put to the vote provided that:
Sovereignty is one, indivisible and is vested in the nation; no single section of the
people may take on its exercise. But Robespierre challenged this formulation:
since the sovereign is embodied in the sections, he argued, one cannot say in an
absolute and unlimited manner that no section of the people may take on the
exercise of sovereignty. For Robespierre and for a radical democrat such as
Ption, the sections had to be able to express their sovereignty even during the
Louis XVI fled to Varennes on 21 June 1791, but on 15 July the deputies invented the fiction of
the King abducted against his will.
Following a petition of the Cordeliers Club against the fiction of the abducted King and calling
for a Republic, a mass meeting took place on the Champ-de-Mars on 17 July 1791: shooting by the
National Guard caused dozens of victims. This bloody event accelerated the split between radicals
and moderates, in particular within the Society of Jacobins subsequently founded on a new basis by
Robespierre.
See further L. Jaume, Unit et pluralit : la souverainet rvolutionnaire et son hritage (1998)
vol. 29, no. 2 The Tocqueville Review. La Revue Tocqueville 65.
In Paris, for example, the city is divided into forty-eight sections.
Archives parlementaires, 1st series, vol. XXIX, 327. I simplify Robespierres argumentation here.
See further my book Le discours jacobin et la dmocratie, above n. 17, 294300.
The future Girondin, Ption was at this juncture located on the left of the Assembly as was
Robespierre. See his speech of the same day, cited in my Le discours jacobin et la dmocratie, above
n. 17, 294. Having subsequently become mayor of Paris and a member of the Girondins, he clashed
violently with Robespierre and ended up being proscribed, dying of exhaustion whilst on the run.
mandate of elected administrators (at communal, departmental, or district level),

or of deputies (to the national Assembly). In short, the sections must be directly
involved in the constituent power.
But serious doubts arose. Can one section speak in the name of the forty-eight
sections of Paris? Can the forty-eight sections of Paris speak in the name of the
sovereign Nation? This disputed point, which would exacerbate the split between
Montagnards and Girondins, was wisely challenged by Robespierre on 10 August
1791. Nonetheless, such avant-garde behaviour, supported by the Montagnards,
gave free rein to many reprisals during the Revolution up until the fall of the robe-
spierristes in July 1794, and even up until the suppression of the sans-culottes
movement in 1795 (prairial month of Year III). One year after Robespierres
proposal concerning the sovereign power of the sections, the Parisian section of
Mauconseil went before the legislative Assembly on 5 August 1792, declaring in
the name of the general will that the Constitution was now devoid of any
validity. This declaration was set in motion by the uprising of 10 August (the
assault on the Tuileries), which itself swept away the entire constitutional edifice
erected by the preceding Assembly, and led to the calling of new elections (the
Convention) and of the proclamation of the Republic (September 1792).
Following this second revolution, in the words of the Jacobins, what was to
become of the principle, already so battered, of the separation of constituent
power and constituted powers?
Condorcet: The Failure to Strengthen Constituent Power

Democratically
After 10 August 1792, the Convention was electedfollowing American use of
the termto draft a new Constitution and to put the text voted by the
Convention to the people for ratification. But the urgency of the circumstances
and the violence of conflict, even between republicans, were such that, once again,
the Assembly would confound legislative power and constituent power. The bitter
rift between Girondins and Montagnards meant that, even in the heat of
discussions over the Declaration and Constitution drafts, the legitimacy of the
participants, and in particular the Girondin Constitution Committee, was under
Between the 1st and the 4th prairial (2023 May 1795), the last uprising in the quarter of
Saint-Antoine against the Convention (the crisis of Bread and the 1793 Constitution) was sup-
pressed, marking the end of the direct democracy of the sans-culottes. See A. Soboul, Les sans-culottes
parisiens en lan II (Paris: Clavreuil, revised edn., 1962).
According to its decree of 21 September 1792. See also the essay of Olivier Jouanjan on this
issue and the comparison with Carl Schmitts Die Diktatur: O Jouanjan, La suspension de la
Constitution de 1793 in J. Bart et al. (eds.), La Constitution du 24 juin 1793 (Dijon: Editions
Universitaires de Dijon, 1997), esp. 1703.
question. The Montagnards and the Jacobins hoped to show that they alone were
the true representatives of the peopleabove all because they endorsed the right
to resist oppression, understood as the right to untrammelled insurrection.
The origins of this debate can be found in Condorcets attempt within the
Constitution Committee to outline a means of democratic intervention for the
citizen that, given the purely representative nature of the 1791 regime, might
restore the balance. Wishing to avoid the consequences of the insurrection princi-
ple (illustrated by the events of 10 August), Condorcet was forced to devise a new
concept of citizenship, one which had great importance for the definition of
constituent power. The new concept was that of censure of the people with
regard to acts of national representation. In this conception, a single citizen,
having gathered fifty signatures in his primary assembly, could, under a system of
subsequently obtained majorities, require the legislative body to undertake a
review of a law judged contrary to the Declaration of Rights or believed to be
contrary to the Constitution (under Article 27 of the draft). Similarly, under a
popular referendum initiative (which appeared for the first time), citizens could
urge their representatives to examine an issue of law; or alternatively, the legislative
body could require citizens to respond with a simple, yes or no to questions
which essentially interest the entire Republic (Article 30). Finally, each citizen
was given the right to demand that a Convention be called for revision of the
Constitution (Title IX, Article 5), and since the procedure was the same as for
exercise of the right of censure, this also concerned the constituent power.
These constitutional mechanisms, although time-consuming and impractic-
able in the eyes of many jurists, aimed to confer the constituent power with a
certain vitality which would be more than purely symbolic. Given its democratic
content, the option of constitutional revision also allowed for a right of resistance
which, instead of proceeding by an insurrectionary route, required a process of
I analysed this dispute in La souverainet montagnarde in Bart et al. (eds.), ibid., and in Les
Girondins: un conflit vritable, une interprtation fausse in C. Boutin and F. Rouvillois (eds.),
Dcentraliser en France (Paris: De Guibert, 2003), 33. Montagnards and Girondins were initially both
members of the Jacobins club (which had its seat in Paris and branches in the provinces); the struggle
for power began in December 1791January 1792, during the dispute concerning the draft
declaration of war against the princes who had accepted emigrs. The Girondins, who dominated the
legislature and controlled the ministry, pushed for a declaration of war. The antagonism came to a
head after the opening of the Convention (21 September 1792), and the two groups engaged in a
struggle for power without quarter. On 31 May2 June 1793, under pressure from armed sections in
Paris, 29 Girondin deputies were arrested or proscribed. Having subsequently been found guilty of
the crime of federalism, 41 Girondins were executed on 31 October 1793. The Terror became more
widespread after September 1793, and it was the Girondin policies which sparked off the Terror.
See L. Jaume, Citizen and state under the French Revolution in Q. Skinner and B. Strth
(eds.), States and Citizens: History, Theory, Prospects (Cambridge: Cambridge University Press,
2003), 131.
Title VIII of Condorcets constitutional draft (1516 February 1793), Archives parlementaires,
1st series, vol. LVIII, 619.
confrontation and interaction. It also allowed for the possibility of rotation in

power since, if the Assembly found itself disavowed by the primary assemblies, it
would be automatically dissolved. This idea of citizen-driven constituent power
by means of the revision initiative was founded on a premise that was characteris-
tic of Condorcet, the philosopher-legislator: everyone was obliged to make use of
reason rather than passion, and to respect the established rules. Given the passion-
ate climate and militant activism prevalent in the spring of 1793, this requirement
proved to be entirely unrealistic. In the months preceding the coup of 2 June
1793, the constitutional debate was no more than a pretext, and even the Gironde
failed to support Condorcets constitutional draft, which, as Robert Badinter
reminds us, tradition has inaccurately baptized as Girondin.
Once the Montagnard dictatorship was established, the draft Constitution,
quickly drawn up by Hrault de Schelles committee, was forced to take into
account the ideas of Condorcet, though in reality these were completely distorted:
primary assemblies were given the right to refuse a proposed law (Articles 58 and
59), and the right to demand the establishment of a revision Convention (Article
115). The glorious republican or socialist legend of the Constitution of the Year
I, which takes hold in the nineteenth century and even beyond, conceals the
purely circumstantial nature of this text for a government that craved hegemony
by means other than constitutional ordering. It was through the Terror, the
creation of lhomme nouveau (new man understood in the religious sense of Saint
Paul), and the merging of the people and the State, that the Revolutionary
government intended to settle the relationship between the citizens and their
leaders. Whilst the Convention endorsed the Montagnard Constitution by
referendumthough in a context of intimidationin July 1793, in August we
find Robespierre calling off plans for a popular return to the ballot boxes. From
this moment on, the Revolutionary government (properly constituted in
December 1793) produces its own legitimacy from above, with the aim of
establishing a people able to comply with the demands made of them.
See L. Jaume, Condorcet : droit de rsistance ou censure du peuple ? in D. Gros and O. Camy
(eds.), Le droit de rsistance loppression (Paris: Le Seuil, Le Genre Humain, 2005), 59.
R. Badinter, Condorcet et les Girondins in F. Furet and M. Ozouf (eds.), La Gironde et les
Girondins (Paris: Payot, 1991), 362.
See the chapter Des conventions nationales in R. Godechot, Les constitutions de la France
depuis 1789, above n. 25, 91.
On this point, see the December 1793 circulars of the Committee of Public Safety (Comit de
salut public), analysed in my Le discours jacobin et la dmocratie, above n. 17, 341 et seq., in which a
completely different notion of representation, of the organicist type (monarchical legacy) can be
identified.
The Montagnard Constitution was approved on 24 June 1793, and ratified in a referendum
held in the month of July. On the validity of this ratification, see the positive opinion of S. Aberdam,
Soumettre la Constitution au peuple in Bart et al. (eds.), above n. 25.
The Formidable Aspect of Constituent Power:

A Legacy of the Revolution
After the experience of the Convention, the constituent power became a reposi-
tory of bad memories. Henceforth, constituent power is perceived by political
leaders as the menace which the sovereign people presents to the established
constitutional order. In the year III (1795), the Convention had again discussed a
draft constitution which sought to bring the era of Montagnard and Jacobin
ideology to a close. Despite Sieys attempt in the year III to tame revolutionary
impulses, the jury constitutionnaire was not accepted by the Thermidorians.
Faithful to his distinction between constituent power and constituted order,
Sieys hoped that every ten years, the jury constitutionnaire would publish a
register of reforms, in respect of which the primary assemblies would affirm or
reject. However, the Constitution of the Year III, reflecting a degree of distrust
of the people that remained as widespread as it had been in 1791, made revision
subject to a complicated procedure, spread over nine years (Title XIII of the
Constitution).
From this point on, it became clear that the notion of constituent power
represented one of the unresolved issues of the revolutionary epoch. Some politi-
cal leaders have denied its existence altogether, as can be seen reflected in the
Charters of 1814 and 1830. Others have contemplated its exploitation for reason
of their own gain, as was evident under the Bonapartism of Louis-Napolon. In
each case, the key issue at stake became the meaning to be given to the peoples
sovereignty as bequeathed by the Revolution: national sovereignty under the July
monarchy or the sovereignty of the people under Bonapartism?
Under Louis XVIII, it was indeed clear that to resume the chain of history, as
stated in the Preamble to the Charter, the constitutional text must rely on divine
providence and not on a supposed sovereignty of the nation. In ceding to the
wishes of our subjects, said the monarch, we have voluntarily, and through the
free exercise of our royal authority, granted and continue to grant, conceded and
bestowed a text which directly expresses the royal authority: in France, all
authority lies in the King. When in 1830 Louis-Philippe dOrleans, unexpect-
edly arrived on the scene, this King of the French, whilst adopting the French
See the account in P. Bastid, Les discours de Sieys dans les dbats constitutionnels de lan III (Paris:
Hachette, 1939), 3940. Concerning the evolution of Sieys on this point towards a more conserva-
tive position, see P. Bastid, Sieys et sa pense (Paris: Hachette, 1939), Sect. III, 577 et seq.: La thorie
du pouvoir constituant et la rvision. See J. Godechot, above n. 15, 1389.
For these quotations, see: J. Godechot, above n.15, 21718: Louis XVIII authorized the
revision of the Charter by the Chambers with regard to elections (ruling of 13 July 1815). The logic
of the limited monarchy requires that it be the King who, in the final analysis (through his initiative
and sanction), modifies the Charter. And yet, he is not perhaps, himself, the constituent power: see
S. Rials, Essai sur le concept de monarchie limite in his Rvolution et contre-rvolution au XIXe sicle
(Paris: Editions Albatros and Diffusion Universit Culture, 1987), 88.
tricolour, had no intention of leaving the acceptance of the revised Charter to

popular suffrage. As Guizot explained in his Mmoires: The call for popular
suffrage would have given the monarchy precisely that character we were so keen
to be rid of , that is, a republican premise based on the sovereignty of the people
and taking, under a royal name, possession of the country. Some people, such
as La Fayette, had envisaged an elected assembly with the specific function of
constituent power.
The July Charter of the monarchy touched upon neither constituent power,
nor on constitutional revision, and thus left no route open for an appeal to
popular sovereignty. Indeed, the 1842 debate on the regency confirmed such fears
explicitly, with Guizot directly challenging the doctrine of Sieys:
If we pretend that there exists, or should exist, within society, two powers, one ordinary
and the other extraordinary, one constitutional and the other constitutive, we say some-
thing insane, full of dangers and potentially fatal. . . . Be calm, gentlemen, we, the three
constitutional powers, are the only legitimate and legal organs of national sovereignty.
Beyond us, there is nothing but usurpation and revolution.
Guizot ironically added that during the course of his life he had seen three
constituent powers: Bonaparte in 1799, Louis XVIII in 1814, and the Chamber
of Deputies in July 1830i.e. historical actors in moments of tumult, coup dtat,
and revolution. Since the France of 1842 could not consider itself to be in an
abnormal situation, it should not speak of constituent power and it was therefore
necessary to revise the Charter regulating the interaction of the three powers
(king, deputies, and peers) which together made up national sovereignty. As for
Thiers, he presented a more pragmatic view of the matter, though in the end his
observations proved somewhat ill-advised. Constituent power, he claimed, has
existed at various times in our history . . . It exists no more.
As Pierre Rosanvallon has shown, the July Regime never seemed to have a
theory or conception of itself that was clear and consistent. Its conception of
constitutional monarchy and ministerial responsibility was vague, constantly
dithering between the positions of monarchical legitimacy that some have called
quasi-legitimacy, and electoral legitimacy through representation of the nation.
F. Guizot, Mmoires pour servir lhistoire de mon temps (Paris, Michel Lvy, 1875), vol. 2, 26.
Ibid. 27. See the authoritative book by Pierre Rosanvallon, La monarchie impossible (Paris:
Fayard, 1994).
Cf. R. Carr de Malberg, Contribution la thorie gnrale de lEtat [1922](Paris: CNRS, 1982),
vol. 2, 543, n. 30.
A. Thiers, Speech on the regency of 20 August 1842 in Thiers, Discours parlementaires (Paris:
Calmann-Lvy, 1880), vol. VI, 21516.
Louis-Philippe was called to the throne although he was a Bourbon (said some, such as the
elder Dupin) or because he was a Bourbon for others. The controversy will never be resolved. Let us
remember that between the elder branch (descending from Louis XIV) and the younger branch of
Orlans rivalries have always existed. Louis XVIII and Charles X were brothers of Louis XVI, who
was guillotined during the Revolution. Louis-Philippe is the son of Philippe Egalit, Duc dOrlans,
who had voted for the death of the king at the Convention! And he had himself worn the colours of
This led to the political opportunity, skilfully seized in 1851 by Louis-

Napolon Bonaparte: the restoration, at least in appearance, of the sovereignty of
the people whose constituent power was an important attribute. The decree of the
Prince-President which set in motion the coup dtat was quick to specify that
universal suffrage is re-establishedeven though the Republic born in 1848 had
disenfranchised three million people (in a law of 1850) and, once again, had not
submitted its Constitution for ratification by the people. In addition, although
under the Constitution of 1852 the Senate had the right of initiative for constitu-
tional revision, it fell to the people to ratify any major changes. Article 32 of the
Constitution thus stated that: all changes to the foundation of the Constitution,
as set out in the Declaration of 2 December and adopted by the French people,
will be put to popular vote.
Amounting in reality to a combination of authoritarian statism and Jacobinism,
Bonapartism gave no more than a semblance of control to the people. In common
with its Jacobin ancestor, Bonapartism took into account constitutional legality
only insofar as it proved to be an instrument of opportunity. The fact remains that,
manipulated as it may have been, constituent power was nonetheless powerfully
affirmed on at least two occasions: on 2021 December 1851, when through a ref-
erendum the nation gave constituent powers to Louis-Napolon; and then on 21
May 1870, at which time Article 44 of the new Constitution of the Empire
declared: The Constitution may be modified only by the people, on the proposal
of the Emperor.
As the Empire drew to a close, it was confirmed that French politicians and
jurists had been unable adequately to balance the relationship between Power,
delegated by the people, and the People itself. In the words of Prvost-Paradol in
1868, the French Revolution had successfully created a new society, but was still
seeking the means of government appropriate to this society. Between elitist
confiscation of the Orleanist type and Bonapartist demagogy based on universal
the French revolutionaries in the battles of Valmy and Jemmapes (1792). The father of Louis-
Philippe was therefore at that time prince of the blood, a Jacobin, Montagnard deputy and, finally,
guillotined.
According to J. Godechot, above n. 15, 295.
See L. Jaume, Echec au libralisme. Les Jacobins et lEtat (Paris: Kim, 1990), 723.
See J.-M. Denquin, Rfrendum et plbiscite (Paris: LGDJ, 1976), 58: Never before had the
people been consulted on the delegation of constituent power.
According to J. Godechot, above n. 15, 319. The senatus-consultum of 21 May 1870 certified
that the draft constitution (senatus-consultum of 20 April 1870) had been approved by (approxi-
mately) 7,350,000 votes, against 1,538,000 negative votes, and 112,975 spoilt or void ballots. In
consequence the senatus-consultum of 21 May 1870 promulgated the new Constitution; it could not
be judged on its duration because France declared war against Prussia.
A. Prvost-Paradol, La France nouvelle [1868] P. Guiral (ed.) (Paris: Garnier, 1981), 250: The
French Revolution created a society, which is still looking for its government. This work is very
important in understanding French political and institutional developments up until de Gaulle
(1958).
suffrage, the constituent power remainedas is the case under French repre-
sentative doctrine itselfan obscure and perilous term bequeathed to the French
by the Assembly of 1789. Carr de Malberg and Bastid, both lawyers under the
Third Republic, observed that, whilst allegedly faithful to the spirit of 89, the
constitutional laws of 1875 almost completely removed the distinction between
constituent power and constituted powers. Indeed, the very same parlia-
mentary actors may, if they see fit, transform themselves into the National
Assembly to carry out the revision. Not only are the citizens of this absolute
Republic, in the words of Odile Rudelle, not consulted before or after the
procedure, but the revision itself must be strictly limited to the field predefined by
the Chambers. One might say, as did Thiers under the July monarchy, that there
had been a constituent power but that it had now disappeared. As Jean-Jacques
Chevallier put it, revision had become easy, on the condition that it served the
views of the personnel, the parties or the political establishment. Ren Capitant,
a prominent lawyer under the Fifth Republic thus remarked that the
Constitution itself, despite appearances, was nothing but an ordinary law, issued
as usual by Parliament. It was the regime of absolute parliamentarism. In fact,
apart from three minor revisions in 1879, 1884, and 1926, this Constitution
survived until 10 July 1940. The Boulangist slogan from the late 1880s
Dissolution, Constituante, Rvisionsufficed to prove, in the eyes of the
republicans, how much the notion of constituent power remained favourable to
factions.
De Gaullist Reform: Restoring the Constituent Power of the

People and Giving it an Interlocutor
From a legal perspective, the Third and Fourth Republics (i.e. from 1875 to 1958)
lived according to the following myth: the sovereignty exercised by Parliament
was completely identified with the sovereignty possessed by the people. The
general will could therefore only be expressed through its representatives and,
from the moment of their election, the law enacted by representatives amounted
Quotation from P. Bastid, Sieys et sa pense, above n. 34, 585. See also Carr de Malberg, above
n. 39, vol. 2, 606.
O. Rudelle, La Rpublique absolue. Aux origines de linstabilit constitutionnelle de la France
rpublicaine, 18701889 (Paris: Publications de la Sorbonne, 1982).
J.-J. Chevallier, Histoire des institutions et des rgimes politiques de la France moderne (Paris:
Dalloz, 3rd edn., 1967), 315.
During the years 18869, a coalition of anti-parliamentary forces organized around General
Boulanger demanded the revision of the Constitution in favour of a presidential and plebiscitary
regime. The constitutional revisionism gathered together a disparate coalition: Bonapartists, mon-
archists, radical, and dissident republicans.
to the expression of the general will. There remain echoes of the revolutionary
fiction, as set out by Sieys in his famous speech of 7 September 1789:
The people or the nation can only have one voice, that of the national legislature. . . . The
expression of an appeal to the people is therefore mistaken. . . . The people, I repeat, in a
country which is not a democracy (and France would not be one), the people may only
speak and may only act through its representatives.
By placing representative government in opposition to democracy, Sieys created
a doctrine of national sovereignty which not only entailed the rejection of any
form of semi-direct democracy, but also appeared to justify, according to the
interpretation prevailing during the Third Republic, the rejection of a constituent
power externally vested in the people. It is therefore Sieys who found it import-
ant to separate the domain of constituted powers from that of the constituent
power, as a prerogative of the nation. This is in any case the inheritancein part
faithful and in part unfaithful to 1789which de Gaulle revived during wartime
and specifically on 3 June 1944 when creating the Provisional Government of the
French Republic. As he wrote in his Mmoires de Guerre: There have been fifteen
successive regimes since 1789, each in turn imposing itself through revolt or coup
dtat, and none succeeding in ensuring stability. And as he was later to say, the
reform of 1958 was concerned with a problem that dated back 169 years and
which had to be resolved.
At the close of the war, de Gaulle hoped both to restore the constituent power
to the people and to return France to a form of governmental organization that
was able to consign to history the sovereignty of Assemblies. The Algiers edict
of 21 April 1944 had previously envisaged that the French people would be
consulted so as to decide whether the Constitution of 1875 (annulled by the
Vichy regime) should be reinstated. Speaking before the Consultative Assembly
on 29 July 1945, de Gaulle relied heavily on the issues of legitimacy and efficiency
to support his proposal that a new Republic, the Fourth, be instigated:
It does not follow from the mere fact that legitimacy disappeared with the Constitution of
the Third Republic that, in order to revive it, no more is required than to bring this same
Constitution back into force. The power of a Constitution consists in the fact that it
originates from the people and it responds to the conditions in which the State must live.
E.-J. Sieys, Discours sur le veto royal, Archives parlementaires, 1st series, vol. VIII, 595.
At the time, Mirabeau had proposed that in the event of conflict with the representatives, the
king, as head of the executive, could appeal to the people to decide. It is this that lies at the root of the
Gaullist vision of national consultations over important unresolved questions and sources of conflict
between the legislature and the executive. On the different aspect of Mirabeaus conception, see
L. Jaume, De Gaulle dans lhistoire franaise de la souverainet in Institut Charles de Gaulle, De
Gaulle dans son sicle (Paris: Plon/La Documentation Franaise, 1992), vol. 2.
C. de Gaulle, Mmoires de Guerre (Paris: Plon, 1959), vol. 3, 236.
C. de Gaulle, Mmoires despoir (Paris: Plon, 1970), vol. 1, 23: to endow the state with institu-
tions that provide . . . the stability and continuity it has been deprived of for 169 years.
C. de Gaulle, Discours et messages (Paris: Plon, 1946), vol. 1, 593.
There then followed the double referendum of 21 October 1945, in which the
French people were invited by the provisional government both to grant
constituent power to the representatives elected that same day and also to limit the
powers of this Assembly by adopting a law temporarily organizing the competen-
cies of the legislature and the executive. Replying in the affirmative to both
questionsas the French people did by a large majorityamounted to the
abandonment of the Third Republic, whilst also refusing to give omnipotent
power to the new Constituent Assembly. It might be noted that such a powerful
Assembly would have strengthened the Communist party in its attempt to expand
the socialist world. Thus, constituent power here was shared between the three
authorities: the Government, which consulted the people; the Sovereign, which
expressed itself through the referendum; and the Assembly, which was obliged to
produce a constitutional draft in the six months that followed.
In fact, de Gaulle, who many suspected of Bonapartism, clashed with a large
section of the political personnel by his action to reinstate the use of the referen-
dum. And he also alienated those on the Left and extreme Left by demanding that
the powers of the Constituent Assembly be limited, since socialists and commun-
ists remained attached to the model of the Convention of 93: the unique and sov-
ereign Assembly as the source of all power, and exercising both constituent and
legislative power of the state. This socialist and communist attachment was to be
revealed in the constitutional draft of spring 1946, which was rejected by a second
popular referendum on 5 May 1946. Meanwhile, de Gaulle had left, his vision of
the head of State having been proved to be incompatible with that of the
dominant parties of the Liberation.
What did de Gaulle want? He gives us an indication in a dense passage of
Mmoires de guerre, published in 1959:
To my mind, it is necessary for the State to have a head, a leader, in whom the nation may
see, above and beyond all fluctuations, a man in charge of the basics and a guarantor of
their destiny. Further, the executive, intended to serve no-one but the community, must
not come from the parliament that brings together delegations of particular interests.
These expressions thwarted the parliamentary doctrines that had become so
deeply embedded since the Revolution. The republican state could not be
impersonal, but had to have a leadera head that republican opinion consid-
ered analogous to the monarchy. Parliament was thus no longer seen as the
embodiment of the national unity, but simply the delegationfully legitimate
According to J. Godechot, above n. 15, 359, 96% of those voting replied yes to the first ques-
tion (the elected Assembly was to be constituent) and 65% replied yes to the second (public powers
would be organized as proposed in the law annexed to the ballot paper).
De Gaulle, Mmoires de guerre, above n. 53, vol. 3, 240. See further my studies: La Rpublique
selon de Gaulle Commentaire, no. 51 (Autumn 1990) and no. 52 (Winter 19901); De Gaulle dans
lhistoire franaise de la souverainet, above n.52; La sovranita nazionale in Francia dalla
Rivoluzione a De Gaulle (1990) 5 Ricerche di storia politica 41.
neverthelessof particular interests! In addition, it fell to the head of State to

manage a system under which double responsibility was exerted. Through the
government, and more specifically though the Prime Minister, the executive
assumed responsibility before Parliament. But in the person of the President of
the Republic, the executive became accountable to the people. Although the
Constitution of 1958 did not explicitly set out this second form of responsibility,
according to Ren Capitant, it nonetheless represents what de Gaulle intended for
the office of president. It is, furthermore, central to the restitution of constituent
power to the people.
Indeed, writing in 1964, Capitant insisted that, without the establishment of
such responsibility before the people, the new structure would remain abortive
and ambiguous as to its true intentions, since election of the head of the executive
by universal suffrage is not sufficient to guarantee him the required authority.
But this is certainly the trajectory of de Gaullian thinking: without full authority
for the head of State, the people cannot be true arbiters of their destiny. It is not
enough for the Constitution to be ratified by universal suffrage (as was the case in
1958); the people would still need to retain a privileged relationship with the
person of the President and, as such, the President would need to be able to appeal
to a mode of expression different from that implied by the legislative-executive
relationship. Responsibility before the people, argued Capitant, is the mark of a
democratic regime where legitimacy follows from popular confidence, an ongoing
confidence that may always be revoked, and not just from simple appointment for
a set term, irrevocable before expiry of the term. In other words, the legitimacy
of the head of State depends on democratic mandate, separate from the principle
of representation. Before highlighting these differences, we should emphasize the
similarities between these concerns and those that Condorcet envisaged in 1793,
as much in terms of law reform as constitutional modernization. This explains
de Gaulles use of the constitutional referendum in the circumstances of 1962 and
1969: at variance with the views of almost all lawyers of the time, he considered
that Article 11 of the Constitution, putting to referendum a bill concerning the
organisation of public powers, would prove beyond a shadow of doubt that
constituent power lay with the people and not with the Assemblies. De Gaulle
could have used Article 89: not only would it have involved certain political defeat
(given the opposition of the Senate), but, in doing so, he would have admitted
that the two Assemblies had the upper hand over the voice of the people.
See R. Capitant: Lamnagement du pouvoir excutif et la question du chef de lEtat

in Encyclopdie franaise (Paris: Socit nouvelle de gestion de lencyclopdie franaise, 193566)
vol. X, 142. Ibid. 150.
Ibid.
Article 89 of the Constitution regulates amendments; it provides that the draft or proposed
amendment must be voted by the two Assemblies in identical form. The amendment becomes
definitive after having been approved by referendum: J. Godechot, above n.15, 450. But the
President of the Republic may avoid the referendum by initially presenting the draft amendment to
Parliament convened in Congress, that is a special joint session of the two Chambers. Article 11 for
De Gaulles successors, from Georges Pompidou to Franois Mitterrand, have

expressed their opposition or at least their reticence towards such a procedure,
even if precedent gave it the force of acquired authority. Jacques Chirac for his part
pushed through the ratification of five-year presidential terms invoking Article 89,
but according to the procedure by which a referendum is held pursuant to a corre-
sponding vote by the two Chambers; it should also be noted that this referendum
aroused little interest and had a very low turnout.
The great difference between the de Gaullian use of the referendum and that
envisaged by Condorcet (referendums on revision, repeal, and popular initiatives)
was, of course, that in the formers use the question put to the people also
concerned an individual. Each time de Gaulle invoked the referendum it was to
put into question the continuation of his own powerand this was also the basis
on which he left power in 1969, believing that he no longer held sufficient
legitimacy. After de Gaulle, successive presidents have not accepted the practice
of presidential leadership, which involves periodic sounding out of public opinion
through recourse to referenda. Through the introduction of cohabitation, that is
negotiated agreement between the President of the Republic and an elected
majority of opposing political colours, and which determines the composition of
the government, Franois Mitterrand profoundly modified the system. Jacques
Chirac has also accepted the practice of cohabitation which de Gaulle would
undoubtedly have rejected.
Finally, with the introduction of five-year terms of office (in a referendum of
July 2000) in the place of the previous septennial mandates, Jacques Chirac
accepted a logic which obliged the President of the Republic to be more closely
dependent on the parliamentary majority, which also lasts for five years. This
should also be seen in the context of the loss of various aspects of state power due
to globalization and European economic harmonization: the prestige of the
state, along with that of the republican monarch is strongly waning. Accordingly,
after fifteen or so constitutions since 1789, it would appear that, having existed for
forty-eight years, the Fifth Republic has introduced notable stability, even though
its organization of powers has been challenged both on the left and on the right. In
its part provides that the President of the Republic may subject to referendum any law concerning
the organisation of public powers (ibid. 429): this entails an interaction between the head of state
and the people which bypasses Parliament.
Constitutional law of 2 October 2000, modifying Article 6 of the Constitution: the President
of the Republic is elected for five-year terms and no longer for seven years.
This distinguishes his use of the referendum from that of G. Pompidou (1972) and subse-
quently F. Mitterrand (1988: a referendum on the future of New Caledonia). President Mitterrand
had not staked his mandate on the outcome of this referendum, which he in any event won. But the
case of President Chirac is much more clear cut, since he was roundly rejected in the referendum of 29
May 2005 on the European Constitutional Treaty, despite his personal intervention in favour of a yes
vote.
See my study, Le gaullisme et la crise de lEtat (2000) 8 Modern and Contemporary France 7.
On all these points, see ibid.
the run up to the 2007 presidential election, speculation over the existence of a
Sixth Republic is not out of order, and the need for mechanisms that are capable
of ensuring the political responsibility of the President of the Republic has been
proposed by all sides.
Conclusions
What conclusions can be drawn about the constituent power? Its reality in France
depends on the vagaries of representation: French legal doctrine has privileged the
theory of Sieys, that is a quasi-mystical identification between the people and the
Assembly. Thus, according to the logic of representation in Hobbes Leviathan,
it is the representative which must give its unity and political identity to the
people, and not the opposite. The representative is sovereign because it institutes
the people as a political entity from the starting point of a disunited multitude.
But this doctrine has been contested by at least three movements: Jacobinism
(178994), followed by Bonapartism (Napoleon and then Napoleon III), and
finally by Gaullism (195869). The constituent power of the people became one
of the means of rejecting the claim that the elected Assembly is the nation, the
constitutional doctrine of Sieys.
The originality, yet also the difficulty, of French political culture lies in the
relationship between society and the State. Up until these last years (of globaliza-
tion), the State was seen as the guarantor of the general interest, lying above
factional disputes (religious, social, political, regional, or ethnic conflicts). This
guarantee went hand in hand with State intervention in the economy and its
provision of public services: the State introduced the general interest into civil
society and into such core sectors as education, health, transport, and energy.
However, it has also been perceived as having responsibility for everything that has
gone wrong in modern economic and social life. The Fronde rebellion expresses
both a historical epoch and a durable critical attitude of French citizens towards
the State, and this lovehate relationship which the French have had towards
their State since the Ancien Rgime is linked to the passion for equality (as noted by
Tocqueville) and the hatred (more theatrical than sincere) of privileges.
What, then, will become of the constituent people? It only just managed to say
oui to Maastricht under Franois Mitterrand, and said a decisive non to the
See the comparison which I draw between Sieys and Hobbes in Hobbes et lEtat reprsentatif
moderne (Paris: Presses Universitaires de France, 1986).
See T. Hobbes, Leviathan, C.B. Macpherson (ed.) (Harmondsworth: Penguin, 1968), ch. 17,
2278; ch. 16, 220: For it is the unity of the Representer, not the unity of the represented that makes
the person one . . . and unity cannot otherwise be understood in multitude.
The Fronde Rebellion involved a revolt against Mazarin and the King, initially by the par-
lement and then by the princes, lasting from 164852. But the term frondeur later came to be used to
refer to anyone maintaining a critical attitude towards the political establishment.
European constitutional treaty under Jacques Chirac: it will without doubt

continue to unsettle political elites, which would do well to take more note of our
history. Various forms of democracy (participatory, semi-direct, etc.) may yet be
discovered which are able to allay the volcanic ire of the constituent people, and
once again to endow the classical representative form of the State with a greater
legitimacy.
5
We are (afraid of ) the people: Constituent
Power in German Constitutionalism
Christoph Mllers
The need to organize a system of permanent self-government by the people and

the need to harness and restrain political power in a system of checks and balances
by legal form generate permanent conflicts and contradictions in democratic
constitutional orders. The existence of these conflicts between power and form do
not go uncontested, since it may be argued that there can be no conception of
democratic self-government without a legal form and thus no such thing as the
paradox of constituent power. This contribution does not engage the theoretical
discussion. One may acknowledge that democracy without law is hardly think-
able. But this does not imply that the constitutional forms of self-government are
able entirely to absorb democratic political practices. In other words, even under
democratic rule, there will always be a residue of governmental power that cannot
be plausibly justified as democratic. In addition, democratic government always
leaves room for a supplement, a surplus of democratic practice that cannot be fully
included into formal constitutional procedure. This contribution will designate
this supplement by means of the distinction between constitutional form on the
one hand and constitutional populism on the other.
In this context, the term populism, which is not used in a pejorative sense,
must be specified with respect to constitutional theory. Constitutional populism
has to be distinguished from populism as such. We are not talking about every
form of political involvement that may claim democratic means or ends: the term
constitutional populism designates a democratic practice that is specifically
orientated towards constitutional procedures and institutions without formally
being part of them. The paradox of constituent power thus expresses itself in this
constitutional populism. Constituent power is neither finished with the process of
constitution-making, nor is it fully incorporated in the established constitutional
This is a point of a broadly understood Kantian constitutional tradition: see J. Habermas,

Between Facts and Norms [1992] W. Rehg, trans. (Cambridge, MA: MIT Press, 1996).
E. Laclau, On Populist Reason (London: Verso, 2005).

procedures; it maintains a permanent presence as the populist aspect of a formal

constitutional practice.
In order to understand the mechanisms of constituent power and constitu-
tional form in this specified way with regard to German constitutional discourse,
it will be necessary to consider both the theoretical discourse on constituent
power and its institutional context. An orientation only towards academic
discourse would be unable to explain the interaction between formal and informal
constitutionalism we are looking for. Further, although this contribution is
focused on the Federal Republic of Germany and its Basic Law (the Grundgesetz),
it begins with a glance at Germanys constitutional history since the foundation of
the first German nation-state. This is followed by an analysis of the constitutional
paradox within the Federal Republic. Before drawing some final conclusions, the
last part of the chapter examines two central themes of this legal discourse: the
public sphere and the welfare state dimension.
Some Pre-histories: Reich, Weimar, and National Socialism
The Kaiserreich
Any conceptual history of German constitutionalism must start in the late
nineteenth century. Throughout the nineteenth century, the main constitutional
issue was the institutional conflict between the monarchical executive and the
democratic (or quasi-democratic) parliamentary legislature. When, during the
1870s, the first German nation-state came into existence, German constitutional
law simultaneously invented itself quite radically as a discipline of its own,
methodologically distinct from any historical or political context. During this
time, however, the institutional conflict was not solved. The quest for a populist
supplement and the difficulty of allocating it within a constitutional context
remained a particular problem of the new political order. On the one hand,
German unification itself was desired by an overwhelming majority of the people:
it had been a popular political project for almost the whole century and was a key
aim of the failed democratic revolution in 1848. Further, the design of the new
E. Laclau, On Populist Reason (London: Verso, 2005).

The best short account of our topic can be found in C. Klein, Thorie et pratique du pouvoir
constituant (Paris: Presses Universitaires France, 1996), 91113.
E.-W. Bckenfrde, Verfassungsprobleme und Verfassungsbewegung des 19. Jahrhunderts
[1971] JuS 5606; id., Recht, Staat, Freiheit: Studien zur Rechtsphilosophie, Staatstheorie und
Verfassungsgeschichte (Frankfurt: Suhrkamp, 1991), 244.
See W. Pauly, Der Methodenwandel im deutschen Sptkonstitutionalismus (Tbingen: Mohr
Siebeck, 1993), 178, 245; M. Stolleis, Geschichte des ffentlichen Rechts in Deutschland, vol. II
(Munich: C. H. Beck, 1992), 343ff.
J.-D. Khne, Die Reichsverfassung der Paulskirche. Vorbild und Verwirklichung im spteren
deutschen Rechtsleben (Neuwied: Luchterhand, 2nd edn., 1998).
German Constitutionalism 89
national constitution had been discussed and voted upon in a parliamentary

assembly that emerged from general democratic elections. On the other hand,
the revolutionary project of creating a democratic nation-state had failed, since
formally the constituent power of the new German Reich belonged to the princes
of the German territories who had founded the Reich in a treaty.
This dualism between monarchy and democracy remained an important
element of the constitution itself, whereas the federal origins of the Reich were
soon forgotten in favour of a unitary national construction. For the concept of
constitutional populism, it is important to recognize that the constitutional order
formalized the democratic and monarchic constituents of the constitution in
different ways. In this regard, the role of the German parliament, the Reichstag, is
particularly telling. The Reichstag was the first parliament in German history to
have been created according to democratic standards of universal male suffrage.
But its limited role in the German constitution meant that it did not assume any
responsibility for the conduct of monarchical government. The Reichstag was a
hybrid political entity: it worked as one of the legislative organs, but also became
the forum of an institutionalized opposition that understood itself, corresponding
to the German conception of a parliament, as the permanent societal counter-
part of the government of the state. Since debates in the Reichstag lay at the
centre of the national political discussion, the Reichstag was influential politically.
But this influence was informal, and not channelled through constitutional
forms. The Reichstag had political influence, but did not govern. And none of
the political parties in the Reichstag, not even the social democrats, wanted this to
change.
It may therefore be said that the Reichstag was not so much an institution of
democratic self-government as a populist organ, one that expressed the peoples
voice in an emerging mass democracyraising contested issues, controlling and
reforming governmentwithout wishing to reform the constitutional system and
its own limited role within it. In other words, democratic politics was generally
T. Nipperdey, Deutsche Geschichte 18661918, vol. II (Munich: C. H. Beck, 3rd edn., 1995),
31ff.
For an instructive acount from another (Swiss) federal perspective, see: A.R. Greber, Die vorpos-
itiven Grundlagen des Bundesstaats (Munich: Helbing und Lichtenhahn, 2000), 25ff.
C. Schnberger, Das Parlament als Anstaltsstaat (Frankfurt: Klostermann, 1997).
On the crucial distinction between state and society, see: Schnberger, ibid. 79ff.
The first scholar to clearly understand this connection seems to be a historian: O. Hintze, Das
monarchische Prinzip und die konstitutionelle Verfassung [1911] in F. Hartung (ed.), Staat und
Verfassung (Gttingen: Vandenhoeck & Ruprecht, 1970), 349.
C. Schnberger, Die berholte Parlamentarisierung. Einflussgewinn und fehlende
Herrschaftsfhigkeit des Reichstags im sich demokratisierenden Kaiserreich (2001) 272 Historische
Zeitschrift 623.
For a comparison to the European Parliament, see: P. Dann, Looking through the federal lens:
the semi-parliamentary democracy of the EU (New York: NYU Law School, 2002), Jean Monnet
Working Paper, 5/02.
understood to operate merely to limit the actions of the government. In German

constitutional practice up to the end of World War I, there was no room for the
idea of parliamentary government. Democracy was conceived as the informal
irritant to the formal constitutional system.
This institutional uncertainty was reflected in contemporary academic dis-
course. Despite important historical German scholarship on the French origins of
the theory of pouvoir constituant at this time, there was virtually no discussion of
a democratic constituent power as a contemporary issue and radical conceptions
of democratic self-government did not form any part of the German
Staatsrechtslehre before 1919. Only after World War I did a considerable section of
the legal academy begin to express interest in questions of democratic theory.
This does not mean that the problem of the relationship between constitu-
tional form and political legitimacy was then irrelevant. Problems of political
legitimacy became intense around 1900 as the instability of the political system
became increasingly evident and the legal formalism of the founding experienced
its first crisis. But issues of legitimacy that were being raised could not be
addressed in terms of democratic theory.
An influential example of this dilemma is to be found in the work of Georg
Jellinek, especially in his famous reverence for the normative power of the factual.
A sharp critic of parliamentary rule, Jellinek observed the emergence of mass
democracy and recognized that this change in the political climate would not be
irrelevant for his theory of state. He tried to solve the problem neither in a norma-
tive nor an institutional way, but to deal with it on a quasi-socio-psychological
level. Jellinek devised a theory of norms that included popular acceptance, but
without giving it an institutionalized democratic form. It might be argued that
this was a politically conservative move (which it certainly was), but this would be
to miss the point: the lawyer Jellinek recognized the need to address these
questions of legitimacy and to provide solutions through a very general statement
about the informal acceptability of norms. His political critique of parliamen-
tarism and his methodological preference for formalism led him in a particular
direction. The idea of the normative power of the factual is to be understood as a
theoretical expression of constitutional populism without democracy.
W. Wilson, Congressional Government (New York: Houghton Mifflin, 1885).

R. Redslob, Die Staatstheorien der franzsischen Nationalversammlung von 1789 (Leipzig: Veit,
1912); E. Zweig, Die Lehre vom Pouvoir ConstituantEin Beitrag zum Staatsrecht der franzsischen
Revolution (Tbingen: Mohr, 1909).
See, e.g., R. Thoma, Das Reich als Demokratie in G. Anschtz and R. Thoma (eds.),
Handbuch des Deutschen Staatsrechts, vol. I (Tbingen: Mohr, 1930), 186.
See S. Korioth, Erschtterungen des staatsrechtlichen Positivismus im ausgehenden
Kaiserreich (1992) AR 117, at 212.
Die normative Kraft des Faktischen: G. Jellinek, Allgemeine Staatslehre (Berlin: Springer, 3rd
edn., 1914), 337ff.; for an analysis see: C. Mllers, Staat als Argument (Munich: Beck, 2000), 15ff.
G. Jellinek, Regierung und Parlament in Deutschland. Geschichtliche Entwicklung ihres Verhltnisses
(Leipzig: Teubner, 1909).
The Weimar Republic

The Weimar Republic emerged from a democratic revolution, and one of the
most enduring and contested historical experiences for German constitutionalism
has been to determine which part of the institutional framework was jettisoned in
this revolution and which part remained. According to common terminology, the
structure that remained intact is called the state, and that which changed was the
constitution. From this moment, every critique of the legitimacy of the Weimar
Republic sought to differentiate between the German state and its false garment,
the Weimar constitution. A critique of the constitution was not necessarily a
critique of political order as such.
Furthermore, although the holder of the constituent power had changed from
the dynastic legitimacy of the German princes to the German people, the problem
of constitutional form and populism not only remained, but became more urgent.
The Kaiserreichs dualism between governing monarchical and populist demo-
cratic institutions underwent a specific twist within the democratic framework of
the Weimar constitution. The Weimar constitution replicated the structure of
double legitimacy of the Kaiserreich. On the one hand, it established formal demo-
cratic institutions, especially parliament and the parliamentary responsibility of the
government. But on the other hand, it was evident for the designers of the Weimar
Constitution, namely for Hugo Preuss, that the general anti-parliamentarian
sentiment required an institutional response. This is the reason for the democratic
dualism of the Weimar constitution, which both established the directly-elected
office of the Reichsprsident and introduced plebiscites and quasi-populist institu-
tions. It is remarkable to see how quickly democratic populismwith its trad-
itional tendency to institutional oppositionseparated itself from parliamentary
rule and re-located itself in the office of the Reichsprsident. As early as 1920, the
three political parties that were explicitly in favour of parliamentary rule lost their
majority in parliament for the remainder of the Weimar Republic. And in 1925 a
man who was opposed to parliamentary rule and who symbolized not the Weimar
constitution but the German state that had been defeated in 1918, was elected
President in a democratic general election and became its most popular political
figure. The Reichsprsident has often been called an Ersatzkaiser, but he held a
democratic office whose legitimacy was not bolstered by dynastic traditions but
only by the form of democratic election as well as by formless public approval.
See P.C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law (Durham,
NC: Duke University Press, 1997), 13ff. For the allusion to the garment see the caricature of
H. Preuss on its cover page.
For a historical account of democracy in the Weimar Republic, see: C. Gusy (ed.),
Demokratisches Denken in der Weimarer Republik (Baden-Baden: Nomos, 2000).
The office of the German Kaiser established in 1871 was not (as was the case with the Prussian
King) a traditional dynastic office, but an ad hoc construction of a Caesaristic or Napoleonic charac-
ter: see E. Fehrenbach, Wandlungen des deutschen Kaisergedankens 18711918 (Munich: Oldenbourg,
1969).
It was therefore no accident that the very heterogenous constitutional discus-

sion of the Weimar Republic centred on the distinction between constitutional
form and constitutional legitimacy. Not all of the contributors cared about
constituent power: Rudolf Smend, for example, offers an illustration of an
important constitutional scholar who was not at all interested in democratic
categories. But at least two authors represent contrasting theoretical options
concerning the debate about power and form: Hans Kelsen and Carl Schmitt.
Schmitts critique of the legitimacy of the Weimar constitution makes constant
reference to its democratic character beyond parliamentarism. Schmitt claims a
superior legitimacy of the executive branch neither for reasons of expertise nor by
reference to the wise neutrality of the Kaiserreich executive; rather, it is an expres-
sion of the informal democratic legitimacy of the executive, and of the president
in particular. This informal democratic legitimacy is sharply contrasted with the
undemocratic liberalism of parliament. Schmitts concept of the constitution as
the politische Grundentscheidung eines Volkes (basic political decision of a
people) means that the legitimacy of political practice must be deduced from
the meaning of this concrete constitutional decision. He also asserts that this
meaning can be turned against the text of the constitution. The decision for
democracy in the Weimar constitution can be interpreted as a decision against
parliamentarianism since the constituent power of the people is present in the
material decision for democracy. The informal lack of popularity of the Weimar
constitution is thus to be translated into constitutional law by, for example,
adopting a broad interpretation of the emergency powers of the president.
Kelsens model has the opposite effect. It is the very essence of his theory of the
Grundnorm that the making of the constitution is an event that occurs outside of
the legal order. The constituent power is a historical or a sociological category,
and there is no room for it within legal-constitutional discourse. To advocate an
outcome by reference to democracy means to promote political motives in the
guise of legal argument. The central role of parliament in the structure of the
Weimar constitution provides the ultimate answer to any issue of constitutional
legitimacy.
A considerable part of the theoretical discussion in the Weimar Republicnot
only in Schmitts writings but also in those of leftist theorists like Hermann
Hellerdistinguishes between democracy and parliamentarism, and turns
See R. Smend, Verfassung und Verfassungsrecht (Munich: Duncker & Humblot, 1928).
For an analysis of the philosophical dimensions to their disagreements on the question of
constituent power see Lindahls contribution to this volume (ch. 1).
See C. Schmitt, The Crisis of Parliamentary Democracy [1923] E. Kennedy, trans. (Cambridge,
MA: MIT Press, 1985).
C. Schmitt, Verfassungslehre [1928] (Berlin: Duncker & Humblot, 1993), 12ff.
H. Kelsen, Allgemeine Staatslehre (Berlin: Springer, 1925).
See H. Heller, Politische Demokratie und soziale Homogenitt [1928] in Heller, Gesammelte
Schriften, Zweiter Band (Tbingen: Mohr, 2nd edn., 1992), 421.
democracy against parliamentarism. The decision of the democratic constituent

power for a democratic system is thus claimed to be of legal relevance. The
paradox of constituent power and constitutional form, it is argued, can be solved
by populist institutions, and especially by the identification of the formless
democratic public with charismatic persons and the use of plebiscites. Since the
Weimar constitution was designed to be open to different forms of democratic
participation, Schmitt is able to interpret the authoritarian executive phase
towards the end of the Weimar Republic as an expression of a legitimate demo-
cratic distrust in parliamentary institutions.
National Socialism
One has to be very careful to include National Socialism into this framework of
description. National Socialist institutions and the legal discourse in the Nazi era
raise complex issues and the role of any form of constitutional or legitimacy
discourse is especially difficult to evaluate. Instead of an analysis, two observations
may be appropriate:
Early Nazism described itself as a dynamic and democratic system and, given
that National Socialism started as a popular movement, this self-description was
by no means purely cynical. Weimar democratic theory was open to non-
parliamentarian types of democracy and categories like Volk, homogeneity, etc.,
which were widely used in Nazi propaganda, already had a place in Weimar
constitutional discourse.
One of the identifying characteristics of Nazism was its ambivalent use of legal
form. The Nazi system was critical of legal form and viewed itself as a revolution-
ary movement that sought to overcome the liberalism and formalism of Weimar.
At the same time, the system was prepared to make use of legal forms whenever a
direct political intervention seemed unnecessary. The relation between legal
form and political objective was thus especially uncertain, not least because the
circumvention of legalism was felt to be not only legitimate but also legal. One
might say that the construction of the Fhrer permitted the establishment of a
permanent revolutionary subject which, right to the very end of the Nazi era,
referred to the German people as the source of its own legitimacy.
Some Interim Conclusions

Between the founding of the Reich and the defeat of Nazi Germany, the idea of a
democratic constituent power, like the entire concept of democratic constitutional-
ism, was at first glance neither central to, or occupied a specific place within,
See D. Peukert, Die Weimarer Republik (Frankfurt/Main: Suhrkamp, 1987), 215ff.

See O. Lepsius, Die gegensatzaufhebende Begriffsbildung (Munich: Beck, 1994).
See E. Fraenkel, The Dual State (Oxford: Oxford University Press, 1941).
German constitutional discourse. But questions of constitutional legitimacy and

popular acceptance of the political order had been intensely debated at least since
the second half of the Kaiserreich. For both political and methodological reasons, the
jurisprudence of the Kaiserreich jurisprudence had no democratic categories for
expressing the distinction between constitutional form and legitimate political
power. And although Weimar discourse provided a variety of constitutional theories
that all claimed to be based on a democratic foundation, the distinction between
parliamentary rule and democratic populism remained a characteristic of the
German discourse. Democratic populism was not a mere populism of protest under
the Weimar constitution; it had constitutional institutions to express itself. The
revolutionary beginning of National Socialism could therefore be understood as the
victory of a constitutional populism over the formalism of the Weimar Republic.
The Federal Republic of Germany
The Decision for Legalism and the Popularity of

Constitutional Review
After 1945, neither Germanies possessed any fundamental institutional choice.
For the western part, the main ingredients of the new Grundgesetz (GG) were
parliamentary rule, a weak role for the Federal President (who was no longer
directly elected), and strong protection of individual rights. The result is the
characteristic legalism of post-war German constitutional culture that under-
stands the constitution rather as a lawyers contract than as a laymans docu-
ment. The double formality of German post-war constitutionalism was
institutionalized by a uniquely strong judicial review and by the monopolization
of democratic legitimacy within a parliamentary form. The Grundgesetz
consciously abolished the populist institutions of the Weimar constitution: the
plebiscite, and the direct election of the president.
With respect to the theory and the practice of constituent power, a stronger
federal interpretation of constitutional arrangements would have been possible.
The Western Allies imposed a federal system and postwar development actually
followed a federal path, with the Lnder (states) emerging earlier than the Bund
(federal state) and constituting the Parliamentary Council that codified the
Grundgesetz and voted on the constitution in a federal ratification procedure. But
the idea of a federal constituent power remained alive only in Bavaria. The general
In the following text, a reference to Germany after 1945 is generally restricted to West
Germany.
M.R. Lepsius, Institutional Structures and Political Culture in H. Dring and G. Smith (eds.),
Party Government and Political Culture in Western Germany (London: Macmillan, 1982), 116, at
124ff.
F.D. Roosevelt, Address on Constitution Day, Washington D.C., 17 September 1937.
course of constitutional practice replicated the development in the Kaiserreich: a

formally federal constitutional process was absorbed by a strongly unitary
national constitutional identity. The system became centralized primarily
because constitutional practice and the academic theory of constituent power
rejected all reference to federal construction. In a sense, the national experience of
the lost war, the rather artificial construction of the new Lnder, and the lack of
any federal consciousness even prior to 1933 did not allow any other option: any
genuine political federalism beyond the text of the constitution would have been a
New Federalism.
But if the federal option was of no interest, what was the legitimacy of the new
Grundgesetz? And how was it to be construed in terms of constituent power? A
typical conservative academic answer to the question of constituent power five
years after the adoption of the Grundgesetz made reference to its general political
acceptance, reflected by the high voter turnout in the general elections to the
Bundestag (Lower House of German Parliament). Obviously, this observation
offers no real answer to the question. But the issue of constitutional legitimacy was
not a topic of general interest, either in the academy or for the general public.
Consequently, the tension between constituent power and constitutional author-
ity did not exist as a subject of German constitutional discourse after the war, and
neither has is it become an issue since.
There is no better way to illustrate this conjecture than by reference to the lack
of discussion on the legitimacy of constitutional review. Up to this moment there
has been virtually no discussion about the democratic legitimacy of constitutional
review, despite the fact that the Bundesverfasssungsgericht (German federal consti-
tutional court) was installed as the then most powerful constitutional court in
Europe, and has remained a major actor that has interfered in extremely
contentious political issues, such as abortion or religious practice in public
schools.
Decisions of the Bundesverfassungsgericht have been contested, but the argu-
ment always remains within the framework of constitutional interpretation,
sometimes carefully extended to the question of the functional capacities of con-
stitutional review. The discussion almost never touches the counter-majoritarian
question of the courts democratic legitimacy. The overwhelming dominance of
textually-inspired balancing tests in postwar German constitutional doctrine did
S. Oeter, Integration und Subsidiaritt im deutschen Bundesstaatsrecht (Tbingen: Mohr, 1998).

H. Schneider, Fnf Jahre Grundgesetz [1954] NJW 937. On Schneider see: F. Gnther,
Denken vom Staat her (Munich: Oldenbourg, 2004); H.P. Ipsen, 40 Jahre Grundgesetz der
Bundesrepublik Deutschland [1989] Jahrbuch des ffentlichen Rechts N. F. 38, 1, 9; M. Kloepfer, Zur
historischen Legitimation des Grundgesetzes [1983] ZRP 57.
R. Huler, Der Konflikt zwischen Bundesverfassungsgericht und politischer Fhrung (Berlin:
Duncker & Humblot, 1994).
Exceptions are almost always inspired by the American debates: U. Haltern,
Verfassungsgerichtsbarkeit, Demokratie und Mitrauen (Berlin: Duncker & Humblot, 1998);
J. Riecken, Verfassungsgerichtsbarkeit in der Demokratie (Berlin: Duncker & Humblot, 2003).
not allow another approach, and the ambivalent experience of Weimar constitu-
tional discourse seemed to provide another hint: either stick to the text or develop
doctrines that are clearly distinguishable from political theories. If all constitu-
tional discourse is also an expression of political discourse, one has to add that this
lack of interest in questions of legitimacy has remained part of a general political
atmosphere: since its inception, the Bundesverfassungsgericht has been Germanys
most popular governmental institution. Even during the political crisis of the
late 1960s and 1970s, the political critique rarely touched on constitutional mat-
ters and the latent political function of a flourishing jurisprudence of rights.
Constitutional populism migrated from the Reichsprsident to the constitutional
court. Constituent power took constitutional form as its ideal, rendering any
conflict between constitutional power and constitutional form invisible.
Constituent Power as a Textual Problem: Article 146 GG

The absorption of constituent power into the constitutional form of judicial
review is closely connected to the success of the methods of constitutional textual-
ism and constitutional balancing. Textualism and the balancing of constitutional
values were the means by which the political energies of any legitimatory
discourse could be tied to the constitutional court. The dominance of textualism
derived from the fact that so many theoretical issues came to be codified in the
Grundgesetz, thus linking the classical questions of constitutional legitimacy to
textual reference and constitutional review. Examples for this are the codifications
of a material constitution in the eternity clause of Article 79(3) GG, the codifi-
cation of the role of political parties (Article 21(1) GG), and the later amended
right to civil disobedience (Article 20(4) GG).
The same is true for the discourse on constituent power. Strangely enough, the
Grundgesetz not only invokes its democratic making in its preamble, but also in
Article 146 GG regulates its democratic objective by reference to the constituent
power of the German people. Article 146 can only be understood to be an expres-
sion of the open German question after the war and it was intended to express
the provisional character of the Grundgesetz, being the basic law only of the west-
ern part of Germany. Although Article 146 thus aimed at a democratic process of
reunification, this very limited function in the very specific context of German
separation was soon forgotten. The meaning of the norm remained contested and,
though it has never been applied, it fulfilled its duty almost unnoticed: by
integrating a fundamental problem of constitutional legitimacy into the text of
B. Schlink, Die Entthronung der Staatsrechtswissenschaft durch die Verfassungsgerichtsbarkeit

(1989) 28 Der Staat 161.
H. Schulze-Fielitz, Wirkung und Befolgung verfassungsrechtlicher Entscheidungen in P. Badura
and H. Dreier (eds.), Festschrift 50 Jahre Bundesverfassungsgericht (Tbingen: Mohr: 2001), 385.
A remarkable exception is: U.K. Preuss, Die Internalisierung des Subjekts (Frankfurt: Suhrkamp,
1974).
the constitution, it contained any theoretical aspiration to challenge the demo-

cratic legitimacy of the Grundgesetz. Fundamental constitutional discourse was
de-politicized, and put into the form of constitutional interpretation beyond
democratic theory.
This may be illustrated by examining German academic discourse. Although
debates existed about the meaning of the norm, what remained uncontested was
that the legal relevance of the idea of a constituent power was the result of its
codification in the Grundgesetz. According to this mode of thinking, without
Article 146 GG there would be no problem of constituent power. We have already
seen that the discourse solved the problem of the illegitimate creation of the
Grundgesetz by a combination of political pragmatism and faith in constitutional
review. This solution also contained the common assumption that the constituent
power ends with the making of the Grundgesetz. Having created the constitution,
the constitutional subject thereafter ceases to exist.
The resulting immunization of German constitutional law against the idea of a
constituent power becomes more evident by looking at one of the rarely contested
matters of interpretation in Article 146 GG: the question of whether actions of
the constituent power are bound to the principles of the eternity clause in Article
79(3)GG. The latter lays down legal limits to constitutional amendments: the
pouvoir constitu, a qualified majority of Bundestag and Bundesrat (Federal House
of German Parliament), is not entitled to amend the Grundgesetz in any way that
abridges certain fundamental principles. A considerable part of the doctrine
assumes that the constituent power of the people is only present in the very act of
the abolition of the old and the creation of a new constitution. Thus, the
constituent power in its very act may be bound by the fundamental standards of
Article 79(3)GG. At this point, the legalization of constituent power is virtually
without limits: even the revolutionary act of constitution-making has to stick to
the principles of democracy, rule of law, welfare state, and federalismalthough it
is impossible to determine who might be able to decide upon any constitutional
issue in such a situation. Although this approach to Article 146 GG is contested,
the very discussion shows how far the discourse between power and form leans
towards form, and how urgently the need is felt to control any expression of
Representative authors are: U. Steiner, Verfassunggebung und verfassunggebende Gewalt (Berlin:

Duncker & Humblot, 1966), 220ff; D. Murswiek, Die verfassunggebende Gewalt nach dem
Grundgesetz fr die Bundesrepublik Deutschland (Berlin: Duncker & Humblot, 1978), 143ff.
J. Isensee, Das Volk als Grund der Verfassung (Opladen: Westdeutscher Verlag, 1995), 43ff; id.,
Schlubestimmung des Grundgesetzes: Art. 146 GG in J. Isensee and P. Kirchhof (eds.), Handbuch
des Staatsrechts, vol. VII (Heidelberg: C.F. Mller, 1993), 166, Rn. 46; G. Roellecke,
Verfassunggebende Gewalt als Ideologie in O. Depenheuer (ed.), Gerd RoelleckeAufgeklrter
Positivismus (Heidelberg: C. F. Mller, 1995), 149, at 152, 160ff; U. Scheuner, Art. 146 GG und das
Problem der verfassunggebenden Gewalt [1953] Die ffentliche Verwaltung 581, at 584; F. Mller,
Fragment (ber) Verfassunggebende Gewalt des Volkes (Berlin: Duncker und Humblot, 1995), 11, 85.
This view is documented by Horst Dreier in H. Dreier (ed.), Grundgesetz, vol. III (Tbingen:
Mohr , 2000), art. 146, no. 33.
democracy outside the realm of representative politics. On the one hand, theoret-
ical dangers were banned by their inclusion into the text; on the other, the text was
rendered meaningless by the doctrine.
It is remarkable to see that although Hans Kelsen is treated as an auteur maudit
in German discourse up to the 1990s, being regularly denounced as empty or
over-formalist, the mainstream approach of the German doctrine is deeply
Kelsenian. Kelsen shifts the question of the constituent power into an extra-
legal area. It cannot and must not be addressed by the law. If it is part of the
positive law it is only part of the constitutional order at its beginning and at its
endand even then it has to be controlled by other norms of the Grundgesetz.
This result of Kelsens theory is generally accepted within German constitutional-
ism without making use of his theory, although the dominant textualist pragma-
tism means that it is able to operate without Kelsens background considerations.
It is therefore no accident that this mainstream has been challenged by only one
relevant contribution, whose author is deeply influenced by Carl Schmitt. In an
important article in 1986, Ernst-Wolfgang Bckenfrde tried to reconstruct the
permanence of a constituent process for German constitutional law. He
renounces the crypto-Kelsenian assumption of the extra-legality of the constituent
power and defines the pouvoir constituant as a borderline concept (Grenzbegriff ), a
category that bridges the boundary between the normativity and the facticity of
the constitution. The constituent power is the common element of constitutional
form and political reality. The democratic subject that has put the constitution
into force is identical with the legal subject that acts as a source of democratic
legitimacy within the framework of the Grundgesetz. The constituent power has
not ceased to operate and democratic constitutional procedures like general
elections address the same constituent power that is relegated to Article 146GG
by orthodox doctrine.
Though one may be satisfied to see at least one contribution that questions the
rather monotone German discussion of our topic, it is not easy to understand
Bckenfrdes solution, since the dichotomy between facts and norms he uses in
order to define constituent power seems indebted to the very traditions he is
seeking to overcome. On the one hand, it is difficult to see what kind of factual
people he is referring to or where they are located. As the historical constitution-
making process did not present a real active democratic subject, Bckenfrdes
reference seems to be rather fictitiouseven quasi-normative. On the other
For a concise history of postwar German anti-normativism see: Gnther, above n. 37.
The one exception that takes Kelsens theory to criticize the very idea of a constituent power is
J. Isensee, above n. 44.
E.-W. Bckenfrde, Die verfassunggebende Gewalt des Volkes als Grenzbegriff des Rechts in
E.-W. Bckenfrde (ed.), Staat, Verfassung, Demokratie (Frankfurt/Main: Suhrkamp, 1991), 90;
similarly, another disciple of Schmitt: H. Quaritsch, Der fortschreitende Verfassungsstaat (1978) 17
Der Staat 421, at 427ff.; a positive account of Bckenfrdes approach is to be found in A. Kalyvas,
Popular Sovereignty, Democracy, and the Constituent Power (2005) 12 Constellations 223, at 237ff.
This is typical for the discourse, see: Mllers, above n. 19, ch. 11.
hand, it is far from obvious which normative implications of Bckenfrdes

identification of the historical with the normative democratic subject can be
identified. He is not interested in a discourse that questions the democratic
legitimacy of the Grundgesetz or that compares the power of the constituent
democratic subject to the power of judicial review. Bckenfrde has no theory of
democracy against which the Grundgesetz as a norm or as a political practice can
be measured and the counter-majoritarian difficulty of a powerful constitutional
court is not a problem for him. The authors own very influential jurisprudence on
the democratic principle in the German constitution leaves no room for any
inclusion of questions of legitimacy. This is most strikingly revealed by a
problem which Bckenfrde treats like the constitutional mainstream: the critique
of plebiscites. For him, representative government is the true form of democ-
racy, and this corresponds to the general conviction that the Weimar experience
renders it necessary to operate without resort to plebiscites.
Reunification and Maastricht: Two Missed Constitutional Moments?

It might be argued that this state of the German debate cannot be separated from
the fact that the political context of the Grundgesetz was quite stable and there was
therefore no need to develop a theory of constituent power. The quest for consti-
tutional legitimacy by authors like Jellinek, Schmitt, or Smend was an expression
of the constitutional conditions of the Kaiserreich and the Weimar Republic, and
these had been overcome within the Federal Republic. But the political power of
constitutionalist formalism became more obvious in two situations that could
have emerged as constitutional moments: the Maastricht Treaty and German
reunification. These will be briefly considered.
German reunification was the result of a democratic revolution in which the
constituent power of the East Germans ended the socialist political system of the
German Democratic Republic. The most popular slogan of the demonstrations in
October/November 1989 was Wir sind das Volk (We are the people). But with
the end of socialism, the question of the legal form of reunification was up for
discussion. However, although this was the very case that Article 146 GG had
been designed for, no use was made of it. During the reunification process, a gen-
eral discussion about the need to make a new German constitution took place,
with a referendum on a new constitution being an option. But this approach had
Bckenfrde was judge of the German constitutional court between 198396, and sat as one of
the judges in the Maastricht case, BVerfGE 89, 155. See E.-W. Bckenfrde, Demokratie als
Verfassungsprinzip in J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik
Deutschland, vol. I (Heidelberg: C.F. Mller, 1987), 24.
E.-W. Bckenfrde, Mittelbare/reprsentative Demokratie als eigentliche Form der Demokratie
in G. Mller, R.A. Rhinow, G. Schmitz, and L. Wildhaber (eds.), Festschrift fr Kurt Eichenberger
(Basel: Helbing & Lichtenhahn, 1982), 301.
O. Beaud, La Puissance de Ltat (Paris: Presses Universitaires de France, 1994), 291ff.
See the contribution of Preuss in this volume (ch. 11).
no political support in the west and almost no support in the western constitu-
tional doctrine. It is interesting to note that the form ultimately realized as an
alternative to the creation of a new constitution by a referendum was a treaty
between the two parts of Germany. In terms of constitutional theory, one might
argue that the treaty form is deficient at least as long as the relevant democratic
subject is common to both parties of the treaty. In other words, the legal mode
of reunification declined to recognize a common democratic constituent subject
for the whole of Germany. The technique adopted for the process of European
constitutionalization was applied. Thus one might argue that all the political
problems of a national German identity between east and west found an adequate
expression in a legal form that was anxious to keep the western Grundgesetz as con-
stitution of the reunified Germany.
This hegemonist structure was so loyal to the original version of the
Grundgesetz that even Article 146 remained part of the amended version,
although this version no longer referred to the need for unification. Even though
the norm was not used in the only thinkable case of its application, and even
though its application in this case could have provided a rare opportunity for a
constructive form of constitutional populism, a new Article 146 GG was created.
Obviously, it is far from clear what the function of this norm could be, and most
commentators now take it to be a norm without a function.
The Treaty on the European Union (the Maastricht Treaty of 1992) was the
most intensely discussed step within the process of European integration in
Germany. Since all parties in Parliament voted for it, it was not really politically
contested, though it had high symbolic value especially because of the introduc-
tion of the EMU. But the Treaty was much contested within the community of
constitutional lawyers, some of them even wondering if Maastricht should be
understood as a coup dtat. What is remarkable is that here the usual frontiers
were reversed, since at least a part of the constitutional argument used to stop the
Treaty of Maastricht referred to the idea of the constituent power of the people.
The loss of sovereignty was identified with the end of the democratic system of the
Grundgesetz and it was argued that only a plebiscite could legitimize this process.
With regard to Europe see: G. Frankenberg, The Return of the Contract (2000) 6 European
Law Journal 257.
On the new version of Art. 146 GG see: A. Randelzhofer, Das Grundgesetz unter Vorbehalt?
Zum neuen Art. 146 GG in K. Stern (ed.), Deutsche Wiedervereinigung, vol. I (Mnchen: C.H.
Beck, 1991), 141, at 145ff; M. Heckel, Die deutsche Einheit als Verfassungsfrage (Heidelberg: Winter,
1995), 33ff, 41ff; P. Lerche, Art. 146 GG: Auftrag zur Neuverfassung Deutschlands in K. Graf
Ballestrem and H. Ottmann (eds.), Theorie und Praxis. Festschrift fr Nikolaus Lobkowicz (Berlin:
Duncker & Humblot, 1996), 299, 304ff; (critically) K.-H. Merkel, Die verfassungsgebende Gewalt des
Volkes: Grundlagen und Dogmatik des Art. 146 GG (Baden-Baden: Nomos, 1996), 74ff; (cautiously)
E. Wiederin, Die Verfassunggebung im wiedervereinigten Deutschland (1992) 117 Archiv des
ffentlichen Rechts 410, at 430ff.
P. M. Huber, Maastrichtein Staatsstreich? (Stuttgart: Boorberg, 1992).
D. Murswiek, Maastricht und der pouvoir constituant (1993) 32 Der Staat 161; U. Di Fabio,
Der neue Art. 23 des Grundgesetzes (1993) 32 Der Staat 191.
But, once again, the distrust of referenda (together with arguments about their
possible unconstitutionality) was to prevail.
We are (afraid of) the People: the Decline and Fall of

Constitutional Populism
The German development of the idea of constituent power can be understood as
the consequence of a historical lesson: the quest for an extra-constitutional
political legitimacy failed under the Kaiserreich constitution and it contributed to
the failure of the Weimar Republic in which authoritarian democratic populism
was politically stronger than the constitutional form of parliamentary rule. In a
contested but plausible interpretation, even the Nazi system was built on a general
political acceptance that operated beyond a formal constitutional framework. In
this context, the strict formalism of German postwar constitutionalism, its
comparatively strong faith in textualism, and the reasonableness of a pure consti-
tutional doctrine seem to be consequential responses.
But this is a debateable interpretation. Various possibilities for broadening the
scope of constitutional theory, at least in order to consider the constitutional
paradox without a falling back on an authoritarian Weimar-style discourse, were
evident, but they were rarely realized. It remains the case that there is almost no
discussion of the counter-majoritarian deficits of constitutional review. And there
is a strong consensus against plebiscites even though the relevant text of the
Grundgesetz is ambiguous. The primacy of Rechtsstaat over democracy, an old
topic of German constitutionalism after 1848, is still a dominant factor in the
victory of constitutional form over constituent power.
Contextual Issues
Two remarkably important issues belonging to the context rather than the inner
core of the juridical discourse of constituent power remain to be considered: the
meaning of the public sphere and the welfare dimension to German
constitutionalism.
The Public Sphere

When Jrgen Habermas published his Strukturwandel der ffentlichkeit in
1962, it opened up several different dimensions of discourse, one of them
On the Rechtstaat and its affinities with the conceptions of the rule of law see: L. Heuschling,
tat de droit, Rechtsstaat, Rule of Law (Paris: Dalloz, 2002).
I. Maus, Rechtstheorie und politische Theorie des Industriekapitalismus (Munich: Fink, 1986), 11.
J. Habermas, The Structural Transformation of the Public Sphere [1962] T. Burger, trans.
(Cambridge, MA: MIT Press, 1989).
concerning constitutional theory. Habermas account of the rise and the fall of
public discourse from the Enlightenment to his own time obviously contained an
interesting framework to criticize the legitimacy of the German postwar
parliamentary system. This approach has been treated as a continuation of
Schmitts use of the pouvoir constitutant against parliamentary rule, though it is
obvious that Habermas use of ffentlichkeit was an attempt to connect constitu-
tional formalism and political theory in a manner that certainly did not argue in
favour of any charismatic executive political order. Contemporary research on the
state of the European constitutionalization is still deeply influenced by this
approach and Habermas own account of the possibilities of a public sphere in the
current democratic system has become more optimistic, and has turned out to
be a centrepiece of his own constitutional theory.
One component of an informal populist account of the constitutional order
patriotismwas obviously problematic for the new Federal Republic. During the
Weimar debates, it was Rudolf Smend who showed particular interest in the
constitutional dimension of patriotic symbols, such as flags and other insignia.
It is characteristic of Habermas vision of the public sphere that his theory
referred to the constitution itself as the appropriate object of patriotism:
Verfassungspatriotismus. In our context, the conservative critique of this
proposal is less relevant than the following observation: the reference to the
constitution as an object of patriotism means a rationalization if not a hidden
formalization of the amorphous public sphere. Informality and voluntarism
within the public sphere, for which patriotism is a good example, are tamed and
incorporated into a reasonable scheme.
Habermas use of the public sphere may nevertheless be seen as the first step
towards a renewed interest in certain neglected questions of constitutional
theorya theory that is able to criticize a still dominating constitutional formal-
ism in a reflective manner. These approaches are by no means limited to a
Habermasian conception of democracy, many of which are not located in the
Kantian tradition Habermas claims to follow and some are not even normative
with regard to constitutional theory, but rather are critical or deconstructive. But
E. Kennedy, Carl Schmitt and the Frankfurt School (1987) 71 Telos 37.
Preface to the second edition of Strukturwandel der ffentlichkeit (Frankfurt/Main: Suhrkamp:
1990). Habermas, above n. 1, ch. 8.
Smend, above n. 24, 162ff.
The term was invented by D. Sternberger, Verfassungspatriotismus (Hannover: Landeszentrale
fr politische Bildung, 1982), in id., Schriften, vol. X, (Frankfurt/Main: Insel, 1990).
J. Habermas, ber den doppelten Boden des demokratischen Rechtsstaats in Eine Art
Schadensabwicklung (Frankfurt: Suhrkamp, 1987), 18.
See, e.g., O. Depenheuer, Integration durch Verfassung? [1995] Die ffentliche Verwaltung
854, at 857ff; J. Isensee, Die Verfassung als Vaterland in A. Mohler (ed.), Wirklichkeit als Tabu
(Munich: Oldenbourg, 1986), 11.
The most influential alternative strand refers to Niklas Luhmanns work: N. Luhmann,
Grundrechte als Institution (Berlin: Dunker und Humblot, 4th edn., 1999); N. Luhmann, Law as a
Social System [1993] K.A. Ziegert, trans. (Oxford: Oxford University Press, 2004).
if the positive heritage, especially of the Weimar discourse, lies in its openness to
questions of legitimacy beyond positive law then it is the issue of the public sphere
as discussed not by lawyers but by political philosophers that has kept this
tradition alive.
The Welfare State Dimension

Though it is hard to prove historically and difficult to integrate into any constitu-
tional argument, the welfare state dimension seems right from its beginnings to
have been of particular importance for the construction of legitimacy of German
constitutional law. The lack of democratic legitimacy of the Kaiserreich constitu-
tion and the threat of the socialist political movement was consciously compen-
sated by the adoption of a comparatively modern welfare system. And even if
the fall of the Weimar constitution cannot simply be explained by the economic
crisis (as the comparison with Great Britain and the United States shows), it is
obvious that the acceptability of the democratic constitution eroded with the
decline of the general welfare in the 1930s. The welfare dimension of National
Socialism is now widely discussed, and it is at least safe to say that the system was
orientated towards a broad economic and social inclusion of those parts of the
German population that were not victim of racial or political exclusion. Racism
and political persecution were bought by an amazing system of low taxes and a
redistribution of confiscated property to the general public. The theme remained
factually dominant and became politically implicit after World War II in the
reconstruction of an extensive welfare system. Finally, there is the general
impression that the welfare dimension was a more dominant part in the political
process of German reunification than the motive of democratic self-government.
What do these diverse phenomena imply for constitutional theory? First of all,
that constitutional theory has been working with this issue at least since the
Weimar Republic. The Weimar constitution itself was full of references to social
questions, and Hermann Heller in particular had argued for a constitutionaliza-
tion of the welfare dimension of the state. Since the 1920s, the use of the term
constitution has not been restricted to the political order; in German one may also
talk of an economic or a social constitution. The authors of the Grundgesetz
made the unusual decision to guarantee the welfare state in the central unamend-
able provision of the constitution. This clause immediately became the topic of
Closest to constitutional discourses is H. Brunkhorst, Solidarity: From Civic Friendship to a

Global Legal Community (Cambridge, MA: MIT Press, 2005).
G.A. Ritter, Der Sozialstaat. Entstehung und Entwicklung im internationalen Vergleich (Munich:
Oldenbourg, 1991). G. Aly, Hitlers Volksstaat (Frankfurt: Fischer, 2005).
Comparatively see T. Judt, Postwar (London: Heinemann, 2005), 727.
H. Heller, Staatslehre [1934] (Tbingen: Mohr, 6th rev. edn., 1983).
C. Joerges Continuities and Discontinuities in German Legal Thought (2003) 14 Law and
Critique 297.
controversy concerning the relationship between Rechtsstat and welfare state, in

which Ernst Forsthoff, an important member of the Schmitt school, claimed that
it was impossible to reconcile the principles. For Forsthoff, the welfare state
clause marks the end of a system of a rational division of tasks between the legisla-
ture and the judiciary. In his view, indeterminate welfare provisions authorize the
courts to act as social engineers in their own right and this undermines the
function of the general parliamentary law as central element of the Rechtsstaat.
Forsthoff s and Schmitts critique of the courts was not successful. The welfare
state became an important part of a dominant jurisprudence of balanced values.
But it is especially interesting for our purposes to observe that at the very moment
when the new political system shifts its constitutional legitimacy to the courts, the
Schmitt school rediscovers the importance of formalism and textualism. The
de-politicization of constitutional doctrine becomes important for them when
constitutional politics start to go into the wrong direction.
Though institutionally unsuccessful and politically dubious, the Schmittians
had understood the phenomenon well: the welfare clause in the Grundgesetz
connected an important strand of political populism with the institutional
practice of the courts and created thereby a particular form of populist constitu-
tional legitimacy. The courts guaranteed (and still guarantee in the actual debate
on welfare reform) that the parliamentary political process has only limited
possibilities to change the structure of the welfare state. Although the courts
would not themselves create welfare institutions because of their own institutional
limitations, the courts are by now the most important public agents to keep them
unaltered and to legitimize and de-legitimize the constitutional order at the same
time. In comparison to problems of the public sphere, this complicated issue is
both practically more important and nonetheless much less understood.
Conclusion
The search for constitutional populism in German constitutional history has

taken us to the darker side of German constitutional history: in its long tradition
of anti-parliamentarianism, the reference to the popular will has served regularly
as an argument against egalitarian procedures and in favour of the charismatic
leadership of an executive leader, be it the Kaiser, the Weimar Reichsprsident, or
the Fhrer. It is therefore no accident that the constitutional discourse of the
E. Forsthoff, Begriff und Wesen des sozialen Rechtsstaates (1954) 12 Verffentlichungen der
Vereinigung der Deutschen Staatsrechtslehrer 8.
New attempts at a general critique of the balancing method have been made since the 1970s:
e.g., B. Schlink, Abwgung im Verfassungsrecht (Berlin: Duncker und Humblot, 1976).
C. Schmitt, Die Tyrannei der Werte in Skularisation und Utopie. Ebracher Studien. Ernst
Forsthoff zum 65. Geburtstag (Stuttgart: Kohlhammer, 1967), 37.
H. Boldt, Parlamentarismustheorie (1980) 19 Der Staat 385.
Federal Republic adopted a thoroughly formalist approach to the issue

constituent power, in which questions of the political legitimacy of the constitu-
tional order were incorporated into the practice of normal textual interpretation
of the constitution.
From a factual point of view, the continued welfare dimension of German
constitutionalism became more important for the acceptance of different political
orders than any democratic discourse that was finally implemented by the
Western allies. However, the ongoing discussion on the meaning of the public
sphere, as well as other receptions of constitutional theories (especially from the
United States and France), are beginning to generate a greater interest in the
question of political legitimacy as part of an explicitly constitutional discourse.
6
People and Elites in Republican Constitutions,
Traditional and Modern
John P. McCormick
This paper focuses on a crucial difference between pre- and post-eighteenth

century constitutions. In ancient, medieval, and Renaissance republics, the people
referred to both the citizen body in its entirety and to the poorest, non-wealthy, or
non-elite subset of the citizenry. This is best captured by the Roman example
where the people signifies both, on the one hand, the res publica of the populus
collectively, including patricians and plebeians, and, on the other, the idea of
SPQR (the Senate and People of Rome) where the plebs, set apart from the
patricians, the optimates or the senatorial class, constitute the people. On the
contrary, the constitutions of modern republics almost invariably treat the people
as a homogeneous unit: the people are a unitary and socio-economically anonymous
collection of individual citizens, formally equal under the law.
Here, I investigate one salient ramification of this distinction between tradi-
tional (often class-specific) and modern (generally class-anonymous) constitutional-
izations of the people: the modern, holistic ones seem less concerned with, and
therefore perhaps less adept at, keeping wealthy citizens from dominating politics
than were traditional constitutions, in which the people were a subset, albeit the
largest subset, of the citizenry. The core value of republics, liberty, requires that
no individual or group of citizens should be able to threaten the common good by
exerting excessive influence over politics and society. Yet, unlike their earlier
counterparts, the constitutions of modern republics never explicitly forfend the
likelihood that, for instance, wealthier citizens will fill the ranks of public officials
See M. Canovan, The People (Cambridge: Polity, 2005).

See A. Lintott, The Constitution of the Roman Republic (Oxford: Oxford University Press, 1999).
See L. Hunt, Politics, Culture, and Class in the French Revolution (Berkeley: University of
California Press, 1984), and E.S. Morgan, Inventing the People: The Rise of Popular Sovereignty in
England and America (New York: Norton, 1989).
See J.P. McCormick, Contain the Wealthy and Patrol the Magistrates: Restoring Elite
Accountability to Popular Government (2006) 100 American Political Science Review 147.
See P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University
Press, 1999).

disproportionately, or the possibility that they will use their greater economic
resources to affect in a decisive fashion the behaviour of less wealthy citizens who
do manage to gain office.
This would strike many adherents of pre-modern popular government as odd,
unjust, and dangerous. If wealthy citizens are free to stand for all of the political magis-
tracies, if they can participate in every public assembly, and if election is the only
device by which office-holding or assembly-attendance is determined (as opposed to
lottery as in Athenian democracy or an election-lottery mix as in the Florentine
Republic), the wealthy would be expected to have distinct and persistent advantages
over poorer citizens. The rich would simply overwhelm the political process. After
all, wealth enables such citizens to cultivate greater reputation, a more distinctive
appearance, and, traditionally at least, better public speaking skills such that voters
almost inevitably choose them in electoral contests. In addition, money allows the
wealthy to fund, groom, and/or bribe non-wealthy candidates to serve their interests
at the expense of broader constituencies. In this light, my intuition is that modern,
class-anonymous constitutions are less adept at facilitating popular containment
and constraint of elite citizens and office-holderseternal threats to the liberty of
common citizens within republicsthan were their class-specific antecedents.
This paper explores these issues through the thought of early sixteenth century
Florentine republicans, Francesco Guicciardini and Niccol Machiavelli, who
reflected on the institutional history of their native city, as well as constitutional
arrangements in the ancient Roman and the contemporary Venetian Republics.
The writings and interactions of Guicciardini and Machiavelli mark the
crossroads between the two conceptions of the people in the history of republican
constitutions. While Machiavelli is often dubbed the founder of modern polit-
ical science, modern republicanism or modernity itself, since he recommends
that class division and class conflict between the people and elites be built into
republican constitutions, Machiavellis writings can be read as the most radical
summation, if last gasp, of traditional republican constitutionalism. On the
contrary, Guicciardini is the largely unacknowledged father of modern mass
democracy understood as elective oligarchy: it was Guicciardini who anticipated
modern representative government by theorizing general election and wide
suffrage among a citizenry undivided by a formal distinction between the wealthy
and the poor, the few and the many.
Ancient Athenian democracy avoided what Bernard Manin brilliantly analyses and terms this
aristocratic effect of elections by assigning magistracies through lot and by observing frequent rota-
tion in office: see B. Manin, The Principles of Representative Government (Cambridge: Cambridge
University Press, 1997), 4293, 13260.
See, respectively, J. Plamenatz, Man and Society: Political and Social Theories from Machiavelli to
Marx (London: Longmans, 2006), J.G.A. Pocock, The Machiavellian Moment: Florentine Political
Thought and the Atlantic Political Tradition (Princeton: Princeton University Press, 1975), and
L. Strauss, Thoughts on Machiavelli (Glencoe, IL: Free Press, 1958).
See F. Gilbert, Machiavelli and Guicciardini: Politics and History in Sixteenth Century Florence
(Princeton: Princeton University Press, 1965) and Manin, above n. 6, 534, 70.
People and Elites in Republican Constitutions 109
Writing as one political epoch, presciently articulated by Guicciardini, eclipsed

another, vividly summarized by Machiavelli, these thinkers offer fresh but
historically informed insights into the elite accountability ramifications of the two
kinds of republican constitutions. In the first section of this chapter, I focus on
Guicciardinis analysis of the Florentine Republics conscious efforts to insure that
common citizens, not only members of the best families, gain officein particu-
lar the republics practice of mixing lottery and election in the appointment of
magistrates. The second section examines how and why Machiavelli advocates
offices and assemblies reserved exclusively for common as opposed to wealthy
citizens within republican constitutions.
Lottery, Election, and Popular Rule
Francesco Guicciardini [14831540] is the intellectual forefather of modern elect-

oral politics. In his mature political work, the Dialogue on the Government of
Florence, this well-born Florentine and younger contemporary of Machiavelli,
endorsed a system in which the general citizenry was granted full power to choose
which virtuous individuals would hold political magistracies for relatively short
terms in office. Despite being one of them, Guicciardini did not trust elite
citizens, the Florentine ottimati, to distribute offices amongst themselves, but he
resented and feared the demands of Florences jealous and ignorant common
citizens to hold the republics highest offices. As a result, Guicciardini developed
the intuition that James Madison would later fully systematize: elections produce
virtually the same aristocratic effect whether or not voters are formally separated
from an electable elite. General elections tend to elevate the most virtuous,
prudent, just (read: wealthy and notable) citizens to office. Going even further,
Madison assumed that the extension of elections over a large territory would
virtually guarantee that the people select individuals of wealth or good name no
matter who was eligible for office. Hence, for Guicciardini and his intellectual
descendants, a unitary notion of the people that includes rather than excludes the
wealthy can actually work in the latters favour. Rather than formally guaranteeing
See F. Guicciardini, Dialogue on the Government of Florence [c.15214] A. Brown, trans.

(Cambridge: Cambridge University Press, 1994).
See, e.g., F. Guicciardini, Maxims and Reflections, M. Domandi, trans. (Philadelphia: University
of Pennsylvania Press, 1965).
See Publius (A. Hamilton, J. Madison, and J. Jay), The Federalist Papers (New York: Mentor
1998), 823, 227, 244, 352, 36873, 387. On these aspects of the young Madisons thought, see
R.A. Dahl, How Democratic Is the U.S. Constitution? (New Haven: Yale University Press, 2002),
15962. While these Guicciardinian insights into elections general aristocratic effect were taken up
with gusto in the American and French republican contexts, they did not fully take hold in Great
Britain until the late nineteenth century. But in making the case for an enlarged franchise, Walter
Bagehot argued that deference on the part of the British electorate reflected a particular cultural dis-
position rather than a general political rule. See W. Bagehot, The English Constitution [1867] P. Smith
(ed.) (Cambridge: Cambridge University Press, 2001).
privileged positions for members of the best families, the free and unfettered
workings of mass election could invisibly and informally enshrine such individ-
uals in positions of political privilege. In this section, I focus on the circumstances
of Florences political history and the context of Guicciardinis youth that inspired
the patricians turn toward general election among a class-anonymous, formally
unsegmented citizenry.
The many different republican constitutions that Florence observed from the
thirteenth through much of the fifteenth centuries attempted to neutralize
antagonisms corresponding with external alliances, family rivalries, and the like.
But class conflict between the ottimati, members of families with wealth and good
name, and the popolo, or the common people, was a consistently intense form of
competition playing itself out in the struggle for office. The ottimati preferred a
stretto or narrow regime in which a few prominent citizens from patrician families
(magnati) or wealthy guilds (popolani) rotated magistracies of long duration under
short re-eligibility stipulations. The people, lower guildsmen and workers not
organized in guilds (popolo minuti or sottoposti), pursued a governo largo, a more
widely participatory regime in which many more citizens held office due to
relaxed property and residency requirements, shorter terms, and stricter limits on
re-appointment. Most conflict ensued over the composition of the committees
that scrutinized citizens for eligibility to hold office, the severity or laxness of the
criteria they employed and whether or not positions would be reserved for less
wealthy citizens from lower guilds.
Magistrates could be appointed in a number of ways: from a simple lottery for
the lowest offices to a multi-stage lot/election combination to determine some of
the highest magistracies in the republic, as well as versions of varying complexity
in-between these two extremes. Most often, the appointment process functioned
in this way: the names of all citizens whose taxes were paid and whose families had
participated in governing the city going back several generations were placed in a
bag [borsa] and the number of names corresponding with the number of open
positions would be pulled at random. The ottimati preferred members of the best
families to serve repeatedly as priors, while the popolo preferred to distribute
magistracies more widely to a stream of new and largely unknown guildsmen.
Ottimati tended to lobby for the incumbent executive committee of the city, the
On the political history of Florence see, more or less chronologically, J.M. Najemy, Corporatism
and Consensus in Florentine Electoral Politics, 12801400 (Chapel Hill: University of North Carolina
Press, 1982); G. Brucker, The Civic World of Early Renaissance Florence (Princeton: Princeton
University Press, 1977); N. Rubinstein, The Government of Florence Under the Medici, 1434 to 1494
(Oxford: Oxford University Press, 1966); N. Rubinstein, I primi anni del Consiglio Maggiore di
Firenze, 149499 (1954) 112 Archivio Storico Italiano 151; H.C. Butters, Governors and Government
in Early Sixteenth Century Florence, 15021512 (Oxford: Oxford University Press, 1985); and J.N.
Stephens, The Fall of the Florentine Republic, 15121530 (Oxford: Clarendon Press, 1983). See also
G. Bock, Q. Skinner, and M. Viroli (eds.), Machiavelli and Republicanism (Cambridge: Cambridge
University Press, 1990), 171.
See Najemy, ibid. and G. Brucker, Florentine Politics and Society, 13431378 (Princeton:
Princeton University Press, 1962). Najemy, above n. 12 at 51.
six to eight priors in the Signoria, to determine which names met these qualifica-
tions and, secondly, for a shorter divieto, the span of time for which a former
magistrate was ineligible to hold office again. On the other hand, the popolo
would generally push for the heads of the major trade guilds to determine
eligibility and for a much longer divieto. After all, members of the ottimati
served more often in the Signoria, and certainly could bring greater pressure to
bear on the sitting priors, while the broader popolo had a more direct influence on
the annually elected consuls of their guilds.
The ottimati consolidated power in the wake of a failed proto-proletarian
rebellion, the Ciompi revolt, and by undermining a widely participatory republic
that included members of the lower guilds (137881). During this period known
as the oligarchy (13811434), the wealthiest families determined the personnel
of the nominators or scrutinizers (accoppiatori), who, in turn, narrowed the
number of names placed in the bags of office, often by imposing strict property
requirements and cumbersome grandfather stipulations. Under the de facto
Medici principate of the fifteenth century (143494), the Medici family
controlled appointments through friendly scrutinizers and an extraordinary
council, the bala, supposedly acclaimed by and acting on behalf of the whole
people. In both of these circumstances, the nominators would load the bags such
that only the names of individuals who were pleasing to the oligarchs or the first
family would be most likely to emerge. Thus, under both of these dubiously
republican scenarios a veneer of popular government could obtain while
oligarchy- or prince-friendly outcomes were in fact pre-determined.
After the expulsion of the Medici in 1494, in his History of Florence and
Discorso on Bringing Order to Popular Government, the young Guicciardini
analyses schemes of magistrate nomination and appointment within a legitim-
ately republican contextspecifically, the regime established under the influence
of the charismatic monk, Friar Girolamo Savonarola. For theological reasons, the
Republic initially employed election as the decisive mode of appointment to
office, but moved to lottery in 1497. In his History of Florence, Guicciardini seems
content with lot as a method to determine a group of nominators from among the
ranks of the approximately 3,200 citizens collected in a large assembly, the Great
Council. However, in the Discorso, written during the same era, Guicciardini
begins to reveal a preference for elections over lot in the final appointment of
magistrates. Guicciardini suggests that the appointment process for the Signoria
The issue of appointing priors was reopened near the end of every two- then four-month term
of the Signoria. See Najemy, above n. 12, 1778.
F. Guicciardini, The History of Florence [c.1508] M. Domandi, trans. (New York: Harper,
1970); id., Discorso di Logrogno On Bringing Order to Popular Government [1512] A. Moulakis, trans.
(Lanham, Maryland: Rowman and Littlefield, 1998).
Guicciardini, History, ibid. 106. See G. Silvano, Florentine Republicanism in the Early
Sixteenth Century in Bock et al. (eds.), above n. 12, 40, at 41.
Guicciardini, Discorso di Logrogno, above n. 16, 126.
(the Republics executive committee), the Ten of War (dealing with military
affairs), and the Eight of Ward (concerned with policing the city) be re-formed as
follows: the names agreed upon and submitted by the lot-determined nominators
are voted on in the Great Council, and those who win a majority may then be
voted upon again, or submitted to sortition to determine who will actually fill the
open position(s).
When Guicciardini discusses Florences constitutional innovations between
1497 and 1499 in the History, he reports that the move from election to lot at
the definitive stage of magistrate appointment expanded the effectual pool of
possible magistrates from 200 members of the best families to a much wider,
much less suitable, segment of the citizenry. Taking into account Guicciardinis
aristocratic prejudices, we might question whether the newly appointed
magistrates really were unsatisfactory. More importantly, the episode suggests that
election used in tandem with lot can produce much more equitable and less
oligarchic effects. On the basis of Guicciardinis own account, it appears that
when election serves a nominating function in advance of lot as the definitive
mode of selection (the reverse of the more common lot-then-election sequence),
the electorate is much less biased toward distinction. While the requirement that
a nominee gain an initial 50 per cent vote of approval insures against the emer-
gence of candidates who would be completely unacceptable to the ottimati,
citizens in the Council have the opportunity to vote at the nomination stage for a
group of candidates with a wide range of personal qualities and political opinions.
We may conclude that the option to nominate more than one candidate
electorally somewhat neutralizes the qualities of wealth and notability when
citizens know that they are leaving the ultimate choice of magistrate to chance,
i.e. the lottery. In other words, something less that the aristocratic effect prevails
when, on the one hand, elections produce a slate of candidates wider than, say,
two individuals, or, on the other, they narrow down a large slate to something like
half a dozen candidates who will gain office eventually on the basis of sortition.
His critical stance in the History notwithstanding, Guicciardinis relative
openness in the Discorso to election or lot as the decisive means by which
individuals enter offices such as the priorate of the Signoria may be explained by
his life-long campaign to establish a proper senate in Florence. Like many
Florentine ottimati, Guicciardini attributed the longevity and stability of Venices
mixed constitution to the pre-eminence of its Senate over the Doge and the
Maggior Consigliothat is, the constitutions noble element over its kingly or
popular components. Once established in Florence, Guicciardini proposed to

Details corroborated by Rubinstein, I primi anni, above n. 12.
Guicciardini, History of Florence, above n. 16, 1289.
See Butters, above n. 12 at 36.
The myth of Venices perfection was propagated by its own citizen-theorists Pier Paolo
Vergerio, Domenico Morosini, and Gasparo Contarini and taken up before Guicciardini by
transfer to such a senate most of the powers wielded in contemporary practice by

the Signoria, the Great Council, and, at that time, the Republics life-tenured chief
executive, the Gonfalonier of Justice. In other words, Guicciardini may not mind
employing lot to constitute political bodies that he hopes eventually to emascu-
late. Perhaps not surprisingly then, lot plays no role in determining the compos-
ition of his proposed 200-member senate. More than half of the senate would
by-pass the Councils central function of appointing magistrates, either directly or
indirectlya function of which its members are especially proud. According to
Guicciardini, while the Council would regularly elect 80 citizens to finite terms as
senators, in addition, as many as 120 former magistrates would immediately
assume permanent membership in the senate without a Council vote: specifically,
citizens who had served at least once on the Signoria, or twice on the Ten of War,
or had been ambassadors for the Republic, and the like, would become senators
automatically.
A possible rationale for legitimating such appointments, unstated by
Guicciardini, is that the Council had already approved or selected these individ-
uals when they were awarded the earlier offices in the Signoria, the Ten, or as
ambassador. But a more cynical interpretation might read the proposal as doubly-
oligarchic: the rotating members are elected not assigned through the more
democratic method of sortition; and, even they are outnumbered by a
grandfathered-in, permanent, body of notables. The Council would play some
limited role in replacing permanent members of the senate once they die or retire,
according to Guicciardinis plan; these seats are not passed down to family heirs.
The Council would choose by majority vote one of three replacement candidates
who had been scrutinized by the senate, and nominated by that body on the basis
of an internal two-thirds vote.
In addition, Guicciardinis hypothetical senate plays a decisive role in his
recommendations for reforming the appointment of the lifetime Gonfalonier of
Justice. The first citizen to hold this office, the incumbent Piero Soderini, had
been elected directly by the Great Council in 1502, and proved a great disappoint-
ment to the ottimati. They hoped that a patrician like Soderini would help them
regain some of the leverage that the best citizens had been denied under the
post-94 Savonarolan-populist republic. But Soderini resisted ottimati influence
as best he could and elevated new men like Machiavelli to important posts in the
Florentine writers like Poggio Bracciolini, and Francesco Patrizi: see Q. Skinner, Visions of Politics, vol.
II: Renaissance Virtues (Cambridge: Cambridge University Press, 2002), 12630, 1389, 148. But
the staunchest proponent of the Venetian model, and most intransigent critic/opponent of Florences
Republic of 14941512, was the influential patrician, Bernardo Rucellai: see F. Gilbert, The Venetian
Constitution in Florentine Political Thought in N. Rubinstein (ed.), Florentine Studies: Politics and
Society in Renaissance Florence (Evanston, IL: Northwestern University Press, 1968), 44262; and
F. Gilbert, Bernardo Rucellai and the Orti Oricellari: A Study on the Origin of Modern Political
Thought in F. Gilbert (ed.), History: Choice and Commitment (Cambridge, MA: Harvard University
Press, 1977), 21546.
Guicciardini, Discorso di Logrogno, above n. 16, 137. Ibid. 1378.
effort to do so. In Guicciardinis proposal, the ottimati might insure a more

friendly chief executive in the future: in the same manner that it would replace its
own permanent members, the senate would propose to the Great Council three
candidates for Gonfalonier of Justice who received two-thirds of the vote within
the upper house, one of which the Council would elect to the chief magistracy
with the most votes above 51 per cent.
I conclude this section by emphasizing the fact, noted by Guicciardini, that the
introduction of some randomizing dimension into the selection of magistrates,
offsets the elite-enabling bias of elections. The constitutional reform in Florence
circa 1497 suggests that one need not adopt a general scheme of sortition
associated with ancient democracy to minimize the advantages enjoyed by
wealthy and notable citizens when apportioning offices. It was in reaction to this
arrangement where common citizens gained access to office, and were conscious
of that fact, that Guicciardini developed a framework where a sociologically
anonymous citizenry elevates to positions of prominence those who already hold
privileged positions through the formally class-blind but informally wealth-
enabling method of election.
Class-Specific and Wealth-Excluding Institutions
In his magnum opus, the Discourses, Niccol Machiavelli [14691527] recon-

structs the history and constitution of the ancient Roman Republic, and offers his
revised version of it as a model for popular governments in his own day and for the
future. Machiavelli emphasizes, in particular, Roman political institutions
reserved for common citizens that excluded wealthier ones, operated as much as
possible beyond their influence, or focused directly on opposing them.
Machiavelli was especially sensitive to the motives and behaviour of the wealthiest
and most powerful segments of society, the grandi, who acquire the advantages
they enjoy through an unquenchable appetite to oppress. He distinguished the
grandi from the rest of the citizenry, from the popolo or people, whose appetite is
not to dominate others, but only not to be oppressed themselves. Grandi in the
Roman context were the Republics wealthy patricians: they constituted the senate,
and monopolized terms in Romes major magistracies, especially the consulate, its
annually elected, two-member, chief executive. For holding back the insolence of
the Roman grandi, Machiavelli lavishes his highest praise on an institution of the

N. Machiavelli, Discourses on Livy [c.151319] H.C. Mansfield and N. Tarcov, trans. (Chicago:
Chicago University Press 1996). I also refer to N. Machiavelli, The Prince [1513] H.C. Mansfield, Jr,
trans. (Chicago: University of Chicago Press, 2nd edn., 1998). All Italian references correspond with
the Einaudi edition of the Discorsi and Il Principe published in Machiavelli, Opere I, C. Vivanti (ed.)
(Torino: Einaudi, 1997), respectively, 195525 and 11792.
Machiavelli, Discourses, ibid. Bk I, ch. 5; Machiavelli, The Prince, ibid. at 9.
common people, the tribunes of the plebs. According to Machiavelli, the

grandis insolence, and the appetite to dominate from which it arises, are threats to
the liberty of citizens in all republics, and to the stability of such regimes as well:
the grandi oppress the people and encourage them to raise up a prince or enlist a
foreign power for protection or in retaliation.
The tribunes, chosen by Romes plebeians (plebs) or poorer citizens from their
own ranks, and acting on their behalf, is the one domestic institution above all
others to which Machiavelli consistently attributes Romes extraordinary ability to
maintain liberty and attain glory. (A popular army, another, albeit more indirect,
means of elite accountability, is the externally-directed institution conducive to
liberty and glory.) The tribunate was comprised of two to five to a dozen office-
holders over the course of Roman republican history and, like the ordinary magis-
tracy, the consulate, served for a one-year term. The plebs elected the tribunes in
their assembly, the concilium plebis, which excluded patrician citizens. The
tribunes conducted deliberation over laws and guided their passage (plebiscites) in
the conciliumlaws that first applied only to the plebs but eventually to all
Roman citizens. Their bodies were sacrosanct, that is, the plebs swore to kill any
patrician who touched them physically. Relatedly, the tribunes wielded a power
akin to habeas corpus, as they could demand the release of plebs who had been
seized, for whatever reason, by a patrician citizen or a magistrate. Furthermore,
the tribunes could veto laws favoured by the grandi-dominated senate, and about
to be enacted by their agents, the consuls. The tribunes also wielded the authority
to accuse magistrates of corruption or malfeasance, or even indict private citizens
of prominence for seeking to exert excessive influence over the Republics politics.
While not exactly a grandi-excluding institution like the concilium, or a class-
specific one in the sense of the tribunate, Machiavelli also emphasizes the import-
ance of the Roman concioni, smaller assemblies where the plebs would be called by
a magistratenot necessarily a tribune, and quite possibly a patricianto discuss
pressing political matters and decide certain criminal cases. Machiavelli emphasizes
how any citizen at all could discuss laws, politics, and public policy in a concione.
This is a controversial recommendation in Machiavellis own time, as prevailing
wisdom, typified by Guicciardinis writings, insisted that popular assemblies were
best reserved for the ratification of, not deliberation over, policy proposals.
Quite strikingly, Machiavellis reconstruction of Roman republican politics is,
as it were, a tale of two cities: within the one republic there is, on the one hand, a
Machiavelli, Discourses, ibid., Bk I, ch. 3. For details of Roman class relations and political insti-
tutions, I rely on C. Nicolet, The World of the Citizen in Republican Rome, P.S. Falla, trans. (Berkeley:
University of California Press, 1980) and Lintott, above n. 2. On Machiavellis use of Roman history,
see J.P. Coby, Machiavellis Romans: Liberty and Greatness in the Discourses on Livy (Lanham, MD:
Lexington Books, 1999).
The account of Machiavellis theory of popular government that follows is partly distilled from
J.P. McCormick, Machiavellian Democracy: Controlling Elites With Ferocious Populism (2001) 95
American Political Science Review 297. Machiavelli, Discourses, above n. 27, Bk III, ch. 34.
popular polity, a poorer polity, which shadows, on the other, an elite, a more
wealthy one. The former serves as the latters mirror, its negative image: the
grandi deliberate policy in the senate, the plebs in the concilium and the concioni.
The senate influences the consuls to enact laws that it favours; the people can press
the tribunes to veto them. The consuls wield the power of life and death; but the
tribunes could deliver plebs from just such a threat. Indeed, the formal separa-
tion, of these two polities within one is what allows the less dangerous one (a pleb
polity that wants only not to be dominated) to patrol the polity comprised of
individuals and families whom Machiavelli explicitly claims are more dangerous
(a grandi polity that seeks perpetual oppression over others).
There were echoes of this two-polities in one scenario in medieval Florence
and throughout the other Italian republics as they gained autonomy from the Holy
Roman Emperor and the Pope in the thirteenth century: as the people, organized
in trade guilds, gained confidence and engaged in political and even armed
conflict with the traditional aristocracy of their cities, the so-called magnates or
great (magnati or grandi), they set up alternate institutions within the republics.
Alongside the legislative and executive institutions dominated by the magnates,
such as the Council of the Commune and the Podest, in Florence and elsewhere
the guild-organized people established the councils of the popolo and the office of
the peoples Capitano. The grandi and popolo both openly competed to be
priors within the Signoria, just as Machiavelli describes their Roman counterparts
doing the same over the consulate, once the people realize that the tribunate is a
necessary but not sufficient guard of their liberty against the patricians.
However, while the Roman consulate was an electoral office for which only
patricians were initially eligible, affirmative action for common citizens and
randomization traditionally characterized appointment to the Florentine
Signoria. Class-, or more precisely, occupational-specification determined eligibil-
ity. At its most widely and substantively participatory (13438, and especially,
137882) the Republic went so far as to reserve two of the six seats in the Signoria
for members of the three sets of politically recognized guilds: in descending order
of wealth and status, the major, minor, and minuti guilds. Without such quotas
for middling and lower guildsmen, the rich popolani of the major guilds and the
patrician magnates (when permitted to enroll in the upper guilds) would have
consistently dominated offices in the priorate. In the more progressive schemes,
the heads of each of the twenty-three guilds nominated members of their rank-
and-file whose names were then submitted, along with those nominated by sitting
magistrates and ward officials, into bags (borse). Out of the latter were drawn the
number of names conforming with the number of open seats in the Signoria and
See L. Martines, Power and Imagination: City-States in Renaissance Italy (New York: Knopf,
1979), 3462.
Machiavelli, Discourses, above n. 27, Bk I, ch. 47.
See Najemy, above n. 12, 12665, 21763.
satisfying the equal distribution requirement across higher, middling, and lower
guilds.
Unlike citizen-wide general elections, or even geographically demarcated ward-
based ones, this procedure ensured that lower tradesmen, artisans, and shopkeep-
ers had a relatively equal chance of holding office with bankers and owners of
large-scale production: guild-specific nominations preceded a lottery, the results
of which met corporate quotas. Nominations supplied by all the guilds and the
allotment of seats according to classes of guilds insured that offices were distrib-
uted more widely among citizens than would have been obtained by general
election over the entire citizenry. Unlike the general lottery characteristic of
Athenian democracy, wealthy citizens are guaranteed positions disproportionate
to their number of the population. But unlike the general elections of modern
democracy, the Florentine guild/randomization model insures that citizens
besides the most wealthy hold office. As mentioned above, successive waves of
oligarchic or princely alterations undermined and destroyed the guild-basis of the
early Florentine republics, but the latters corporate- or class-specificity is very
close to what Machiavelli attempts to revive with his neo-Roman model: socio-
economic specificity in political institutions better ensures participation by
common citizens in government than do class-anonymous institutions and
formally-wide, general eligibility for office.
It is worth noting, however, that Machiavellis proposal for grandi- and popolo-
specific institutions in the Discourses steers clear of two major mistakes committed
by popular movements in the history of Florence: on the one hand, making out-
right enemies of the magnate class above the guilds, and, on the other, losing the
support of lesser guildsmen or the resident labourers and taxpayers not formally
organized into guilds (the popolini or plebes). As mentioned parenthetically above,
Machiavellis life-long campaign for a citizen militia, drawn not only from the res-
idents of Florence but also from inhabitants of the surrounding countryside, the
contado, would insure the loyalty of those below the guilds and swell the numbers
of citizens available to the city as soldiers, taxpayers, and potential magistrates. A
popular army would have integrated a greatly expanded and widely inclusive
Florentine citizenry into the politics of the republic, but the plan was only half-
heartedly adopted by the city in Machiavellis own time. As for the enmity of the
Florentine magnates: the popolo were often provoked into disenfranchising them
on the grounds that the grandi were incapable of refraining from acts of physical
violence and political intimidation.
See the works of Brucker and Rubinstein, above n. 12.

On Machiavellis military and geo-political aspirations for Florence, see E.F. Guarini,
Machiavelli and the Crisis of the Italian Republics, in Bock et al. (eds.), above n. 12, 1740; and
A. Ardito, Machiavellis Madisonian Moment: The Tuscan Territorial State as an Extended Republic
(PhD dissertation, Political Science, Yale University, 2004).
See G. Salvemini, Magnati e Popolani in Firenze dal 1280 al 1295 (Florence: Tipografia
Carnesecchi e Figli, 1899), 198207, and Martines, above n. 32, 4850.
This course of action rendered Florentine popular government perpetually

unstable as the magnates were always eager: either (a) to aid an external enemy
against the city in the hopes of re-assuming their political prominence; or (b) to
co-opt or collude with members of the major, wealthier guilds, especially those
engaged in banking and finance, in shutting out the lower guilds of merchants
and artisans and undermining the republic. Machiavellis model assures the
grandi class of its place within a republic, and allows socially mobile upper popolo
to integrate into it without abandoning a republican form. It also insures that
institutions not easily corrupted by the nobility and ennobled popolani are in
place to check their privileged positions. Machiavelli is fond of slyly opening the
possibility that the people may kill a class of ottimati who have gone too far in
their attempt to oppress them, or may enlist a prince to do so on the peoples
behalf. But if the grandi are to live, and republics are to endure, the former must
be granted a prominent place in the latter lest the grandi hatch oligarchic or
princely coups.
In this spirit, Machiavelli often concedes that the Roman institutions
dominated by the wealthy citizens, the senate and consuls, had greater agenda
setting and proactive authority than did the tribunes or the popular assemblies.
However, plebeian institutions do protect the people from grandi domination,
and provide them with enough negative authority over grandi behaviour to
channel it in liberty-preserving ways. Conversely, one might conclude on this
basis, especially with the hindsight provided by Western history since
Machiavellis day, that a more intimate mixing of the two quasi-separate polities,
or that the establishment of a single, sociologically anonymous constitutional
framework, would only allow the grandi to overwhelm the people in a fairly
unchallenged fashion. In fact, in his commentary on Machiavellis Discourses,
Guicciardini criticizes Rome and Machiavellis praise of it on precisely these
grounds: if only the Roman patricians had allowed the plebs the formal right to
stand for offices such as the consulate from the beginning, the plebs would have
pursued these offices rarely and reluctantly, and they certainly never would have
agitated for the creation of their own magistracy, the tribunate.
General eligibility for office, according to Guicciardini, would have left the
Roman grandi with an uncontested monopoly on the magistracies, and left the
patricians free from the meddling and constant instigating of pleb magistrates like
the tribunes. But according to Machiavellian logic, such an arrangement would
provide no institutional means for common citizens, specifically and actively, to
See Martines, above n. 32, 5871, 94110.
See Machiavellis own account of this collusion in his Florentine Histories [1525] L.F. Banfield
and H.C. Mansfield, trans. (Princeton: Princeton University Press, 1988), Bk III, ch. 21, 1345.
Machiavelli, Discourses, above n. 27, Bk I, ch. 16, 27; Bk II, ch. 2 and Machiavelli, The Prince,
above n. 27, 13. e.g. Machiavelli, Discourses, ibid., Bk I, ch. 37.
See F. Guicciardini, Considerations of the Discourses of Niccol Machiavelli [1530] in J.B.
Atkinson and D. Sices (eds.), The Sweetness of Power: Machiavellis Discourses and Guicciardinis
Considerations (DeKalb, IL: Northern Illinois University Press, 2002), 381, at 3917.
contain dominating behaviour on the part of wealthier ones, to control the

actions of magistrates on their own, and to influence policy in a fairly immediate
fashion. In Machiavellis model, on the contrary, the people require separate delib-
erative institutions to form their opinions independently of the wealthy and to
choose officials from among their own ranks. Furthermore, they need popularly
accessible means of directly blocking or immediately sanctioning the actions of
public magistrates, such as the veto, and by public accusation.
It can not be overstated that the establishment of a tribunate, or some
functional equivalent thereof, is no easy sell to the grandi, whose participation and
loyalty, according to Machiavelli, must be enlisted and maintained in the work-
ings of a popular government. Long before Guicciardini, the young aristocratic
view of the tribunes was immortalized by Cicero in his dialogue On the Laws,
where his little brother Quintus rants and raves about having to suffer observance
of a magistracy for which members of optimate families are ineligible, and whose
sole raison dtre is to make their lives difficult. Beyond Cicero and
Guicciardini, this aristocratic bias against the tribunes is evident in Montesquieus
interpretation of Rome, and is sustained in the thought of the patricians without
titles who founded the American Republic. Ultimately, when Machiavelli
proposes a constitutional reform to Giovanni deMedici (Pope Leo X), who was
soliciting advice on converting Florence from a de facto principality into a
genuine republic, Machiavelli very subtly and almost surreptitiously incorporates
a tribunate institution, the provosts (proposti), into his model.
In the Discursus on Remodeling Florence, Machiavelli offers Leo a republic
that is neither so stretto as the republic of ottimati that prevailed in the era of the
oligarchy, nor so largo as the post-94 republic. Knowing that a major reason why
prominent ottimati, such as Bernardo Rucellai and Alamanno Salviati, never
made peace with the latter regime, was the prospect and experience of sharing the
priorate with men of low station, Machiavelli proposes a life-tenured Signoria
of sixty-five citizens. This reform is intended to satisfy those individuals of ambi-
tious spirit, who think they deserve to outrank everyone else. Machiavelli
See Marcus Tullius Cicero, On the Commonwealth and On the Laws, J. Zetzel (ed.) (Cambridge:
Cambridge University Press, 1999), 1647.
See C.B.S. de Montesquieu, Considerations on the Causes of the Greatness of the Romans and their
Decline, D. Lowenthal, trans. (Indianapolis: Hackett, 1999), 84; and G.S. Wood, The Creation of the
American Republic, 17761787 (Chapel Hill, NC: University of North Carolina Press, 1998). On
Machiavellis rhetorical and substantive strategy for convincing a patrician audience of the necessity
and usefulness of the tribunes, see J.P. McCormick, Tempering and Redirecting the Grandis
Appetite to Oppress: The Dedication and Intention of Machiavellis Discourses, in V. Kahn (ed.),
Politics and the Passions, 15001789 (Princeton: Princeton University Press, 2006), 7.
See Machiavelli, A Discourse on Remodeling the Government of Florence [151920] in
Machiavelli: The Chief Works and Others, vol. I, A. Gilbert, trans. (Durham, NC: Duke University
Press, 1958), 101, at 102. Italian references correspond with Machiavelli, Discursus Florentinarum
Rerum Post Mortem Iunioris Laurentii Medices, in Opere I, 73345.
Machiavelli, Chief Works, ibid. 201.
Machiavelli, Chief Works, ibid. 1078; Machiavelli, Discursus Florentinarum, above n. 45 at 738.
would divide this signorial class into two sets of thirty-two signors, each eligible to
be priors in alternating years, including a Gonfalonier of Justice, who would serve
a two or three year term as head of state. Eight priors from among the thirty-two,
serving for three months at a time, plus the Gonfalonier, constitute the Signoria
at any particular time. Below this nine-membered, executive committee,
Machiavelli proposes to establish a 200-member, life-tenured senatorial body,
The Council of the Select. Comprised of members of the upper guilds who did
not qualify for the more exalted signorial posts, the Two Hundred would satisfy
the ambitions of the middling citizens within the regime. Leo himself, according
to Machiavelli, would determine the initial composition of these bodies. With the
republic thus so securely in the Popes hand, he might not automatically reject
Machiavellis next, more controversial proposition: opening the Hall of the One
Thousand so as to re-institute the Great Council as the assembly reserved for the
generality or universality of the people.
Machiavelli suggests that, initially, Leo may want to set the Great Councils
membership at a manageable 600 citizens before expanding it to a full mem-
bership of 1000. Then Machiavelli blatantly advises Leo to have his friends
(amici) secretly determine the results of any elections conducted in the Council
during the Popes lifetime. But Machiavelli is adamant that if Leo does not
re-institute the Great Council, the people will never be satisfied and someone else
will re-establish it much to the Popes indignation and with the destruction and
ruin of his amici as a result. After the Popes death, however, it will be the Great
Council and not Leos amici who, according to Machiavelli, shall select replace-
ment members of the Signoria and the Two Hundred, as well as elect all the other
officers of the republic. In fact, implying that after his death Leos memory and
glory better rests with the generality of the people than with his ottimati
friendsa theme that rises to a crescendo toward the essays conclusion
Machiavelli then proposes the tribunate means by which the Great Council will
come to take precedence over the other two higher institutions in the republic,
and, hence, perhaps the people generally over the life-tenured citizens of middling
and exalted rank.
Then, as if almost an afterthought to an already complete constitutional order
founded on the personal appointment and election of elite citizens, Machiavelli
introduces the office of the provosts, a class-specific, lottery-determined
magistracy reserved for common citizens. These magistrates will be a subset of
sixteen Gonfaloniers of the Companies of the People, a title traditionally associ-
ated with the leaders of the guilds militia during their struggle with the magnates.
The popular Gonfaloniers will be selected annually in any number of ways,
according to Machiavelli: in the traditional mode (presumably by the guilds), by

Ibid.; Machiavelli, Discursus Florentinarum, above n. 45 at 741.
the Great Council or by Leo himself as long as he lives. But Machiavelli insists
they must not belong to the signorial class, and they must not gain rapid
reappointment so that the office will be distributed more widely through the
city. Of the sixteen popular Gonfaloniers, four per month will be determined
by lot to serve as provosts such that each will be a provost by the end of the year.
One different provost each week will attend the proceedings of the Signoria, two
provosts plus six of the other popular Gonfaloniers attend sessions of the two
hundred, and three provosts in addition to twelve Gonfaloniers must participate
in the Great Council as full voting members.
According to Machiavellis description, it first appears as if the provosts are
merely non-voting witnesses of the two councils comprised of their social
superiors, but then he insists that neither the Signoria nor the senate should be
permitted to convene without provosts present. Moreover, he adds, the provosts
can delay decisions made by these bodies and appeal them to a vote in a broader
and/or more subordinate council. Machiavelli explains neither why provosts must
be designated from among the popular Gonfaloniers by lot, nor the reason why
their terms in any particular body are as short as a week. A plausible reason is that
lot prevents the ottimati in these upper councils from gaining advance knowledge
of exactly which popular Gonfaloniers will be convocating with them as provosts,
and so they cannot attempt to corrupt them beforehand. Moreover, the provosts
short terms guard against their political co-optation while they serve among the
ottimati. Machiavelli is clear about his desire that as many non-signorial citizens
as possible take part in this office that effectively serves as the peoples eyes and ears
in the republics upper councils, and that explicitly wields veto power over the
legislation proposed within them.
As Machiavelli avers, it is not good that magistrates should not have somebody
observe them and make them abstain from actions that are not good. This
surveilling and vetoing might be particularly intense from common citizens who,
according to the traditions of the republic, expect general and regular eligibility
for these highest signorial offices. The latter are, according to this plan, going to be
very difficult for them to obtain, at least until members of the present ottimati
class die or retire. But in taking something away from the common citizens for
which they competed at a disadvantage with the ottimati, Machiavelli may be
reserving for them exclusively something more potent. In Rome, the tribunate
functioned as the plebeian answer to magistracies from which they were formally
excluded, and then obtained only with great difficultya counter-consulate, if
you will. Similarly, in Machiavellis proposed Florence, the popular Gonfaloniers
will function as a counter-Signoria; the provostship, a counter-priorate. This
Machiavelli, Chief Works, ibid. 111. Ibid.

Ibid. 112; Machiavelli, Discursus Florentinarum, above n. 45 at 742.
In the Florentine Histories, Machiavellis uses the same phrase to describe the function of the
traditional Gonfaloniers of the Companies of the People that, in The Discourses, he uses to describe
new popular magistracy, resembling the one effectively taken way from the
people, will be, according to Machiavelli, greater, more useful to the republic, and
more honorable than the original.
Provoking the people by excluding them from the most powerful magistracies,
and giving them a subordinate magistracy that is nevertheless theirs exclusively is
Machiavellis way of better empowering the people, both emotionally and institu-
tionally, to make elites accountable. On the one hand, common citizens will no
longer suffer from the delusion that they are effectually eligible for higher offices
that they actually seldom attain and, if they do, within which they are marginal-
ized. On the other, they will not be overwhelmed by the ottimati within the new
magistracies created for them alone. Letting the people use offices reserved
exclusively for themselves in efforts to check grandi rule and perhaps to re-attain
offices from which they are excluded better empowers them than formal eligibility
for all offices, generally. Machiavelli assures His Holiness and his friends of their
pre-eminence within this regime and their power over all of its attendant parts
during Leos lifetimein fact, Machiavelli declares, it is really a monarchy for that
length of time. Yet this proposal leaves ample room for the Great Council and the
popular Gonfaloniers/provosts to constrain the actions and even control the
behaviour of the Gonfalonier of Justice, the Signoria, and the senate, once this
Medici Pope dies without a princely successor. Machiavelli insists that the Popes
friends, those good men, who will sit of in the highest seats of government, need
not fear the loss of their property from this proposed constitution. Yet he states
candidly that the generality of the citizens will expect more allotments of power,
little by little, to fall into their hands over time. The Great Council, the
Gonfaloniers of the Companies of the People, and the provosts are the vehicles to
achieve this. The Machiavellian subtext of this memorandum, as was the
implicit meaning of Machiavellis famously complicated contrast of Rome with
Sparta and Venice in the Discourses, is that a popular government requires class-
specific institutions that both raise the class consciousness of common citizens
and enable them to patrol more exalted citizens with vigour. Otherwise, the socio-
political definition of the people that includes wealthy citizens (as opposed to
setting the wealthy apart from, or even opposed to, the people) would allow them
to dominate common citizens in anonymous and uncontested ways.
Machiavellian popular government clearly requires class-specific institutions
that both raise the class consciousness of common citizens and enable them
to patrol more exalted citizens with a vigour that elections alone do not provide.
the tribunate: they acted against the insolence of the great. See Machiavelli, Florentine Histories,
above n. 39, Bk II, ch. 22, 76.
Machiavelli, Chief Works, above n. 45, 112.
So subtle, apparently, is Machiavellis discussion of the provosts that even the memorandums
most careful commentators ignore it completely: see Silvano, above n. 17, 5661, and M. Viroli,
Machiavelli and the Republican Idea of Liberty, in Machiavelli and Republicanism, above n. 12, 143,
at 1545. Machiavelli, Discourses, above n. 27, Bk I, ch. 6.
For Machiavelli, a basic aversion to politics, and, hence, a natural inclination to

class quiescence and deference, are attitudes concomitant with common citizens
desire not to be oppressed. The modern, socially homogeneous notion of the sov-
ereign people, and the establishment of class-anonymous government institutions,
play upon the peoples general disposition not to want to know, or to do anything,
about their subordinate positionjust as Guicciardini hoped. As a result, wealthy
citizens and public magistrates are given free rein to follow their natural inclinations,
in Machiavellian terms, free rein to oppress others. Machiavellis constitutional
analyses suggest that the supposed absence of class consciousness in modern
republics is not the result of a change in material conditions or a supercession of
class as an objective factempirical falsehoods, in any case. Social mobility, for
instance, is too frequently underestimated in the context of pre-eighteenth
century republics and notoriously overestimated in the context of contemporary
onesand in neither case does it obviate the objective reality or political ramifica-
tions of class divisions. On the contrary, Machiavelli would attribute the
contemporary absence of healthy class consciousness and class contestation to a
failure on the part of modern republican constitutions to remind common people
of their subordination to socio-economic and political elites and their failure to
provide the people with the proper institutional techniques by which they can
challenge those elites.
Conclusion
When contrasted with Machiavellis neo-Roman model of popular government,

and his proposal for re-instituting a republic in Florence, contemporary repub-
lican constitutions suffer from at least two defects: (1) the absence of extra-electoral
means by which the general citizenry renders political elites accountable,
especially those exercised through the tribunes and the provosts (the veto, accus-
ations, and/or plebiscites); and (2) the lack of a quasi-formal distinction between
economic-political elites and common citizens (as well as institutions correspond-
ing with it, e.g., a Senate or Council of the Commune for patricians, ottimati,
grandi, etc., and a tribunate or concilium plebis for the popolo, plebeians,
multitude, etc). Reflections on the aristocratic effect and the privileged access to
resources and information enjoyed by magistrates in modern republics suggest
that elections are insufficient or at least incomplete mechanisms of elite
See S. Fraser and G. Gerstle (eds.), Ruling America: A History of Wealth and Power in a
Democracy (Cambridge, MA: Harvard University Press, 2005); P. Krugman, The Great Unraveling:
Losing Our Way in the New Century (New York: Norton, 2003); K. Phillips, Wealth and Democracy: A
Political History of the American Rich (New York: Broadway Press, 2002); and W.G. Domhoff, Who
Rules America?: Power and Politics (New York: McGraw-Hill, 2001).
See B. Keller (ed.), Class Matters (New York: New York Times Press, 2005) and M. Taylor, UK
Low in Social Mobility League, The Guardian, 25 April 2005.
accountability and responsiveness. Moreover, the socio-political definition of

the people that includes wealthy citizens rather than one that sets the latter apart
from or even opposed to the people allows the wealthy to dominate common
citizens in anonymous and uncontested ways.
Why did late- and post-eighteenth century republicans abandon conceptual
and institutional class specificity while drafting their constitutions? When not in
the excessively mobophobic state of mind mentioned at the outset, perhaps many
were heartened by what seemed to be a dawning pluralist age when a wide
spectrum of numerous social groups, relatively equal in power and influence,
might supplant the rich/poor citizen cleavage that prevailed in the republics of
previous ages. Certainly, they fully subscribed to the recently developed political
idea of absolute, indivisible, and unitary sovereignty, transposed in a revolution-
ary age from monarch to citizenry. The notion of a sovereign people and,
relatedly, formal juridical equality discouraged legal distinctions among citizens,
particularly any corresponding with socio-economic status. But whatever the
reasonssociological presumptions of a newly emerging pluralism, political
prescriptions for a more homogeneous citizenry, or other factors entirely
modern constitutional framers clearly demurred from designing institutions that
acknowledged, addressed, or reflected socio-economic distinctions.
While seeming to entrench the privilege of the wealthy, class-specific institu-
tional arrangements may spark, in a Machiavellian spirit, sufficient resentment
and class consciousness to assure a more vigorous surveillance of the upper house
and its constituencies by both the lower one and the populace at large. One of
Machiavellis most profound teachings is that the inevitable power disparities
between grandi and popolo within republics should be arranged institutionally so
as to make the latter more not less conscious of it, and perhaps motivate them to
attempt actively to minimize such disparities. Separate institutions for wealthy
and non-wealthy citizens flatter the grandi and aggravate the popolo, thus
In general, see the contributions to A. Przeworski, S. Stokes, and B. Manin, Democracy,

Accountability, and Representation (Cambridge: Cambridge University Press, 1999). More specifically,
Larry Bartels demonstrates that US Senators tend to vote the preferences of affluent citizens rather
than those of their broader constituency: see Bartels, Economic Inequality and Political
Representation (Paper presented at the APSA Annual Meeting, Boston, August 29September 1,
2002).
Florentine civic humanism or civic republicanism, which emphasized socially holistic rather
than class- or guild-contestatory notions of citizenship served to legitimate Florences more oligarchic
republics. See J. Hankins (ed.), Renaissance Civic Humanism (Cambridge, MA: Harvard University
Press, 2000), 75178. This fact seems lost on many political theorists and intellectual historians who
attempt to revive this kind of republicanism for purportedly progressive purposes today. See
J.P. McCormick, Machiavelli Against Republicanism: On the Cambridge Schools Guicciardinian
Moments (2003) 31 Political Theory 615.
See D. Wootton (ed.), Republicanism, Liberty and Commercial Societies, 16491776 (Stanford:
Stanford University Press, 1994). See Morgan, above n. 3.
See M. Sellers, American Republicanism: Roman Ideology in the United States Constitution
(New York: New York University Press, 1994); and C.J. Richard, The Founders and the Classics:
Greece, Rome, and the American Enlightenment (Cambridge, MA: Harvard University Press, 1994).
fostering the social dispositions necessary for a republics stability: a relatively loyal
elite and an agitated, anti-elitist citizenry. The unitary notion of a sovereign
people and strictly electoral/representative institutional arrangements corres-
ponding with it may be, on the contrary, inducements to elite insularity and
popular slumber.
To argue that the institutions of modern democracies keep elites accountable
and responsive in a less than perfect fashion is not to prove that earlier popular
governments performed this task any better. This is an empirical issue that I do
not know how to go about addressing. Nonetheless, participants in and analysts of
earlier republics, especially lower guildsmen and Machiavelli, would have pre-
dicted that contemporary popular governments, fixated on general elections,
would perform poorly in this regard. Again, in elections, prospective magistrates,
usually the wealthy or those best funded by them, try to influence ex ante the
people who would select them; and the former can draw upon considerable
resources to exert such influence. Moreover, the most consequential form of sanction
against an elected magistrate who betrays the populace is almost hopelessly ex
post: the follow-through on a standing threat not to re-elect an unsatisfactory
official is postponed for a considerably extended period of time, specifically, until
the end of a magistrates term.
Of course, building upon Guicciardinis intuitions, modern constitutional
framers professed and believed that novel economic, social, and political condi-
tions inclined the oligarchy emerging from narrowly electoral politics toward a
natural aristocracy. They might have been reminded that no oligarchy ever
considered itself unnatural. If a popular government or republic is not to veer
dangerously toward an unaccountable oligarchy, natural or not, institutional
affirmative action for common citizens is necessary. In this light, contemporary
democracies could do worse than reconsider the extra-electoral practices that
earlier republics, their partisans, and their theorists often thought were crucial to
insure the genuine liberty of citizens. They should temper the aristocratic biases of
elections when appointing magistrates; and reserve for common citizens assem-
blies or magistracies that exclude the wealthiest citizens. The ramifications of such
institutional innovations are not purely procedural. Machiavelli, who considered
patricians not the people to be the primary political problem in a republic,
intimated that such institutions made elites more careful, as well as marginally
more content, and they inspire more spirited class consciousness and political
contentiousness among common citizens.
See D.A. Arnold, Can Inattentive Citizens Control Their Elected Representatives? in L. Dodd
and B. Oppenheimer (eds.), Congress Reconsidered (Washington, DC: Congress Quarterly Press,
1993); and the recent re-evaluation of such arguments by J. Mansbridge, Rethinking Represen-
tation (2003) 97 American Political Science Review 515.
7
The Politics of the Question of
Constituent Power
David Dyzenhaus
The only way to erect such a Common Power . . . is to conferre all their
power and strength upon one Man, or Assembly of men, to beare their
Person; and every one to owne, and acknowledge himselfe to be Author of
whatsoever he that so beareth their Person, shall Act, or cause to be Acted,
therein to submit their Wills, every one to his will, and their Judgements, to
his Judgement. This is more than Consent, or Concord; it is a reall Unitie of
them all, in one and the same Person, made by Covenant of every man with
every man.
Thomas Hobbes, Leviathan
The question of constituent power is, first, about whether power can turn into
authority. Can sheer power turn itself into something authoritative, qualitatively
even magically different from its ingredients, as Hobbes seems to suggest in the
epigraph to this chapter? Or must the power have some normative properties
before it can perform this trick? Second, it is about the extent of the transforma-
tion. Does constituent power disappear at the moment it turns into authority or
does it hang around, threatening to disrupt or destroy its creation?
Carl Schmitt argued that constitutional authority cannot escape from its
origins in constituent power and that meant that constituent power can reassert
itself from within constitutional order. The bearer of constituent power is able to
use constitutional form against itself and so constitutionalism sows the seeds of its
own destruction.
Against Schmitt, I will defend a liberal account of the rule of law, one which
involves a highly political claim about the constitution of authority. I argue that
liberalism, on its best understanding, does not maintain that constituent power
disappears once the constitution is made, or that it can somehow be contained by
constitutional forms. Rather, the question of constituent power simply does not
T. Hobbes, Leviathan [1651] R. Tuck (ed.) (Cambridge: Cambridge University Press, 1997),
120.

arise for a liberal account of the rule of law. It arises only from the perspective of a
negatively prescriptive political theory, such as Schmitts. I conclude that the
interesting question for constitutional theory is not that of constituent power, but
whether to pursue inquiry in the normative or the anti-normative mode.
Negatively Prescriptive Political Theory
Schmitt often presented the claim about constituent power as a description of a

state of affairs which made liberals uncomfortable because they want politics
totally governed by law. The point of law is to make politics disappear so that, as
Schmitt said of Kelsens pure theory of law, the machine runs itself . But the
machine cannot run itself, a fact Schmitt claimed to detect in his very first
publication in the inevitability of judicial discretion in interpreting the law.
There Schmitt reacted to a particular version of legal positivism, which has it that
law communicates the content of the will of the legally unconstrained sovereign to
his subjects. The role of judges is to be the mouths through which the sovereign
speaks, by determining what he in fact intended. If no such intention can be
determined, judges are free to decide as they will, a claim from which the Free Law
School drew the conclusion that judges are as unconstrained as the legislature.
Schmitt resisted this conclusion, arguing that the moment of discretion can be
stabilized if judges take it as their duty to decide as another judge would, that is, in
accordance with the dominant empirical type of judge. In other words, stability is
secured on condition that the class of judges is sufficiently homogeneous. By late
Weimar, Schmitt had lost hope in this method of stabilizing law. The state of
exception takes the place of the moment of discretion, revealing not only the
inevitability of the sovereigns legally uncontrolled discretion, but that the
sovereign is the bearer of constituent, not constituted power. At this time, Schmitt
found it significant that legal positivisms model of law has changed under Kelsens
direction. It is no longer the model of rules issuing from a sovereign, but a
complex system of authorizations to officials to make decisions, held together by
the juristic hypothesis of the Grundnorm.
Schmitt argues, with some justification, that Kelsens Identity Thesis, the thesis
that the authority of the state is totally constituted by law, provides no constraint
on politics because the sovereign can make any law he likes, as long as he respects
the requirements of legal form, including laws that alter or unmake the original
forms of law-making authority. Indeed, matters are made even worse by the fact
that Kelsen supposes that laws made in this way are not only valid but legitimate,
C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922] (Chicago:
University of Chicago Press, 2005), 48.
C. Schmitt, Gesetz und Urteil: Eine Untersuching zum Problem der Rechtspraxis [1912] (Munich:
C.H. Beck, 1969). I rely in my discussion of Schmitt on earlier work: Legality and Legitimacy: Carl
Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997).
The Question of Constituent Power 131
whatever their content. Kelsen seems to exemplify Schmitts claims about

liberalism and the rule of law: in Kelsens bid to have the complete control by law
of politics, law is not only turned into a mere instrument of the political, but also
whatever issues from that instrument is deemed legitimate. The substance legal
positivism had at a time when law was the instrument of a monarch who had a
genuine political existence is lost both in fact and in theory in an era of liberal
domination.
However, Schmitts claim was highly prescriptive. He despised liberalism and
regarded its vision of the rule of law as an ideological subterfuge, an attempt to
hide the domination of liberal values under an allegedly neutral rule of law. The
irony for Schmitt was that liberalisms professed neutrality made it incapable of
making the fundamental distinction of the political, between friend and enemy,
and so it could not help but open up the space within its constitutional order for
its enemies to destroy it. Since the claim that lies behind the question of
constituent power depends on Schmitts concept of the political, the friend/
enemy distinction, the claim is prescriptive in a very particular way: it seeks to
expose what it regards as a liberal subterfuge in order both to make space for and
to legitimate an anti-liberal politics.
It is important to keep in mind the dimension of legitimacy because the issue is
not merely about the possibility of the triumph of power over law, but also about
the way in which law must prepare the way for and legitimate that triumph. For
Schmitt, theories which acknowledge the existence of constituent power but
think it can be contained are the equivalent of those dualist theories of state that
regard ultimate political authority as outside of law, but which deny that political
authority can be invoked to destroy a legal order from within.
Such dualist theories are, in Schmitts view unstablethey seek to recognize the
legally uncontrolled nature of the political at the same time as they try to hang onto
the idea of the rule of law. When it comes to the state of exception, this instability
manifests itself in the attempt to understand the sovereigns dictatorial rule as a dic-
tatorship on commission, a constitutional dictatorship as Clinton Rossiter called it.
But, Schmitt argued, no legal line can be established to prevent a dictatorship on
commission from turning itself into a sovereign dictatorship, a dictatorship which
possesses constituent power and thus can remake the constitutional order as it will.
In my view, Schmitt was right that dualism is unstable in this way. Indeed,
when Ernst Fraenkel described what he called the dual state of Nazism, he
regarded the duality as existing between the prerogative statethe order in which
Nazi leaders did as they likedand the normative state, the state controlled by
law that survived from the previous era and still regulated much of German life.
But he emphasized that the normative state is not the Rechtsstaat, since in the dual
state the protections of the normative state can always be put aside by prerogative.
C.L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948).
E. Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York: Oxford
University Press, 1941).
Fraenkel not only regarded Schmitt as the foremost theorist of the dual state but as
having done much to bring that state into existence. Moreover, in his view, the
dual state had come into existence through what he described as an illegal coup
dtat. There had been, he said, no legal revolution. And he lamented the fact
that German law never recognized the principle which he understood to reside in
English law that courts have jurisdiction over the state of exception.
Fraenkel was not nave, although he had too sanguine a view of Anglo-American
jurisprudence. He said that the National-Socialists would probably have been suc-
cessful even had such constitutional-judicial safeguards existed. But, he added, the
absence of a legal tradition analogous to the Anglo-American tradition enabled
them, however, to render lip service to the laws, a procedure found useful during
the transitional period, when the army and the officialdom were not entirely
dependable. Thus Fraenkel did not regard the dual state as the actualization of a
radical potential within all legal orders, because he did not regard dualism to be a
necessary feature of legal order. The fact that a dual state existed in Germany from
1933 was evidence of the triumph of power over law, but not of Schmitts and the
Nazis claim that the dual state had been established lawfully and thus in some
sense legitimately, that is, by the standards of the Weimar legal order.
My point is that the question of constituent power does not stand outside of
legal thought or constitutional theory, so that we should devote ourselves to
exploring answers to that question. For liberalism does not answer that question
since it is appropriately posed only within a rival theory. This rival theory is polit-
ically prescriptive but not normative, since its prescriptive nature is negative. The
first dimension of such a political theory is that its account of law is anti-
normative. It denies that legality possesses intrinsic normative qualities, the kind
of qualities that make law as such authoritative, and seeks to expose this fact as
part of a quest to bring about a new political order in which law is openly a mere
tool of power. Its second dimension is that it is anti-liberal. It equates the allegedly
false claim about normativity with liberal ideology, so that the debunking of
normativity is in the service of installing an anti-liberal ideology.
During Weimar, Schmitt seemed undecided about two important issues. First,
it was unclear whether he feared liberalism because of its success or potential for
success in overcoming its enemies, or whether he was diagnosing liberalisms
inability to defend itself against the inevitable victory of one of its enemies.
Second, it was unclear whether Schmitt thought that such a victory would
restore a substance that had been lost, for example, a state founded on
Catholicism, or would usher in some totally new ideology. But with the victory of
Nazism, these doubts were resolved. Not only has liberalism been vanquished, but
a vision of the substantive homogeneity of the Volk has met with the acclaim of
University Press, 1941), 4. Ibid. 56.
Ibid.
we, the people. Even if Schmitt himself might have preferred the victory of the
more conservative elements of the Catholic resistance to Weimar, the Leader had
met all the marks for political success he had outlined in his work in late Weimar.
Thus, after 1933, law becomes for Schmitt the expression of a concrete order,
whose content comes from the Leader, and in which officials resolve questions
about the interpretations of the law in accordance with their understanding of the
Leaders ideology.
The Leaders authority is not in any way constituted by law. It comes from the
people, not through consent but by their acclamation of the Leaders articulation
of the friend/enemy distinction which establishes the substantive homogeneity of
the people. Consent cannot, on Schmitts view, play a constitutive role, which is
why his understanding of Hobbes theory is that the sovereign person comes
about not by means of the consensus of the multitude, but on the occasion of that
consensus.
Now the mere fact that Schmitt harnessed the claim about constituent power to
the cause of his anti-liberalism does not taint it with his extreme version of such a
negative ideology, or with his anti-Semitism. Nor is it the case that dualism fails
to be an accurate description of existing legal orders. Any legal order is to some
extent dualist in which the prerogative still exists, or where there is constitutional
authority for government to depart from the rule of law in an emergency situ-
ation, or in which judges think that they must defer submissively to the executive
during times of alleged emergency. In this last situation, while it might seem that
the officials are not acting outside the law if their actions are authorized by a valid
statute, in substance the officials wield a prerogative power if the statute is taken to
authorize them to do as they please.
So there is something to Schmitts claim that he was merely describing the legal
situation. And to the extent that such descriptions are accurate, so the first dimen-
sion of his negatively prescriptive theory can be detached from the second. Laws
claim to authority, and thus the attempt by normative theories to explain that fact,
C. Schmitt, Staat, Bewegung, Volk: Die Driegliederung des politische Einheit (Hamburg:
Hanseatische Verlagsanstalt, 1934).
C. Schmitt, The Leviathan in the State Theory of Thomas Hobbes, G. Schwab, trans. (Westport,
CT: Greenwood Press, 1996), 33.
From late Weimar, it became apparent in Schmitts writing that he regarded the destruction of
liberalism and the institutions of representative democracy as necessary in order to restore the sub-
stantive homogeneity of the people, the Volk. During the Nazi period, it became apparent that he
identified liberal ideology with the alien ideology of a parasitical group, the Jews, whose presence in
Germany stood in the way of the achievement of homogeneity, which is why he hailed the
Nuremburg laws of 1935, which stripped Jews of their political citizenship, as the first constitution
Germany had enjoyed, the constitution of liberty. See C. Schmitt, Die Verfassung der Freiheit
(1935), reprinted in French as La Constitution de la libert in Y.C. Zarka, Un dtail nazi dans la pen-
se de Carl Schmitt, D. Trierweiler, trans. (Paris: PUF, 2005), 537. During the same era, he identified
normative theories of the rule of law with Jewish thinkers, ranging from Spinoza to Kelsen, whose
work he advocated should be kept in a special Judaica section of German law libraries to highlight
their alien mode of thought: Die deutsche Rechtswissenschaft in Kampf gegen den jdischen Geist
(1936) 41 Deutsche Juristen-Zeitung 193.
are undermined to the extent that dualism is inevitable. These pockets where
legality does not control are not, in Schmitts view, mere irritants for the liberal
idea of the rule of law. They both gesture towards the fact that constituent power
lies outside of legal order and provide the basis for constituent power to assert
itself from within legal order. A lot then turns on whether dualism is an inevitable
feature of legal order. As I will now show via an exploration of what I call mild
anti-liberalism, the question of constituent power amounts to nothing more than
the assertion of the necessity of dualism with the polemical intent of a negatively
prescriptive political theory.
Mild Anti-Liberalism
The mild anti-liberalism I explore is a family of positions in British legal theory

which react against the common law tradition, one in which judges claim that
their judgments are but evidence of the reason of the law, a claim which is meant
to legitimate their interpretation of statutes in the light of their understanding of
that reason. At least since Jeremy Bentham, critics of the common law tradition
have argued that this is an attempt to disguise the activity of a liberal elite, who
seek to hold back the advance of democracy by substituting its judgment for the
judgment of the people, as expressed in statutes.
In the twentieth century, these critics and their targets had to confront a new
phenomenon, the role of the administrative state in the constitutional order, as
statutes were more frequently used not to impose political judgment directly, but
to set up administrative regimes with a mandate both to develop and to imple-
ment broadly framed political programmes. For the critics of liberalism these
mandates were democratic in nature and justified by the expertise of the officials
who staffed the regimes. They criticized review by judges of these officials deci-
sions, as well as theories justifying such review as yet another attempt by liberalism
to impose brakes on the forces of progress. However, this criticism was presented
as descriptive, not prescriptive. As I have argued elsewhere, that presentation
depended on a sense that social progress was inevitable as long as judges and
lawyers were not permitted to impede politics, to constrain what J.A.G. Griffith
famously called the political constitution, the constitution which made it
possible for the government of the day to use rule by law, rule by statute, to imple-
ment its political vision.
The sense of inevitable progress was destroyed by Margaret Thatcher. With its
destruction came the thought that liberalism and its ideology of the rule of law
cannot be combated on a purely descriptive levelthe normative claims of
D. Dyzenhaus, The Left and the Question of Law (2004) 18 Canadian J. of Law and
Jurisprudence 7.
J.A.G. Griffith, The Political Constitution (1979) 42 Modern Law Review 1.
liberalism have to be opposed by a normative theory. Urgency was lent to this task
by the Human Rights Act 1998, seen by the critics as another step in this process
of sustaining elite rule under the guise of legality, but one perhaps more dangerous
than the others because of the populist appeal of human rights talk. Indeed, the
Human Rights Act could be seen as even more dangerous because of its potential
to entice anti-liberals into its support.
But the critics have had trouble in taking a normative turn. For example,
Martin Loughlin, who first advocated the turn, does not see the engine of politics
in parliament but, following Schmitt, in the executivein the moment of
judgment inevitably unconstrained by law. Since Loughlin adopts the stance of
the dispassionate academic who simply brings the nature of the political to our
attention, he, unlike Schmitt, never openly celebrates the political. At most, he
seems to adopt the kind of dualism which we have seen Schmitt thought was
inherently unstable. Thus Loughlin, while he advocated a normative turn, found
no normative mode of making it. As Adam Tomkins correctly observes, [o]n the
future, and on questions of reform, Loughlin is surprisingly . . . laconic.
In contrast, Tomkins, whose debt to Loughlin is considerable, celebrates the
political and gives it normative form. In Our Republican Constitution, he defends
the political constitution against its liberal enemies who wish to impose legal or
liberal constitutionalism or the rule of judges on the British. Tomkins extols the
virtues of the political constitution, the conventions of the British tradition which
make the government of the day accountable to Parliament and thus to the
people. For him, the political constitution is a polemical ideal which opposes
liberalism. Republicans must therefore move from descriptive to explicitly norma-
tive theory.
Tomkins seems, much like Schmitt in early Weimar, to be undecided whether
to expose liberalisms success in containing the political or to demonstrate its
inability to do so. Eventually, he plumps for the claim about inability, by exposing
the judicial propensity to defer to the executive in times of stress and the inability
of the judiciary to do away with the prerogative powers of the executive as
evidence of the ways in which the political asserts itself over the legal. His claim is
that if we inspect the judicial record as guardians of the rule of law during times of
stress, we find that the legal controls that judges purport to exert are empty. Unlike
Schmitt, however, Tomkins does not want to argue for this moment of pure
politics to metastasize into what Kelsen rightly called an apotheosis of emergency
powers. And unlike Loughlin, Tomkins does not think that the moment is
uncontrollable by law. Much of his book is devoted to an historical tour which
Here I summarize the argument in The Left and the Question of Law, above n. 12. Loughlins
position is outlined in The Idea of Public Law (Oxford: Oxford University Press, 2003).
A. Tomkins, In Defence of the Political Constitution (2002) 22 Oxford J. of Legal Studies 157.
A. Tomkins, Our Republican Constitution (Oxford: Hart Publishing, 2005).
H. Kelsen, Wer soll der Hter der Verfassung sein? (1930/31) 6 Die Justiz 576, at 6223.
shows that at every crucial juncture, it was parliament not the courts which
intervened successfully to draw the executive within the law. Hence, he suggests
that parliament should enact legislation to make the executive properly account-
able to it by abolishing the prerogative.
Tomkins thus, despite his claims about the virtues of the political constitution,
is driven by his embrace of a normative stance to place his faith in law, not politics
in the sense of the legally unconstrained political. But given the inevitability of
judicial deference which he holds will attend any real political confrontation
between the executive and the judges, he offers nothing that can stand in the way
of the government using its control over the legislative process to make law that
delegates to itself analogues of the prerogative power. While, in contrast to
Loughlin, he sees parliament and not the executive as the guardian of the political,
his conception of that guardianship is satisfied as long as there is rule by statute
law. Thus, in the face of the administrative state, his legal theory has no more
content than Kelsens. Finally, he does not appear to want to get rid of judges
altogether, just to confine them to their proper taskadjudicating the questions
of law which they are competent to handle since these are not political questions.
But in order to make this claim he has to reinstate a distinction between law and
politics which he not only declared to be unsustainable but politically suspect.
Schmitt would point out that Tomkins move to a normative mode of
argument requires him to return to terrain which he had sought at the outset to
undermine. It follows that Loughlin is right to refrain from engaging in normative
argument, despite his own diagnosis of the necessity to do so. Indeed, there is no
substantive difference between Tomkins and Loughlins positions, except perhaps
that Loughlins seems more realistic in that he regards faith in parliament as no less
romantic than faith in judges. Loughlin, that is, might be saying that we should
reconcile ourselves to the fact that there is an irreducible political element in the
constitutional order, which only the executive can manage.
We seem then stuck with rather depressing alternatives. On the one hand, we
have consistent anti-liberalism, which means also an anti-normative theory of
lawone in which legality is no constraint on governmental power precisely
because law is conceived as a mere instrument of government. Moreover, the
quality of negatively prescriptive political theory, of what Leo Strauss in criticizing
Schmitt called liberalism with a minus sign, means that the legitimacy of a
political decision is measured purely by its success in gaining the acclaim of the
Tomkins, above n. 16, 1324.

In a review of Tomkins (Towards a Republican Revival? (2006) 26 Oxford J. of Legal Studies
425), Loughlin criticizes Tomkinss republicanism on several grounds, including the one I state in the
text: Tomkins no less than liberals advocates legal constitutionalism. But Loughlin, in the glimpse he
offers in this review of his own positive proposal, seems himself to move fully into the normative con-
ceptual space of legal constitutionalism.
L. Strauss, Notes on Carl Schmitt, The Concept of the Political [1932] reproduced in
C. Schmitt, The Concept of the Political, G. Schwab, trans. (Chicago: University of Chicago Press, 1996),
83. Strauss was himself an anti-liberal and his critique was that Schmitt had not gone far enough.
multitude. On the other hand, we have liberal constitutionalism, which on both

Loughlins and Tomkinss account is a hopelessly nave doctrine of judicial
supremacism.
Much the same tension is exhibited in recent work by Conor Gearty. In a book
published with Keith Ewing in 2000, he argued that parliament and not the
courts had been the true guardian of the rule of law and human rights from
191445. More recently, Gearty argues that the Human Rights Act is a
progressive step as long as judges exercise appropriate restraint by recognizing the
limits of their institutional competence and learn when it is appropriate to defer
to legislative or executive judgment. Gearty thus seems now enthusiastic about
human rights and about the role that judges can play in bringing human rights
concerns into the centre of political debate. But he remains unsure about the role
of judges.
He still wants at times to regard the wartime decisions of the House of Lords
and their equivalents in the post 9/11 era as evidence of the inability of judges to
be guardians of the constitution. At other times, he seems unsure about whether
to be disappointed by their poor showing in times of stress or whether to regard
this as an appropriate recognition of the need for judicial restraint. His analysis is
far less susceptible than either Loughlins or Tomkins to the either/or nature of
anti-liberal thought, either the parliament or the judges, either the executive or
parliament, and so on. But he still has not pushed his argument to the point where
these unhelpful dilemmas are eliminated and that, I suspect, is because he still is
tempted by the idea that the moment of the political is ineliminable and thus by
the thought that legal orders are incurably dualist.
In sum, all three positions sketched in this section whilst recognizing the need
to take a normative turn either do not make itLoughlinor do not make it
fullyTomkins and Gearty. The extent of their failure depends on the extent and
the manner in which they remain dualists. Loughlins dualism is undisguised,
though his reticence to ascribe explicit positive significance to the political makes
his allegiance to dualism enigmatic. Tomkins and Gearty owe their main political
allegiance to parliament, but their wariness of judges means that they are willing
to countenance disguised dualism in the form of analogues to the prerogative
within the administrative state.
These positions therefore support my claim that in order for a legal theory to
take the normative turn, it has to deny the inevitability of dualism. Schmitt clearly
understood this, but thought that the fact that Kelsens account of legality was
substanceless demonstrated that liberals could maintain the hold of legality over
politics only by developing a theory of law that gave politics free rein. But, as I will
K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of
Law in Britain, 19141945 (Oxford: Oxford University Press, 2000).
C. Gearty, Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004).
Ibid. 678.
now argue, even if Schmitt were right about Kelsen, he was certainly wrong
about Thomas Hobbes, the figure he took to have set in motion this liberal mode
of theory.
Hobbes Normative Vision
In the epigraph, Hobbes says that a multitude in the state of nature can exit that
state by agreeing to authorize one person to represent them. In authorizing this
personthe sovereignthe multitude acknowledges all his acts as their own and
submits their judgment to his. The passage seems therefore to refer to the question
of constituent power. It is about how the multitudes consensus creates something
qualitatively different from the sum of its partsthe real unity of them all,
represented in the person of the sovereign.
However, even if we take Hobbes to be talking about the phenomenon of
constituent power, he is not bothered by the question of constituent power. The
bearer of constituent power, the multitude, not only vanishes with the creation of
the sovereign but is reconstituted as individual subjects, each with an absolute
obligation of obedience to the sovereign. There appears to be no way in which
such subjects can legitimately challenge the sovereign from within.
Schmitt regarded Hobbes as having put in place the seeds of liberalisms
failure. Hobbes had a genuine political aimthe subordination of all rival
myths or all attempts to reconstitute power on a basis other than rational individu-
alism. But Hobbes attempt to make the question of constituent power vanish
had to fail because the basis of Hobbes argument was an appeal to individual
rationality and hence to consent. Thus, even though Hobbes tried to show why
individuals who climbed his ladder of reason should see why they had to kick it
away at the moment the sovereign comes into existence, elements of individual
rationality survive into civil society. Not only does Hobbes reserve to the subject
the right to resist the sovereign if the sovereign threatens the subject with severe
punishment, but he gives the subject the right of freedom of conscience, as long as
the subject obeys the commands of the sovereign by acting in conformity with
them. Moreover, while Hobbes trades on the mythical qualities of the great sea
monster Leviathan in his argument, it is clear that he envisages the state as a
rational machine, one which enables subjects to predict the consequences of their
actions as long as they obey the law, thus giving them the security for which they
have traded their obedience.
For a brilliant defence of Kelsen, see L. Vinx, Legality and Legitimacy (PhD thesis, Philosophy
Department, University of Toronto, 2005).
I rely in this section on my discussion in Leviathan in the 1930s: The Reception of Hobbes in
the Third Reich in J.P. McCormick (ed.), Confronting Mass Democracy and Industrial Technology:
Political and Social Theory from Nietzsche to Habermas (Durham: Duke University Press, 2002), 163.
See Schmitt, above n. 10.
According to Schmitt, these rights are strengthened by later liberal thinkers,

until they amount to a private sphere of liberty against the state, in which individ-
uals and groups compete for power, a competition which, with the advent of
parliamentary democracy, becomes one for the capture of the instruments of
government. Moreover, the idea that the positive law is legitimate whatever its
content, that there is no substantive basis for legitimacy, permits a powerful
enough political faction to seize power by legal means and to use law to imple-
ment its vision of legitimacy, even if that brings about a new constitutional and
legal order.
In other words, Hobbes recognized the problem of constituent power but
could not make it disappear. Despite his best efforts, he opened up space within
civil society for a new constituent power to emerge, one which announces itself by
winning the acclamation of the people, not the multitude subject to the law, but
those among them who recognize themselves in the Leaders vision that excludes
enemies and includes friends along substantive lines. The myth of Leviathan,
Schmitt concludes, is inadequate to its task because it is a myth that does not
make the ultimate distinction of politics between friend and enemy.
Hobbes problem is thus for Schmitt emblematic of the general problem of
liberal thought. While Hobbes sees the necessity for an absolutist state in order to
deliver security to its subjects, and thus create a basis for obligation, his commit-
ment to individualism both undermines his attempt to provide a foundational
myth for such a state and leads him to open chinks in the legal armour of the state
which perforce widen over time. A foundation in norms of rationality, as in
Hobbes, leads inevitably to a substanceless legalism, as in Kelsen, which permits
the enemies of liberalism entry from within. Hence Schmitts conclusion that a
genuine myth, one based in a vision of substantive homogeneity, is required.
But Schmitt fails to take into account that for Hobbes the constitutive moment
is neither realan actual consensusnor a fictiona hypothetical consensus.
Hobbes makes it clear that there is scarce a Common-wealth in the world, whose
beginnings can in conscience be justified. It might follow that the idea that the
state is founded in actual consent is not key to his thought, despite the fact that he
insists that subjects are under a genuine obligation to obey the law of their
sovereign and that the basis for that obligation is consent.
Unnoticed by Schmitt, and for that matter by most contemporary Hobbes
scholars, is that there is in Hobbes thought what we can think of as a continuum
of legality, marked at one end by the right which Schmitt does notice, the right of
resistance of the legal subject to the threat of punishment. The right of resistance is
not a legal right, in the sense that it can be invoked against the sovereign through
law. But that it is a right tells us that for Hobbes coercion of the subject by the state
is always suspect. However, Hobbes is adamant that coercion must be properly
applied. It must be exercised under prior legal warrant and it is subject to what
Hobbes, above n. 1, 486.

today we would think of as constraints of proportionality. In this way, coercion is

rendered more legitimate without ever becoming completely legitimate.
Punishment is subject to legitimating constraints, but ultimately it is an exercise
of sheer power.
This insight provides an analogy with the assertion of political power that is
ultimately the real foundation of any sovereign state. Hobbes is anxious to argue
in the last chapter of Leviathan, A Review, and Conclusion, that it is spurious to
distinguish between the situation of duly constituted sovereign authority,
sovereignty by institution and sovereignty by acquisition or submission to a
conquering sovereign, on the basis that the former is consensual and the latter is
not. Hobbes point is not only that in each case consent is triggered by fear, by the
fear of each other in the state of nature, on the one hand, or the fear of an all
powerful sovereign, on the other. He also asserts, as we have seen, that it is better
to be frank that, if one goes back far enough, one will find that the source of all
power lies in a grab rather than in some exercise of justice.
But Hobbes does not reason from the fact that the state is never legitimate in its
origins that it is never legitimate. Rather, power can be rendered ever more legit-
imate as long as it is exercised authoritatively, that is, through the institutions of
legal order. A power that wants to be a sovereign, to rule by law, will find that such
rule entails rule in accordance with the rule of law. Put differently, a power grab
might lead to a law grab, but a law grab has consequences for the exercise of power.
When a sovereign chooses to exercise power outside the law that is constitutive of
his authority, he confronts his subjects, as in the moment of punishment, in the
state of nature rather than civil society.
This point sheds light on two issues in Hobbes scholarship. First, it tells us how
to understand the constitution of sovereignty. Hobbes view is not that a
multitude constructs the state, who then become its subjects, a view that entails
that construction ceases at the moment when the state comes into being. Rather,
those subject to the state are by that relationship permanently involved in its
construction. Second, it tells us that the sovereign no less than the subject occu-
pies an artificial role from which its natural holder departs if he does not respect its
constraints.
When the sovereign steps outside of his role he is no longer sovereign. He might
be able to get individuals to do what he wants because of his superior power, but
that is no more an exercise of authority than is an exercise of power by the slave
owner over the slave. In other words, an exercise of power by a sovereign might
turn out not to be lawful, if the sovereign strays beyond the limits of his authority,
since the basis of authority has to be in place for a sovereign to be such and, even
when the basis is in place, the sovereigns commands have to be presentable as
commands which live up to that basis.
For a similar point about Hobbes, see Jaumes chapter in this volume (ch. 4, 84).
So my suggestion is that for Hobbes consent is neither original nor fictitious

but a stance that is maintained when the sovereign governs in such a way as to
maintain what he calls in the last lines of Leviathan the mutuall Relation between
protection and obedience. In order to maintain that relationship, the sovereign
has to govern in accordance with law, which requires that we appreciate better
Hobbes distinction between sheer power and legal authority.
Hobbes is quite clear that there are internal constraints of legality on sovereign
power and these are listed in the catalogue of the laws of nature. He did want
law-making power located in one supreme body or person, the sovereign. But he
regarded the articulation of the content of any sovereign judgment as an exercise
in which public officials, including judges, have a legitimate role. Moreover, in
articulating the content of this judgment, the officials are under a duty to interpret
the positive or civil law in the light of their understanding of the fundamental or
constitutional values of legal order, the laws of nature, since the sovereigns
positive laws are to be understood as attempts to give concrete expression to the
very same values. While Hobbes was opposed to the common law tradition and
its claims about judicial guardianship of the artificial reason of the law, he there-
fore shared with it one crucial assumptionthat the legislature, the executive, and
the judges are best understood as engaged in a common project that aspires to
realize the fundamental values of legality.
This train of thought exposes a crucial assumption in Hobbes thoughtthe
assumption of collaboration. In the Introduction to Leviathan, Hobbes sketches
the machine of sovereignty, of which judges are but a part. He talks about the
authority of the sovereign in terms of the sovereigns just Power and it is clear
that judges are part of the machinery that makes the exercise of his power so. In
other words, Hobbes assumes that the law-maker will generally enact positive laws
that conform tocan be interpreted as consistent withthe laws of nature. This
assumption is in the nature of a regulative assumptionthat is, public officials,
including judges, must assume it to be the case in order to make it the case. They
should thus take their cues from the normal situation, not from the exception,
and they should do so in order to maintain the project of constitutionalism.
Now when judges interpret positive law in accordance with the regulative
assumption they are doing exactly what common law judges have done for
centuries, and what they are required to do by the United Kingdoms Human
Rights Act. On its own, this analogy might seem to show that there is nothing in
Hobbes description of judicial duty to challenge a Schmittian understanding of
Hobbes, above n. 1, 486.

These constraints and their role in legal order are neglected to an astonishing extent by many
Hobbes scholars. I analyse Hobbes account of the rule of law in detail in Hobbes and the Legitimacy
of Law (2001) 20 Law and Philosophy 461.
So much should be obvious from the Introduction to Hobbes Leviathan, above n. 1, 911, but
ch. 26 Of Civill Lawes should settle any doubt. Ibid. 10.
legality, since such judicial interpretation can only happen as long as the legisla-
ture does not make its intention clear to violate the assumption. Thus in the
common law tradition, it is usually accepted that judges have no choice but to
defer to the clearly expressed intent of the legislature while under the Human
Rights Act, judges may issue a declaration of incompatibility but may not invali-
date a clearly offending provision in a statute. In other words, in place now is the
exception which exposes the fragility of the regulative assumption.
But that the government or the legislature might choose to depart from the
collaborative project of constitutionalism shows only that power can break free
from legal orderit shows that dualism is possible not that it is necessary. Judges
are not entirely without remedy in these situationsthey can and should signal to
the public that an institution in legal order has stepped out of its role. A declar-
ation of incompatibility is exactly such a signal, one which gives the legislature the
opportunity either to come into line with its commitments or to contest that the
courts are right. In other situations, institutional reform will be required in order
to eliminate dualism.
Consider the history in the United Kingdom of executive decisions on the basis
of national security which affect the rights and interests of the individual. In the
wartime cases of R. v. Halliday, Ex Parte Zadig and Liversidge v. Anderson the
majority of the House of Lords accepted, over very strong dissents, that such
decisions are for the legislative and executive branches of government. This
judicial stance persisted into the era after World War II despite the perception that
Lord Atkins dissent in Liversidge was to be preferred; indeed, it drove the quite
recent decision in Secretary of State for the Home Department v. Rehman thus
seeming to establish precisely the claim that animates the dualism of the trio of
public lawyers discussed in the previous section.
However, how one tells the story of such decisions depends on whether one
adopts the regulative assumption. If one adopts it, then the dissents play a
constitutive role. If one does not, they seem futile expressions of the judicial desire
for a supreme place in the constitutional order which they can never have, because
the juridical can never contain the political.
In the World War I decision of Halliday, the dissenting judge, Lord Shaw,
reasoned that the regulation under which Halliday was detained was invalid
because the emergency powers statute did not specifically authorize detention. In
World War II, the executive saw the need for explicit legislative authorization,
which meant that the specifics of detention were discussed in parliament and that
had the result that the wording of the proposed detention regulation was changed
to require that the executive have reasonable cause to believe that a detainee was a
[1917] AC 260. [1942] AC 206. [2002] 1 All ER 123.

I explore this theme at length in The Constitution of Law: Legality in a Time of Emergency
security risk. It was on the basis of this wording that Lord Atkin insisted in his dis-
sent in Liversidge that judges were entitled to review the grounds on which
individuals were detained. While it has been argued that the executives control
over confidential information and the judicial lack of expertise in assessing such
information make such review mere window dressing, the legislative creation of
the Special Immigration Appeals Commission, in reaction to the European
Courts decision in Chahal v. UK went a long way to establishing effective
review by an expert administrative tribunal of security decisions. Indeed, it was
ironic that it was the judges of the House of Lords who then in Rehman sought to
draw the rule-of-law teeth from that legislative creation. But what one makes of
this irony will depend on whether or not one adopts the regulative assumption. If
not, then Rehman seems evidence of the inevitability of dualism and hence the
importance of the question of constituent power. If one does accept it, then all this
irony points up is that judges, no less than the executive or the legislature, can
cease to cooperate in an ongoing and ever-changing constitutional project.
Normative Theory and the Question of Constituent Power
The Hobbesian understanding of legality and constitutionalism sketched in the

last section is not uncontroversial within the liberal tradition. Indeed, the
standard liberal position relies on the idea of legal principles as limits on politics
with judges as the ultimate guardians of those limits. In contrast, the Hobbesian
understanding relies on the idea of an ongoing constitution of political authority
by principles and on collaboration by all the institutions of legal order in the
articulation and rearticulation of those principles.
The standard liberal position is the foil for both extreme and mild versions of
anti-liberalism. They find it an effective foil precisely because it maintains a dual-
ism between law and politics, buttressed by the hope that judicial guardianship of
legal principles can contain politics. It follows that an effective answer to the anti-
liberal challenge requires some rethinking of standard liberal assumptions.
With that rethinking, one can, as I have argued, see that the question of
constituent power does not arise for normative theory. The question is posed by
Schmitt with polemical intent in order to show that the pockets of lawlessness
within legal order can be exploited to destroy a normative order from within.
Once it is destroyed, as long as what replaces it is an authentic concrete order, the
question of constituent power vanishes. Indeed, since the question of constituent
power is a question about the location of ultimate normative authority in a
(1996) 23 EHRR 413.

For an exploration of the difficulties faced by theories of the rule of law when confronted by
claims about security, see Nickels chapter in this volume (ch. 8).
See my discussion of John Rawls and Ronald Dworkin in Dyzenhaus, above n. 3, 2538.
particular order, it cannot by definition arise in a concrete order, because in a

concrete order law as such has no authorityits authority derives directly from
the success of the Leader.
In contrast, normative legal theory is, with polemical intent equal to Schmitts,
committed to denying the inevitability of dualism. Normative legal theorists
should insist that legal authority is ultimately constituted by principles which are
required to make sense of an ongoing practice of legality. Some of these principles
will be necessary to make sense of legal practice as such, for example, the require-
ment that judges decide according to law, where what law is includes principles
such as impartiality, fairness, and the principle of equality of all legal subjects
before the law. Others will be more contingent on time and place and heavily
influenced by positive legal statements of fundamental commitments, for
example, an entrenched bill of rights.
The understanding of the content of principles in one set will influence the
other, as indeed will the understanding of what is more necessary and what is
more contingent. Normative theorists will differ about these issues as well as
about the best way to arrange the institutions of legal order so as to ensure the
realization of the principles, whether to give judges the authority to declare
statutes invalid, whether to confine them to a declaration of incompatibility, or
whether to give them no formal mandate at all when it comes to confronting
statutes or executive action that might seem inconsistent with fundamental legal
principles. In addition, they will differ about the role of the executive and the
legislature in interpreting these principles. However, as my sketch of the
differences between Loughlin, Tomkins, and Gearty showed, any serious attempt
to enter the conceptual space of normative legal theory requires adopting the
regulative assumption that all the institutions of legal order are engaged in the
collaborative constitutional project, one which depends on a Hobbesian
distinction between sheer power and authority.
Recall that the point of a regulative assumption is to make something the case
by assuming that it is already the case and that the question of constituent power
turns out to be the question of the necessity of dualism posed within an anti-
normative, anti-liberal theory. It follows that the serious question for normative
theory, the question of the necessity of dualism, while in part factual or empirical
in nature, is ultimately underdetermined by facts.
Consider for example the early debate between Ronald Dworkin and the legal
positivists about the nature of judicial discretion, an issue which, as I have
indicated, concerned Schmitt in his first publication. At issue was not whether
See my discussion of Herman Heller, ibid., ch. 4.

It might follow from my argument that the standard division in legal theory is not between
positivists and natural lawyers but between those who understand law as a constitutional practice of
judges must exercise judgment about how to interpret the law; rather it was about
how to understand that judgment, whether, with positivists, as a political, quasi-
legislative fiat that creates the content of the law, or, with Dworkin, as determined
by principles already implicit in the law, in the sense that the judges interpretation
strives to represent the law in its best moral light.
As Dworkin has consistently argued, that debate does not turn on an inevitable
fact of the matter, whether judicial judgment is more as a matter of fact like
legislation or like interpretation, but on political commitments to do with the
point of legal order. Is the point of law to be an effective instrument of the power-
ful or to ensure that political power is legitimately exercised, that is, exercised in
accordance with principles of legality? By direct analogythe positivist claim
about discretion is a claim about a kind of dualismthe question of the
inevitability of dualism is one that will be settled not by legal science but by the
politics of law.
It is important to keep in mind, however, that I am far from arguing that
dualism does not exist. Rather, my argument is that that dualism can be
responded to successfully unless one presupposes its inevitability. Moreover,
since that presupposition does not depend ultimately on a dispassionate or
scientific description of the world, but on commitments to a negatively prescrip-
tive political theory, there is no question of constituent power that exists outside
of the politics of constitutional and legal theory. For normative legal theory, the
question simply fails to arise.
legality which is worth both maintaining and developing and those who think that law is not such a
practice but simply an instrument of externally produced political judgment.
I thus disagree with Lindahls conclusion in his chapter in this volume (ch. 1), though I find
much of his argument compelling.
8
Private and Public Autonomy Revisited:
Habermas Concept of Co-originality in Times
of Globalization and the Militant Security
State
Rainer Nickel*
This chapter argues that a concept of constituent power needs to be embedded in

a constitutional theory that can explain the difference between legitimate law and
a mere wielding of power. It holds that modern constitutional theory has to
operate within the paradigms of democracy and law. Theories operating with
assumptions of a pre-legal and unbound constituent power are either pre-modern
or a-historical. In their Introduction to this volume, the editors suggest that at the
core of modern constitutionalism there exists an apparent paradox, the paradox of
constituent power and constitutional form. They claim that this paradox is an
expression of the fact that modern constitutionalism is underpinned by two
fundamental though antagonistic imperatives: that governmental power ulti-
mately is generated from the consent of the people and that, to be sustained and
effective, governmental power must be divided, constrained and exercised through
distinctive institutional forms. By taking up the concept of a co-originality of
private and public autonomy as developed by Jrgen Habermas, this chapter
aims to show that popular sovereignty and the Rechtsstaat can be conceptually
reconciled without producing serious paradoxical consequences.
* This research was supported by a Marie Curie Intra-European Fellowship under the European
Communitys Sixth Framework Programme (Contract no. MEIF-CT-2003-501237). I am grateful
to the seminar organizers and participants for their criticisms and suggestions, and especially to
Gianluigi Palombella for his thoughtful and stimulating comment on my presentation.
The second part of this definition (governmental power must be divided, constrained and exer-
cised through distinctive institutional forms) roughly describes basic elements of what is called in the
German constitutional tradition the Rechtsstaat. Because the Rechtsstaat concept is not equivalent to
the concept of rule of law, in what follows I use the German expression.
J. Habermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996) [hereafter BFN ].

However, while this reconstruction of constitution-making as a circular or,

better, as a spiral or helical process enables us to define the general terms of
legitimate constitutionalization and legitimate law-making, it appears at the same
time to be both too thin and too thick with regard to two recent transformations
of the democratic nation-state. First, it cannot grasp the shift from enabling free-
dom to upholding security as the central description of the function of the
nation-state. This shift has severe implications for the discourse on human or
constitutional rights and their a priori status as a constraint on the popular
sovereign: from infinite detention, through (bio) data collections on an unprece-
dented scale, to the use of torture, and from pre-emptive shootings of suspicious
or kidnapped passenger planes to pre-emptive wars, the security paradigm seems
to trump the traditional notion of inalienable individual rights and replace them
with the rule that the end justifies the means. Second, the idea of a necessary inter-
nal link between public and private autonomy seems unable to explain the emer-
gence of supranational and transnational law outside the borders of a clearly
defined institutional setting of a national legal community. As a consequence, in a
globalized environment where the execution of diffuse powers by diffuse actors
blurs the line between public authority and private power, the well-ordered theory
of the democratic Rechtsstaat seems to lose its empirical foundation and its persua-
siveness altogether. In such circumstances, the question to be addressed is: do we
have to start speaking (again) of unleashed market powers, and their systemic
imperatives, as constituent powers that programme the constitutional form?
Enlightenments Ambivalent Heritage
Constituent power has always been a hybrid creature in modern constitutional

theory, with its character oscillating between legally unbound sovereignty, on the
one hand, and the paradox of the legal force of a constitution, on the other,
creating a very uncomfortable situation for lawyers. Classical conceptions of
sovereignty stress the extra-legality of its bearer. In his famous definition of
sovereignty, Jean Bodin described it as the highest power of command, and
Spinoza held that the sovereign is he who has the sovereign right of imposing any
commands he pleases. The sovereign, then, is unbound, not hindered even by a
See J. Waldron, Torture and Positive Law: Jurisprudence for the White House (2005) 105
Columbia Law Review 1681, who characterizes the prohibition of torture as a legal archetype (at
1681 and 172833).
See M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 99: One
might be forgiven for thinking that the concept of constituent power offers lawyers nothing but
problems.
J. Bodin, On Sovereignty: Four Chapters from the Six Books on Commonwealth, J.H. Franklin,
trans. (Cambridge: Cambridge University Press, 1992), 1.
B. de Spinoza, A Theologico-Political Treatise And A Political Treatise, R.H.M. Elwes, trans.
(New York: Dover, 1951), 207.
Private and Public Autonomy Revisited 149
constitution (a constituted sovereignty): every moment of constitution-giving

represents a rupture in time, a moment of discontinuity, whereby the old order
cannot bind the new order because it is not binding any more, and the new order
cannot bind the sovereign, because it has not yet been constituted. Constituent
power, then, represents ultimate command, unconstrained, undivided, and
limitless. On this reading of constituent power as sovereign power, constitutions
are only visible expressions of a pre-legal, natural force of political power and its
unbound violence. In an even more radical interpretation by Carl Schmitt, con-
stituent power is a characteristic of and connected to a people and its substantial
being as a Volk.
This reconstruction of the concept of sovereignty appears inconsistent with an
idea of human rights as inalienable rights. Rousseaus famous first line of The
Social Contract reflects this paradox: Man is born free, but everywhere he is held
in chains. This birthright to freedom, however, can be defined in two ways.
First, as rights-based constitutionalism, it can be directed against the state and
against limitations of the theoretically unbound freedom of the individual. In this
reading, the human rights of the individual stand against intrusions of the state.
Such an individualist conception of human rights is strongly represented in
nineteenth-century German constitutional thought: human rights appear here as
limitations to the absolute power of the sovereign. Liberties constrain and delim-
itate the state. They are directed against the state and defend a sphere of freedom
from intrusion, a private sphere of autonomy where the individual can do as she
pleases. Modern liberalism in its version of possessive individualism derives its
claims for validity from such notions of liberties as spatial spheres of private
autonomy. The resulting concept is that of a Rechtsstaat, in which the state is
obliged to respect the individual rights of the citizens, and this lays the ground for
a dualism of state and society.
A second reading of freedom as the inalienable right of man, democracy-based
constitutionalism, stresses the revolutionary power of unbound (free) individuals.
Instead of referring to an established order of natural rights, it relates to the power
to establish such an order and to create rights at its own collective will.
C. Schmitt, Verfassungslehre [1928] (Berlin: Duncker & Humblot 2003), 22: Die Verfassung
gilt kraft des existierenden politischen Willen desjenigen, der sie gibt (The constitution is valid by virtue
of the existing political will of him who enacts it: authors translation). Also at 229: Der Staat
beruht . . . auf Homogenitt und Identitt des Volkes mit sich selbst (The state rests on homogeneity
and identity of the people with itself : authors translation).
J.-J. Rousseau, A Treatise on the Social Compact, or, The Principles of Politic Law (London:
J. Murray, 1791), 1.
See, e.g., G. Jellinek, System der subjektiven ffentlichen Rechte (Tbingen: Mohr, 1905), esp.
194ff.
For an account on the roots of possessive individualism in the philosophies of Thomas Hobbes
and John Locke, see C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to
Locke (Oxford: Oxford University Press, 1962).
For a detailed historical reconstruction of the Rechtsstaat idea, see D. Grimm, Recht und Staat
der brgerlichen Gesellschaft (Frankfurt am Main: Suhrkamp, 1987).
Sovereignty, then, is unbound in the sense that it is embodied in the popular

sovereignty of a collective of free individuals. Their public autonomy expresses
itself in constitution-making: independent of and unbound from established
powers and rights, as James Madison put it in his defence of the decision of the
Philadelphia Convention to meet without the authorization from the constituted
powers established by the Articles of the Confederations, it is the transcendent
and precious right of the people to abolish or alter their government as to them
shall seem most likely to effect their safety and happiness.
Both strains of thought are a heritage of Enlightenment thinking, and this
heritage still puzzles us today. Political and legal philosophy of the Enlightenment
were concerned with the consequences of secularization, and more practically, with
the interpretation of the French and North American Revolutions. Secularization,
in this respect, means more than just the transformation of religious concepts into
political philosophy and theories of the state, a misguided position on which Carl
Schmitt and some of his followers ceaselessly insist upon. While state-centred
thinkers have tried to reduce the idea of republicanism to a mere exchange of the
apex of power (the people, embodied by a government or a president, thus
replaces the king), the revolutionary decomposition of traditional hierarchies and
ranks bears an additional meaning; for the first time the members of a society met
each other at eye level. As Gnter Frankenberg observes, this process represents a
radical shift: Secularization not only affected the legitimation of political authority
but also the creation of a social bond between the isolated members of a decorpo-
rated society no longer symbolically represented as a mystical body politick and no
longer integrated in a firm and unquestioned status hierarchy with its loyalties and
responsibilities sanctioned by traditional law.
Theories of unbound sovereignty, thus, overlook a decisive aspect of the
historical transformation from the world of transcendental legitimacy to the era of
self-government. Instead, they treat the sources of sovereignty as interchangeable
and concentrate instead on the dramatic rupture of constitutional change: once a
new constitutional order is established, the legal norms it produces establish the
legality of this order. A purely legal positivist approach to such a legal order
cannot but accept this order for what it is, so long as its hierarchy of norms can be
J. Madison et al., The Federalist Papers, Clinton Rossiter (ed.) (New York: Modern Library,
1938), No. 40, 2578; cited in A. Kalyvas, Popular Sovereignty, Democracy, and the Constituent
Power (2005) 12 Constellations 223, at 226.
C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souvernitt (1922; 2nd edn.,
1934), 49: Alle prgnanten Begriffe des modernen Staatsrechts sind skularisierte theologische Begriffe
(All incisive terms of modern theories of the state are secularized religious terms: authors
translation).
G. Frankenberg, Why Care? The Trouble with Social Rights (1996) 17 Cardozo Law Review
1365, at 1367.
A variant to this concept appears in Kalyvas, above n. 12, which stresses the emancipatory
promises of popular sovereignty and holds that a constitution is valid only if the act that created it
complies with the immanent principles of participation and inclusion (2389). If measured by this
strict standard, the German Grundgesetz would have to be called invalid.
traced back to a (non-positivist or imaginary) Grundnorm. The inherent quality

of law, then, becomes a formal quality: a legal order is established if it fulfils certain
formal conditions of hierarchy and unity.
But despite legal positivisms emancipatory and anti-ideological elements and
values, and its anti-statist thrust, the laws inherent power to force, its coercive
character (Kant), can only be justified within a framework of a concept of
legitimate law. Law itselfas a medium of communicationcannot provide for
such legitimacy. Contrary to Niklas Luhmanns concept of legitimacy through
procedures (Legitimation durch Verfahren), legality alone does not suffice if it is
understood merely as a bundle of mechanical or communicative operations of a
functional system within a binary code of legal/illegal. The night of the long
knives in 1934 (when the leaders of the SA, perceived as a potential threat to the
absolute power of the Nazi party, were executed) and its subsequent legalization
offers a negative example that supports this pessimistic view on legitimacy
through legality, and of legal positivism. Carl Schmitts attempt to justify the
killings with legal arguments in Der Fhrer schtzt das Recht (the Fhrer protects
the law) denoted the first of many steps from literally unbound sovereignty to
naked power and violence. As Ernst Fraenkel has shown with respect to Nazi
Germany, a normative order can have more than one side, function along more
than one rationality, and the transition zone between these rationalities can
deliberately be blurred.
Hans Kelsen, Pure Theory of Law (Gloucester, MA: Peter Smith, 1989). This may also explain
why Kelsens theory of law became so popular in twentieth-century South America, especially in
Argentina and Brazil: in a context of permanent political and constitutional instability and long
periods of authoritarian regimes, a concept of norms as legal norms can only be preserved if law can be
defined in a perspective from within the legal system, i.e. by formal qualities of the legal system itself.
Kelsen was a decisive critic of the state fetishism prevailing in German constitutional thought at
the beginning of the twentieth century. In his theory, he almost completely de-substantialized and
de-institutionalized the state, to the extent that the substance of the state evaporated: the state simply
represents the sum of legal norms of which the legal system consists. Accordingly, Kelsen was no more
sympathetic towards the idea of state sovereignty. For him, international law was part of the legal
order, and one states claims of state sovereignty excludes the sovereignty of every other state: see
H. Kelsen, General Theory of Law and State (Cambridge, MA: Harvard University Press, 1945),
3878. The dogma of sovereignty is then the main instrument of imperialistic ideology directed
against international law: H. Kelsen, Introduction to the Problems of Legal Theory, B.L. Paulson and
S.L. Paulson, trans. (Oxford: Clarendon Press, 1992), 124.
N. Luhmann, Legitimation durch Verfahren (Neuwied, Berlin: Luchterhand, 1969). In this
early work, Luhmann holds thatempiricallythe legitimatory force of legal procedures is a result
of the special character of judicial procedures, especially because judicial procedures are able and fit to
absorb protest. Procedures that produce legitimacy cannot be themselves legitimized. For a more
recent confirmation of this view, see N. Luhmann, Quod omnes tangit. Remarks on Jrgen
Habermas Legal Theory (1996) 17 Cardozo Law Review 830, esp. at 892.
C. Schmitt, Der Fhrer schtzt das Recht (1934) 39 Deutsche Juristenzeitung 945.
University Press, 1941). Nazi Germany was characterized by the dual face of a Normenstaat (state of
norms) which safeguarded the functioning of the capitalist economy for the part of the population
that was not persecuted, and a Massnahmestaat (state of selective measures) which used legal norms,
but also arbitrary measures against those parts of the population that were defined as enemies.
Enlightenments heritage, thus, is indeed a paradox: while inalienable rights

and liberties, directed against state power, shield the citizens from arbitrary power
and preserve their private autonomy, at the same time the society of individuals
emerges, bereft of social obligations that came with a status (noblesse oblige) or a
sacrosanct tradition, and burdened with the task to create a political and legal
order by executing their public autonomy.
This ambivalent heritage is embodied and duplicated in contemporary inter-
pretations of Kant and Rousseau. For some authors, Kant has become a crown
witness for the transnational status of libertiesas constitutional rightson a
world scale; this is reflected especially in the work of Ernst-Ulrich Petersmann,
who refers extensively to Kant whenever he pleads for the existence of a set of
liberties that pave the way for a rights-based constitutionalism, and who calls for a
constitutionalization of the WTO. Others claim that Kants philosophy has
laid the ground for the idea of cosmopolitan civil liberties (Otfried Hffe) and
possessive individualism (Wolfgang Kersting). In contrast to this rights-based
argumentation, other authors, especially Ingeborg Maus, vehemently deny that
Kant can be claimed for a set of already existing rights that constrain popular
sovereignty and the legislator as a priori conditions; in her interpretation, Kant
has to be seen as the founder and central theorist of post-traditional democratic
theory. And, in similar vein, Rousseau can be interpreted as a defender of
inalienable, equal rights of man, and at the same time as a radical democrat whose
political philosophy directly opposes constraints on the volont gnrale.
The Internal Link between Private and Public Autonomy: Essential

Elements of a Theory of Law in the Democratic Rechtsstaat
A (popular) sovereign bound to human rights or liberties is not unbound. On the
other hand, a modern, secularized theory of constitutional law cannot rely on a
priori rights, rights that exist before a legal order is constituted, as natural rights.
This heritage is by no means only a problem of constitutional orders with a written catalogue of
rights; the common law tradition of parliamentary sovereignty only vested the dispute in different
terms and its intense discussion of the rights-related essentials of common law and the content of the
principle of rule of law reflects the unclear heritage of enlightenment thinking.
Frankenberg, above n. 14.
See E.-U. Petersmann, Multilevel Trade Governance in the WTO Requires Multilevel
Constitutionalism in C. Joerges and E.-U. Petersmann (eds.), Constitutionalism, Multilevel Trade
Governance and Social Regulation (Oxford: Hart, 2006), 47; for critique see R. Nickel, Transnational
Participatory Governance ibid. 209, esp. at 21819.
O. Hffe, Demokratie im Zeitalter der Globalisierung (Munich: Beck, 1999); W. Kersting, Die
politische Philosophie des Gesellschaftsvertrags (Darmstadt: Wissenschaftliche Buchgesellschaft, 1994).
I. Maus, Zur Aufklrung der Demokratietheorie (Frankfurt am Main: Suhrkamp, 1992).
See Maus, ibid.
This would build up to an ideology and lead to a paternalistic trap where the legal
philosopher and the constitutional theorists are the ones who can claim the
privilege to identify the real, material content of natural rights. Constitutional
theories have dealt with the dilemma of a bound and unbound sovereignty for a
long time without being able to offer concepts that can resolve the tension
between the facticity (of unbound powers to create constitutional orders) and
validity (of unjust and inhuman constitutional orders) in a satisfying manner.
Law and the Linguistic Turn: the Discourse Theory of Law

Jrgen Habermas theory of the democratic Rechtsstaat attempts to overcome this
apparent dilemma by applying his discourse principle to the form of law. He starts
from the observation that law as a form has a specific rationale, a content that is
intrinsically connected to it: The concept of law or legal statute makes explicit the
idea of equal treatment already found in the concept of right: in the form of uni-
versal and abstract laws all subjects receive the same rights. In this perspective
modern law enables private autonomy by shielding and protecting decentralized
decisions of self-interested individuals in morally neutralized spheres of action.
On the other hand, and beyond this functional dimension, modern law has to
fulfil an additional requirement; it has to satisfy the precarious conditions of a
social integration that ultimately takes place through the achievements of mutual
understanding on the part of communicatively acting subjects, that is, through
the acceptability of validity claims.
As we have seen, secularization had set the individuals free from status and
sacrosanct traditions. Modern law, then, carries the burden of societal integration;
it displaces normative expectations from morally unburdened individuals onto
the laws that secure the compatibility of liberties, and it is insofar valid only if it
achieves this aim. This leads to the paradoxical emergence of legitimacy out of
legality: if the exercise of both private autonomy and public autonomy, as
subjective rights, are treated in the same way, then we disregard a striking
difference, that is the different modalities in the use of these rights. As public
autonomy is connected to the democratic process of law-making, it has a specific
Habermas, above n. 2, 83. Ibid. Ibid.
Ibid., with reference (n. 3) to Ernst-Wolfgang Bckenfrde. This interpretation of the function
of law as the medium for societal integration tends to imply a concept of consensual integration within
a given institutional framework of political parties, parliaments, governments, courts, and an
organized public sphere. This framework, however, can also serve as a straitjacket, leaving only very
limited room for dissent and supplement (J. Derrida, De la grammatologie, Paris: ditions de Minuit,
1967). In contrast to this narrow approach it is held here that societal integration is a product of
conflict-laden processes, with repercussions both for a concept of popular sovereignty and a concept
of constitutional rights: see R. Nickel, Gleichheit in der Differenz? Kommunitarismus und die
Legitimation des Grundgesetzes in W. Brugger (ed.), Legitimation des Grundgesetzes aus Sicht von
Rechtsphilosophie und Gesellschaftstheorie (Baden-Baden: Nomos, 1996), 395; G. Frankenberg, Das
Recht der Republik (Frankfurt am Main: Suhrkamp, 1997).
connotation that separates it from the set of rights safeguarding private autonomy.
The procedure of democratic legislation:
must confront participants with the normative expectation of an orientation to the
common good, because this procedure can draw its legitimating force only from a process
in which citizens reach an understanding about the rules for their living together. In
modern societies as well, the law can fulfil the function of stabilizing behavioural expect-
ations only if it preserves an internal connection with the socially integrating forces of
communicative action.
In the context of law, these socially integrating forces of communicative action
are not identical with the concept of morality, as Habermas shows in his
reconstruction of Kantian legal theory where rights are still the offspring of the
autonomous will of the moral persons. He distances himself from this
metaphysical heritage of enlightenment, with its subordination of positive law to
natural or moral law, and holds that the principle of morality and the democratic
principle are distinct versions of the general discourse principle. What links
these two spheres of discourse is simply the notion that rights are intersubjective
rights, based on the reciprocal recognition of cooperating legal persons via
discursive practises. In other words, moral discourses and the democratic
principle have common operational features, but they are not linked to law in the
same way. Therefore, law (or, better, the principle of law) is not a middle term
between the moral principle and the democratic principle, but simply the reverse
side of the democratic principle itself: Because the democratic principle cannot
be implemented except in the form of law, both principles must be realized uno
actu. This is the fundamental assumption on which Habermas bases his
account of a system of rights, a system which contains the essential elements and
necessary conditions for the establishment of a legitimate legal order.
Habermas, ibid. 834. In his Theory of Communicative Action (Theorie des Kommunikativen
Handelns) Vol I and II (Frankfurt am Main: Suhrkamp, 1981) Habermas had paved the way for the
integration of the philosophical linguistic turn of the end of the nineteenth century into social and
moral philosophy. Ibid. 924.
This general discourse principle reads: Just those action norms are valid to which all possibly
affected persons could agree as participants in rational discourses (ibid. 107). Habermas again refers
here to the Theory of Communicative Action (above n. 31) where he argues for a procedural under-
standing of rationality. In BFN, Habermas takes up the central ideas of this theory, albeit with a sig-
nificant new distinction between the (general) discourse principle and the moral principle: In my
previous publications on discourse ethics, I have not sufficiently distinguished between the discourse
principle and the moral principle. The discourse principle is only intended to explain the point of
view from which norms of action can be impartially justified; I assume that the principle itself reflects
those symmetrical relations of recognition built into communicatively structured forms of life in gen-
eral (BFN, ibid. 1089). Habermas, BFN, ibid. 88.
Ibid. 94.
The System of Rights

The justifications Habermas gives for a system of rights bring together the central
intentions of his theory of law. His reconstruction of the premises of rational law
is grounded in discourse theory and understands the system of rights as a legal
system, one which is legal from the start and inconceivable without an enactment
by a democratic legislator. The classical hierarchy between natural law and
positive law is dissolved and consequently transformed into a tension between
facticity and validity within the law. Building his theoretical framework from
Kants theory of law, Habermas introduces the principle of popular sovereignty
and the concept of individual liberties at the same time. The tension between
facticity and validity, however, is not simply another expression of the contrast
between the constituent power of an unbound and voluntaristic popular
sovereign, on the one hand, and individual rights that bind every sovereign, on the
other. This tension is instead located within the system of rights itself, and even
within the rights that embody private autonomy.
In Kants theory, before the establishment of democracy, these rights are pre-
emptive rights, unfinished in the sense that they exist without the formal
confirmation of the legislator; in this regard, they lack the intersubjective charac-
ter of rights (as rights we conceive of as resting on mutual recognition and the
guarantee of equal rights). This can only be achieved by an additional step.
Consequently, Habermas ties the production of legitimate law, as well as the
positive juridification of rights that can be justified via discourse, to the principle
of popular sovereignty as reconstructed in terms of discourse theory (the demo-
cratic principle). The democratic principle is born in the very moment when the
discourse principle is applied to the process of legal institutionalization: The
principle of democracy is what then confers legitimating force on the legislative
process. The key idea is that the principle of democracy derives from the interpene-
tration of the discourse principle and the legal form.
The result of this interpenetration is the system of rights which aims at explain-
ing the internal link between human rights and popular sovereignty. It is based on
the equal value and mutual enabling of private and public autonomy. Habermas
describes the process of the application of the discourse principle on the category
of law as a logical genesis of rights. This genesis can be characterized as a circular
process in which the legal formwith its liberties of autonomous private individ-
uals (the bourgeoisie)and the mechanism for producing legitimate lawthe
democratic principle with the rights of politically autonomous citizens (the
I. Maus, Liberties and Popular Sovereignty: On Jrgen Habermas Reconstruction of the
System of Rights (1996) 17 Cardozo Law Review 825, at 825.
Maus, ibid. 832; see Habermas, BFN, above n. 2, 105.
Maus, ibid. 832 (with reference to Habermas, BFN, 82, 106) (emphasis supplied).
Maus, ibid. (emphasis supplied).
Rights are here understood as an expression of a legal relation between people (and not as a
dimension of rule over things). Habermas, BFN, above n. 2, 121.
citoyennes) to participate in the democratic law-making processare co-originally

constituted (as gleichursprnglich ).
From these central assumptions Habermas derives a normative system in the
form of a catalogue of rights. These are exactly the rights citizens must confer on
one another if they want to legitimately regulate their interactions and life
contexts by means of positive law. Although it is a circular process, the actual
reconstruction of this process has to start somewhere. Habermas argues that this
reconstruction has to start with three categories of rights that circumscribe the
private autonomy of citizens, albeit in an unconfirmed status. These rights,
Habermas holds, are the ones that only regulate the relationships among freely
associated citizens prior to any legally organized state authority, and thereby
establish the status of legal subjects as addressees of laws. Only by virtue of the
fourth category of rightsbasic rights to equal opportunities to participate in
processes of opinion- and will-formation in which citizens exercise their political
autonomy and through which they generate legitimate lawthe legal subjects
also become authors of their legal order. This last step introduces the concept of
public autonomy into the system of rights, and it also encompasses a self-reflexive
element with regard to the first three categories as it opens up the possibility of a
procedure in which these rights can be changed, expanded, and fleshed out as
actual rights within a constituted legal order.
In a final step Habermas pleads for a fifth category of rights, directed at provid-
ing the material living conditions for the actual use of the rights listed in category
1 through 4. Such material rights include social rights as well as infrastructural
rights and ecological rights. These rights, however, are derivative rights; not only is
their content subject to the decisions of the (constituted) democratic institutions,
but they are not even essential for the establishment of a system of rights itself.
With the fifth category of rights Habermas introduces the most flexible element of
his system of rights, and at the same time rounds up his project of the discourse
theory of law.
A Paradox Vanishes?
The discourse theory of law as spelled out in the system of rights is not, or is not
only, a constitutional theory. Its scope of application is not restricted to constitu-
tions as it phrases out a general theory of (legitimate) law. It certainly comprises,
however, a constitutional theory as it spells out clear conditions for any legal order
that claims to be legitimate. Its main features are a proceduralization of the
category of law and a rejection of extra-legal, metaphysical, or a priori conditions
for constitutional forms other than those that are necessarily invoked when a
Habermas, ibid. 1212. Ibid. 122. Ibid. 1223 (emphasis in original).

constitutionalization process takes place. For the discourse theory of law, con-
stituent power is neither bound by natural law, nor is it a hidden, magical force
that expresses itself from time to time in the wild and unbound outbursts and
movements of a Volk or a multitude. It is bound by the formal conditions essential
for the constitution of a legal order that can produce legitimate law.
This does not mean that in Habermas reconstruction a system-changing
poweras raw power, as multitude, as revolutionsimply disappears, or is
dissolved into a well-ordered circular process where the participants, the citizens,
first grant themselves those rights necessary for the execution of their private
autonomy, and then proceed to confirm and flesh out these rights within the
realm of public authority, by executing their popular sovereignty. The thrust of
Habermas theory is counter-factual: a group of people, a society, may establish an
order, but it does not establish a constitutional or legal order that deserves
recognition if it neglects the conditions that are spelled out in the system of rights.
With his discourse theory of law Habermas delivers criteria for the claim that a
specific legal order is illegitimate. Constituent power, then, is neither embodied in
the substance of a Volk (culture, heritage), nor is it a factum, a given (as the actual
political power) or an unspeakable, almost metaphysical Grundnorm. Constituent
power is embedded and executed in communication, in discourses, it is
de-materialized and proceduralized.
The radical quality of this step from natural law through material law to
procedural law, with communicative rationality and the form of law as the sources
of constituent power, is put into question from many angles and viewpoints. One
line of criticism argues that the structure of the system of rights, with the classical
bourgeois rights in category 13 at the apex, simply restates the classical concep-
tion of rational law as natural law. It repeats the idea of pre-political rights that can
bind the democratic legislator in a hierarchical fashion, only vested here in the
terminology of discourse theory. Diametrically opposed to this view is a second
line of criticism of the system of rights; these critics claim that classical human
rights are devalued and put completely at the disposal of a popular sovereignty,
with the risk of the popular sovereign run amok, if they can be hollowed out in
the political process on which Habermas relies upon as the decisive step for the
establishment of a legitimate legal order in category 4 of his reconstruction.
It may be argued that Habermas theory is flexible and abstract enough to resist
such attacks. This virtue, however, might at the same time turn out to be its core
See, e.g., T. Kupka, Jrgen Habermas Reformulierung des klassischen Vernunftrechts (1994)
27 Kritische Justiz 461; cf. K. Gnther, Diskurstheorie des Rechts oder Naturrecht in diskurstheo-
retischem Gewande? (1994) 27 Kritische Justiz 470.
See C. Larmore, Die Wurzeln radikaler Demokratie (1993) 41 Deutsche Zeitschrift fr
Philosophie 321.
Ingeborg Maus has delivered the most comprehensive and outspoken defence of the system of
rights against criticism from a variety of viewpoints such as Marxist theory, radical democratic theory
or systems theory: see Maus, above n. 36.
problem. At least from the viewpoint of constitutional theory, a legal philoso-

phy that claims to establish criteria for a legitimate constitutionalization process,
while at the same time leaving the details apart, may be too flexible and abstract to
be of significant value. By claiming that the system of rights does not represent
these rights in concreto, Habermas avoids allegations that he puts himself into the
position to specify the perfect constitutional order. The idea that the catalogue of
rights in the system of rights only consists of placeholders instead of already
constituted rights leaves a lot of room for the democratic process. This process,
then, carries the heavy burden to express and concretize the idea of co-original
autonomies, public and private. The democratic principlethat those affected by
norms can possibly view themselves as their authorsand the idea of subjective
rights can be constitutionalized in a wide variety of forms within the limits of the
system of rights.
To be sure, private and public autonomy as embodied in the system of rights
can be invoked in a discourse on constitutional theory, as normative claims, or at
least as regulative ideas that allow for the formulation of preferences in case of
conflicting normative claims. It supports, for example, attempts to institutionalize
broad public debate and participation and endeavours to resist a degeneration of
the public discourse into elitist or corporatist structures controlled by few. Apart
from these general guidelines, however, the system of rights relies heavily on an
entgegenkommende Lebenswelt, a social sphere that meets the expectations of
discourse rationality.
This can be exemplified by reference to the problem of structural minorities, a
problem inherent in the democratic process: while the system of rights guarantees
that these minorities (for example, ethnic or religious minorities) can participate
in the democratic process, it is clear that the concrete legal order will be deeply
influenced or even dominated by majority views and preferences. The limits of
this ethic impregnation, as Habermas calls it, are also defined by the cultural
majority, with the effect that minorities depend heavily upon the goodwill of the
majority to include the minoritys views into the fabric of the legal order. This may
cause many conflicts about minority rights, but one may also argue that it does
not pose unbearable problems within a society where each member can indeed be
viewed as being at the same time author and addressee of the legal order, via her
citizenship. The viability of this theoretical construction ends, however, when a
considerable number of a societys members are not citizens but only addressees of
the legal order, as is the case in many Western European nation-states. Are there
This may additionally explain why the discourse theory of law does not play a significant role, at
least in Germany, in legal discourse. In constitutional theory and constitutional law literature, such as
commentaries on the Grundgesetz provisions, or textbooks on constitutional law hardly any
references can be found to BFN or the discourse theory of law.
J. Habermas, The Inclusion of the Other (Cambridge, MA: MIT Press, 1998), 21518, where
the original term ethische Imprgnierung is translated as permeation by ethics.
absolute limits to the ethic impregnation of a legal order, and what are the legal
positions, or rights, members of minority groups can claim? The close connection
of private and public autonomy in the system of rights seems to prevent a conclu-
sive answer to this pressing problem.
It can justly be argued that a philosophy of law does not necessarily have to
provide for comprehensive answers to contemporary constitutional problems.
A concept of legitimate law, on the other hand, should at least be able to
address significant structural deficiencies of its theoretical construction in view of
constitutional practices. This leads to two recent phenomena that challenge
contemporary constitutional theory and practice alike, two phenomena that may
put the explicatory power of the discourse theory of law and its fundaments into
question. One arises from within the nation-state and is connected to its
transformation into a militant security state, and the second concerns the unleash-
ing of constituent powers beyond the nation-state. I will argue that in the first case
the system of rights is too thin to counter this development, and that in the second
case, the system of rights is too dense and compact to capture the constituting
moments of supranational and international juridification.
De-Substantialized Constitutionalism and the Security Paradigm
Most critiques of rights-based democratic theories concentrate on the character

and function of rights to limit the democratic legislator, in an attempt to
strengthen parliament in view of courts, especially constitutional courts. What
they sometimes underestimate is the value and function of rights to contain the
state institutions (including the established parliamentary institutions) and to
bind them to the Rechtsstaat idea. In this respect, laws formality (in terms of its
creation and of its application) operates to contain excesses of the state; human or
constitutional rights not only exist on paper, but must be put into practice.
The Substance of the System of Rights

To determine the substance of the system of rights in constitutional democracies is
the first and foremost task of the legislator, and here we meet again the original
paradox of constituent power and constitutional form, albeit in a more concrete
institutional setting. How can parliament be the guardian of constitutional rights
if it is, at the same time, a primal source of possible devaluations of the same
rights? Modern constitutions have tried to overcome this paradox by instituting
For a more detailed discussion, see Nickel, above n. 30.

See R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977).
constitutional courts or similar institutions that were given the task to determine
the limits of parliamentary power.
In Habermas system of rights, it is maintained that there is neither an a priori
need nor a systematic position for such an institution. The central function of
popular sovereignty, embodied in the category 4 rights to public autonomy, is to
determine the contents of private autonomy, and this is a process, as already
explained, in which these rights can be changed, expanded, and fleshed out as
actual rights within a constituted legal order. Even if one presumes with
Habermas that this constituted legal order needs institutions that are organized
along the principle of the separation of powers, this does not determine whether
there has to be an institution that can actually challenge or even invalidate
parliamentary decisions.
It may be argued that the principle of co-originality demands from the parlia-
ment that it respects essential elements of private autonomy, especially by stating
that means have to be established for legal protection (category 3 of the system of
rights) against infringements of rights that safeguard the greatest possible measure
of equal individual liberties (category 1 of the system of rights). This does not
mean, however, that the legislator itself is bound by other legal institutions, and
Habermas category 1 expressly states that the greatest possible measure of equal
individual liberties results from a politically autonomous elaboration, and not
from court interpretations.
As a result, the system of rights leaves much room for the legislator. It may even
be argued that it reflects a functional understanding of fundamental rights, as they
seem to serve only the purpose to enable and support the political process of
establishing a constitutional order. Even if this is not the case, it remains an
essential weakness of the system of rights that it does not address properly the
systematic significance of an institutional protection of fundamental rights.
The Transformation of Fundamental Rights and Emergence of the

Militant Security State
The consequences of a de-substantialization of fundamental rights in Habermas
system of rights may not be too dramatic, so long as functioning institutions and a
vigilant public provide for an effective constitutional culture, where a changing
but stable consensus about the essence of fundamental rights can be established
and maintained. But this assumption is quite demanding, and it becomes less
There are numerous variations of institutional settings, ranging from full-fledged constitu-
tional courts (e.g. Germany, Spain, South Africa) over supreme courts with a constitutional court
mandate (e.g. USA) or similar functions (e.g. UK) up to institutions that more resemble parliamen-
tary self-control (e.g. France with its Conseil Constitutionnel ).
Habermas, above n. 2, esp. at 186ff. Habermas, ibid. 122.
See Larmore, above n. 46. Maus, above n. 36, at 83741, forcefully defends Habermas against
this critique.
plausible under conditions of a fundamental change in the perception of constitu-

tional rights and their function within constitutional states, especially when the
constitutional order is perceived to be a medium to protect citizens against all
kinds of threats and dangers rather than as a method of safeguarding constitu-
tional rights against infringement. This has severe repercussions on the interpret-
ation of constitutional rights.
As early as in the 1970s, historically situated in the context of politically
motivated bank robberies, kidnappings, and assassinations as well as massive
ecological threats, in Germany the discourse of constitutional law took up the idea
that safety is not only a public good among others, such as social security or a
functioning infrastructure, but of constitutional value, embodied in various
provisions within the Grundgesetz, the constitution itself. This culminated in an
early account of a fundamental right to security, the Grundrecht auf Sicherheit.
Perennial discussions about declining public safety, accompanied by accounts on a
new dimension of crime in the form of organized crime and terrorism, kept this
security discourse alive throughout the 1980s, and by the 1990s the paradigmatic
transformation from liberty to securityas part of a greater transformation of the
trias Freiheit, Gleichheit, Brderlichkeit to Sicherheit, Vielfalt, Solidaritt (Liberty,
Equality, Fraternity to Security, Diversity, Solidarity)had been firmly estab-
lished. It has led to an intrusion and extension of instrumentalist thinking into
contemporary constitutional thought and practice, and has influenced the
discourse about public law in all its facets. Policing becomes pre-emptive instead
of being bound to factual indicators of a danger to public safety, and criminal
law, once coined as the magna carta of the criminal, turns into Feindstrafrecht,
where the criminal is not a fellow citizen any more, but the enemy.
After the 9/11 attacks, this transformation from policing to a compound of
combat law gained more speed and assumed a global dimension, propelled
See U. Beck, Risikogesellschaft. Auf dem Weg in eine andere Moderne (Frankfurt am Main:
Suhrkamp, 1986); in English, Risk Society: Towards a New Modernity (London: Sage, 1992).
For an early account on first steps towards this fundamental change in the fundamental rights
jurisprudence of the German Federal Constitutional Court, see E. Denninger, Freiheitsordnung
WertordnungPflichtordnung (1975) Juristenzeitung 545.
For a critique of this terminological shift from a constitutional order that is protecting rights to
a constitutional order that is protecting citizens by imposing limitations on their fundamental rights,
see Denninger, ibid.
J. Isensee, Das Grundrecht auf Sicherheit. Zu den Schutzpflichten des freiheitlichen Staates (Berlin:
de Gruyter, 1983).
E. Denninger, Menschenrechte und Grundgesetz (Weinheim: Belz Athenum, 1994).
For a similar account in the context of the UK, see I. Loader and N. Walker, Civilizing Security
See G. Frankenberg, Kritik des Bekmpfungsrechts (2005) 38 Kritische Justiz 370.
This term literally means criminal law for the enemy. It denotes special criminal law provisions
directed against individuals who do not count as fellow citizens, but as, for example, unlawful
combatants. What was once coined as a critique, however, is now more and more often used in an
affirmative sense, for example by Gnter Jacobs, Brgerstrafrecht und Feindstrafrecht in Yu-hsiu
Hsu (ed.), Foundations and Limits of Criminal Law and Criminal Procedure (Taipei, 2003), 41
available online at <http://www.hrrstrafrecht.de/hrr/archiv/04-03/index.php3?seite=6>.
especially by policies of the European Union and its Member States, and the
United States. The global security architecture that has since emerged is increas-
ingly detached from its anchoring in (popular) sovereignty and the territorial
nation-state, and it becomes subject to security-technical rationalization, with
the institutions of the nation-state being transformed step by step into a security
agency, situated within a network of militant security states.
Viewed from within, the militant security state can claim a high degree of
legitimacy for its actions because these are directly grounded in the constitutional
order. Additionally, its actions appear to be backed both by private autonomy and
public autonomy, by fundamental rights and popular sovereignty alike. If the
citizens can claim from the state a high degree of security because they have a right
to be protected, and if the same citizens decide upon legal measures safeguarding
an effective protection via their parliamentary representatives, there seems to be
no a priori legal limit to the militant security state. From indefinite detainment,
through extensive (bio) data collections on an unprecedented scale, to torture
networks and from pre-emptive shootings of suspects and kidnapped or suspect
passenger planes to pre-emptive wars, the security paradigm seems to trump the
traditional notion of inalienable individual rights and replace them with the rule
that the end justifies the means.
It is not my intention to claim that Habermas system of rights supports this
transformation to the militant security state and its consequences, or that it could
be used to legitimate indefinite detainment or torture. Rather, it is held that the
de-substantialization of the system of rights cannot adequately capture the
transformation to the militant security state since the system of rights is designed
to give only formal criteria for the extent (and limits) of a legitimate constitutional
form. In this theoretical setting it is very difficult to identify normative criteria
that may render it possible to call ademocratic!practice illegitimate which
balances individual liberties and a right to security in an admittedly peculiar way.
An example from recent constitutional practice may serve to highlight this point.
The militant security statevia its parliamentmay, for example, decide to
sacrifice individuals and their rights and lives for the sake of the happiness of the
greatest number. A contemporary example was subject of a recent decision of the
German Federal Constitutional Court (FCC). The Court had to decide upon a
statute that allowed for the use of military force, especially the air force, to shoot
down a kidnapped passenger plane in case there were indicators that it would be
used as a weapon, e.g. by steering it into a building. The FCC held that the
Numerous security packages have been enacted in all member states of the EU. For an
overview over the coordinated strategies of the Member States in the framework of Arts. 29 et seq.
TEU (cooperation in criminal and judicial matters), see N. Walker, In Search of the Area of
Freedom, Security and Justice: A Constitutional Odyssey in N. Walker (ed.), Europes Area of
Freedom, Security and Justice (Oxford: Oxford University Press, 2004), 337.
K. Gnther, World Citizens between Freedom and Security (2005) 12 Constellations 379, esp.
at 382.
Federal Constitutional Court, judgment of 15 February 2006, case 1 BvR 357/05. The
decision can be found (in German) at <www.bverfg.de>.
federal parliament lacked the competence to regulate this case in a federal statute.
Apart from this aspect, however, the Court expressly stated that the statute violates
the fundamental rights of the passengers and the crew. The reasoning of the Court,
summarized in the press release, is worth citing at length. It reads as follows:
14.3 of the Aviation Security Act is also not compatible with the right to life (Article 2.2
sentence 1 of the Basic Law) in conjunction with the guarantee of human dignity (Article
1.1 of the Basic Law) to the extent that the use of armed force affects persons on board the
aircraft who are not participants in the crime.
The passengers and crew members who are exposed to such a mission are in a desperate
situation. They can no longer influence the circumstances of their lives independently
from others in a self-determined manner. This makes them objects not only of the
perpetrators of the crime. Also the state which in such a situation resorts to the measure
provided by 14.3 of the Aviation Security Act treats them as mere objects of its rescue
operation for the protection of others. Such a treatment ignores the status of the persons
affected as subjects endowed with dignity and inalienable rights. By their killing being
used as a means to save others, they are treated as objects and at the same time deprived of
their rights; with their lives being disposed of unilaterally by the state, the persons on board
the aircraft, who, as victims, are themselves in need of protection, are denied the value
which is due to a human being for his or her own sake . . .
Under the applicability of Article 1.1 of the Basic Law (guarantee of human dignity) it is
absolutely inconceivable to intentionally kill persons who are in such a helpless situation
on the basis of a statutory authorisation. The assumption that someone boarding an
aircraft as a crew member or as a passenger will presumably consent to its being shot down,
and thus in his or her own killing, in the case of the aircraft becoming involved in an aerial
incident is an unrealistic fiction. Also the assessment that the persons affected are doomed
anyway cannot remove from the killing of innocent people in the situation described its
nature of an infringement of these peoples right to dignity. Human life and human dignity
enjoy the same constitutional protection regardless of the duration of the physical
existence of the individual human being. The opinion, which has been advanced on some
occasions, that the persons who are held on board have become part of a weapon and must
bear being treated as such, expresses in a virtually undisguised manner that the victims of
such an incident are no longer perceived as human beings.
The decisive aspect of this decision is not that it struck down an act of parliament,
or that the Court refers to the inalienable rights of the affected persons as subjects
for reaching its judgment. It is the characterization of the state killing of innocent
persons as inconceivable that deserves closer attention. The Court links its
judgment to the guarantee of human dignity as protected under Article 1.1
Grundgesetz. This move has far-reaching consequences since Article 79 contains
self-reflexive provisions that specify the conditions under which the Grundgesetz
can be amended or changed. The most remarkable provision is Article 79.3,
Federal Constitutional Court, English version of the press release on the judgement of 15
February 2006, case 1 BvR 357/05, available at <http://www.bverfg.de/bverfg_cgi/pressemitteilungen/
frames/bvg06-011e>. The official translation of the original press release is unfortunately not well
written.
which states that any amendment touching upon the principles laid down in
Article 1 of the constitution is illegitimate (unzulssig). Thus, even if the formal
conditions for amendment of the Grundgesetz as laid down in Article 79.1 and 2
were fulfilled, one can safely assume that the Grundgesetz would not even permit a
constitutional amendment expressly supporting the use of force against
kidnapped airplanes, because, according to the FCC, it would amount to
verfassungswidrigem Verfassungsrecht (unconstitutional constitutional law).
This forceful intervention of the FCC, and especially its far-reaching
consequencethat it can even claim to bind the constituent power of the
German popular sovereignmay be attributed to the peculiar architecture of the
German constitution. However, a number of court decisions from a variety of
courts in many parts of the world, invoke similar aspects of a priori principles of
common or constitutional law, principles that bind the legislator and/or the
executive power of the government or president. In essence, the courts seem to
be motivated by similar concerns, namely, that the militant security state endan-
gers the fundaments of law, and annuls the social contract.
Once again, it is hardly possible to find a legal or rights-based starting point for
such concerns about the extending powers of the militant security state on the
grounds of Habermas system of rights. His legal philosophy is not, unlike Rawls
theory, based on the idea of a social contract, but on the discourse principle and its
application to the legal form. Moral concerns, as they are strongly echoed in the
decision of the FCC and translated into the legal language of Article 1.1 of the
Grundgesetz, also have no clear position and no substantive content in the frame-
work of the discourse theory of law; moral concerns can only indirectly influence
the democratic deliberative processes via societal moral discourses held in the
general public. As the category of law itself is theorized only as a historical contin-
gency and not as a normative necessity, Habermas theory can be used only for
laments about the creeping destruction of the category of law caused by measures
of the militant security state; it cannot be used as a basis for a normative critique of
this tendency. It is therefore unclear what follows from the paradigmatic change
from civil liberties to security for constitutional theory and practice. In the end,
the system of rights appears to be too thin to address the transformation to the
militant security state in a satisfying manner.
See, e.g., the recent US Supreme Court decision in Hamdan v. Rumsfeld et al. (2006) 126 S. Ct.
2749 (No. 05184; 415 F. 3d 33), dealing with the installation of military tribunals instead of ordi-
nary courts for trials against terror suspects, or the UK House of Lords in the detention case (A v.
Secretary of State for the Home Department [2004] UKHL 56) and the torture case (A v. Secretary of
State for the Home Department [2005] UKHL 71).
Waldron, above n. 3, argues that the prohibition of torture is a legal archetype as it has become
a sort of emblem, token, or icon of the whole legal system, an archetype of the spirit of the area of
law in question (at 17223).
For the argument that a general priority of security concerns over civil liberties annuls the social
contract, see Gnther, above n. 65, at 3856. It is interesting that Gnther, who was an important
co-architect of the system of rights (see BFN, above n. 2, xliii), extensively refers in this context to
Kants republicanism, with its roots in moral theory, instead of to Habermas discourse theory of law.
The Democratic RechtsstaatA Fading Concept?

The Missing Link in Global Law
While the system of rights is quite flexible with regard to the contents of private
(and public) autonomy, it is very strict in another respect: it firmly connects
legitimate law with the concept of popular sovereignty, embodied in the demo-
cratic principle. If the discourse theory of law was bound, at the same time, to the
territorial nation-state, it would be unable to offer any perspective with regard to
transnational or international law. But this is not the case. Normatively, the sys-
tem of rights is not limited to the nation-state model and, in theory, any group of
citizens could constitute a legal order by following the necessary steps as laid down
in the system of rights. In practice, however, without a global public sphere, a
global citizenship, or a global parliament, for example, essential elements and pre-
conditions for such a founding process are lacking.
On the other hand, we can empirically observe an ever denser juridification of
international law, with an ever growing number of transnational issues, such as
environmental protection and the regulation of international trade and inter-
national financial markets, being subject of intensifying international law regula-
tions. Additionally, global law without a state, apparently following the
patterns of globalization, is on the rise. Empirical research draws our attention to
the enormous amount of non-state (private) regulations that shape and rule
transnational business relations and international trade.
Numerous private standard-setting bodies, agreements on technical norms,
and other forms of regulative activities suggest that we are observing a major shift,
if not a change of paradigm, from state regulation and international law regula-
tions to private international regulations. At the same time, we are experiencing
a major increase in hybrid activities, namely, in cooperative international activ-
ities of national governments and private actors. Both the tendencies of
extended private governance activities and the hybridization of international
actors can be summed up in the formula that the new legal order is working sig-
nificant transformations in governance arrangements, both locally and globally,
suggesting that the distinction between the public and the private realms is
becoming increasingly difficult to sustain. A new constitutional superstructure
G. Teubner (ed.), Global Law Without a State (Aldershot: Aldgate, 1987).

Private governance regimes play a significant role in the global political economy and its juridi-
fication: see C. Cutler, Private Power and Global Authority (Oxford: Oxford University Press, 2003);
J. Braithwaite and P. Drahos, Global Business Regulation (Cambridge: Cambridge University Press,
2000); H. Schepel, The Constitution of Private Governance: Product Standards in the Regulation of
Integrating Markets (Oxford: Hart, 2005).
As a striking example, the activities of standard-setting bodies such as the International
Organization of Standardization (ISO) might be mentioned. ISO standards are often used in
national courts as legal benchmarks, for example, in tort cases. Another well-know example is the
function of the private organization ICANN as world administrator of website addresses.
Cutler, above n. 72, 2.
seems to be on the rise, driven by transnational economic constitutionalism,

though not limited to this aspect since it also comprises, for example, the rise of a
transnational security architecture, with the nation-states acting as security agen-
cies.
It is clear from the outset that the system of rights is too dense and compact to
immediately capture the constituting moments of supranational and inter-
national juridification. The idea of a necessary internal link between public and
private autonomy appears to be unable to explain the emergence of supranational
and transnational law outside the borders of a clearly defined institutional setting
of a national (or regional, such as the EU) legal community. In theory, these
regulations bear the tarnish of being illegitimate, at least if they originate outside
the classical canon of international law. As a consequence, in a new, globalized
environment where the execution of diffuse powers by diffuse actors blurs the line
between public authority and private power, the well-ordered theory of the
democratic Rechtsstaat seems to lose its empirical foundation and its persuasiveness
altogether. Do we have to resign, then, and start speaking instead (again) of
market powers, with its systemic imperatives, as constituent powers that
programme the constitutional form? Or of an anonymous matrix, consisting of
regulatory regimes that form the new, decentralized global power structures?
On a different reading, however, the discourse theory of law can serve as a
normative yardstick for existing regulatory structures, and as an orientation for
the elaboration of new forms and institutions that may reduce the obvious
democratic deficits of supranational and transnational regulation. On this
theoretical basis a number of proposals have already been made that aim to
enhance the legitimacy of rule-making and regulatory processes above the nation
state and to preserve its legitimizing force.
Conclusion
The illustrations that the discourse theory of law has been confronted with here
the rise of the militant security state as well as the emerging superstructure of a
For a comprehensive discussion of these tendencies from interdisciplinary perspectives, see
Joerges and Petersmann (eds.), above n. 23.
See Gnther, above n. 65, and Walker, above n. 64.
G. Teubner, The Anonymous Matrix: Human Rights Violations by Private Transnational
Actors (2006) 69 Modern Law Review 327; see also A. Fischer-Lescano and G. Teubner, Regime-
Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law (2004) 25 Michigan
J. of International Law 999.
See, e.g., C. Joerges, Deliberative Supranationalism: Two Defences (2002) 8 European Law J.
133; Nickel, above n. 23.
super- and transnational juridificationdo not represent principled arguments

against the system of rights or of the idea of a co-originality of private and public
autonomy. But they do indicate that Habermas strong emphasis on the central
role of popular sovereignty and the democratic principle is in certain respects
difficult to reconcile with his overall aim of easing the tension between popular
sovereignty and fundamental rights.
His translation of the application of the discourse principle on the form of law
seems to beat least from the perspective of constitutional theorytoo much
influenced by the fear of fundamental philosophical objections against traces of
substantial moral argumentation in the system of rights. Its formal structure
would gain some plausibility if the system of rights would allow for at least one
mildly substantiated legal position that could be invoked against excesses of
majority rule, be it the marginalization of structural minorities, or the factual
annulment of the social contract and the destruction of the category of law. The
guarantee of human dignity (see Article 1.1 of the Grundgesetz, and now also the
EU Charter of Fundamental Rights) could, for example, serve as a reference point
in this respect, if understood in the strict sense of a protection of human beings
against torture, and of structural minorities against degradation and humiliation.
In a similar vein, adjustments with regard to the normative force of the
democratic principle would enhance the plausibility of the claim that law is legit-
imate only if it deserves recognition because of its pure democratic origin. If
transnational regulations and transnational governance are here to stay, a less
idealized concept of democracy could avoid misinterpretations of the kind that
the institutionalized democratic nation state is the only possible reference point
for their evaluation. This holds especially true with regard to the fact that
Habermas himself correctly stresses the prominent role of civil society in public
will-formation processes. An adjustment of the system of rights could therefore
include, for example, an acknowledgement of the democracy-enhancing
potentials of participatory structures. This would also shed light on the so far
underexposed role of protests, resistance, and constitutional fights for recognition
that have been an important impulse for legal and constitutional developments
since the French and North American Revolutions.
See the (in)famous Maastricht judgment of the German FCC, and the critique of Brun-Otto
Bryde, Die bundesdeutsche Volksdemokratie als Irrweg der Demokratietheorie (1994) 5
Staatswissenschaften und Staatspraxis 305.
See A. Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts,
J. Anderson, trans. (Cambridge: Polity Press, 1995), and the controversy between Nancy Fraser and
Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London: Verso,
2003).
9
Constitutionalisms Post-Modern Opening
Paolo Carrozza
The aim of this chapter is to examine in what ways and to what extent contemporary
Western constitutionalism now stands removed from its origins in the liberal
revolutions of the late eighteenth century. These original settlements forged a
close link between constituent power and constitutional form as a means of
establishing and maintaining the new political order of the state sought by the
revolutionaries. Today, by contrast, with the explosion of globalization, the statal
dimension of polity and constitutionalism is in such decline that the question of
the location of constituent power and sovereignty can no longer be answered in
this dimension. Rather, sovereignty has fragmented and is now re-articulated
within a multilevel and polycentric order, where the relations among levels of
government has become much more decisive and crucial than the constitutional
form of all and any particular levelsincluding the nation-state level.
We may in fact see the rise and the fall of the relation between constitutional
form and constituent power as a parable of the fluctuating fortunes of the nation-
ally and spatially-demarcated type of polity represented by the state. But when the
new global dimension of political organization arrivedand with it the era of
interdependence, of fluid relations, and of the dominance of technology and
communicationsthe national dimension of polity and its constitutional form
did not disappear or exhaust their purpose. Rather, the national dimension of the
polity and its constitutional form became re-inserted into a complex multilevel
system of government, or a multilevel constitutionalism whose defining feature
is precisely the lack of a mechanism that permits the reductio ad unitatem distinc-
tive of nation-state constitutionalism (in which one state equals one polity, one
political system, one law, one language, etc.). No single levelneither the divided
global level (UN, WTO, IMF, etc.), nor the national, nor the sub-state level
may assume and perform in its entirety the task of ordering and unifying the
Or, as is more common, multi-level governance: see, e.g., G. Marks, L. Hooghe, and K. Blank,
European Integration from the 1980s: State-centric v. Multi-level Governance (1996) 34 J. of
Common Market Studies 341.

multiplicity of legal systems (supra-national, national, and sub-national) by

hierarchical means and according to the traditional logic prevailing in the case of
state-centred constitutionalism. In this polycentric world, the function of
governing and law-making necessarily entails much more than a decision in
accordance with constitutional norms. It requires frameworks of social integra-
tion and mutual involvement that are capable of overcoming the fragmentation of
power, and so of responding to the pervasive demand for informed participation
in all spheres and corners of decision-making that today constitutes the very
essence of democracy.
So we may infer that democracy cannot be based on a world constitution; such
a thing does not exist, and probably never will. Instead, democracy must find its
legitimation through heterarchical procedures of consensus-seeking, or so-called
governance. Very schematically, it may be suggested that the idea of network
sovereignty rather than hierarchical sovereignty better captures the apparent
contradiction between the new assertiveness of the distinct parts and the complex
integrity of the whole. On the one hand, globalization entails enhanced awareness
of cultural distinctiveness and an attendant spread and intensification of
claims for participation as a primary means of identity expression. On the
other, decision-taking and law-making in such a globalized context are possible
only by integratingby recomposing the fragments of powerand thus through
action that is above all relational, and aimed at building consensus over regulatory
purpose. In this tension between identity and interdependence we find the
core paradox of post-modern constitutionalism. And that tension is apparent
not only at the global sites of decision-making but also in the local contexts
themselves.
This seems to be the main reason for the crisis of constituent power and
constitutional form. From the nation-state point of view the new spatially-
extended and multi-tiered constellation involves the escape of sovereignty both
upwards towards the international and potentially global institutional dimension
of power (i.e. the supra-national bodies and organizations) and downwards
towards the local dimension of power (i.e. the sub-state, regional bodies and
organizations). And this loss of state sovereignty, if we address the typical content
of national constitutions, affects both fundamental rights and the form and
structure of government. In the former case, this is on account of the increasing
importance assumed by various international and supra-national charters for the
protection of human rights. In the latter, it is reflected in the increasing
importance accorded to governance, with its emphasis on private as well as
public actors and its eschewal of command and control methods of ordering, in
comparison to traditional government.
On the contraposition of governance and government, see the classic definitions in: R.A.W.
Rhodes, The New Governance: Governing without Government (1996) 44 Political Studies 652.
Constitutionalisms Post-Modern Opening 171
Constitutionalism and Radical Openness: Negri and Post-Modern

Constitutional Theory
It is relatively easy for a constitutional law scholar to offer a prcis of post-modern
constitutional theories. It is relatively easy to connect these theories to the history
of modern western constitutionalism so as to offer a reconstruction of so-called
weak constitutionalism or post-modern constitutionalism and an assessment of
how it may or may not be conducive to radical openness in the field of the
relations between political organization and constitution. It is very difficult,
however, for the same scholar to deal with the particular challenge offered by
Antonio Negris thought, even though it is perhaps the best known, and for many
the many the leading light of this new theoretical brand.
The main reason for this difficulty lies in the fact that in setting out his
constitutional theory or, rather, his theory of the relations between polity and
constituent power, Negri never cites the constitutional scholars associated with
the foundation and development of modern and post-modern theories of the
constitution and of the constituent power. An even more extraordinary fact is
that Negri never tries to give a positive definition of constituent doctrine and of
constitution, one that uses the terms in ways familiar from constitutional scholar-
ship and its theoretical development over the two centuries of its modern history.
So although his overall critique recalls many well-known theses about the crisis
of Western constitutional thought and of the idea of constituent power, it is hard
to connect Negris (and his collaborator Michael Hardts) ideas to constitutional-
ism tout court, and especially to the authors that we may consider the founders of
weak constitutionalism. On the one hand, if we interpret radical openness as the
I make reference to the following of Negris works: A. Negri, Guide. Cinque lezioni su impero
e dintorni (Milan: Raffaele Cortina Editore, 2003); A. Negri and M. Hardt, Empire (Cambridge,
MA: Harvard University Press, 2000)(It. transl., Impero, Milan, BUR, 2003); A. Negri and
M. Hardt, Multitude: War and Democracy in the Age of Empire (New York: Penguin Press, 2004);
A. Negri, La crisi dello spazio politico in A. Negri, LEuropa e lImpero (Rome: Manifestolibri, 2003);
A. Negri, Marx Beyond Marx (New York: Autonomedia, 1991); A. Negri, Il potere costituente: saggio
sulle alternative del moderno (Milan: Sugar, 1992). I acknowledge the valuable work done by
G. Martinico, doctoral student in constitutional law, Scuola Superiore di Studi Universitari e
di Perfezionamento SantAnna, Pisa, in researching Negris works and thought.
Negris indifference towards Italian scholars and scholarship in constitutional law is sincerely
re-paid and returned by those Italian constitutionalists who do not cite Negris works in their essays
on constituent power, not onlyobviouslythe older sources (see, e.g., C. Mortati, La Costituente
(Rome: Darsena, 1945); F. Pierandrei, Costituente (assemblea) in Novissimo Digesto Italiano (Turin:
UTET, vol. IV, 1959); P. Barile, Potere costituente in Novissimo Digesto Italiano, (Turin: UTET, vol
XIII, 1966)); but also the most recent: see, e.g., M. Dogliani, Costituente (potere) in Digesto
discipline pubblicistiche (Turin: UTET, vol. IV, 1989); M. Dogliani, Potere costituente e revisione
costituzionale (1995) Quaderni costituzionali 7; A. Pizzorusso, La Costituzione (Turin: Einaudi,
1996); G. Palombella, Costituzione e sovranit (Bari: Dedalo, 1997); A. Pizzorusso, La costituzione
ferita (Bari: Laterza, 1999); A. Pace, Potere costituente, rigidit costituzionale, autovincoli legislativi
(Padua: CEDAM, 2nd edn., 2002).
assumption in the era of globalization of a definitive and irreparable separation

between the constitution (both national and supranational) and the revolutionary
force of the people (multitude) with the potential to affirm itself as constituent
power, Negris thought connects to a well-marked line of analysis, embracing both
liberal and Marxist traditions, in locating constituent power exclusively in acts of
revolution. On the other hand, his thought breaks with that tradition in its
depiction of the constitution and constitutionalism of the so-called Empire of the
post-modern age as a legal order of polity that is absolutely negative in quality and
only functional to its own preservation, and also in its failure to define and charac-
terize the new power that rises from the revolutionary multitude. Indeed, on this
view, we may see Negri, to paraphrase Fukuyama, as the theorist of the end of
constitutionalism. This sense of paradox in Negris workof constitutionalisms
latest incarnation also announcing its deathdoes not emerge in the work of
these many other scholars whose thought, although subscribing to something like
radical openness, continue to assert a weak or post-modern constitutionalism
typical of the era of globalizationas something dispersed and disconnected from
popular initiative rather than being entirely lost.
In what follows I seek to set out the point of view of an Italian constitutional
positivist with regard to the question of radical openness in constitutional the-
ory and practice, with particular reference to Negris thought on the ways in which
the domain of the political, broadly conceived, need not be contained by the
domain of the constitutional (or, rather, contained by Western thought about the
constitution and constitutionalism). However, it is useful to preface the recon-
struction (and deconstruction) of Negris thought with a short reminder of some
major themes in the longue dure of Western liberal constitutionalism.
Constituent Power and Constituted Power in Liberal Revolutions:

the Conservative Role of Classic Constitutionalism
The birth of the idea of the constituent power is closely connected with the
experience of the French Revolution. In Great Britain and in France the liberal
revolution had its origins in parliamentary bodies that, according to their method
of legitimation and criteria of membership, were creatures of the Ancien Rgime.
For the most part, representation was based upon a doctrine of mandate or cahiers
The reference is to well-known essay of F. Fukuyama, The End of History and Last Man; It. transl.
La fine della storia e lultimo uomo (Milan: Rizzoli, 2003), 21ff.
See, among Italian constitutionalists, G. Zagrebelsky, Il diritto mite (Turin: Einaudi, 1992);
G.Volpe, Il costituzionalismo del novecento (Bari: Laterza, 2000); P. Pinna, La costituzione e la giustizia
costituzionale (Turin: Giappichelli, 1999); A. Spadaro, Dai diritti individuali ai diritti globali.
La giustizia distributiva internazionale nellet della globalizzazione (Rubbettino, Soveria Mannelli,
2005).
See F. Braudel, Storia e scienze sociali. La lunga durata in F. Braudel, Scritti sulla storia
(Milan: Il Saggiatore, 2nd edn., 1989), 57.
de dolance. Only in the course of long-term evolution (in the case of the British
parliament) or abrupt transformation (in France, with the abolition of cahiers de
dolance and the reception of Sieys theory of sovereignty of the nation), did they
become what we call modern representative assemblies subject to a broader
framework of political responsibility.
Indeed, from this point of view, only the constituent assembly that launched
the US Constitution in Philadelphia properly meets the modern standard of
representative legitimacy. By comparison, the distinction between constituent
power and constituted power in France, as elaborated by Sieys, retained a conser-
vative (in a literal sense) bias. Its objective was not only to affirm the political role
of the Troisime tat, but also to ensure its alliance with the Crown in the revolu-
tionary context, and so to protect the revolution from the opposite dangers of
excessive democracy and the reactionary restoration of the feudal aristocracy.
The collective people are the main agent of this transformation. Through their
act of representation, or elections, the people make a direct choice without the
intermediation of parties or corporations or other third parties, and the resulting
Assembly is thus representative of the people. What is more, the freedom of the
elected rather than the electors is what is truly essential to this organic construc-
tion. Unfettered by the particular instructions of a special constituency, each mem-
ber of the assembly is free to establish the agenda of the assembly and consequently
to determine, by the vote, the general interest, which is nothing other than the will
of the majority of the members of the Assembly. And that will of the majority,
when objectified in the law of parliament, is in turn the only means through which
the public power may enter in the private sphere of the individuals, establishing
(but only in the name of the general interest) limits on the content of individual
civil liberties or fundamental rights otherwise absolute.
In this sense, we can say that in liberal revolutionary thought there is an imme-
diate and organic link between the (revolutionary) people, their representatives in
the Assembly and the will of the nation-state; and that civil liberties or fundamen-
tal rights provide a wall that separates the private sphere, where power cannot
enter, from the public sphere, where power conquers all. This distinction turns
on the difference between a domain of human conduct characterized by equality
of relations between individuals and one dependent upon an idea of supremacy, or
absolute power, so posing a distinction in the structure of law which is the main
basis of the division between private and public law.
On the basis of these general origins, we may identify three points of departure
in the development of Western constitutional doctrine on the relations between
revolution, constituent power, constitutional text, and its reform.
On the five necessary features of modern representative parliaments, see A. Barbera, I parlamenti
(Bari: Laterza, 1999), 456.
See E.-J. Sieys, Quest-ce que le tiers tat? (1789); It. transl., Che cosa il terzo stato? (Rome:
Editori Riuniti, 1992), 678; see also the analysis of L. Jaume in ch. 4 of this volume.
The Distinction between Constituent Power and Constituted Power:

the Problem of Constitutional Reform and Negris Empire
The first point is located in the binary distinction between constituent power
(a power absolutely free in scope) and constituted power (a power limited by the
terms of the constitution). From the perspective of this original division,
Western constitutionalism elaborated the thesis according to which, on the one
hand, any particular constitutional assembly is an exceptional constitutional
organ, capable of performing its constitutive function only one time for a single
constitution; yet, on the other hand, constituent power more generally remains
free in its goals and its forms inasmuch as it finds its legitimation and its validity in
itself.
This starting point has also generated a political corollary: only a revolution,
or the earthquake generated by world war (for democratic constitutions), or a
coup dtat (for authoritarian constitutions) or the proletarian revolution (for
socialist constitutions) could justify the rise of constituent power and, conse-
quently, of a constituent assembly. Accordingly, it is no surprise that the most
recent seismic movement in European constitutionalism was precipitated by the
demise of communist regimes in East Europe after the fall of the Berlin Wall.
On the basis of these cases in the Western constitutional tradition the problem
of constitutional reform is seen as one of overcoming the basic binary logic, of
providing for continuity-in-change; the puzzle of amending the constitution
consistently with the constitution. So German scholars, on the basis of Article 79
of the Basic Law, have elaborated the distinction between Verfassungstextnderungen,
(i.e. the change in a constitutional norm carried out by means of constitutional
rules as Article 79 prescribes) and Verfassungsdurchbrechung (i.e. the change of
constitutional norms through means other than Article 79that is to say, a con-
stitutional violation). On the same basis, Italian scholars have elaborated the
From this point of view there is no difference whether the constitution is an instrument of gov-
ernment (see, e.g., the French constitution of 1791) or a long constitutiona programmatic consti-
tution conceived of as a project of society, as in the Jacobins project of constitution of 1793: this
difference may be considered useful, if at all, only in consideration of the degree of openness of the
constitution. See M. Ainis, Dizionario costituzionale (Bari: Laterza, 2000), 345ff.
Whether the meaning ascribed to the word revolution is the historical one, as in H. Arendts
On Revolution (It. trans. Sulla Rivoluzione, Milan, Comunit, 1983, 15ff ), or whether it assumes the
meaning of basic norm, as in H. Kelsen, General Theory of Law and State (It. trans., Teoria generale
del diritto e dello stato, Milan, Comunit, Milano, 1952, 111ff ), i.e. a norm whose validity cannot be
explained by a higher norm.
On which see the contribution of U. Preuss in ch. 11 of this volume.
See K.H. Seifert and D. Hmig (eds.), Grundgesetz (Baden-Baden: Nomos, 1982), 350ff.
According to German scholars, there is a third category of constitutional modification which must
be distinguished from Verfassungsdurchbrechung: the s.c. Verfassungswandel, i.e. the constitutional
modification due to the shifting mode of execution and/or interpretation of the constitutional norms
by legislator, courts, and administration as time goes by.
theory of the implied limits to constitutional reform, meaning that the textual
mechanism for amending the constitution in Article 138 of the Italian Con-
stitution cannot be used to deny the fundamental norms (principi supremi) pro-
pounded and protected by the constitutional text: in other words, beyond the
formal limits, there are implicit substantive limits to constitutional reform.
In Italy the problem of constitutional reform came to the surface in the years
after 1990, when changes in the electoral system and in the configuration of
parties ushered in the so-called transition from the First to the Second
Republic, even if in formal terms the 1948 Constitution remained in force and
largely unamended. Between 1984 and 1997 there were three unsuccessful
attempts to modify the whole second part of the Constitution. They were pursued
under the authority of a Parliamentary Commission, composed of members of
the Camera and the Senato according to the number of seats held by each party in
the Parliament. Given this bipartisan composition, we can speak from the point of
view of the party system of a consensual route to constitutional reform with regard
to the second part of the Constitution (i.e. Organization of the Republic). But in
the second and the third of these attempts we can also see the shades of a
Verfassungsdurchbrechung, on account of the very terms of the constitutional laws
of 6 August 1993 n. 1 and 27 January 1997 n. 1 under whose authority these ini-
tiatives were taken. In providing for a Commissione Bicamerale with the task of
elaborating a project of constitutional reform, both enabling measures sought to
introduce una tantum modifications to the general procedure of constitutional
reform provided for by Art. 138. A fourth and final failed attempt at constitu-
tional reform of the whole second part of the Italian Constitution did faithfully
follow the general Article 138 procedure and, unlike its abortive predecessors of
1993 and 1997, actually obtained Parliamentary approval in 2005. But owing to
the lack of political consensus-building by the right-wing majority, left-wing par-
ties obtained the signatures of enough electors to promote a constitutional refer-
endum, held on June 2006, in which the reform was defeated.
In general, as the repeated failures to reform the institutional core of the Italian
Constitution may indicate, except for some partial and limited modifications of
the French, Spanish, and German Constitutions, Western constitutionalism has
experienced in recent years the so-called paradox of the constitutional reform: the
more a constitutional reform is necessary, the more the political system is unable
See Pace, above n. 4, 121ff.

See N. Bobbio, Tra due repubbliche (Rome: Donzelli, 1996) 101ff, esp. at 138.
The 1948 Constitution has been modified thirteen times and only in minor ways, except with
regard to the amendment in 2001 of Title V, dedicated to the powers of regions and of local author-
ities (the so-called federal transformation of the regional state). This modification (n. 3/2001) was the
first and only that amended an entire title of the Constitution of 1948, involving a substantial
increase in the legislative and administrative powers of regions and local authorities.
See Pizzorusso, La Costituzione, above n. 4, 68, n. 15.
See Pizzorusso, La Costituzione ferita, above n. 4, 47ff.
to find the necessary consensus on the content of the reform. In consequence, it

is arguable that only an achievement (constitutional) reform is nowadays
possible: in this sense, a great reform event can be successfully approved only if
it is a sort of consolidation, a report of a transformation already realized by other
(ordinary, not constitutional) means. And if we look at the one successful Italian
experience of major reform of Part Two of the Constitution (i.e. the reform of
Title V, which took place in 2001 only after Minister Bassanini, in 19978, had
already introduced significant non-constitutional measures of federalization) or if
we review the experience of the new and unratified European Constitutional
Treaty (whose content is largely repetitive of the legal order acquired by the EU
under the traditional framework of international Treaties) we find support for
that hypothesis. It is a finding, moreover, that leads us to inquire about the
continuing capacity of our political system to project the future of our political
societies in institutional terms, a task which historically was a key function of
Western constitutionalism.
The answer may be the following: the great reforms of our societies in the new
era of globalization do not have a national (and consequently constitutional)
dimension, but necessarily a global or supra-national dimension. So it has been for
the most important political changes in the contemporary pan-European context
that have had constitutional salience: for example, the creation of the Euro
(a long-term project introduced by Maastricht Treaty of 1991 and implemented
only in 2002), and enlargement of the EU to the post-Communist democracies of
Central and Eastern Europe. In order to find a similar scale of transformation at a
national dimension or level we can, of course, refer to the recent spate of British
constitutional reform under Tony Blairs New Labourincluding the introduc-
tion of legislative devolution, a domestic human rights catalogue, and reform of
the unelected House of Lords. Tellingly, however, the United Kingdom does not
have the kind of rigid and formal constitution that helps trigger the paradox of
reform.
With regard to the question of constitutional reform, Negris thought is not as
revolutionary as it may at a first glance seem. If we examine a work such as Il potere
costituente, we can say that the theory of constituent power here described is very
much in line with the Western constitutional tradition, founded on a strict
relationship between constituent power and political revolution. In that essay of
1992, Negri described the political theory of modernity as a metaphysical
On the so-called constitutional reform paradox, see N. Bobbio, Il paradosso della riforma in
J. Jacobelli (ed.), Unaltra repubblica? (Bari: Laterza, 1988), 20ff (the paradox is defined at 21).
The idea of an achievement constitution is attributable to C. Mortati, Le forme di governo
(Padua: Cedam, Padua, 1973), 393. With this definition (costituzioni bilancio) Mortati explained
the periodical constitutional reform typical of socialist countries owing to the Marxist doctrine
according to which a constitutional reform marks the necessary and progressive adjustment of the
formal constitution to the achievements reached in the social order.
See N. Walker, ch. 13 of this volume.
See Negri, Il potere costituente, above n. 3, 346ff.
narrative and stressed the connection between revolution, constituent power, and
crisis (defined not as an event but as a durable sequence of events), in so doing
developing some critical intuitions already laid out in earlier work, but still
not fundamentally at odds with the classic liberal tradition. In that earlier work
in fact, Negri analysed in constructive fashion the principle of constitution,
referring to the creative capacity of struggle to produce a new structure that itself
becomes the object of new struggles leading to further transformations; accord-
ing to him, the constituent power was nothing less than the collective capacity to
make and remake the social and political structure.
More recently, however, Negri and Hardts Empire makes the case for the
intensifying crisis of national level constitutionalism. In the post-modern era,
constituent power is the expression of an outside which cannot exist within the
post-modern space. After reading the first part of Negris Empire we might indeed
wonder who may assume the role of the constituent power in a context that
refuses the classical linkage visions of people and sovereignty at a national level.
This was a secular idea of power as territorial sovereignty, one that could not
conceive of an authority whose source lies outside its own dynamic. In this sense,
because of its internal source of energy, it was a kind of absolute power. Later, the
concept of nation entered the picture to complete the parable of state sovereignty:
In the framework of national sovereignty, territory and people are like two qual-
ities of the same substance and governance is the sacral relation of this unity.
These considerations can also be used to explain the rise of a more democratic
sovereignty which frames the territory as the social space of the people and
conducts the administration as a form of bio-politics through the development
of the idea of the welfare state. In the last analysis, through this evolution the
sovereignty of high modernity becomes a machinery whose ultimate aim is to
define, and also confine and control, the possibility of freedom under capitalism.
But the process of globalization of capital causes the emergence of a new form
of sovereignty which expresses itself in a power which overcomes all the national
boundaries and old logics of power. In this sense, Negri and Hardt argue that
globalization is not eroding sovereignty but transforming it into a system of
diffuse national and supra-national institutions, in other words, a new Empire
that touches every aspect of modern life. For Negri and Hardt there are three
causes of this shock. First, the development of nuclear technologies has changed
the nature of war, making it something unthinkable, and, in combination
with this, the influence of new forms of communication make sovereignty both
limited and at the same time de-territorialized. Starting from this assumption,
Negri says that the imperial sovereignty presents itself as nuclear territorialization
Negri, Marx beyond Marx, above n. 3. Ibid. 567.

Negri, La crisi dello spazio politico, above n. 3, at 21(authors translation).
In a rather different sense, see: M. Kaldor, New and Old Wars: Organized Violence in a Global
Era (Cambridge: Polity, 1999). A. Negri, La crisi, above n. 3, 23.
of the universal de-territorialization. The second factor of influence is the

creation of a global market which makes the national currency lose its sovereign
quality and causes a monetary deconstruction of national markets. The last
factor is the flattened culture that the modern system of communication enables.
Today, communication has turned its previous condition as a tool of the sovereign
power on its head; it is now the real sovereign master. In this context the defence
of the national language and culture and the construction of an educational
system are no longer national prerogatives. The crisis of modernity and the force
of Empire casts its destructive spell on a sovereignty now defined as a decentred
and deterritoralizing apparatus of rule that progressively incorporates the entire
global realm within its open expanding frontiers.
Unfortunately all the elements provided by Negri and Hardt do not help the
reader to understand precisely what Empire consists of from a constitutional
point of view. The authors give only a number of indirect hints. For Negri and
Hardt there is no single institution, country, or place that is or could become the
command centre of the new Empire: indeed, the very lack of a centre, and so of a
periphery, is itself a key feature of Empire.
In place of bright definitional lines we find the sense of ambiguity which
characterizes Negris thought. There is the constituent actor (the multitude)
and there is a constitution too, albeit not defined in a formal way. The constitu-
tion of the Empire, in fact, is a hybrid. A monarchic centre, an exclusive holder
of the force, does not exist, but the other classical Polybian factors are present:
the aristocracy is represented by the international financial forces while the
democraticrepublican element is represented as the power of control exercised by
what remains of the states. But to return to the supposed holder of constituent
power, what does Negri mean by the term multitude? There are various
definitions. The multitude is that part of mankind which becomes the key actor in
its production and which creates and recreates itself in autonomous ways,
building a new ontological reality through cooperation. It spreads through
circulation and nomadism, and thanks to these factors it tries to take possession of
territorial space. The multitude is also democratic power which combines
freedom and labour in an open and dynamic fashion. But the imperial order is
forced to challenge this movement. The multitude wants to create a new order
through its free movement, while the imperial order wants to divide and rule
creating new forms of segmentation. What, then, is the aim of the multitude?
Through overflowing national borders and confusing all fixed identities the
A. Negri, La crisi, above n. 3, 24 (authors translation). Ibid. Ibid.

In this sense Empire and Imperialism are not synonymous because of the absence of a centre
and of frontiers: In contrast to imperialism, Empire establishes no territorial centre of power and
does not rely on fixed boundaries or barriers . . . Empire manages hybrid identities, flexible hierarch-
ies, and plural exchanges through modulating networks of command. The distinct national colours
of the imperialist map of the world have merged and blended in the imperial global rainbow: see
Hardt and Negri, Empire, above n. 3, xiixiii. Negri, Guide, above n. 3.
multitude constitutes a new earthly city in opposition to the corrupt imperial

city.
In their book of the same name, Negri and Hardt offer a definitive
understanding of the multitude as a revolutionary actor that cannot be identified
with the people or a class because it does not seek a social contractwith all such
a contract implies in terms of compromise and mediation. Rather, it claims for
itself a power of genuinely creative violence. If the constituent power is an
announcement of the exodus from Empire, the goal of the multitude and the
point of its creative power is to build a place in the dust of the non-place of
de-territorialized authority, and so, finally, a new order. But is it a new order with-
out a constitution?
The Constitution as Higher Law and the Judicial

Protection of Human Rights
A second point of departure in the evolution of Western constitutionalism, with
particular reference to the North American legal culture and tradition, was the
affirmation of the idea of the constitution as higher law (or, as European scholars
of the twentieth century prefer, a norm hierarchically superior to legislation) and
the discovery of judicial review of legislation. Closely associated with this is the
development through constitutional adjudication of individual and collective
fundamental rightsnot only civil liberties but also social and political rights and
even third and fourth generation rights. But the significance in the development
of fundamental rights as positive rights of the institutionalization of judicial
review of legislation should not blind us to the development of the crisis of
constitutionalism of the second part of the twentieth century.
This crisis has two faces. The first is due to political pluralism, and to the
consequent lack of the necessary conceptual and ideological unity to bind the
constituent assemblies of the inter-war years and the constitutional texts they
produced. With the organic conception of the people under increasing threat
most evidently in the Weimar Constitution but also in the Austrian Constitution
of 1920 and the Spanish Constitution of 1931scholars began to theorize the
distinction between the constitution as an act and the constitution as a process.
The influence of the continuous flow of social struggle on constitutional structures
Hardt and Negri, Empire, above n. 3, 413. Hardt and Negri, Multitude, above n. 3.
Following the theory of the generations of rights developed by N. Bobbio, Let dei diritti
(Turin: Einaudi, 1990), 14ff.
See A. Pizzorusso, I sistemi di giustizia costituzionale: dai modelli alla prassi (1982) Quaderni
Costituzionali 521; M. Cappelletti, Il controllo giudiziario di costituzionalit delle leggi nel diritto
comparato (Milan: Giuffr, 1968).
See A. Spadaro, Dalla costituzione come atto (puntuale nel tempo) alla costituzione come
processo storico (1998) Quaderni costituzionali 343.
and debate, and in particular the transformation of political conflictformerly

relegated to the social sphere and unknown to the institutions of constitutional
orderinto parliamentary conflict, are the historical cornerstones of the new
constitutional doctrines of writers such as Smend and Heller, and, some time
later, Mortati. The state, through constituent power, is no longer the organic
projection of the people, but becomes the constitutional space of the political
struggle. Furthermore, with the demise of organic theory and the discovery of
political and ideological pluralism in Western constitutionalism, political parties
rather than the people or the multitude become the key actors of the constitu-
tional and political arena. An identity-based conception of democracy was born,
one whose constitutional openness lay in the recognition and reconciliation of
diversity.
The second factor in the crisis of modern constitutionalism only became
evident many years later, in the last decades of Hobsbawms short twentieth
century. In the constitutions born of the Resistance, the integration of
struggling political parties was a democratic process of self-integration. The
constitutional text, especially where a long and detailed text, becomes the
blueprint for a new society in which each political party could participate and
with which each political force could identify. But the obstinate gap between the
material constitution and the formal document called Constitution creates its
own sense of constitutional crisis. Indeed we can say, with Dogliani and Heller,
that these two conceptions of the constitution may never completely coincide.
The material constitution tracks social reality and responds to the programmes
and wills of political parties. As a process, it is always the expression of a dynamic,
one that cannot be established or even projected in final form in the way that a
constitutional text, in its very expressive logic, is bound to claim.
We can recognize this crisis particularly in the constitutional adjudication of
fundamental rights. The constitutional culture of the European democracies of
The most fascinating description of this evolution, invoking the image of political parties as
armies that face each other in the assembly, is that of E. Canetti, Massa e potere (Milan: Mondadori,
1960), 2246.
See R. Smend, Verfassung und Verfassungsrecht (1928); It. trans., Costituzione e diritto
costituzionale (Milan: Giuffr, 1988), esp. 215ff.
See H. Heller, Staatslehre (1934); It. trans., Dottrina dello Stato (Naples: ESI, 1988), 387ff.
See C. Mortati, La Costituzione in senso materiale (Milan: Giuffr, 1998), 115ff.
See P. Pinna, Diritto costituzionale della Sardegna (Turin: Giappichelli, 2003), 5 (authors
translation).
See G. Leibholz, Die Reprsentation in der Demokratie (3rd edn., 1973); It. trans., La rappresen-
tazione nella democrazia (Milan: Giuffr, 1989), 161ff.
E. Hobsbawm, The Age of Extremes: The Short Twentieth Century, 19141991
(Harmondsworth: Penguin, 1994).
As Mortati called the post-Second World War Italian, French, and Germans Constitutions: see
Mortati, Le forme di governo, above n. 21, 222ff. We may now add to them the Constitutions of
Spain, Portugal, and Greece promulgated during the 1970s.
See M. Dogliani, Introduzione al diritto costituzionale (Bologna: Il Mulino, 1994), 315ff;
Heller, above n. 41.
the second part of the twentieth century was challenged when courts discovered
that they could not ground their decisions concerning adjudication of individual
rights on the basis of a sure and certain hierarchy of constitutional provisions
directly assumed from the constitutional text. In Italy, for example, only a few
people criticized the Constitutional Courts decisions when they declared statutes
enacted during the Fascist regime to be invalid as being inconsistent with the
constitutional text. But when the Constitutional Courts decisions struck down a
statute-law enacted only a few months before that decision, the Court was seen to
interfere directly with the political agenda, and the most vociferous critics of the
decisions were the very political parties who enacted the law now struck down as
inconsistent with the constitution.
As Mario Dogliani has written, in this way we have undergone a crisis of
the constitutional norms magis ut valeantas a system of norms directly binding
the political actors located within the same polity and institutional arena as the
enforcing court itself. On this view, the constitution is no longer a legal
document offering a certain framework of values and principles translated into a
hierarchically ordered system of positive provisions on which courts (and political
actors) can found their decisions. Rather, in order to perform their task, courts
must develop different techniques of argumentation, and must found their
decisions on balancing tests or on neutral (in the sense of not interfering with
partisan political agendas) constitutional principles, with particular reference to
rationality of means (e.g. reasonableness, Verltnismigkeit, proportionality) or
apparently bipartisan constitutional values such the protection of environment
or the protection of the right to ones health.
Therefore, in this phase of the evolution of constitutionalism, its openness lies
not only in the growing tension between the material and formal constitution
resulting from the shift of focus from a text and single act to a continuing process,
but also in its pliability and permeability at the level of specific doctrinein the
quality of its norms as open provisions that require integration through the
political process. This may seem to be an invitation to constitutional relativism,
but it contains its own rationale and system integrity, and in turn questions
conceptions of the constitution as a closed system of provisions whose only oper-
ational requirement is to be executed by the political authorities and the courts.
See V. Crisafulli, La Corte Costituzionale ha ventanni in N. Occhiocupo (ed.), La Corte

costituzionale tra norma giuridica e realt sociale (Bologna: Il Mulino, 1978), 69.
See M. Dogliani, Interpretazioni della costituzione (Milan: Angeli, 1982), 29ff.
See C. Mezzanotte, Corte costituzionale e legittimazione politica (Rome: Veneziana, 1984), esp.
140ff.
For reference to the works of Esposito, Treves, and Elia to which such conceptions may be
ascribed, see Dogliani, above n. 49, 75ff.
See, e.g., C. Mortati, Appunti per uno studio sui rimedi giurisdizionali contro comportamenti
omissivi del legislatore in Mortati, Raccolta di scritti (Milan: Giuffr, 1972), vol. 3, 925ff; E. Garca
de Enterra, La Constitucin como norma y el Tribunal Constitucional (Madrid: Civitas, 1982), 95ff.
This new openness in Western, and in particular European constitutionalism,

is well described by Zagrebelsky. For him, the mildness and softness of the
constitution is explicable in terms of its determination to express the aspiration of
living togetherto arrange the cohabitation of principles and values, which, if
conceived in an absolutist way, would be irreconcilable. In order to lend concrete-
ness to these sentiments, we must re-introduce two distinctions that twentieth-
century Western constitutionalism sought to elide: the separation between the law
meant as the narrow legal rule posited by the legislator and human rights as
inherent in individualsand the separation between the law and justice, the latter
conceived of as an aspiration based on the reconciliation of deep principles of
political morality. The openness in post-modern constitutionalism may be intended,
according to Spadaro, as precisely the re-awakening and re-sensitization of the
legal/political system to a superior human aspiration to justice, one that
challenges the closure of a positivist legal/political system in which justice is
reduced to formal legality. Not relativism, but reasonableness and proportionality,
is the leitmotif of post-modern constitutionalism.
Under the banner of post-modern constitutionalism the rule of lawboth
statutory law and judge-made lawmay only be a matter of contingent and
occasional law. It may be the instrumental law of the subjects that prevails from
time to time and from one political context to another in the legislative process
its measure simply that of majority rule. Or it may be the judge-made rule of law
constructed out of the situationally specific balance among contrasting constitu-
tional values and interests, and so by definition sui generic and not valid as a
precedent for future cases. In this way weak constitutionalism is born.
The Tension between Universal Aspiration and

NationalTerritorial Identity
The third central point of the evolution of Western constitutionalism resides in
the tension between the universalism acquired from the rationalism of the
Enlightenment and the myth of the sovereignty of the particular nation and its
attendant territorial concept of political identity. It is interesting to observe that
for the French revolutionaries this tension was not in fact understood or presented
as a tension: the Declaration of 26 August 1789 had the double function of
affirming the identity of a peoplethe French peopleand providing, at the
same time, a universal paradigm capable of offering a beacon of light for the many
peoples of the world still oppressed by absolutism. In this sense, for the
See Zagrebelsky, above n. 6.

See A. Spadaro, Contributo per una teoria della costituzione. I. Tra democrazia relativista e
assolutismo etico (Milan: Giuffr, 1994), 288ff, esp. 318. See Zagrebelsky, above n. 6, 129.
revolutionaries of 1789, constitutional openness was quite simply the political

endorsement of the revolutionary promise for all the peoples of the world.
Many decades passed before constitutionalism again experienced such an acute
tension between the particular and the universal. This happened with the defini-
tive crisis of legal nationalism of the first half of the twentieth century, and the
coming of the Universal Declaration of Human Rights in 1948 followed by a
spate of other universal charters; the related UN Covenants on Economic, Social
and Cultural Rights and on Civil and Political Rights of 1966, together with
many other regional declarations such as the European Convention of Human
Rights (1951), the Nice Charter of EU Rights (2000), the African Charter on
Human and Peoples Rights (1981), the Asian Human Rights Charter (1998),
and the Inter-American Convention on Human Rights (1969). These documents
have introduced a new dimension in the definition and protection of human
rights, and at the same time provided a concrete manifestation of the global
dimension of constitutionalismone that is no longer national or western but
transnational and intercultural.
We may focus on two aspects of this phenomenon. On one hand, we may
conceive of a constitutionalism without a constitution, i.e. without a global
political authority or sovereigntynot the UN nor the WTO, not the IMF nor
the World Bank (nor, indeed, in Negris Empire, the United States)that
matches the new authority of rights. On the other hand, national courts
nevertheless have to confront this new phenomenon, since many of these supra-
national charters are not simply political documents. Rather, they establish
international courts capable of adjudicating on the rights affirmed in their respect-
ive charters. Even in its national setting, therefore, constitutionalism becomes
ever less national and ever more supranational, or better, transnational and
intercultural. As the relations between national courts and international or
supranational courts shift from indifference and conflict towards mutual interest
and collaboration, the authority of rights becomes evident and justiciable.
So a new separation and a new distinction is emerging as one of the main
features of post-modern constitutionalism: between the global affirmation of
See P. Carrozza, Nazione in Digesto IV edizione, discipline pubblicistiche (Turin: UTET, vol. X,
1994), 126ff, esp. 146ff. See also C. de Fiores, Nazione e costituzione (Turin: Giappichelli, 2005),
371ff.
A. Spadaro, Dai diritti individuali ai doveri globali (Soveria Mannelli: Rubettino, 2005),
40ff.
In the meaning given to these terms by G. Palombella, Lautorit dei diritti (Bari: Laterza,
2002), 11ff.
See P. Carrozza, Tradizioni costituzionali comuni, margine di apprezzamento e rapporti tra
Corte di Giustizia C.E. e Corte Europea dei Diritti dellUomo. Quale Europa dei diritti? in P. Falzea,
A. Spadaro, and L. Ventura (eds.), La Corte costituzionale e le Corti dEuropa (Turin: Giappichelli,
2003), 567.
The Italian Constitutional Court has, e.g., often affirmed the existence of supreme principles
which cannot be denied even if Parliament follows the correct procedure of constitutional reform
(Art. 138 It. Const.): for a list of these principles see, e.g., Constitutional Court, Decision 1146,
29.12.1988, in Il Foro Italiano, 1988, I, col. 5565.
adjudication of fundamental rights (ever more transnational and intercultural),

and the absence of any political authority (or sovereignty or constitution) possess-
ing comparable global and transnational authoritative scope. In this sense, we may
infer that the development in the effectiveness of fundamental human rights is
due more to courtsboth national and internationalthan to global political
initiative. There exists a global, or more often regional, integration through
law, which post-modern constitutionalists often overlook as they attend instead
to the crisis of national political and constitutional powers.
Elements of a Post-modern Theory of the Constitution:

Constitutionalism as Procedure
Post-modern constitutionalists agree on one central element of the post-modern
configuration as the key factor in the crisis of traditional Western constitutional-
ism: that in the era of globalization the political space is no longer a national-state
space; it is a global space.
In the face of globalization of the economy, of communications, and of tech-
nology, the constituted power (or sovereignty) appears fragmented across national
constitutions and a number of global and regional supra-national authorities: the
crisis of modern, organic constitutionalism is in fact the legal flipside of the (polit-
ical) crisis of the national state as the principal and typical species of polity. And
for these fragmented powers civil society seems not to fit the description of
Negris multitude or indeed any national community, but the multinational
corporations and the virtual communities of the remote technologies which
dominate our lives. Indeed, in its pervasiveness the new information technology,
according to Volpe, may even seem equipped to replace constitutionalism in
giving order to our practices of living together.
Because of globalizations profound consequences for the territorial dimension
of the economy and of the society, the image more frequently adopted in order to
describe this crisis is that of the nation-statewith its rigid constitutions compris-
ing fundamental rights and the separation of the organs of governmentbesieged
and pressurized by supranational and subnational sovereignties or levels of
This separation is well described by Pizzorusso in terms of the opposition between political
sources of law (i.e. that enacted by parliaments and, generally speaking, other political authorities,
whatever their territorial dimension), and cultural sources of law (i.e. the law founded on rationality
as may be that of courts and judges, etc.): see A. Pizzorusso, Sistemi giuridici comparati (Milan:
Giuffr, 1998).
See, e.g., M. Cappelletti, M. Seccombe, and J. Weiler, Integration through law. Europe and
American Federal Experience (Berlin: de Gruyter, 1986), 3 vols.; L. Azzena, Lintegrazione attraverso i
diritti. Dal cittadino italiano al cittadino europeo (Turin: Giappichelli, 1998), esp. 93ff; M. Carabia
and J. Weiler, LItalia in Europa (Bologna: Il Mulino, 2000). See Volpe, above n. 6, 238ff.
Ibid. 249ff. See also R.A. Dahl, A Preface to Economic Democracy (Berkeley: University of
California Press, 1985).
government. That is to say, the state is challenged both by a process of

transnationalization, so that the most important political decisions are made at
international or supranational level, and at the same time by a process of decen-
tralization, owing to which substate (whether regions, communidades autonomas,
Lnder, etc.) and local authorities are laying claim against the state for their right
to self-government and self-determination.
But the openness of post-modern constitutionalism cannot just be defined in
negative or cautionary terms, as awareness of the decline of classical constitution-
alism as the means to order society. We must also try to offer a positive answer to
the crisis of post-modern constitutionalism. A first answer is given by the theories
of those who support the idea, following Schumpeter, Dahl, and Habermas,
that a constitution may contain only procedural norms (i.e. techniques for a
communicative and relational decision-making): for Volpe, for example, the
consequence of the decline of the constitution as founding and legitimating a
basis of social coexistence characterized by a hard and unchangeable nucleus of
substantial values, can only be the acceptance and formalization of a procedural
idea of constitution.
A second answer is given by the theories of so-called multilevel constitutional-
ism or multilevel government, according to which there is a complementarity
among the three levels of governments (European, national, regional) to which
three different societies and three different citizenships correspond, so forming
an integrated legal system. This is an optimistic conception, one ultimately
grounded in federal or quasi-federal ideas that dismiss as anachronistic the unitary
constitution with undivided legislative, executive, and judicial powers. The fed-
eral assumption of Pernice and his followers also recalls Elazars thought about the
matrix model of sovereignty in his well-known federal vision for the post-
modern era. The matrix model is founded on the idea that in the federal
government that Elazar describes, there is no centre within the levels nor hierarchy
between them, but only relations of collaboration; network (or reticular)
sovereignty most aptly describes this new or emergent world order.
All Europeans live in systems of multilevel government articulated across three
or more sites. Italians, for example, live in a five level government, in which there
are: three legislators (EU, the national parliament and/or government, the
See, e.g., A. Pizzorusso, Ipotesi di attenuazione della dimensione statale del diritto in
Pizzorusso, Comparazione giuridica e sistema delle fonti del diritto (Turin: Giappichelli, 2005), 11.
See J. A. Schumpeter, Capitalism, Socialism and Democracy (London: Allen & Unwin, 1942),
ch. 22 (in which the author sets out his procedural theory of democracy).
See the short but clear exposition in R. Dahl, La democrazia procedurale (1979) Rivista
italiana di scienza politica 3.
J. Habermas, Morale, diritto, politica (Turin: Einaudi, 1992), esp. 81ff.
See Volpe, above n. 6, 258.
See, e.g., I. Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European
ConstitutionMaking Revisited? (1999) 36 Common Market Law Review 703.
See D. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987); It. trans.
Idee e forme del federalismo (Milan: Mondadori, 1998), 2833. Ibid. 215ff.
regional council); five executives (the European Commission, the nation-state

executive with its Premier, the regional Governor with its government, the
President of the Provincia with its Giunta, the Sindaco with its Giunta); and two
judicial powers (European and state courts, although state courts are also
European judges); five orders of taxing power; and, finally, five orders of constitu-
tions (the European, the national, the regional Statutounlike the German
system, the Italian legal system constitution does not use the term constitution to
indicate the regional fundamental normsas well as a Statuto of the Provincia,
and a Statuto of the local municipality or Comune.
In a recent essay, I sought to maintain that the functioning of this complicated
system may be explained using the Kelsenian theory of Kompetenz: the basic units
of the system remain the national states, who have Kompetenz-Kompetenz, but
they (whether through their constitutions or the democratic will of their govern-
ments and/or parliaments signalled in a treaty) delegated a lot of their original (in
a historic sense) power both towards the top (to EU or other supranational
authorities) and towards the bottom (to regional and local authorities). The
relations among these levels is not, or at least no longer, hierarchical, but one of
mutual demarcation based on Kompetenz. It is founded on the enumeration of the
legislative powers of the different levels or on the German model of executive
federalism, where the governing axis is the horizontal separation of powers
according to which one level has the legislative and/or regulative powers while
another level has executive and administrative powers.
From a static point of view each level has its own constitution, and often its
own catalogue of rights, and it is certainly true that there does not exist a constitu-
tion of the whole system. But from a dynamic point of view a constitution of this
multilevel government resides in the rules of relations among the levels, and these
rules must be inspired, on one hand, by the logic of cooperation of conventional
international law (unanimity in the constitutive phase, majority or market rules in
the operating phase) and, on the other hand, by the logic of integration, so that
each level may participate in the decisions of the immediately higher level,
through a system of informal conferences or formal organic participation in
constitutional institutions of the upper level (as in state representation in central
federal bodies).
The weak point of this construction remains the question of fundamental
rights. When we have a multiplicity of Charters of Rights (from Universal
Declaration to the Statuto of a singular Italian municipality) we may reconstruct
P. Carrozza, Sistema delle fonti e forma di governo europea in P. Bianchi, E. Catelani, and
E. Rossi (eds.), Le nuove fonti comunitarie (Padua: Cedam, 2005), 255.
See H. Wechsler, The Political Safeguards of Federalism: the Role of the States in the
Composition and Selection of the National Government in A. MacMahon (ed.), Federalism: Mature
and Emergent (New York: Doubleday, 1962), 97; J.H. Choper, Judicial Review and the National
Political Process (Chicago: University of Chicago Press, 1980), 17ff.
the relations among these charters and declarations either as a hierarchical one
(i.e. founding on autonomy or self-government the lower levels may seek to
develop quite distinctive charters, but the upper levels will still tend to prevail
even if only by promulgating very general provisions, or standards) or as a
communicative and heterarchical one (i.e. differentiation may exist but mutual
coherence is retained due to the intercultural sensibility and transnational aim of
the interpreter). The weakness lies in the fact that historynot only the history
of the United States with its so-called incorporation of rights against states in the
federal Bill of Rights but European history tootells us that as integration
increases the upper catalogue tends more and more to prevail over the lower cata-
logues. To allow a different history to be written in the future is one of the main
tasks of post-modern constitutionalism.
Owing to this requirement, for some the Universal Declaration of 1948 appears grey and
anodyne: see A. Cassese, I diritti umani nel mondo contemporaneo (Bari: Laterza, 1988), 40ff.
10
Against Substitution: The Constitutional
Thinking of Dissensus
Emilios Christodoulidis*
If the emphasis of this chapter is placed on the constitutional thinking of dissensus,

it is because the constituent is crucially linked with what may establish itself
otherwise. What is established according to institutive rules, what conforms to
pattern and is contained within form, is most obviously not of the order of the
constituent. And yet, one is reminded again and again, the recognition of the
event of the exercise of constituent power, the registering itself of the constituent,
must necessarily occur within a framework of recognition, where it can be indi-
viduated as an event and ascribed to an actor. Outwith such a framework the
constituent is meaningless as lacking the coordinates of its recognition. And
although paradox is a much-abused term, it is perhaps this time truly in paradox
that the co-originality of law and politics finds its problematic accommodation.
This for the most part elicits a speedy return to the comfort-zone of constitu-
tional-politics-as-usual with the constituent either ignored because relegated to
problematic origin or to surplus, or is rendered harmless in its accommodation in
constitutional moments of one sort or another. Either way constituent power is
subjugated to constitutional form in the only realistic understanding of constitu-
tionalism, which is the one that guarantees an order that questions neither its
affiliation, in the last instance, to state structures nor its affinity to capitalist
structures.
With the stakes so high let us return to ask whether and in what sense the
constituent might register on its own terms. Questions of this kind present
themselves at the level of constitutional practice and the meta-level of constitu-
tional theory. And while the distinction of levelsconstitutional and meta-
constitutionalwill only take us so far, we can draw that distinction analytically
in order to understand how a certain understanding of constitutional politics
draws on meta-constitutional readings of the relationship between constituent
and constituted in a way that forecloses opportunity.
* Many thanks to the participants at the conference in Florence, and to Costas Douzinas, Andrew
Schaap, Scott Veitch, and Peter Wagner for helpful discussion and critique.

At the first-order level of constitutional politics we ask: what does

constitution-making entail in the era of globalization? If globalization has forced
open new territories, releasing new constituencies and assets into the stream of
capital accumulation, it has achieved it precisely by shifting away from the institu-
tional frameworks of national economies. In the face of this release from the
multiple forms of national encumbrances, is it meaningful or effective to seek to
redress its operations and effects with institutional tools and conceptual resources
rooted in the tradition of national constitutionalism? At the time when, as Edward
Levi put it in an extraordinary early paper, the constitution is still fumbling for a
phrase, capital has fled to low-intensity democracies where regulatory frame-
works have been rolled back, labour markets deregulated, common property
resources privatized, the commons looted. The flip-side of this is that political
participation increasingly finds outlet in the largely reactionary upsurge of com-
munity politics, of state (and sub-state) nationalism which presents itself as the
only entry point into public sphere that can promise politics anything like an lan
vital. In this downward spiral, the global and the communalwhether these are
blood and soil identifications or religious fundamentalisms of the Christian and
Muslim varietiesfind themselves tied in a negative dialectic ( la Horkheimer
and Adorno) whose promise is the barbarism of a triumphant capitalism in the
midst of global wretchedness, kept in place by a regime of policing that has shed
off the need to legitimate itself in anything but instrumental terms.
If constitutional discourse is to redress this it cannot do it with contaminated
tools. Yet capitalism has been hugely successful in colonizing the terms of freedom
and emancipation: it has co-opted democracy and re-cast it in its low-intensity
variety; it has co-opted pluralism and set it against universal truths including the
universal truth that all humans need subsistence, dignity, and security; it has
co-opted the language of freedom and re-cast it as market freedom, disarticulating
its connection to the material conditions that make it meaningful; it has co-opted
self-determination and reduced it to the most formal of political transactions and
eliminated it from the workplace. While all the time the formal and substantive
processes of subsumption of the social to capital accelerate along different trajecto-
ries but in the same general direction, the ground-clearing exercise that Marx termed
primitive accumulation expands markets in labour and land (formal subsumption)
as well as in knowledges and life (substantive subsumption) to create a heaving,
relentless capitalism that manifests itself in the collape of the concrete diversity of
value proper and the reduction of everything to a single metric of exchange.
But if constitutional politics remains anchored to the junctures that globaliza-
tion circumvents, it appears that the elision is replicated one level up. While
constitution-making faces the paradox that it comes within a pre-given context of
recognition that alone establishes its objective meaning as constitution,
opportunities to resist the constitutions subsumption to the exigencies of capital
E. Levi, An Introduction to Legal Reasoning (1948) 15 University of Chicago L. R., 501,

at 506.
Against Substitution 191
remain conspicuously un-addressed. We will return to this foreclosure of

opportunity at the level of constitutional theory later.
In the meantime, let it be said again that if constitutionalism is to do any
emancipatory work in this context it must face up to the problem that constituent
power is not free-floating, but appears to come always already implicated with con-
stitutional form, the instituting already coupled with the instituted. Political power
must present itself as conditioned and with it the highest power within the commu-
nity is thus sovereign only, so to speak, under conditions that it is not. Because to be
valid it must be imputed to the constitution that establishes the conditions under
which the popular will can be expressed as sovereign. Law and democracy are rec-
onciled only via the suppression of a paradox that impacts on constitution-making
as never, inevitably, fully democratic. And yet as constitutional theorists we must
also face up to the question of constituent power, to what Alain Badiou calls the
only urgent question: what politics is really heterogeneous to what Capital demands?
From the point of view of political and constitutional theory, the question that
constituent power needs to measure up to becomes: what political action can break
incongruently, irreducibly so, within Capitalisms economy of representation?
The structure of the paper is as follows. I will argue that even to keep the
question of incongruity alive we need to resist the collapse of the constituent into
the pathways of the already instituted. This keeping open of the space, where
our incongruent question might be returned to, is harder than one thinks.
Constitutional (and meta-constitutional) discourse forever folds back the
constituent into the representational space of the constituted. I will borrow the
term double inscription and inscribe the constituent and the constituted to its
two poles. I will argue against substitution of the constituent for the constituted,
that in respect of the organizing concepts of political and constitutional
discoursedemocracy and self-determinationboth points of inscription
need to be seen as irreducibly antinomic. The first aim of the chapter, therefore, is
to state the question of incongruity and sustain the conditions of our asking it; the
second is to point tentatively to what it might mean to seize constituent power.
The Double Inscription of the Political
The concept of the political, according to Schmitt, is constitutively tied to differ-

ence and the acts that draw it out. For difference to be made visible, a distinction
must be drawn. Significantly the operation of drawing out a difference suspends
further differences and, through repeated operations, allows unities to emerge.
Interview with A. Badiou in Badiou, Ethics (London: Verso, 2001), 106.
So far as I know, this term was first used in the context of the post-colonialist current in
Cultural Studies, by Homi Bhabha who spoke of the double inscription of colonial space:
H. Bhabha, The Location of Culture (London: Routledge, 1994), 90.
On the complexities of how the drawing of distinctions allows observation of social phenomena,
see N. Luhmann, Social Systems (Stanford: Stanford University Press, 1995) 43542. For a fascinating
For Schmitt, the concept of the political draws on a distinction between friend
and foe that consolidates through repetition, so yielding political meaning and
furnishing political action. Schmitt introduces a number of thresholds and
qualifications: the political arises with the decision to act on the difference, the
initiation and termination of conflict being dependent on this; politics invokes
collectivities; and a threshold of intensity is constitutive of political action. But
most importantly for our discussion, he imports a reflexivity into politics, in the
sense that the origin of political action is already political: it resides in the
contingency of the recognition of what constitutes a political unity in the first
place. Of course, this reflexivity sediments into forms of state antagonism because
the resources to undertake political action effectively reside there. For Schmitt,
indeed, state sovereignty was the effective carrier of difference against the danger-
ous monist universalism of the (English) pluralists. But that sedimentation
remains contingent, a crystallization of political antagonism that can be thought
otherwise, cast across different configurations of friend and foe.
In line with the difference between the concept of the political and its sedimen-
tation in particular forms of antagonism, I borrow the term double inscription to
designate this double presence of the political at the level of its abstract conceptu-
alization and at the level of its concrete manifestations. The differentiation of the
two levels finds its expression in political semantics in the distinction between
la politique and le politique in French; between die Politik and das politische in
German; between la politica and il politico in Italian; and the reluctant drawing of
the distinction in English between the political and politics. In all these cases
the first inscription denotes a specific modality according to which one may speak
of what is specifically political in practices, events, and phenomena, or, better, in
reference to the political prescription. Throughout this chapter I will argue how
difficult it is to keep the differentiation in sight, and how important it is to keep
reading of Schmitt along systems-theoretical lines, see W. Rasch, Sovereignty and Its Discontents
(London: Birkbeck Law Press, 2005), ch. 1.
C. Schmitt, The Concept of the Political [1932] George Schwab, trans. (Chicago: University of
Chicago Press, 1996), 26: The specific political distinction to which political actions and political
motives can be reduced is that between friend and foe (or enemy).
And, as Leo Strauss noted in 1932, for Schmitt the political does not arise in the state of nature
because when one is engaged in the war against all, one has no friends and thus the friend/foe distinc-
tion that marks out politics as a collective endeavour cannot be drawn: L. Strauss, Notes on Carl
Schmitt, The Concept of the Political in Schmitt, above n. 5, 83.
Lacoue-Labarthe developed the idea of the differentiation of levels over a decade ago, and since
that time, and in broadly similar terms, it has entered the vocabulary of political philosophers as
diverse as Lefort, Derrida, Mouffe, Laclau, Zizek, and Balibar: see P. Lacoue-Labarthe, Retreating the
Political (London: Routledge, 1997).
On the reasons for this reluctance see E Vollrath, The rational and the political: an essay in
the semantics of politics (1987) 13 Philosophy and Social Criticism 17, at 23.
Martin Loughlin employs the distinction as crucial to his differentiation of levels: the political,
politics, and droit positif in Loughlin, The Idea of Public Law (Oxford: Oxford University Press,
2003). See, indicatively, at 156: Only within the frame of a viable system of government are the prac-
tices of politicsa mode operating on a different plane to that of the politicalable to flourish.
the double inscription alive in our political thinking and acting. Claude Lefort,
for one, warns that liberal democratic thinking mistakenly runs together the
political and its institutional reduction as the societal sub-system of politics. For
Zizek this running together is no accident. The sub-system of politics expresses
the normal condition and the substitution allays the fear of the return of the
political. Politics as a sub-system, as a separate sphere of society, represents within
society its own forgotten foundation, its genesis in a violent abyssal act.
Whether intended or not, the ideological effects are profound. So for Lefort:
The political is revealed not in what we call political activity, but in the double movement
whereby the institution of society appears and is obscured. It appears in the sense that the
process whereby society is ordered and unified across its divisions becomes visible. It is
obscured in the sense that the locus of politics (the locus in which parties compete
[etc] . . . ) becomes defined as particular, while the principle that generates the overall
configuration is concealed.
Let us retain from this the terms politics (la politique) and the political (le poli-
tique) as well as the double movement of appearance and obscuring.
Predictably perhaps this is fertile ground for both Lacanian and Derridian
takes. For the Lacanians (as we saw with Zizeks quote above), the reduction of the
political to politics reflects the fear of the return of the political. For Derridians,
the visibility of the political is verified only indirectly, as a memory or trace. There
is also much mileage to be made out of Leforts formulation of democracys insti-
tution of the locus of power as an empty place. For Lefort democracy intro-
duces contingency at the very heart of political order; it thus vacates the locus of
power, inviting a constant re-negotiation of its own operational presuppositions,
and leaving the ground fertile for Derridians to identify remainders and traces
here in what remains uncontainable and unregistered within the institution. In
a proliferation of theories that draw their inspiration from the impossibility of
containment, the slippages of the double inscription of the political, or the struc-
turality that gives way to radical innovation and political experimentation in
S. Zizek, For They Know Not What They Do (London: Verso, 1991), 194.
C. Lefort, Democracy and Political Theory (Cambridge: Polity, 1988), 11 (emphasis supplied).
For the remainder, Lefort lets a thousand equivocations bloom, over how the mise en forme
implies instituting both as staging and as delimiting: a mise en scne and a mise en sens, etc.: Lefort,
ibid. 21620.
Lefort, ibid. 1619, and his The Political Forms of Modern Society (Cambridge: Polity, 1986),
303.
The theoretical significance of this is twofold (at least). It allows theory an opening into what
rather clumsily in English translates as the structurality of structure: for Derrida it points to the
absence of a transcendental signified and marks the moment when in the absence of a centre or ori-
gin, everything becomes discourse (famously: there is no outside of the text). From this comes an
event of rupture of the structure, displaced because given that the concept of a centred structure is no
longer possible, its organizing principle can no longer contain. On this see B. Arditi and J. Valentine,
Polemicization: The Contingency of the Commonplace (Edinburgh: Edinburgh University Press, 1999).
Whether or not this dovetails with Leforts argument about the radicality of democracy that empties
out the locus of power need not concern us here.
events of rupture both abyssal and quotidian, a new faith has emerged at the
interstice of the mystical and the political thinking of resistance.
Traces, spectres, surpluses, and remainders dominate thinking here. I will not
pursue this path because resistance to structures of oppression requires political
opportunities rather than mystical faith. And yet there is something significant in
the idea of a cleavage between the two points of inscription, however that distance
is envisaged. What appears and is obscured in Leforts aforementioned passage,
tells us something important about the ideological play of differences and about
what is elided in the interstice between the political and its institutional manifest-
ations. It also returns us to the constituent that finds its expression, as we said, in
what could be otherwise and therefore in an event of rupture with the powers of
constitutional homology. The event of rupture cannot, by definition, be spread
over continuous time in democratic negotiation and constitutional practice.
Instead, it requires the theorist to ask difficult questions of an ontological nature.
Thinking the event of rupture, in fact, returns us to one of the oldest questions in
philosophy: how does the new come into being? The greatest difficulty here is that
the event itself cannot be thought independently of the context in which rupture
registers. That rupture registers in terms of a response it triggers, and the response
in turn recalls a context where the rupture becomes domesticated as crisis, as an
anomaly the response to which re-instates the ruptured context. The powers of
homology cannot be ignored. The abyssal opens before us rarely; the Bastille is
not stormed every day. But that does not mean that ruptures are not possible.
A rupture registers when an act appears incongruent to the logic of its representa-
tion, and with such intensity that it can neither be domesticated nor ignored.
I will return to the concept of constituent power as constitutively linked with
events of rupture of the economy of political representation, and to Badious
notion of the event.
In the meantime, let us lower the tone of the purported re-discovery of politics
in constitutional theory, and raise the stakes. Lower the tone because the professed
discovery merely unfolds the logic of observation as analysed most succinctly by
Luhmann, the logic of drawing distinctions, what they indicate as options and
what they intimate as context. Every distinction makes an indication possible, but
the latent non-indicated side also remains crucial to the operation. Spanning
them both is the form of the distinction, which is in a crucial sense actualized in
the indication. The mise en scne invites a thinking of the political as that which
spans and necessarily exceeds any one of its instantiations. There is nothing
mystical here; but let us also up the stakes of the resistance to substitution. The
Cf. P. Ricoeur: [O]n peut dire en un sens que la politique nexiste que dans les grands moments,
dans les crises, dans les tournants, dans les noeuds de lhistore. ([O]ne could say that in a sense pol-
itics only exists in the great moments, in times of crisis, in the turning points and knots of history.).
P. Ricoeur, Le Paradoxe politique (1957) quoted in Vollrath, above, n. 9.
For its most complete elaboration to date see A. Badiou, Etre et venement (Paris: Seuil, 1988).
On the logic of distinction, indication, form, and crossing, see N. Luhmann, above n. 4.
irreducibility of the political to politics, of the constituent to the constituted,

underpins our ability to break from, to imagine otherwise, and to renew beyond
the modalities of what has already been instituted, and it is in this otherwise that
the thinking of dissensus emerges in the in-between of the two inscriptions,
shedding off givens and necessities in the process.
Democracy and State Form
The idea of the double inscription invites this question: how are we to think
democracy democratically, as a forever renewable exercise of constituent power?
And if this democratic scrutiny of democracy jars as a prescription for political
practice, a confusing merger of level and meta-level, the question that this merger
raises is whether there can be a political-philosophical reading of democracy that
calls it forth from the settings to which the institutional conditions of its exercise
confine it.
To think about democracy as constituent let us return to Marx. For Marx of
The Manuscripts, democracy is unthinkable outwith the context of generic
communism, and generic communism designates the activity of workers directed
by and towards the collective power of needs, an activity that is not held in place
by regulations or structures but democratically, in the sense of reflexively in
response to the requirements of its expression. Let us keep this philosophical
account of democracy as the pure presentation of a collectives truth in the
background of our discussion. It is pure presentation because reflexivity under-
pins it: there is no prior structure to give objective meaning to its proper
expression. The will is actual, its truth judged on its responsiveness to need which
is, and cannot but be, the aspiration that collects a society, a collective assembled
on the principle that it is free, associative, and egalitarian. Constituent power as
pure presentation, and pure presentation, one might say, as pure self-reference.
The return to thinking and theorizing radical democracy as pure presentation,
of a collectivity that calls itself to presence in a sovereign moment of immediacy, in
a process of assembling itself, generates both philosophical and prudential
objections. Philosophical objections pivot on the impossibility of a politics of pure
presence, on the priority of representation over presentation, the impossibility of
undertaking action meaningfully outwith contexts. Prudential arguments warn
against the fellowship of terror, the brute realities of state coercion, the shading
between democracy and dictatorship. Both are hugely important objections, but
I will respond here only to the philosophical objection, which is the one relevant
to the antinomy between constituent and constituted.
K. Marx, The Economic and Philosophical Manuscripts of 1844 [first published 1932] (Moscow:
Progress Publishing, 1959).
The philosophical distinction between presentation and representation alerts

us to the fact that the question of democracy cannot be thought independently of
its forms, its specific configurations, and instantiations. In an important paper,
Alain Badiou makes a striking attempt to rescue a concept of democracy as what
maintains politics in the realm of universality proper to its destination; or, in
the way that we have been exploring the problem, what maintains it in the
dimension of the constituent. The symmetry here is given by the work that
universality is doing in Badious formulation, as he seeks to think the constituent
in its own terms and against its uncritical accommodation in the usual forms. If
democracy names a supposedly normal state of collective organization or
political will, he says, then the philosopher demands that we examine the norm
of this normality.
Badiou begins his discussion with Lenin, who famously drew the distinction
between bourgeois and proletarian democracy and thus tied the question of
democracy to the form of statebourgeois or proletarian. The drawing of the
distinction bourgeois/proletarian as internal to the concept of democracy
reinstates the state as condition for both, with the possibilities of proletarian
democracy tied to their control of the state. To this Badiou contrasts his own
preferred reading of Lenin. For Lenin, the aim of politics is the classless society
and with it the disappearance of the separate form of the State, even the State that
declares itself to be democratic. With this we are in the realm of pure presenta-
tion, or free association . . . or collective self-realisation as such. But what comes
with this achievement is the realization that the only adequate philosophical word
for evaluating the political is possibly the word equality or communism but
certainly not the word democracy. Badious project is, given a certain emanci-
patory framework, to look at the ways in which democracy can resume being a
category of philosophy proper.
What Badiou is attempting in giving democracy its proper place as a
philosophical concept is to re-inscribe it at the constituent pole of our double
inscription. By tying it to the form of the state, Lenin collapsed it into the realm
of the constituted, and as such of a politics to be overcome. If Badiou wants
to maintain it as central to revolutionary thinking, he will have to re-inscribe it
in non-state terms. In this vein he suggests two possibilities: to conjoin it either
to mass democracy or to the political prescription itself . What he calls the
essence of mass democracy yields a mass sovereignty, and mass sovereignty is a
sovereignty of immediacy, thus of a gathering itself . But ultimately Badiou will
resist this conjunction as a mode to restore democracy as a properly political
concept because the sovereignty of the gathering necessarily and intrinsically,
exerts a terroristic-fraternity in the way in which Sartre described the group in
A. Badiou, Speculative Disquisition on the Concept of Democracy [first published in Abrg

de mtapolitique, Seuil: Paris, 1998] in Badiou, Metapolitics (London: Verso, 2005), 78, at 94.
Ibid. 78. Ibid. 80. Ibid. 81. Ibid. 90. Ibid. 88.
fusion. This is not an argument of the kind I called prudential; for Badiou this
understanding of democracy immediately includes, both empirically and concep-
tually, its own reversibility into dictatorship and as such it resists philosophical
apprehension under the [designation] democracy. The second possibility, the
one that Badiou endorses, is to refer democracy directly to the political prescrip-
tion. His argument is elaborate, but the crux is in the following statement:
Let us suppose that democracy designates the fact that politics, in the sense of a politics of
emancipation, does not have the State as its ultimate referent, but instead the particularity
of peoples lives, or people as they appear in the public space. It then follows that politics
would only be able to retain its integrity [rester soi-meme] on condition that it refused to
treat this particularity in a non-egalitarian way.
In this way democracy is what maintains politics in the realm of universality
proper to its destination.
This is a complex argument, of necessity presented here schematically, but what
makes it so valuable in this context is that it defines democracy through reflexivity
(as conjoined to what is proper to politics) and crucially in the dimension of the
constituent (severed from the form of the state). Badious significant contribu-
tionand condition of his argumenthere is to argue that what is proper to
politics is what presents equality. Badious is a political philosophy of universal
truths, and political prescription requires the corrective of equality and universal-
ity as constitutive of political truth. The we of politics (proper) is not the we of
the French, the Arab, or the Jew: democracy for Badiou is in fact what prevents
these predicates from circulating as political articulations. This is a powerful
restatement of the constituent, though in my view it needs to be coupled with the
earlier conjunction that he rejected, the conjunction with mass political activity.
It was, after all, Sartre who also spoke of the political truth of the movement as
something intrinsic to it (la vrit du movement), and Badious linking of democ-
racy with dictatorship is, I would suggest, an empirical rather than a conceptual
point, its rejection too fast and in fact at odds with his own general position. At
the moment of the undertaking of praxis, and it is in the modality of the present-
future that praxis needs to be understood, its supposed reversibility to dictator-
ship is not present because the subject of praxis as multitude remains an open set
of relations understood as unity in respect of a projected telosone that there is
no need to assume will be policed through terror. In any case, according to
Badiou, is not the truth of the political event one which requires fidelity to a situ-
ation despite the conditions that make its establishment and maintenance
improbable? Badious whole political philosophy and political life is testimony to
the faithfulness that constitutes the political subject.
Ibid. 89 (emphasis supplied). Ibid. 923. Ibid. 94.

The constitution of Lenin as a revolutionary, he says tellingly in an interview, depends on the
fact that he remained faithful to the Commune of Paris: A. Badiou, Infinite Thought (London:
Continuum, 2003), 180.
I will say more on the thinking of dissensus later and on what Badiou means by
the situation and the event. Whatever the more elaborate understandings, and
however we resolve the question of the conjunction with mass mobilization, there
is no doubt that we find ourselves here at the heartland of the constituent. It is a
constituent moment that crucially relies on linking up democracy to praxis,
equality, and universal truth, rather than one that defines itself through an act of
internal differentiation into the pluralisms that we are all too familiar with.
Throughout the broad spectrum of democracies cosmopolitan, empowered, or
allegedly radical, throughout the infinite variations of discursive theories of the
public sphere, essential contestability and agonisms, democracy has become the
signifier par excellence for the organization of consensusand thus the organizer
of the containment of political conflict as conducive to the perpetuation of
capitalist economic structures. There is a crucial reduction in the re-casting of
conflict as pluralism; democratic theory here over-determines and thus domesti-
cates conflict, as capable of being played out and as resolvable in the formative
structure of public sphere. Order, after all, requires division and therefore
conflict as that which it is an answer to. But note how the field of reference is
cast from the point of view of what is democratically decidable and conflict is
cast in terms commensurate with its overcoming. With it comes an insidious
and pervasive meta-politics, in which the measure of every form of internal
differentiationand what else is pluralism about?is also a re-instatement
of the formative structure that, as context, evades scrutiny as such.
It is this, above all, that the logic of distinction-drawing alerts us to: the
organization of consensus is at the expense of raising any meta-level objection over
the terms of setting the context. Context-setting is performed through the
drawing of distinctions that differentiate internally, and thus allow the deploy-
ment of further distinctions while at the same time immunizing the operation of
context-setting from possible challenges. A certain structural inertia sets in at this
point. An operation of internal differentiation allows the observation of what is
indicated, what not, as well as a glimpse at whatas contextspans them both.
But this operation is at the same time an act of over-determination and substitu-
tion. What is established and glimpsed as context remains structurally inert
because it displaces what could have been unfolded with the help of other
distinctions, in the same way that Lenins use of the bourgeois/proletarian
democracy distinction leaves unquestioned the context of the state as condition
and context of the act of differentiation.
What follows from this is a democratic context that severs itself off from realms
in which it is not properly deployed according to the logic of its unfolding. What
remains installed as context and unchallengeable as such through acts of internal
differentiation is a particular form of democracy, cut off from democratic
For one of the most penetrating analyses of formative structures see R. Unger, Politics
(Cambridge: Cambridge University Press, 1987), 3 vols.
challenge through a successful act of substitution. And it is precisely this logic of

the construction of the public sphere that makes nonsense of the conjunction of
democracy to the economy. The pressing need to re-think need politically finds no
pathway in the realm of the constituted, and the urgent message of the
Manuscripts finds no resonance in constitutional thinking. There is no doubt that
such claims are absent from political theorizing today, and Arendts disastrous
contribution in ruling out need from the political vocabularyon the grounds
that only the realm of contingency rather than that of necessity is properly
politicalcannot be over-emphasized. Whatever its theoretical underpinnings,
it is indicative that the constitutive feature of the democratic principle underpin-
ning the public sphere in this particular form of the organization of consensus, is
that the very constitution of a democratic politics is in one and the same move
a denial of economic democracy.
Through this denial, democratic politics becomes coincident with democratic
capitalism. The co-originality of rights and democracy secure the domestication
of democracy in its state form. The co-originality of public and private autonomy
delineates the realms where self-determination can be meaningfully pursued.
Through these institutive reductions democracy is summoned as the category of a
certain politics, a principle of organization of consensus in a sphere where the
capacity of society to use moral or democratic categories in the conceptu-
alisation of the economy is always already undercut: the disaggregation of
Wirtschaftsdemokratie, the disarticulation of citizen and producer, the disaggrega-
tion of the political economy, its collapse into its market form, its cleansing of the
categories of political accountability, the disempowerment before managerial
prerogative, and with it the reduction of the state to a managerial role that is,
crucially for the argument being pursued here, external. Committed to this
externality, even the most modest redress in public law finds no leverage: how
hollow resonates today Laskis argument that the first function of labour law is to
provide the basic conditions necessary for effective political citizenship, as well
as his and others appeal to principles of public law to extend protection against
the main sources of private vulnerability, the insecurity of everyday life, the
disempowerment in the workplace, the precariousness of employment, the
Arendt maps the distinction between action and labour onto that between contingency and
necessity, and argues that labour obeys the orders of immediate bodily needs whereas action inter-
rupts the inexorable automatic course of daily life [and] the cycle of the biological life process:
H. Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 100, 246. The effect
of this mapping where the concept of initiatory action is alone reserved for the realm of the political,
functions to relegate the dyad labour/need to the realm of necessity and in that crucial way depoliti-
cizes the redress of need. On Arendts analysis of initiatory action and contingency, see A. Schaap,
Political Reconciliation (London: Routledge, 2005), esp. 62ff.
See M. Glasman, Unnecessary Suffering (London: Verso, 1996), xi: There are two ways in which
society acts upon the distinction between necessary and unnecessary suffering. The first is through
adopting principles of justice which establish a common status of citizenship for each person, the
second concerns the treatment of people at work.
H.J. Laski, A Grammar of Politics (London: Hyman, 1967), ch. 9.
fragility of civil rights. The externality commits public law to arguments from
symmetry and analogy, of claiming valiantly at the margins that some recourse to
principles of administrative justice against abuses of discretion that are irrational
or procedurally improper is maybe fitting, or, in its more extravagant moments,
for a more radical perspective within labour law which requires the power of
employers to be justified by more than appeals to agreements in market
transactions.
We can now step back from the argument about economic democracy to the
main argument against substitution; namely, the insidious logic whereby cat-
egories of a particular politics, particular reductions, install themselves as universal.
That substitution lends itself to a domestication of ideals that render them instru-
mental to the logic of rule and undercuts them as categories of critical theory.
The We of Politics
A long tradition in democratic thinking makes the legitimacy of political arrange-

ments dependent on rulers and ruledaddressors and addressees of norms
being co-referential terms. The laying down of the law occurs as a speech act in the
first person plural; with this first person plural of politics we come to the heart of
constituent power, the crux of popular sovereignty, to the essence of what it means
and what it threatens. A cursory look at the contributions to this volume alerts us
to the latter. We are (afraid of) the People is Christoph Mllers playful title (ch. 5),
but his paper is all about how serious the effort has been in Germany to tame the
constituent moment by binding the opportunities of the constituent to the
conditions of what Article 79 of the Basic Law stipulates as prerequisites for its
exercise in terms of guarantees of rule of law, basic rights, and federalism. The
fear of a we that might break free of its containment in the representational
space of the constitution is perhaps also at the root of the urgency with which
David Dyzenhaus, in his contribution (ch. 7), denies that there is a question to
answer here at all, and in the process loses sight of the central category of the
political, though his is a normative point rather than a descriptive one and his field
meta-politics rather than politics. In his liberal worldview where legality hosts and
voices the aspirations of the people anyway, any democratic surplus not already
exhausted in the constitutional is neatly defined away. Like Ackermans work,
Stephen Griffins analysis of constitutional moments (in ch. 3) deals with the
constituent moments threat to the constituted by turning it on its head, the
aporia into a supposed synthesis. Because isnt every analysis of constitutional
moments an attempt to domesticate the dangerous political, and does it not
H. Collins, Market Power, Bureaucratic Power and the Contract of Employment (1986) 5
Industrial Law Journal 14.
See B. Ackerman, We the People: Foundations (Cambridge, MA: Belknap Press, 1991).
struggle helplessly to contain the impossible tension between a certain

democratic /political surplus that might qualify something as a moment in the first
place by carving it out of the homogeneous flow of business-as-usual constitu-
tional history and at the same time to keep it constitutional, that is in line with
what the constitution itself determines as opportunity for renewal? Our theorists
appear to have hit a theoretical impasse herethe notion of a structure-defying
event that somehow implausibly registers as constitutional despite the conditions
of its individuationand have assumed it an insight. Against these easy assimila-
tions and elisions let us remember that there is something vastly important in how
the constituent and constituted are played out in the realm of collective identity
that resists its suppression in practice (Mller) and in theory (Dyzenhaus) or its
supposed sublation (Griffin). To see this, let us briefly return to the basics of
linguistic theory.
We, writes Emile Benveniste in his monumental work Problems of General
Linguistics, is not a multiplication of identical objects but a junction between I
and non-I. The non-I of we can be you and/or they, as Carrol Clarkson
reads him, and thus the we can be I plus you or I plus they or even I plus
they minus you. The point is that all these configurations of the we, of
plurality and inclusion, are all variably excluding, in each case summoning
different collectives. Initially at least, says Clarkson, questions about the we
take the form who is summoned?, who included or excluded, in other words,
which referents are in question?
Now let us draw out the political implications of the grammatical operations of the
we, that is to the operation of summoning of a collective subject always-already in
the world. The speech act implicates, in the sense of placing-in-a-relationship.
It is this (Heideggerian) threadof the subject always-already implicated in the
world of reciprocal recognition and dependencythat Jean-Luc Nancy draws out
in his celebrated work on community. If I briefly introduce him here it is
because the double inscription resonates in his work too, in his case in the
aporetic juncture between singularity and multiplicity, aporetic because the
distance cannot be crossed between Benvenistes singular utterer of discourse and
the plural that it summons. According to Nancy: The speaker speaks for the
world, which means the speaker speaks to it, on behalf of it, in order to make it a
world. Of course, as Clarkson observes, the on behalf is spoken here in
positive terms since the subject position instantiated by the I in a performative
we still takes effect. But there is a negative side too. First, it has to do with the
position of those who have been summoned in the we despite themselves;
second, with those whose speaking position has been withdrawn either because
C. Clarkson, Who are we? Dont make me laugh (2007) 18 Law & Critique (forthcoming);
the references to Benveniste are to his Problems in General Linguistics, M. E. Meek, trans. (Coral
Gables: University of Miami Press, 1971), vol. 1.
J.-L. Nancy, The Inoperative Community (Minneapolis: University of Minnesota Press, 1991).
J.-L. Nancy, Being Singular Plural (Stanford: Stanford University Press, 2000), 3.
they have been excluded (Benvenistes we as I plus you minus them) or usurped
(summoned as what they are not). Then, in Clarksons beautiful formulation,
how do you hear different pitches in the vibration of complicity and distance in a
we that sounds an even note?
As the German philosopher Waldenfels states, it is impossible for a we to say
we. Linguistically speaking, this means that the we of the utterance-content
does not coincide with the we of the utterance-process that speaks the we or with
the I that speaks for the we. The we is thus announced by those authorized to
speak it or, as Bert van Roermund puts it, what we encounter [in such utterances]
is a web of various metonymies accounting for membership of the term speaker.
The we cannot announce itself because there is no first-person-plural speaker.
This is a serious conceptual point. The argument here is that there is always
inevitably a performative element in any invocation of the we. This absence
cannot be redeemed by invoking a counterfactual norm of discourse or pragmatic
opportunities to contest the invocation. The important point, I think, is that at
the moment of the invocation of the we by another, the speaking position of she
who was silent was usurped, and this appropriation cannot be countered except
after the event, after the invocation has already been effected (assuming, that is,
that the opportunity is there). It is the temporal gap, then, between the invocation
and its possible rebuttal, that highlights the conceptual point. The invocation at
the moment of its occurrence usurps and overdetermines, and in that carries the
performative element.
Here again we come up against the logic of the double inscription. On the
one hand, self-determination only requires the act of self-legislation for a we to
be collected around the enactment of its law, in a moment where the self and
its determination are actual: freedom in its most exalted form, according
to Arendt. And yetthe other side of the inscriptionself-determination
depends on installing the gathering orders, on institutions offering default
settings for these invocations that allowrecalling Leforts formulationa
demos to se mettre en scne.
I will defer to Hans Lindahls powerful analysis in the present volume (ch. 1) as
to how this tension is played out in legal theory in the debate between Schmitt
and Kelsen; and defer also to his account of the improbableLuhmann might
have interjecteddialectic of presentation and re-presentation, the articulation
of the constituent and the constitutional in the constitution of collective selfhood,
For a fascinating treatment of how responsibility is located (and dis-located) in the operations
of the authorising we in institutional settings, see S. Veitch, Not in my Name: On
Responsibility and its Disavowal (2007) 16 Social & Legal Studies (forthcoming).
B. Waldenfels, Topographie des Fremden (Frankfurt, Suhrkamp, 1997), 149; quoted and dis-
cussed in B. van Roermund, First Person Plural Legislature: Political Reflexivity and Representation
(2003) 6 Philosophical Explorations 235, at 238. van Roermunds paper is a profound philosophical
attempt to scrutinise the canonical form of a first-person legislative speech act.
van Roermund, ibid. Arendt, above n. 30, 1778.
which, like Nancy above, Lindahl sees as a source of renewal. It is at that juncture
or interstice that he places questionability and responsiveness as motor of that
renewal. Since my concern here is very close to his, let me attempt to re-state it by
relating it to his prescriptions.
Famously for Schmitt, as Lindahl reminds us, the concrete existence of the
politically unified people is prior to every norm. This reference to a peoples con-
crete existence is directly at odds with Kelsen (and of course Kant before him), for
whom there can be no people prior to the laws imputation of a will to them.
There is in Kelsen an internal link between attribution and imputation. The
objective meaning of the collective will of the people is attributed to a people
capable of willing because imputed to a legal body whose capacity is underwritten
by the law. Here attribution is stripped of an external reference and the juridical
condition (Kants rechtlicher Zustand) is doing all the work. Hetero-reference
builds on the back of self-reference, and Lindahl is absolutely right when he says
that Kelsen trades in constituent for constituted power. No self-determination,
he says, is conceivable without some representation of the unity of the subject of
constituent power. No presence can be couched in the simple present of a
performative, a will that only requires to will to be laid down as such. Self-
determination as a kind of Schmittian formless forming is impossible, because
the forming is understood as a self-forming process and it is nonsense to talk of a
collective [self ] as the subject of constituent power without presupposing unity
[of that subject].
It has become obvious that on this reading Schmitt and Kelsen fall neatly on the
side of the constituent and the constituted respectively. But what of our double
inscription that requires a certain simultaneity of the constituent and the consti-
tuted? At the juncture of an impossible actus purus of constituent power on the
one hand and, on the other, what is already constituted by the law as opportunity
of renewal, Lindahl locates reflexivity which he unpacks as questionability and
responsiveness and claims them as the modes of existence of the collective self.
To act, he says, is to respond: the political actor only ever re-acts within consti-
tuted contexts in which s/he is both included and excluded: the modality of
responsiveness means that the possibilities of political unity are never exhausted in
any one act of self-definition. But in all this, Lindahl is keen to emphasize,
whenever representational practices are interrupted the rupture does not
somehow register in its own terms in a moment of pure self-definition. He relates
an incident from the Social Forum in Florence a few years ago when an activist
named Agnoletti claimed, on behalf of the radicals and against the co-opted
NGOs, something along the lines that we are no reformists. His claim to speak
for the movement is, for Lindahl, an illustration of the impossibility of doing just
As is the case later also for Luhmann in whose theory self-reference becomes radicalized:
Luhmann, above n. 4, 43777.
See also Lindahl, Acquiring a Community (2003) 9 European Law Journal 433.
that. Why? Because in order to act the multitude must become a unity of action,
and in so doing effect a closure regarding at least the questions of who belongs. So
although Agnoletti may have interrupted a set of representational practices, the
rupture does notand cannotreveal a [collective subject] immediately present
to itself . The other side of the story concerns a usurpation: in claiming to speak
on behalf of our movement the radical in a regressive act that re-configures the
past (self-defeatingly) defines the constituent moment as already constituted.
But then every constituent self-definition involves a re-configuration of the
past, thus only in the loosest sense courting the constituted. If there is a temporal
dcalage involved here, the future anterior will cross it: after all the there will have
been is the crucial moment in any political intervention that understands itself as
inevitably premature: we have learnt so much from Lenin. And if every political
intervention is premature it not only legitimately recollects a past which has never
[so far] been present, as Lindahl suggests, but can effect it to recall a we whose
contours have not yet been fixed. The we then, as we saw with Badiou earlier,
invites a conjunction with mass mobilization and is defined (only) through that
conjunction. The constituted has no purchase here. And while what interrupts
may indeed tie the action to the context of representation, is there really no room
for what erupts incongruently within a certain economy of representation to recol-
lect the we otherwisewhich is what we identified from the start as the defining
moment of the constituent? And while Lindahls attempt to locate political action
in reflexivity at the interstice of the constituent and the constituted is perhaps a
way to operationalize the double inscription of the political, keeping both poles
alive, my concern is that he trades in too much of the constituent in the process.
Re-actions after all assume the context, and this given-ness of context is what is at
stake in political action if our concern is with constituent power, which invites the
question: how does one inaugurate an act of self-definition in a context that has
no room for it? Or in Lindhals telling of Agnolettis story: is political action really
forever condemned to be reformist? Too much is ruled out here and the danger is
that in the modalities of responsiveness and questionability renewal may remain
bound to the pathways of the constituted, in a process of involution (i.e. internal
differentiation) rather than a dialectic of transcendence.
So, if questionability holds the key to the constituent what questions can be
asked of it? The problem appears at the meta-level: since the constituted depends
on specific constitutive reductionsobviously the constituted is a reduction
achievement of one sort or anotherthose constitutive reductions set the condi-
tions of what can be asked meaningfully. They are the conditions of questionability
not its object. Against this fixing of the coordinates of the questionable, there is an
Cf. the anti-reductionism of Badiou, above n. 28: There is an irreducible contingency to a

situation (at 185); We do not fundamentally need a philosophy of the structure of things. We need a
philosophy open to the irreducible singularity of what happens (at 54); Such would be the philoso-
phy of the event. This too is required of philosophy by the world, by the world as it is (at 55).
urgent need to find a way to ask the meta-level question and to allow an invocation
of a we that finds no room in the representational space of the public sphere
afforded it, whether that is the citizen-producer of our earlier example, Lenins
revolutionary class or Agnolettis radical ecologistall these interventions prema-
ture re-configurations of the frame of reference they purport to find themselves in.
Whatever the merits of the symmetry I have drawn between the various
examples the constituent remains irreducible to the conditions of its emergence
and the representational space afforded to it. In discussing this with regard to the
subject of constituent power, we are in the realm of what is most marxist in Marx,
as Sorel put it, the radicalization of the connection between the subject of politics
and his action. And it is here again that Badiou leans on the side of intervention, of
interruption and of the event. Subjects are those who act in fidelity to a chance
encounter with an event that disrupts the situation they are in. One can do
nothing except engage in action: the act is the only measure of the real present.
The subject emerges in that engagement, in fidelity to an event, since politics is
always in the form of a declaration, a self-commitment, a putting-oneself-forward,
an attempt to change the situation as the only condition of calling yourself subject.
I have attempted to argue that the we of politics must remain alive in the
dimension of the constituent and not forever be traded in for what institutions
offer as default settings to regularize and customize invocations of the first person
plural, of sovereignty and mutuality in the public sphere. These are moments of
institutional self-inclusion that is not, and could not be, self-inclusion at the time
it is performed. It only begs the question, albeit in a most illuminating way, to
object that the invocation of the we is nonetheless proper in settings where it is
properly instituted (where there is prior agreement, for example, as to what we
agree on or what we stand for). The point is that the invocation of the we only
stands to the extent that s/he who has not spoken it consents to what was uttered
in her name. This reflexivityam I really represented in the we?becomes one
that is impossible to pre-contain at either level. Consent to inclusion can only be
certified after the event, that is, after the invocation of the we has been effected. It
is this temporal economy that makes it impossible for a we to say we . If this is
the case, it is a fortiori so when the invocation relies on a prior institutionalization
of a relationship, and it is at this point that the logic of substitution kicks in. This
is not of course to say that democratic theory cannot ignore this irresolution at
the heart of the professed empowerment of political society. It can, and in fact for
most of the time it does. But against those who take comfort in the inclusion
professed by our constitutions let the double inscription reminds us that while
democracy as instituted cannot excavate its foundations (one cannot step behind
the starting-line to ask questions of the subject that calls itself to presence as self-
determining) its institutionalization is precisely that operation of crossing which
G. Sorel, Reflections on Violence [1906] in J. Jennings (ed.) (Cambridge: Cambridge University

Press, 1999), 172, 213. Badiou, n. 28, 62.
cannot at the same time be performed and held up to scrutiny. It is an invocation

that assumes too much because it enacts a we through transgression.
The Thinking of Dissensus
In a revealing invitation to political humility, John Rawls writes this in Political

Liberalism: A zeal for the whole truth tempts us to a broader and deeper unity that
cannot be justified by public reason. For Rawls public reason hedges in a zealous,
a messianic, or Jacobin belief that reason might deliver a political truth that taps a
deeper unity. In its place Rawls will advocate a civility, a relative disengagement, a
distinct political truth, and an attentiveness to the limits of collective action. There
can be little doubt that it is precisely in the light of the risk attendant to the demo-
cratic subject putting itself on the stage as such, the quintessentially political act of
self-determination, that he lowers the ambition of public reason.
Self-determination is the formulation that one uses to capture the sense of the
collective subject of politics. It is a useful term in that it captures something of the
double moment of the constitution: the self that determines and the determin-
ation of the self. In the interstice between the self and its action we encounter both
difficulties: of the meaning of an action that is genuinely collective, and of a
collective that is determined through its action.
To govern, Foucault wrote, is to structure the possible field of action of
others. In his contribution to the present volume (ch. 16), James Tully renews
the warning that, in the context the new imperial logic of homogenization and
assimilation, it is the meta-level struggles that matter, because only at that level can
politics resist and redress the multiple forms of its co-option. These are struggles
against assimilative injustices of the policies of recognition and governance, since,
as Tully insists, hegemonic languages and corresponding practices of governance
provide the horizons of the mode of disclosure of the present. But how is
political action to lift itself to the meta-level? The answer has to be: through
militant attention to the points of tension upon which the management of
consensus depends; through the logic of rupture; through acting to create the
possibility of acting in a way that was foreclosed. In claiming a proper
constituency for the constituent my suggestion throughout this chapter has been
to think the political in terms proper to it, which in turn imports a reflexivity into
politics as political prescription.
J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), 423.
M. Foucault, The Subject and Power in H. Dreyfus and P. Rabinow, Michel Foucault: Beyond
Structuralism and Hermeneutics (Chicago: University of Chicago Press), 221.
While the references are to the manuscript of Tullys forthcoming book on imperialism, a
similar injunction can be found in his chapter in the present volume.
In the sense that Badiou uses the term (above, text accompanying nn. 226). I tentatively
attempted a similar argumentof a mutual constitution between reflexivity and politicsusing a
systems-theoretical template in my Law and Reflexive Politics (Dordrecht: Kluwer, 1998).
With this we have come full circle. If the constitutional situation that we find
ourselves in is that which invites repetition and, in including all possible
alternatives, fore-structures the field of possible action, acting must re-orient itself
to carving out a space for the possibility of actinga meta-level struggleagainst
the registers of democratic capitalism, against end of history, the meta-liberalism
that includes all its options.
I have argued against substitution, against, that is, the collapse of the moment
of the constituent into its instituted forms. I have argued this in regard of
politics, of democracy, and of self-determination. In the first it is expressed in the
idea that the moment of the political pivots on a reflexivity that cannot be
captured, and certainly is not exhausted, in any notion of the political constitu-
tion. In the second, it is captured in the idea that democracy, as generic, remains
prior to, and irreducible to, its capitalist state form, that at once inaugurates a
democratic public sphere and denies economic democracy. In the third, it is
expressed in the mutual constitution of the collective subject and its praxis.
Substitution here means that every moment of self-constitution is made to yield
to a pre-constituted order. The difficulty is that the yielding is at once a necessary
condition because without it there is no representational space, and yet cancels
out the new in the very act of accommodating it in pre-existing schemata and with
it comes a self-determination with the self always-already determined, which is
of course no self-determination.
In the formulation of double inscription, I have attempted to capture some-
thing of a simultaneity of presence of the constituent and constituted in each of
these realms. At this high level of abstraction one can of course object that an
inscription already falls on the side of giving form and thus, yet again, misses the
constituent. To avoid this, we have asserted the antinomy between the two poles
as irreducible. And as the neo-Marxist Kojin Karatani would put it, let us conceive
of political thinking and critique as taking place in the purely structural interstice
between them.
Against the pressures of homology, the slippages of ideology, the easy democ-
racy-speak of the political theory of the comfort-zone, there stands before critical
constitutional theory a crucial task. We might identify here three categories where
constitutional theory could make a difference: (i) ideological critique, by redress-
ing the play of ideological devices through which substitution is both effected and
absolved; (ii) strategic deployment of constitutional devices, such as the use of
rights not as guarantees of communicative reason but in a strategic political mode;
and (iii) reflexive constitutionalism, involving the meta-level use of constitutional
K. Karatani, Transcritique: On Kant and Marx (Cambridge, MA: MIT Press, 2003). Kants
Ding-an-sich [thing-in-itself ] argues Karatani, is not the transcendental unity beyond our grasp
but what is discernible via the irreducibly antinomic character of our experience of reality. See
S. Zizek, The Parallax View (2004) 25 New Left Review 121.
law to ensure that it structures and withdraws from social fields appropriately to
the redress of disadvantage, disempowerment, and injustice.
This is perhaps also an invitation not to expect all resistance to democratic
capitalism to come immanently, as bringing out the true significance of an under-
lying actuality. A long tradition of radical thought placed its faith of the return of
the repressed in a future that could be had dialectically, whether through the
un-concealment of real potentiality in the contradictions of social production and
the laws of historical unfolding; or in non-marxist strands, in, e.g. Karl Polanyis
optimistic belief that, before the spectre of dislocation, society would react,
resistance clustering around the substantive elements of culture and their
productive organizations to oppose its emptying out through the commodity
fictions of labour, land, and money. In the present situation we can be less
confident that the answer will come immanently in a storming of capitalism of
this kind. Instead, a constitutional thinking of dissensus must commit to redressing
the points of foreclosure upon which the consensual political order rests.
K. Polanyi, The Great Transformation [1944] (Boston: Beacon Press, 1957), esp. at 20936.
11
The Exercise of Constituent Power in Central
and Eastern Europe
Ulrich K. Preuss
The analysis of the mysteries of constituent power does not primarily pursue the
historical or the sociological interest in knowing who exactly was the creator of a
particular constitution of a particular country. The main interest is, of course, a
philosophical one which deals with the significance of the constituent power for
the binding force of a constitution. Important questions are involved. Why is a
frequently time-honouredconstitution the supreme law of the land to which all
legislative acts of the elected body of the citizens are inferior? Why has the present
generation the duty to respect the high hurdles which the founding generation has
inserted in the constitution in order to encumber any changes to their creation?
What, in other words, is the ultimate source of the normative validity of a consti-
tution? Is its authority rooted in the authorship of the creator of the constitution,
or is it ultimately rooted in its inherent reasonableness? And if so, what is the rela-
tionship between the political will power of the author and its substantive quality
as the embodiment of political reason?
At a first glance these questions do not seem overly difficult to answer if we
supposewhat is hardly avoidablethat modern constitutionalism requires that
a constitution must be authored by the people. If the constitution is an
instrument of popular self-rule and hence can only be created by the people, it
follows that it is the authority of the people which bestows validity and binding
force upon the constitutionthe constitution is binding because it is the incarna-
tion of the peoples will. On closer inspection, however, it turns out that this
explanation raises more questions than it is able to answer. What is the meaning of
the people? Is it the people of the founding generation or is it each generation
Cf. F.I. Michelman, Constitutional Authorship in L. Alexander (ed.), Constitutionalism.

Philosophical Foundations (Cambridge: Cambridge University Press, 1998), 64.
E.W. Bckenfrde, Die verfassunggebende Gewalt des VolkesEin Grenzbegriff des
Verfassungsrechts in his Staat, Verfassung, Demokratie. Studien zur Verfassungstheorie und zum
Verfassungsrecht (Frankfurt: Suhrkamp, 1991), 90112. For more references see A. Kalyvas, Popular
Sovereignty, Democracy, and the Constituent Power (2005) 12 Constellations 223.

which lives under the constitution? Moreover, which conditions must be fulfilled
in order that it is the peopleand not merely a group of individuals who happen
to be in powerwhich we can recognize as the true author of the constitution
and, consequently, as the ultimate source of its normative validity? In other words,
we need rules of recognition of the people as constituent power. The identifica-
tion of such rules is an issue of political philosophy and, since the constitution is a
legal entity, of jurisprudence.
But there are also questions involved which have an empirical dimension and
point to the socio-political conditions under which the people is able to act as a
constituent power. As Bruce Ackerman has suggestively submitted, constitutional
momentsthe creation of a constitution undoubtedly being the most unequivo-
cal oneare historically rare occurrences of intense popular mobilization.
Obviously the profound regime changes in East and Central Europe which
resulted from the erosion and eventual dissolution of the Soviet Union were
events of that kind. After all, they precipitated the end of the communist rule.
This is why it is justified to call them revolutions, although they differed consider-
ably from the European revolutions of the eighteenth, nineteenth, and twentieth
centuries which eradicated the anciens rgimes of the pre-democratic age. But
were they moments in which the constituent power of the peoples of Hungary,
Poland, Czechoslovakia, Bulgaria, etc. was exercised?
This chapter deals with the particular character of those revolutions in the
perspective of constitutional theory. In the first section I develop some general
aspects of the idea of the constituent power, focusing on the role of the people in
the exercise of its constituent power and trying to find explanations for some
seemingly paradoxical elements which accompany it. In the second section I will
analyse the particularities of the revolutions in East and Central Europe with
respect to the exercise of constituent power. Finally, in the concluding section,
I return to a more general view on the relationship between constituent power and
revolution. Historical examples teach us that constitutions are inherently political
devices which respond to the individuals quest for liberty against the oppression
of tyranny. Yet the transformations in many of the East and Central European
countries opened the path for an ethnification of politics. This gives rise to the
question of whether those revolutions did in fact mobilize the constituent power
of the peoples or whether they established constitutions without constituent
power.
See Michelman, above n. 1, 77; Kalyvas, above n. 2, 238; the concept of rules of recognition
obviously refers to H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 96ff.
B. Ackerman, We the People. Foundations (Cambridge, MA: Belknap Press, 1991), 266ff,
285ff.
Cf. B. Ackerman, The Future of Liberal Revolution (New Haven: Yale University Press, 1992),
5ff, 46ff; U.K. Preuss, Constitutional Revolution. The Link between Constitutionalism and Progress
(Atlantic Highland, NJ: Humanities Press, 1995), 91ff; more sceptical with respect to Hungary, see
A. Arato, Civil Society, Constitution, and Legitimacy (Lanham, MA: Rowman & Littlefield, 2000),
82ff, 93ff.
The People as the Subject of Constituent Power
The creation of a constitution is an inherently revolutionary act. It includes the

power to create the basic structures of a polity; in fact, it is tantamount to the
power to create an entirely new polity. Thus we may understand the exercise of
the constituent power as a constitutional revolution where political energies are
transferred into legal institutions.
This suggests the omnipotence of a god-like creator who can invest his
imagination into the invention of a new social edifice and impose it upon a passive
multitude of individuals who only by this very act come into being as a political
community. Of course, in a worldly context the issue is much more complicated.
The often-observed conceptual paradox of the relation between constituent
power and constitutional form lies in the assumption that in our secular world it is
the people who assume the position of the god-like and omnipotent creator and
who by the act of constitution-making create themselves as a collective subject, as
a political We. How can it be explained that the unorganized, atomized, and
hence impotent mass of individualsin fact, the opposite of a Weis vested
with the capacity to transform itself into an organized political entity? Or, to put it
differently: if the constitution is a device which empowers a multitude of individ-
uals to act collectively and to develop the capacity of self-determination, how can
the preconstitutional un- and disorganized multitude arrogate the capacity of
constituting themselves as a Self?
The Case of the French Revolution

To answer this question we may be inclined to presuppose a pre-political collective
Self with a distinctive identity that somehow breeds the will to form a polity. This
hypothesis comes to mind when we read Carl Schmitts definition of the
constituent power as political will, i.e. as concrete political existence. He
claimed that in the modern erai.e. in the age after the French Revolution in
which only the people or the nation can be recognized as the author of the
constituent powerthe doctrine of the constituent power presupposes the
deliberate will to political existence, i.e. a nation. Schmitt rightly emphasizes
that the French Revolution promoted a profound reconceptualization of the idea
This is the reason why a venerable tradition of political reasoningfrom Locke through
Madison, Sieys, Paine to Schmitt and Arendthas been fascinated by the constituent power: cf.
Kalyvas, above n. 2, 226ff. Preuss, above n. 5.
U.K. Preuss, Constitutional Power-making for the New Polity: Some Deliberations on the
Relations between Constituent Power and the Constitution (1993) 14 Cardozo Law Review 63960.
My translation of the German text: Die verfassunggebende Gewalt ist politischer Wille, d.h.
konkretes politisches Sein in C. Schmitt, Verfassungslehre [1928] (Berlin: Duncker & Humblot, 4th
edn., 1965), 76. Ibid. 79.
of political community and that in the perspective of constitutional theory the

French Revolution did not occur on 14 July (the spectacular assault of the masses
on the Bastille), but on 17 June 1789 when the General Estates declared themselves
to be the French National Assembly. This was tantamount to the birth of the
French nation, i.e. the transformation of the French society into a united political
body. But Schmitt neglects the individualistic twist of this process. The nation is
not a mere conversion of a pre-political association of peoplean ethnosinto a
political entity. Rather, its construction presupposes a society of free and equal
individuals who constitute themselves as a collective body in the sphere of politics.
Therefore, the key concepts of the French Revolution were nation and
citizenship. Individuals are only free and equal when they rule themselves, i.e.
when they are co-authors of the laws to which they are subject. This is the essence
of citizenship; hence, the nation is the community of citizens.
When we use the concepts and the language of politics we have always to bear
in mind that it is rooted in an underlying social structure and the social forces
which determine the logic of the political. The social underpinning of the nation
as it was proclaimed in 1789 was that of a competitive market society and its basic
institutions of private property, free markets, an autonomous civil sphere, the
predictability and certainty of the law, individual rights, etc. Of course, in 1789 all
this was a mere vision and no empirical reality; the nation had still to be created.
The only socio-political force which could claim to represent the whole society
was the rising productive class of industrial and commercial entrepreneurs. Not
only were their interests best served if the society was built upon the universalist
principles of freedom, equality, and humanity (in the sense of universal civiliza-
tion) but, conversely, the society could flourish only if its basic institutions were
adapted to this minoritys interests. Due to this correspondence of interests and
institutions those who in the framework of the ancien rgime were just a fraction of
the societythe third estatecould now claim to be the whole. Although in
terms of numbers in fact they were only a small minority, they could rightly claim:
We are the nation. In other words, the new commercial and industrial class could
identify with the nation, act on behalf of the nation and at the same time pursue
its interests as a social class without hypocrisy and pretension. It could transform
its strength as a particular social class into a power which propelled the idea of a
common interest of the nation.
Ibid. 78; see also K. Loewenstein, Volk und Parlament nach der Staatstheorie der franzsischen
Nationalversammlung von 1789 : Studien zur Dogmengeschichte der unmittelbaren Volksgesetzgebung
(Munich: Drei Masken Verlag, 1922), 20ff, 205ff.
R. Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard
University Press, 1992), 35ff; G.H. Sabine, The Two Democratic Traditions (1952) 61 The
Philosophical Review 451.
Cf. J.G.A. Pocock, The Ideal of Citizenship since Classical Times in R. Beiner (ed.),
Theorizing Citizenship (Albany: State University of New York Press, 1995), 29.
D. Schnapper, La communaut des citoyens. Sur lide moderne de nation (Paris: Gallimard,
1994).
Sieys distinction between constituent power and constitution served this new
political logic. It had the implication that the sovereign power of the state,
hitherto appropriated by the monarch, could now be attributed to the nation and
designated to serve the interests of the nation. Those interests consisted in the safe
establishment of the basic elements of a competetive market society enumerated
above; they required, that is, a limitation of the sovereign state power. The nation
had to become sovereign in order to establish a regime of limited powerthis
paradox reveals the logic of the separation of the constituent power from the
constituted powers. The sovereignty of the nation does not mean omnipotence
including the power to any kind of arbitrary action; rather, it is embedded in the
context of the self-constitution of the nation as a political order which creates and
guarantees the conditions for a society of free and equal individuals. The inherent
rationale (and limitation) of the constituent power is the creation of a constitution
which fulfils this objective. Therefore the famous avowal of Article 16 of the
Declaration of the Rights of Man and Citizen 1789 (A society in which the
guarantee of rights is not secured and the separation of powers is not determined
has no constitution) does not contradict Sieys assignment of unlimited power to
the nation. Rather, it is its consequence: only a nation which disposes of sovereign
power is able to organize itself according to the interests of the whole society and
to free itself from the rule of particularistic forces, i.e. from tyranny.
Hence we should dismiss the widespread judgment that the constitution is a
device to domesticate the wild, abysmal, and potentially destructive constituent
power and to disempower the people (in its own best interest, to be sure). The
reverse is true: the constitution empowers the people to make use of its capabilities
as a collective actor and to depart the state of a disorganized and powerless mere
multitude. The lack of established rules and institutions which could guide the
multitudes self-transformation into a collectively acting entity leaves them in a
state of powerlessness. But if the constitutionless people is powerless, we cannot
conceive of the people as being the creator of a constitution unless we discover a
condition which empowers the multitude to seize the constituent power which
metamorphoses them into what Sieys baptized a nation and we would prefer to
call a polity.
The Empowering of the Powerless Multitude

This empowering condition can be found in the role which active political
minorities play in the downfall of the previous political order. In the history of
constitutional revolutionsthe relevant examples being, of course, the American
and the French Revolutions at the end of the eighteenth century, but equally
E.-J. Sieys, What is the Third Estate? in his Political Writings, M. Sonenscher (ed.)
(Indianapolis: Hackett, 2003), 92, at 136ff.
See the more elaborate argument in Preuss, above n. 5, 112ff.
relevant is the German revolution of 191819 which engendered the Weimar

Constitutionthere had always been more or less well organized minorities
which had assumed the leadership in the disputes and struggles which necessarily
surface when the old order is waning. At no point could one find a blank sheet of
paper on which a completely new rule could be drawn after the fading of the pre-
vious regime. From a sociological point of view, the emergence of the constituent
power is the product of the demise of the old regime and of the concomitant polit-
ical struggles about the character of a new order. Here the role of active minorities
comes into play. In the history of constitutional revolutions those political forces
conquered power which were able to convince the passive majority of the society
that they acted on behalf of the interests of the whole society. Consequently, after
their triumph, they attributed their revolutionary power to the people or the
nation.
Of course the people or the nation are no empirical entities; they are social
constructs which embody the aspirations, the ideals, and the unity of the society
and which are purified from all traces of its more trivial and disuniting attributes
like self-interested, myopic, and irresponsible individuals and their relentless
struggles for material goods, power, and esteem. It is this ideal quality of the
people or the nation to which the revolutionary power is attributed (the
revolutionary vanguard would never transfer their power to any other empirical
agent); through this attribution the real power of the revolutionary minority is
converted into an attribute of the people and now attains itself an ideal quality
this conversion gives birth to the constituent power. Somewhat pathetically we
may call it the marriage of will and reason, the two essential elements of politics.
Thus, the constituent power has an ambivalent character: its material resources
flow from the empirical power of the prevailing active revolutionary minority,
whilst its moral character derives from its association with the ideal construct of
the people or the nation.
This ambivalent character of the constituent power may explain some of its
paradoxical elements. For instance, at a first glance it is surprising that the vote of
the agent of the constituent powerbe it the people in a constitutional referen-
dum or a Constitutional Assembly (Convention)about the constitution is
taken with a simple majority, while constitutional amendments usually require a
stronger majority (mostly two-thirds of the amending assembly), associated with
further obstacles to a pure majority vote. If the exercise of the constituent power is
an act of a peoples self-determination through which a new polity, not just a new
government, is established, we should expect the requirement of a unanimous
vote. This is, of course, impossible. But should we not compromise between the
ideal requisite of a 100 per cent vote and the facts of real life and at least call for a
qualified majority? Does not a simple majority appear thoroughly inappropriate?
In other words, how can we find a solution to the problem that the exercise of the
constituent power has to meet three conditions which do not necessarily
fit together: namely that (1) as a foundational power of a people it has to be
all-inclusive; (2) as an act of self-determination of that people it has to be a free

and voluntary act of every involved individual; and (3) that it has to accept, or at
least tolerate, dissenting votes? Dissenters meet the second requirement, but do
they fit the criterion of all-inclusiveness?
John Locke discussed the same problem when he explained the foundational
character of the social contract, and was confronted with the question of how to
deal with the dissenters. Among his reflections, the argument of tacit consent
has become particularly prominent because it seems to offer a convincing theory
of the compatibility of all-inclusiveness, voluntariness, and tolerance for dissent.
In our context the argument claims that participation in the constitution-making
process includes the consent of every participating individual to accept the result
of the majority vote even if he or she dissents from the content of the constitution
itself. As a consequence, dissenters are also obligated by the constitution.
Unfortunately we cannot content ourselves with this solution to the problem.
Apart from the objection that this hypothesis does not hold for those individuals
who with a reasonable excuse did not participate in the process of constitution-
making it would entail the exclusion from the constitutionally founded polity of
those who participated in the process for the sole purpose to voice their disagree-
ment with the draft constitution; counting them as co-founders of the polity
would fulfil the first of the above-mentioned conditions, but it would violate
condition (3), and it remains an open question as to whether condition (2) would
be satisfied.
Another answer to the question of how the simple-majority-requirement of the
constituent power and the duty of the outvoted minority to comply with the
constitution is to be explained, reads as follows: if the constitution contains basic
human and civil rights like the right to free speech, freedom of press, of assembly
and association, the right to vote, and the right to a fair and free participation in
the struggle for political power it offers the overruled minority the fair chance to
become itself the majority in the future and to shape the political process.
According to this argument the binding force of the constitution emanates from
its reasonable and unbiased substance. However, there is one fundamental
weakness in it: if the just and fair character of the constitution is the ultimate
reason for its binding character, why, then, should it not be possible that a
progressive vanguard imposes its righteous project of a new polity upon an
unenlightened society? Obviously this option would be incompatible with the
concept of constituent power and violate condition (2).
In the search for a solution which meets all three of the above-mentioned
requirements of the exercise of the constituent power we should bear in mind the
ambivalent character of the constituent power. Whereas in its quality as the
J. Locke, Two Treatises on Government, II. 9599, 119122.

For an elaborate version of this argument see J. Rawls, A Theory of Justice (Oxford: Oxford
University Press, 1972), ch. VI, 53.
empirical power of an active minority it could be used to force the minoritys will
upon the society, it would lack any constituent character without its attribution to
the people, which means that it must assume the perspective of a hypothetical
general will of the people. The powerless multitude is empowered only and
exclusively through this act of attribution which creates a moment which is both
logically and chronologically prior to the state of normal politics. This moment
calls for an attitude of the involved individuals which transcends mere aggregation
of preferences. What the individuals who make up the multitude are required to
do is to act according to second-order preferences: which preference would
I prefer if I voted not as a self-interested individual but as a associate of a polity
which pursues the well-being of all its members? This is the perspective of the
generalized other which embodies the inherent reasonableness of the individ-
uals who come together in order to transform themselves from a mere multitude
into a polity. It is not by accident that this perspective has some similarities with
the individuals reflecting behind the Rawlsian veil of ignorance, although the
reasonableness of the generalized other is of a less strategic character than the
attitude of the Rawlsian individuals.
What does it mean to act as a reasonable person? It is reasonable to be aware of
and to take into consideration the fact that a society without a constitution is
doomed to a passive and subaltern mode of existence, subject to an unenlightened
rule of some kind of oligarchy without any instrument of self-reflection and learn-
ing. The situation after the collapse of the previous order is that a constellation of
powerlessness and eventual oppression by individuals or groups impose their
power upon the society, unless the individuals form a collective will and establish
institutions which ensure that the power remains theirs. It is in this moment that
the powerlessness of the disorganized multitude turns into the power of a
collective bodythe constituent power which is subject to no other power and
hence tantamount to sovereign popular power. But because it is based upon the
charisma of a revolutionary situation, it is a transitory power which exists only in
an evanescent moment of history. Only institutionalization can turn this moment
into the permanent power of the people, which is precisely what constitutions
do. Thus the constituent power embodies supreme power only under the condi-
tion of its self-abolition through its self-transformation into a constitution. In
other words, the constitution is the annihilation of the constituent power and at
the same time its perfection.
It is this amazing feature of the constituent power which explains the striking
fact that the two incarnations of the constituent powerthe constituent assembly
G.H. Mead, Mind, Self, and Society [1934] (Chicago: University of Chicago Press, 1972),
152ff. Rawls, above n. 18, ch. III, 24.
An empirical analysis of constitution-making processes, however, normally show a heteroge-
neous bundle of interest, passions, and reason as the motivating force, cf. J. Elster, Forces and
mechanisms in the constitution-making process (1995) 45 Duke L.J. 364, at 376ff.
Bckenfrde, above n. 2, 108: Absolute power which wants to remain absolute cannot be
transformed into constitution (authors translation).
and the people acting in a plebiscitemake their decisions by simple majority

votes, while amendments of an existing constitution usually require an enhanced
majority. The reason is this: the persistence of the constituent power as constituent
power amounts to its self-abdication because, due to its ephemeral character, it can
perpetuate its existence and consummate its mission only by creating a constitu-
tion. This is, as it were, its objective meaning. The constituent power must be
transformed into a state of constitutionality lest its social meaning be destroyed.
The most obvious rule which precludes the constituent powers self-paralysis is the
unqualified majority rule since it cannot produce unclear situations or deadlock:
it will always generate a decision and that is what constitutional moments and
constituent powers are essentially all about.
While the decision procedure is simple, its substance requires an extraordinary
degree of reflection and deliberation. This is so because people have to think
about the experience of the past and their visions of the futureafter all, a consti-
tution determines the scope of politics and of the instruments available to the
society for its self-observation and self-determination. However, this is not a
matter of an either/or decision which the simple majority rule suggests. How can
we explain this conundrum? First and foremost, since the constituent power is sov-
ereign there is no superior body which could impose a decision rule. The
constituent power is an autonomous body whose members are equal. Will
formation among a group of equals can only occur according to the simple majority
rule. But a further reason may apply. Decisions of the constituent power are differ-
ent from mere aggregations of preferencesthey include an existential choice about
the essential elements of the polity. This is why it is the peoplethe politically
united bodyand not a parliament which represents the diversity of the society
which is endowed with the constituent power. The people cannot discuss, negoti-
ate, and make compromises like a parliament or any other constituted entityit is a
diffuse collectivity on its way to constitution. Hence it can only respond to ques-
tions which have been submitted to it for approval or disapproval: it can only say
yes or no. This can only be done via the unqualified majority rule.
RadicalDemocratic and Institutionalist Constitutions

Among the possible alternatives which have to be submitted to the final verdict of
the people is one which points to a fundamental issue of constitutionalism,
namely the telos or inherent rationale of constitutions. There is a basic choice
J. Elster, Deliberation and Constitution-Making in Elster (ed.), Deliberative Democracy
(Cambridge: Cambridge University Press, 1998), 97 at 105ff.
See the similar remarks in Ackerman, above n. 5, 48ff.
H. Kelsen, Vom Wesen und Wert der Demokratie (Tbingen, Mohr, 2nd edn., 1929), 60ff;
K. Stern, Das Staatsrecht der Bundesrepublik Deutschland (Munich: Beck, 1984), vol. 1, 611ff.
This does not mean that the people can act only by way of acclamation as Carl Schmitt
claimed: see C. Schmitt, Verfassungslehre, above n. 9, 84ff. But he is right in saying that the decision of
the constituent power is a yes/no decision.
between what I call a radical-democratic and an institutionalist notion of

constitutionalism.
Historical experience teaches us that there are mainly two different modes of
how revolutions may shape constitutions: on the one hand, the major forces of the
revolution endeavour to congeal the achievements of the revolution, particularly
the new distribution of political power, in a constitution, i.e. in a legal document
which carries the unequivocal authority of a written text superior to all other laws
of the land. On the other hand, the revolutionaries seek to sustain the high-
spiritedness and openness of the revolutionary moment as long as possible, be it
by proclaiming the permanent revolution and dismissing all kinds of institution-
alization whatsoever, be it by fixing their supremacy in a document which is a
mere image of the revolutionary situation itself. This latter case is, respectively,
epitomized in Marx and Engels concept of a permanent revolution, which they
developed after the failed revolutions of 1848 and which was later adopted and
revised by Leon Trotsky, and in the constitutions of the soviet-type communist
countries, which explicitly established the leading role of the Communist Party
and its allies.
The former case, however, is the response to the revolution which we may
recognize as reflecting genuine constitutionalism. The transmutation of the
creative, unorganized, and untamed power of the revolution into the constituted
powers of a particular political regimethis is the very meaning of the concept of
constituent powerbears the implication that after the creation of the constitu-
tion there is no place for any kind of extra-constitutional power. By making a
constitution, the revolutionary forces are, as it were, digging their own graves; the
constitution is the final act of the revolution. The subsequent political process is
not controlled by the revolutionaries, but by the constitution. More precisely, it is
controlled by social forces which are the beneficiaries of the revolution without
having necessarily participated in initiating or waging it.
According to the conventional understanding of the role of the constituent
power, the constitution which it eventually creates liberates social forces which
had been suppressed by the old regimethese are the transformative forces that I
shall discuss later. The revolutionary forces are not only able to destroy the old
regime but to create a new order according to their vision of the society. But it is
also possiblein fact quite frequentthat the constitution crafts the political
and institutional preconditions for the emergence of totally new social and political
actors. These possibilities are reflected in two distinct concepts of constitutions
and of constitutionalism, a radical-democratic and an institutionalist one.
The former can be regarded as a constitutionalist surrogate for the aforemen-
tioned options of a permanent revolution or of the congealing of the supremacy of
A well-known, if not identical, version of this division is Hannah Arendts distinction between
constitutional and social revolutions, see H. Arendt, On Revolution (Harmondsworth: Penguin,
1977), 21ff, 59ff. See also Michelmans distinction between constitutional populism and liberal con-
stitutional democracy: Michelman, above n. 1.
the leading revolutionary forces. According to this radical-democratic concep-

tion constitutions sanctify democratic revolutions in that they solemnly confirm
that through their revolutionary actions the people have recaptured their
constituent power, which is regarded as unrestricted by any rules, institutions, or
superior orders, directed only by its unrestrained will power. In this understand-
ing, constitutions are the authentic embodiment and expression of the revolution-
ary peoples will. The constitution aims at the perpetuation of the major
achievements of the revolution and tends to incorporate a great number of social
promises.
Since not all political issues can be included in the constitution, the framers are
anxious to devise an institutional order which makes the will of the people the
ultimate arbiter in all relevant political conflicts which will necessarily emerge in
the future. The people are supposed to become the truly reliable guard of the
revolutionary achievements and their preservation in the future. This is easily
understandable if we recognize that the revolutions which generate this kind of
constitution mostly involve at least some elements of a social revolution, associat-
ing the term people more or less consciously with the lower classes, the poor, and
miserable. Hence, usually constitutions of this radical-democratic type not
only promise relief of the peoples misery, but establish the institutional
superiority of the elected representation of the people over the other branches of
government. In order to achieve the most possible congruity of the actual popular
will and that of its representative body, additional safeguards are provided:
proportional representation, some sort of imperative mandate to the elected
deputies, and plebiscites are the most familiar characteristics. Whenever major
social and political conflicts arise, their solution must be delegated to the people,
because obviously in a genuine democracy there is no superior wisdom than that
of the people. Consequently, radical democratic constitutions aspire to preserve
the revolutionary high-spiritedness of the people and rely more or less explicitly
on the very same civic virtues which have engendered the revolution in the first
place. Ideally, they are committed to keeping the spirit of the revolution alive and
to levelling the difference between revolutionary and normal politics. Not surpris-
ingly, constitutions which focus on the peoples will by making it the ultimate
source of social and political order are rather vulnerable to the volatility and, so to
speak, disorderly passions of politics. As the case of the French Revolution dis-
plays, they have proven rather unstable.
In contrast, institutionalist settlements of revolutions use the revolutionary
civic spirit for the creation of institutions which allow the people to return to
normal life and normal politics once the goals of the revolution have been
achieved. They rely on the wisdom of institutions and on the proper operation of
social mechanisms rather than on the immediate will power of the people (and
the continuance of their civic virtues characteristic of the revolutionary period).
Arendt, ibid., ch. 2, 59ff; Preuss, above n. 5, 81ff.

The framers are reluctant to include substantive policies in the constitution

because this may complicate and in fact hinder the adjustment of policies to new
circumstances and thus weaken the creative capacity of political institutions.
In this conception, rather than providing solutions to problems, constitutions
are seen as institutional instruments of problem-solving; they are possibility-
engendering rather than devices that aim at the consolidation of specific
policies willed by the people under particular conditions. The people submit
themselves to rules (for instance, the separation of powers) which, though not
determining the outcomes of politics, guarantee that the actual political outcomes
are consistent with what the people would have willed in the revolution if it had
anticipated the new circumstances. Institutionalist constitutions congeal, as it
were, neither the actual empirical nor the future hypothetical will of the revolu-
tionary generation; rather, they institutionalize the capacity of the people to form
and to enforce their will in post-revolutionary times of normal politics without
being forced to permanently revitalize the spirit of the revolution and to adjust it
to ever changing social and political circumstances.
Institutionalist constitutions embody a sceptical and even suspicious view on
the very revolution from which they originate. They determine the close and the
definite breaking off of the revolution and set a clear-cut hiatus between revolu-
tionary and normal politics. Institutionalist constitutions are created by reluctant
revolutionaries who after the making of the constitution tend to become hostile to
any attempt to re-invigorate its revolutionary founding spirit. They are confident
that the constitution provides mechanisms which guarantee political outcomes
that have the same or even better effects than revolutionary politics, without being
as costly.
The Constituent Power in the Central and East European

Revolutions
Against this background, how do the regime changes in the Central and East
European (CEE) countries after 1989 fare? Did the processes of constitution-
making which occurred there right after the collapse of the old regime echo the
experience and the theoretical insights of the earlier revolutions of the eighteenth
and twentieth centuries?
The mass demonstrations in the streets of Budapest, Prague, Warsaw, Sofia,
Bucharest, and Leipzig in the fall of 1989 provide impressive evidence that the
peoples of the then still communist countries had reclaimed the power taken away
S. Holmes, Precommitment and the Paradox of Democracy in J. Elster and R. Slagstad (eds.),
Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), 195, at 227.
Holmes, ibid., 238ff. Ackerman, above n. 5, 46ff.
from them by the communist party oligarchies after the end of World War II.
Undoubtedly those mass rallies represented the political will of the overwhelming
majorities of the respective countries. They were, as I stated earlier, revolutions
and frequently became the starting point of constitution-making processes.
However, these revolutions were quite special. What distinguishes them from the
paradigmatic case of the French Revolutionand also from the Russian
Revolution of 1917 and of the German Revolution of 191819 which entailed the
Weimar Constitutionis the absence of actors who represented socio-economic
interests which could identify with the interest of the society at large without
being rejected as particularistic and purely class-based. I refer here to the distinc-
tion between systemic and political revolutions offered by Zygmunt Bauman.
Systemic and Transformative Forces

According to Baumans distinction, political revolutions adjust a political regime
to the requirements of the socio-economic system and are launched by agents who
represent more or less established collective transformative interests which
cannot find an appropriate institutional expression in the extant political struc-
ture; these interests will immediately gain from the change of the political regime.
In contrast, the agents of a systemic revolution not only dismantle an old regime,
but also find themselves in the situation where a new society, its interest structure
and actors remain to be established.
I take it that it is this systemic brand which characterizes the regime transitions
in the post-communist societies of CEE. In none of those countries did the old
regime generate interests and actors that could easily slip into the institutional
forms hastily created after the breakdown of the old regime. While the freedoms
of, say, private property, the press, or of contract were written down in new consti-
tutional documents, the actors who could use these freedoms in a meaningful
manner or who even yearned for these new modes of action were absent. This
had several important implications.
First, the forces which brought the old system down are not likely to be those
which will benefit from the revolution, because they represent merely the
dissatisfaction with the old regime which, in contrast to the conditions of a
political revolution, does not yet bear the new order in its womb.
T. Garton Ash, We the People: the Revolution of 89 Witnessed in Warsaw, Budapest, Berlin &
Prague (Harmondsworth: Penguin, 1990).
In particular, with the establishing of Round Tables: cf. J. Elster (ed.), The Round Table Talks
and the Breakdown of Communism in Eastern Europe (Chicago: University of Chicago Press, 1996);
see also Arato, above n. 5, 167ff.
Z. Bauman, Dismantling a Patronage State in J. Frentzel-Zagrska (ed.), From a One Party
State to Democracy: Transition in Eastern Europe (Amsterdam: Rodopi, 1993), 139.
J. Elster, C. Offe, and U.K. Preuss, Institutional Design in Post-Communist Societies. Rebuilding
the Ship at Sea (Cambridge: Cambridge University Press, 1998), 11ff.
Second, it is unlikely that those combined forces will continue to be united in

the vision of a new order or will be satisfied with the outcomes which the new
order yields for them. In other words, there is no determinate relation between the
forces which dismantled the old regime and the character of the emerging new
order.
Third, systemic revolutions create an empty space which is left over after the fall
of the old regime and into which the new order has not yet had the chance to
inscribe its brand. In this extremely open situation the actors are truly acting
behind a veil of ignorance: they have no knowledge about the actual distribution
of power, about the motives, interests, and actions of other (internal or external)
actors, and they find themselves in the situation where huge masses of people are
easily mobilized, without knowing the focal point of mobilization other than the
purely negative resentment against the old regime. Thus, actions and decisions
which in the situation of a political revolution would be ephemeral and negligible
because they do not meet the requirements of the transformative constituencies
and interests may acquire disproportionate relevance.
The transformative effect rarely occurred in the CEE countries over a consider-
able period of time. Instead, at least in some countries, forces which had been
suppressed during the communist period were reawakenedthe forces of nation-
alism. Among the post-communist CEE countries we should distinguish between
two types of polity: those which had been created by communism and others
which had experienced a more or less venerable national history before commun-
ism. Manifestly the German Democratic Republic is the most prominent case of
the former group, but Yugoslavia also belongs to this category. Czechoslovakia is a
borderline case, since the country was created (in 1918) shortly before commun-
ism; but the idea of Czechoslovakism as an ideological cement of the state was
inseparably connected with the communist regime. The paradigmatic case of the
other category is Poland. In the former cases the collapse of communism not only
destroyed the political regime, but the polity itself. Hardly any pre-constitutional
cohesive forcessuch as a common political will to live together, a shared
national history, or at least a history of statehoodremained and which could
provide a sustainable sense of commonality of fellow citizenship to serve as the
basis of the constituent power.
Thus, in some of the post-communist transformation countries (e.g. Slovakia
or Yugoslavia) the systemic character of the revolution was even accentuated by
the absence of pre-constitutional cohesive forces. This encouraged the resort to
nationalism and ethnocentrism as the chief integrative force of the polity. This in
turn tended to undermine the role of the constitution as an instrument of found-
ing a new polity.
For the pre-constitutional conditions of constitutions, see D. Grimm, Integration by

Constitution (2005) 3 Int. Journal of Constitutional Law 193.
It is a matter of speculation whether this, as it were, unconsolidated constella-

tion of the transition period has affected the structure and the viability of the
political orders which were set up in the several Central and East European
countries. To what extent did the systemic character of the revolutions of the
constituent power of the anti-communist movements of 198990 shape the
feature of the constitutional orders which they eventually set off?
Political and Ethnic Forces

Given the fact that liberal-democratic constitutions have been enacted in all
transformation countries, the question arises whether they have helped to
establish potent actors able to use the institutional tools which the new constitu-
tions provide. At a first glance the answer is clearly affirmative: there are political
parties necessary for the running of a parliamentary system or the promotion of
presidential candidates, unions for the system of collective bargaining, independ-
ent print media for the development of a public sphere, etc. But this does not
mean that consolidated political systems have evolved in all CEE countries. If we
look at Serbia, Bulgaria, or Romania it is doubtful whether their constitutionalism
guarantees a civilized mode of political rule and, at the same time, economic
development. The upsurge of extremely nationalist and ethno-national political
forces in Poland, Slovakia, and the Czech Republic offers further examples. This
raises the question of whether there are features of constitutionalism and of the
constituent power that are characteristic of CEE countries.
As stated earlier, the absence of transformative forces produced a period of
transition, in which the old regime had more or less collapsed and a new order (in
which institutions functioned according to the logic inherent in constitutional
order) had not yet been (fully) established. This period is difficult to grasp. Two
closely connected interpretations are possible. According to one reading, the
collapse of the old regime removed an obstacle and permitted the resurgence of
the (allegedly) democratic pre-war political orders displaced by the establishment
of communist regimes after World War II. Yet there had been no democratic
systems which awaited redemption through the kiss of the prince in the revolu-
tions of 1989 and the following years. All countries of the region had suffered
from more or less severe shortcomings of their political systems in the period
before World War II. Thus, polity-building after the breakdown of the commun-
ist regimes was by no means a simple process of de-freezing an intact pre-war
political order. Moreover, such an interpretation overlooks the important role
which the defeated, but not annihilated, forces of the communist regime played in
establishing a new order.
Elster, Offe, and Preuss, above n. 35, 37ff; G. Stokes, The Social Origins of East European
Politics in D. Chirot (ed.), The Origins of Backwardness in Eastern Europe. Economics and Politics
form the Middle Ages Until the Early Twentieth Century (Berkeley: University of California Press,
1989), 210.
According to the other understanding of the transition, the collapse of the

communist regimes not only prompted the liberation of the society from an alien
tyranny but at the same time stimulated the spontaneous emergence of a free
society. This suggests that, through the cessation of the communist system, the
CEE peoples retrieved the natural state of their political affairs. It presumes that
the natural state of societies inclines towards an equilibrium of mutually
respected freedoms of all members of the society and may even do without politics
altogether. Even John Locke, who comes closest to the idea of a self-regulatory free
society, would reject this assumption. But he had no knowledge of the concept
which promised liberty and order without (or with only a minimum of ) politics:
ethnos as opposed to demos. The ethnos denotes a community whose members
are united through pre-political attributes like language, culture, origin, religion,
or even race. By contrast, the demos consists of the entirety of the citizens who
form a community by the bond of common laws.
In Sieys concept of constituent power, this power was bestowed upon the
nation, which was tantamount to the demos, namely a body of associates living
under a common law, represented by the same legislature. This has remained the
common understanding of the concept of constituent power in the Western
tradition. There are indications that in the CEE countries an ethnic understand-
ing of nationhood and of its constituent power may have prevailed. As Offe has
argued, ethno-politics or the ethnification of politics can be seen as a particular
trait of that regionthat is, the definition of economic, territorial, social, cul-
tural, and religious conflicts along ethnic lines and cleavages. Ethnification has
become the starting point for civil wars which in some republics of the former
Soviet Union and in Yugoslavia have assumed the character of wars of national
liberation. This corroborates Francis remark that in Western Europe during the
nineteenth century, political freedom meant that the demotic nation took over
the government of an existing sovereign state, thereby safeguarding its self-
determination. In the freedom movement that spread from Germany east and
south, however, the term self-determination meant the liberation of a preestab-
lished ethnic society from alien influence and foreign domination. This is in
line with Lidija Bastas observation that the two communist federations, USSR
and Yugoslavia, were the first to redefine in their constitutions the right of
self-determination as the right of ethnic self-determination, with the ultimate
E.K. Francis, Interethnic Relations: An Essay in Sociological Theory (New York: Elsevier, 1976),
43115.
M. Weber, Economy and Society. An Outline of Interpretive Sociology in G. Roth and C. Wittich
(eds.) (Berkeley: University of California Press, 1978), 385ff.; A.D. Smith, The Ethnic Origins of
Nations (Oxford: Blackwell, 1986). Sieys, above n. 15, at 97.
See Bckenfrde, Kalyvas, both above n. 2.
C. Offe, The Rationality of Ethnic Politics (1993) 3 Budapest Review of Books 6.
Francis, above n. 38, 78.
consequence of ethnically legitimated secession. But in other countries as well,

for instance in Bulgaria or the Baltic states, the overthrow of communist rule has
unleashed ethnic and national tensions and hostilities.
Constitution without a Constituent Power?
The ethnification of politics has serious consequences for the character of the
constituent power. The constituent power of the demos results from a deliberate
act of unification of an amorphous, powerless, and diverse multitude into one
political body in the charismatic moment of a revolution. This power is intrinsic-
ally constitutive of a polity. The ethnos, by contrast, is already united as a pre-
political community. Its power does not constitute anything; rather, it is a means
of asserting the homogeneity and identity of the ethnos and of preventing what is
an essential element of politics, namely the dissent and the conflict about the
meaning of the common good. In other words, the constituent power of the
ethnosa contradiction in termsis an inherently apolitical power.
Does a society which defines its communal life in pre-political terms such as
ethnicity need a constitution? It certainly does not need it as a founding docu-
ment which creates the polity in the first place. Its political identity lies beyond the
constitution. But ethnic identity as such does not provide the capacity of the
people to rule themselves, i.e. to develop rules, principles, institutions, and
appropriate procedures about the allocation of resources, the distribution of life
chances, benefits, and burdens of the community, and about who defines the
identity of the community under changing conditions and new challenges. In
modern political history, a constitution has turned out to be the single most
appropriate device for dealing with these tasks. Although ethnies can benefit from
it and establish a constitution, the constitution of an ethnos is a constitution
without a constituent power. It is, so to speak, a mere instrument of government
of a pre-existing community whose identity does not depend upon the concept of
an actor the mythof political foundation. On the other hand, the inherently
universalist tendency of a constitution may well undermine the coherence of the
ethnos in that it provides institutional channels for dissent, conflict, and civilized
modes of struggles for power.
L. Basta, Nation-State and Minority Rights. The Case of Yugoslavia Reconsidered in

L. Mincheva-Grigorova (ed.), Comparative Balkan Parliamentarism (1995), 8899.
See R.V. Vassilev, Post-Communist Bulgarias Ethnopolitics (2001) vol. 1 no. 2 The Global
Review of Ethnopolitics 37; V. Pettai, Ethnopolitics in Constitutional Courts: Estonia and Latvia
Compared (200203) vol. 4 no. 1 East European Constitutional Review 101.
Cf. Hannah Arendts definition of politics as dealing with the coexistence and association of
different men in H. Arendt, Introduction into Politics in Arendt, The Promise of Politics in J. Kohn
(ed.) (New York: Schocken Books, 2005), 93.
Thus, the constitution without a constituent power contributes to the fragile

conditions of constitutionalism in those CEE countries in which ethnic politics
play a significant role: on the one hand the constitution is needed for the
operation of a basic structure of governance and, not to forget, for international
recognition as a civilized nation; but at the same time the human resources and
social energies which are required for the creation of the countrys economic,
social, cultural, legal, and political infrastructure are closely associated with the
ethnic qualities of the communitya community beyond the constitution.
Ruti Teitel has associated the notable absence of constitutional constituent
assemblies with the explosion of constitutional courts in the post-communist
countries, suggesting that the enforcement of rights has gained highest priority
because under communism it was so plainly absent. This is a plausible hypothe-
sis. However, it does not explain why constitutional courts could render dispens-
able the establishment of the constituent power; after all, these two elements are
not mutually exclusive. The deeper reason may be found in the fact that
a constitution, being a profound act of political self-definition, is unnecessary if
the people or the nation exists prior to and independently of any constitution.
This is what distinguishes the European revolutions of 1989 from those which we
have known since 1649: the widespread spirit which understands them as
identity-engendering acts of liberation rather than as processes of a political
reconstitution of liberty. Hence, in the revolutions of Central and East Europe
which so dramatically changed the world and concluded the twentieth century
the constituent power played only a minor role.
Cf. Anthony D. Smiths idea of the nation beyond the state: A.D. Smith, Nationalism and
Modernism: a Critical Survey of Recent Theories of Nations and Nationalism (London: Routledge,
1998), 73ff.
R. Teitel, Post-communist Constitutionalism: A Transitional Perspective (1994) 26 Columbia
Human Rights Law Review 167, at 172.
Ackerman, above n. 5, 47.
This may explain why constituent power is not even mentioned in an edited book dedicated to
constitution-making in Eastern Europe: A.E.D. Howard (ed.), Constitution Making in Eastern
Europe (Washington, DC: The Woodrow Wilson Center Press, 1993). A profoundly different
approach to the post-communist transformations is pursued by Ruti Teitel, who dismisses the para-
digm of revolution and new beginning and instead suggests narratives of transition: see R. Teitel,
Transitional Rule of Law in A. Czarnota, M. Krygier, and W. Sadurski (eds.), Rethinking the Rule of
Law after Communism (Budapest: Central European University Press, 2005), 279.
12
We the Peoples: Constituent Power and
Constitutionalism in Plurinational States
Stephen Tierney*
The manner in which we answer questions about the nature of The People
affects our attitude towards the scope and limits of government.
This chapter examines the ways in which the concept of the plurinational or
multinational state problematizes existing debates concerning the relationship
between constituent power and constitutional form. Plurinational state is a
descriptive term emerging from empirical observations by contemporary political
scientists, sociologists, and historians who have described how the re-emergence
of sub-state nationalism within certain developed states since the 1960s has revi-
talized demands for the constitutions of these states to articulate more clearly their
union nature. The reference to developed states is not to claim that this
phenomenon is exclusive to states such as Belgium, Canada, Spain, and the
United Kingdom, but it is in respect of these case studies that extensive empirical
research has been carried out and hence where considerable evidence exists for the
territorial disaggregation of party political behaviour, citizen identities, voting
patterns, and, most centrally for the purpose of this chapter, visions of the central
purpose and values of the constitution.
This development poses challenges for two sets of assumptions which
commonly attend contemporary constitutional theorizing, challenges which
carry considerable implications for orthodox debates over constituent power and
constitutional form. First, the re-emergence of sub-state nationalism within
developed states confronts the view held by many that nationalism, whether of a
state or sub-state variant, is waning; it is a widely held belief that the prevailing
* The author is grateful to Ailsa Henderson and Eve Hepburn for helpful comments on an earlier
draft.
D. Ivison, Pluralism and the Hobbesian Logic of Negative Constitutionalism (1999) 47
Political Studies 83, at 98.
The terms plurinational or multinational can largely be used interchangeably; plurinational
will generally be used here. See also, M. Keating, Plurinational Democracy: Stateless Nations in a Post-
Sovereignty Era (Oxford: Oxford University Press, 2001).

political trajectory, particularly of the developed West, marks the passing of the
age of nationalism under the internationalizing vectors of either international
popular mobilization or market liberalism. The survival or reconstruction of
national identity within sub-state national societies is therefore a vexing trend,
posing difficult questions for deterministic accounts which view nationalism as a
functional ideology that should pass as the nation-state outlives its usefulness.
Indeed, contemporary debates about constituent power in Europe have tended to
focus upon the building of a supra-state demos and hence a new site of constituent
power at the level of the European Union, and in doing so they have overlooked
the ways in which, parallel to the supra-state unification process, sub-state terri-
tories have been revitalized as political spaces within which radical, modern, and
democratic conceptions of constituent power are also mobilizing. As a related
point of contextualization, it is important to note that, contrary to traditional
assumptions, the evidence of political science and political practice suggests that
the primary constitutional imperative of a plurality of nationalist (as described by
political scientists) political actors within sub-state territories such as Flanders,
Quebec, Scotland, the Basque Country, and Catalonia, is not to secure independ-
ent statehood in a traditional Westphalian sense, but rather to seek a reconfigur-
ation of the internal constitution of the host state in full recognition of the
national pluralism of the state in question.
Revitalized sub-state nationalism also challenges a second set of assumptions
about the nation-state, assumptions which are encapsulated in what might be
termed the monistic demos thesis. This thesis finds its defining modern articula-
tion in the theory and practice of revolutionary republicanism, particularly in its
Jacobin variant which conceptualizes constituent power in an exclusively unitary
way at the same time as it elides the concepts of state and nation. As Hobsbawm
puts it: It is pointless to talk about nations apart from the state. In other words,
contemporary republican theory either takes for granted or actively demands a
monistic conception of the nation as the embodiment of a unified demos. This in
turn maps neatly onto a model of the modern state which, with one central source
of supreme authority, becomes the constitutional creature of this unitary political
agent; and it is within this conceptual framework of a unified people, territory,
and locus of constitutional authority that debates surrounding constituent power
and constitutional form commence. The resilience of sub-state national societies
within plurinational states has, however, always operated to unsettle the universal
application of this model, and of democratic theories which have been built upon
This is a term I use to describe societies such as Catalonia, Quebec, and Scotland: see S. Tierney,
Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2004), 45.
These post-state assumptions have also overlooked the parallel resilience of nationalism within
state national societies. While the recent referendum results on the EU constitutional treaty in France
and the Netherlands do not necessarily signify resilient state nationalism, they do seem to deflate
certain deterministic assumptions concerning the inevitability of political union in Europe.
E. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (Cambridge:
Plurinational States 231
its foundations. While the model may offer an accurate description of the demotic
and constitutional structures of uninational states, it would not appear to provide
an adequate account of the nature of plurinational states.
Based upon these initial comments it will be argued in this chapter that we
should understand the contemporary sub-state nationalist challenge as an implicit
demand for a rethinking of orthodox state-centred assumptions concerning both
the nature of demos and the empirical and normative dimensions of constituted
authority within plurinational states. In the first part of this account, I consider
how debates concerning the nature of constituent power take on a distinctive
aspect in respect of plurinational states and in the second, I discuss certain
tensions in the relationship between constituent power and constitutional form
which seem to be specific to the plurinational state, and which have recently
manifested themselves in the praxis of political actors within sub-state national
societies such as Quebec and Scotland.
National Pluralism and Constituent Power: Disaggregating

the Demos
Within each political unity there can be only one subject of constituent
power.
The people cannot decide until someone decides who are the people.
As noted, by standard modern formulations of the nature of constituent power
the identity of the demos is uncontroversial: it is assumed to map neatly onto the
boundaries of the state. Although important debates remain concerning relations
between majorities and minorities and about representation (who speaks for the
demos), these tend to take place against an overall assumption that the state
contains but one unitary demos. This is entirely logical, particularly in those
formulations where the people as collective political agent is considered to have
been formed in the very act of self-conscious state creation, i.e. where the concept
of the people only becomes meaningful through its political mobilization as a
collective force which created the polity, and in the process was itself created.
Given that each state is taken to be composed of one unified demos which by
definition comprises the entire populace which created that state, constitutional
debate can begin about the ongoing political potential of that demos and the
degree to which future exercises of its political will might legitimately be
constrained by the particular constitutional project which it itself has instituted.
A number of contemporary sub-state nationalist political movements challenge
this fundamental sociological assumption concerning the demotic composition of
C. Schmitt, Verfassungslehre (Berlin: Duncker and Humbolt, 1965), 53.

I. Jennings, The Approach to Self-Government (Cambridge: Cambridge University Press,
1956), 56. On which, see Hans Lindahls contribution to this volume (ch. 1).
the state, at least in so far as it is taken to have universal application. These critics
contend that the plurinational state is an exceptional type of state which does not
fit this model. What makes the plurinational state distinctive in terms of historio-
graphical accounts of its origin is the conceptualization of this founding moment
as a union of pre-existing peoples subsequent to which sub-state national societies
within the state continued to develop as discrete demoi. To begin to explore this
argument, which is admittedly heretical in the context of much orthodox
thinking about the nature of republican government, it is important to observe
that this challenge to the unitary demotic model is not simply a contention that
the plurinational state is multicultural. It is clear that most if not all national
demoi, be they state or sub-state national demoi, are today characterized by their,
often deep, cultural diversity. National pluralism, however, represents a different
order of diversity from that of cultural pluralism. Although cultural differences
between and among national societies within the one state remain a feature of
national pluralism, it is not its defining characteristic. Rather, the essential, and
constitutionally crucial, trait of plurinational states is the existence within them of
a plurality of territorially concentrated, potentially self-governing societies, which
are possessed of a desire for specific constitutional recognition as such. In other
words, these societies position themselves in a relational way to the state not as
internal minoritiesin the sense of being simply a particular sub-set of a
common demotic wholebut as polities which are in fact comparable to the state
in the way they offer, or have the potential to offer, an effective site for many, if not
all, of those functional and indentificatory roles which the state plays in the life of
the citizen. Central to the challenge presented by sub-state national societies both
to their own host states, and in the context of this chapter, to traditional assump-
tions about the nature of constituent power, is a call for the disaggregation of the
terms state and nation.
In order to relate this sociological argument concerning national plurality more
closely to the concept of constituent power, we should bear in mind that sub-state
national societies are themselves modern constructs similar in form to statal
demoi. Rather than representing ethnically-based relics, these societies have devel-
oped in civic ways comparable to the progressive evolution of statal national soci-
eties; they have made the same transition from pre-modern community to
modern society (from ethnos to demos), and have built civic societal as opposed to
ethnic communal models of national identity within their respective territorial
spaces. This point is of particular importance to the debate over constituent power
and constitutional form because, as has been observed in terms of the linkage
between the existence of the people and the existence of the state in republican
theory, these debates presuppose as their context a modern, civic notion of the
Other models of national diversity such as the existence of diasporic peoples also challenge the
unitary demos model.
W. Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995), 76.
demos and, most commonly, a democratic form of state within which it can
flourish. Sub-state national societies should therefore be analysed by use of the
same empirical and normative tools as state national societies: by this construc-
tion, the plurinational state should be recognized to form a plurality of imagined
communities.
The notion of imagined communities introduces a further layer of complexity
to the composition of the demos /demoi within the plurinational state. Arguments
that national pluralism prevails within certain states should not ignore the
substantial empirical evidence which demonstrates that often an overarching
statal demos, what we might call a compound demos, co-exists and develops in
parallel with sub-state demoi. This can potentially manifest itself simply in a thin,
functional sense: the people of the whole state by definition form a corpus of
citizens which in important practical respects subsumes the various sub-state
demoi of the state, involving them in pan-state political and constitutional
activities and equipping them with a common citizenship. However, ongoing
research confirms that people across sub-state national societies show patterns of
identification with, and loyalty to, the plurinational state which transcend mere
functional attachments. There has been considerable empirical work in the last
decade exploring shared and multiple national identities within plurinational
states, and it is clear that from plurinational state to plurinational state, from
sub-state national society to sub-state national society, and from individual to
individual, the sense of what belonging to a compound demos means can vary
widely. In other words, there is a wide spectrum whereby (and here, given space
constraints, I over-simplify) at one end people, although recognizing that much of
their civic and legal status is bound up in the compound demos, and perhaps also
sensing some form of abstracted civic attachment to the compound state, will
describe feeling national identity only in respect of the sub-state nation, while at
the other end there are patterns of dual national identities with strong identity and
loyalty ties owed by certain people to both the sub-state national society and the
host state national society.
To summarize, in this part of the chapter it has been argued that the theoretical
challenge presented by sub-state political mobilization is located overtly within
the modern conception of the people as active political agent of change, and hence
that this challenge must be taken seriously (as it has often not been) when we
conceptualize the origins, purposes, and constitutional organization of states and
the normative implications of these constructions. What is crucial for a theory of
constituent power is that the challenge to traditional formulations of this concept
is presented not by pre-political or revanchist ethnic groups simply reacting
L. Moreno, Mesogovernments and Territorial Identities (1999) 5 Nationalism and Ethnic

Politics 61.
A. Henderson, Hierarchies of Belonging: National Identity and Political Culture in Scotland and
Quebec (Montreal: McGill/Queens University Press, 2007).
against the modernizing trend of state-centred civic republicanism, but rather by a

set of forward-looking territorial demoi which are mobilizing constituent power
within a civic, republican tradition and under the radar of exclusivist statal
constructions of this concept.
Sub-State National Societies and the Orthodoxies of

Constitutional Form
In determining the identity of the city we must look to the constitution.

Can there be any greater evil than discord and distraction and plurality
where unity ought to reign? Or any greater good than the bond of unity?
In the same way that the political mobilization of sub-state national societies
requires us to re-think one dimensional accounts of the composition and nature of
the demos within plurinational states, so too does this phenomenon challenge
traditional ways of thinking about the nature of the constitutional state which
embraces these compound polities, calling into question not only traditional
interpretations of their constitutional tenets but also the universal application of
certain orthodoxies which inform liberal constitutionalism in general. Insofar as
sub-state nationalist movements consider plurinational states to share one generic
feature in terms of constitutional identity, it is that these states are founded upon
the principle of a union of free and equal nations; and therefore, their constitu-
tions should continuously reinvigorate themselves in accordance with this
principle. This assumption has been reinforced by various factors: in historio-
graphical terms, by stories of the cultural and institutional distinctiveness which
different national territories brought with them at the time of their inclusion
within the state; in political terms, by affirmations of the central role played by
these territories as distinctive polities in the process of state-formation; and in
sociological terms, by the subsequent retention and further development of the
societal distinctiveness of the states different national societies since the union.
Together, these factors have led to the belief among sub-state national societies
that their larger polities are in some sense union states; the key dynamic of state
formation was one of union and this principle provides the key to understanding
the founding and enduring tenor of the constitution. Therefore, although
arguments for constitutional change presented by sub-state nationalists today are
Aristotle, Politics, E. Barker, trans. (Oxford: Oxford University Press, 1995), 90.
Plato, The Republic, B. Jowett, trans. (Oxford: Clarendon Press, 1908), Bk V. s. 462B.
See S. Rokkan and D. Urwin, Introduction: Centres and Peripheries in Western Europe in
Rokkan and Urwin (eds.), The Politics of Territorial Identity: Studies in European Regionalism
(London: Sage, 1982), 11.
as likely to find their normative underpinning in contemporary liberal or

republican principles, such as the recognition of difference, equal treatment, and
self-determination, constitutional historiography is also called upon to equip
these demands with a legal as well as a political basis, reinforcing the sense that the
host state has an ongoing constitutional obligation to reform that constitution in
order to update its original commitment to, and accommodation of, the states
union and plurinational nature.
Radical demands for constitutional reform to better recognize the historical
context and enduring story of the constitution thus claim legitimacy from a
commitment to a foundational constitutional moment; in other words, a sense
that from the birth of the state, sub-state national societies were constitutionally
entitled to distinctive accommodation within the state, and that the constitu-
tional order of the state is a living thing which must continually reform itself to
reflect contemporary refinements in the ways in which plurinationality is
understood in order to remain faithful to its original purpose. And it is this vision
which helps reinforce the commitment to and reliance upon constitutional form
by non-separatist political voices within sub-state national societies.
In the remainder of this part of the chapter I seek to do two things. First, I
explore further this idea of a union state and explain how it both represents a
commitment by sub-state national societies to the established constitutional form
of the plurinational state and also challenges certain established orthodoxies of
liberal constitutionalism. Second, I highlight some of the tensions which exist
between this commitment to the constitutional form of the plurinational state on
the one hand and, on the other, the claims of sub-state secessionists (more
obviously) or sovereignists (in the context of constitutional debates, more
importantly) to be able to activate sub-state constituent power where it is believed
that such a recourse is in certain cases the only remedy to correct what is perceived
to be constitutional injustice.
Union States and Constitutional Form
The identity component of constitutional legitimacy is not detached from

the procedural-democratic source of legitimacy, but rather facilitates and
enhances its effect.
In the first part, it was observed that the commitment by many sub-state national-
ists to constitutional form is often overlooked by those who consider sub-state
nationalism to be by definition a separatist or secessionist ideology. One empir-
ical starting point from which this part of the paper proceeds is that the dominant
political project among those whom political scientists identify as nationalists in a
H. Lerner, The People of the Constitution: Constitution-Making, Legitimacy, Identity, Paper

presented at the mini-APSA, Department of Political Science, Columbia University, 30 April 2004.
number of sub-state territories today is in fact not separatist in outlook but seeks
instead to re-negotiate or re-define the notion of union in its relations with the
other national society(ies) of the state. It is of crucial importance to make this
distinction between sub-state nationalism and separatism because it is on account
of its non-separatist manifestations that sub-state nationalism poses significant
challenges to understandings of constitutional form within the host state in
question. I have discussed this issue at length elsewhere and wont rehearse these
arguments here. But it is worth noting that the policies of a number of sub-state
nationalist movements which are generally taken to be separatist are in fact
focused upon radical constitutional reform rather than secession, and that even
secessionist nationalists often frame their justifications for secession on constitu-
tional arguments, contending, as for example have many Quebec secessionists,
that this is the only remaining option once their other strategies for constitutional
change have failed.
Since sub-state nationalists are often fully engaged in arguments concerning
constitutional change rather than secession, it would appear that these non-
separatist sub-state nationalist movements now present particular challenges to
constitutional form which do not generally arise in uninational states. From this
premise, I address challenges to three conceptual building blocks which inform
much traditional constitutional thinking and which seem to flow from the
monistic assumptions which attend traditional stories concerning the nature of
the demos. These building blocks are: first, the definitional techniques with which
constitutions are often classified by lawyers and political scientists; second, the
strict formalism which often narrows the lens through which constitutionalism is
viewed; and third, traditional understandings of legal supremacy within demo-
cratic constitutionalism.
The first challenge is levelled at the traditional taxonomy with which lawyers
and political scientists categorize contemporary constitutions in terms of their
institutional structures. One well-established categorical distinction is that
between unitary and federal states. While in itself a useful division, the limitations
of this type of classification are highlighted once one realizes that it offers no
account of the sociological distinctiveness of the plurinational model. This is not
to argue that in classical accounts of the nature of decentralized states there is no
recognition given to institutional variation beyond that of a binary unitary
v. federal modelthere is indeed extensive work on other models such as confed-
eralism and consociationalismit is rather that much of the categorization
S. Tierney, Reframing Sovereignty: Sub-State National Societies and Contemporary

Challenges to the Nation-State (2005) 54 International and Comparative Law Quarterly 161.
It should be borne in mind, however, that such arguments can also be appropriated tactically by
separatist nationalists to make their position sound more moderate and legitimate.
For example, A. Lijphart, Consociation and Federation: Conceptual and Empirical Links
(1979) 12 Canadian Journal of Political Science 499; D.J. Elazar, Exploring Federalism (Tuscaloosa,
AL: University of Alabama Press, 1987).
process focuses entirely upon formal institutional machinery, and as such fails to
take adequate account of how the political culture and societal composition of
each state can create confederal or consociational dynamics below the level which
formal institutional analysis traditionally addresses.
A second challenge to those orthodoxies which help to establish the traditional
approach to democratic constitutionalism is directed towards a narrow version of
legal formalism (analogous to the taxonomical formalism above) which influences
much of contemporary constitutional thought. Non-separatist nationalists in a
number of sub-state national societies call increasingly for a reconceptualization
of the constitution of their own host state and this call, when considered in wider
context, contains a deeper challenge for constitutional theorists to re-imagine the
very concept of the plurinational constitutional state. The challenge is not simply
to the specific provisions of a particular constitution, but to the very coherence of
a formalism which assumes that an authoritative account of constitutional
meaning can be arrived at through objective interpretations of the constitutions
text and dominant doctrines. Sub-state nationalists often argue that such a
formalized interpretative process is skewed by the relationship between dominant
and subaltern national societies within the state, and favours the cultural and
societal particularisms of the former. In methodological terms, this challenge
critiques the artificial distinction between the legal and the political; constitu-
tional formalism, it is argued, is itself conditioned by, and dependent upon,
politically-informed assumptions about reality which may themselves be false. As
Resina reminds us, [c]onstitutionalism, no less than nationalism, is a functional
myth.
What is needed, then, is a more historically or sociologically contextualized
account which will prevent the dominant interpretation from being crystallized as
definitive and which will offer scope for other voices to be heard (such as those
who argue that the foundational moment of the plurinational state provides the
pre-eminent guiding principles with which to inform and guide its interpret-
ation). If the plurinational constitution is to be legitimate in the eyes of all of the
states constituent demoi, elite state actors must be prepared to embrace the idea of
the constitution as a living, reflexive instrument. This requires lawyers to broaden
their methods and engage with historical and sociological arguments as useful
tools in the task of constitutional interpretation.
For example, Canada is formally a symmetrical federation, but an institutionally focused ana-
lysis based upon such an assumption would miss how in terms of political and constitutional practice
this model has been stretched to embrace elements of confederation between English Canada and
Quebec.
J.R. Resina, Post-national Spain? Post-Spanish Spain? (2002) 8 Nations and Nationalism 377,
at 381.
In recent times the Supreme Court of Canada has shown it is prepared to look beyond narrow
formalism in order to identify unwritten principles which form the core set of values of the Canadian
constitution and which can then be applied to inform the Courts interpretation of the constitutional
text: see Reference re Secession of Quebec [1998] 2 SCR 217.
A third challenge which flows from the second is to traditional ideas

concerning the nature of ultimate legal supremacy within the plurinational state.
One foundational theoretical presupposition of legal formalism is that legal
supremacy or sovereignty can be understood hermeneutically or immanently in a
Kelsenian sense; in other words, it is a vision of legal power operating in a concep-
tually separate space from the political. Critics of this approach, who include
many sub-state nationalists, contend that fundamental legal norms cannot be
properly understood by way of such an abstraction since it strips them of ontolog-
ical significance. Any legal system exists within, is conditioned by, and can only be
understood against the wider panorama of the political environment from which
it generates its own legitimacy. The challenge presented by many sub-state
nationalists today is therefore linked to a wider tradition of legal theory which
seeks a more meaningful comprehension of legal sovereignty as situated within a
symbiotic relationship with political power (e.g. that in a democracy, legal
sovereignty must be informed by, and normatively subject to, principles of
popular rule). In this context Martin Loughlin reminds us that in consequence of
its political contextualization, sovereignty is an expression of a political relation-
ship between the people and the state which gives expression to the political
bond between a group of people and its mode of governance. And it is by the
selective adaptation of Loughlins conception of sovereignty that I will attempt to
explain the ways in which contemporary sub-state nationalists critique formalistic
accounts of legal sovereignty. I make one point of departure from Loughlins
discourse on sovereignty. He envisages sovereignty within a state in monistic, and
indeed indivisible, terms. By adapting the relational component of Loughlins
thesis I argue that it can also be employed in situations where parties relying upon
the insights which the relational component provide may apply this to situations
where they argue also that sovereignty within a state is in fact divisible, or at least
shared: in other words, I am arguing that the relational aspects of Loughlins
account can be appropriated without the necessity of adopting the indivisibility
argument.
Loughlins relational conception of sovereignty balances different tensions:
between the legal and the political, and between the people as free and the state as
constituted. This is a multi-layered conceptualization even in the context of
the unitary notion of the demos that he adopts. But although not intended for
the purpose, this relational model also translates well to the context of the
plurinational state. The notion of sovereignty as expressing a political relationship
between the people and the state is attractive to contemporary sub-state
nationalist movements in their conceptualization of popular constituent power
within a constitutional framework, but they adapt it in a radical way by suggesting
N. MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth
(Oxford: Oxford University Press, 1999), 106.
M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 95.
that within the plurinational state the people are plural and so, concomitantly,
are the political relationships between these peoples and the state, negotiated as
these relationships are through the different levels of governance which affect their
lives and to which they relate through variegated pathways of identity and loyalty.
The plurinational state can thus become a site of contestation in respect of the
most fundamental constitutional tenet of allthe source and locus of ultimate
sovereignty. This can manifest itself in radical challenges, for example to established
senses of where, in institutional terms, the last word on issues of legal supremacy
might rest. Traditionally, by demotically monistic conceptions of sovereignty, this
last word lies (at least in respect of constitutional interpretation within written
constitutional systems) with a constitutional court, and in terms of changing the
constitution, in a constitutional amendment process delineated in the constitu-
tional text. But falling back on the fundamental principles of union and societal
plurality which they argue undergirds the constitutions legitimacy, sub-state polit-
ical actors within plurinational states have claimed that the constitutional court can
manifest itself as an institution that entrenches the dominant national societys
hegemonic interpretation of the constitution; and that (e.g. by denying minority
sub-state national societies a right of veto) the constitutional amendment process
incorporated within the constitution can also be predisposed to favour the
dominant national society. Such legal formalism can thus serve as a mask to
disguise the erstwhile entrenchment of dominant power and hence the negation of
the core function of sovereignty which, according to sub-state nationalists, is to
reflect the political bonds between the peoples of the state and the state itself.
However, even though this type of disagreement over constitutional supremacy
may reflect a deep-seated dissensus in the rhetoric of many sub-state actors, the
debate often remains one about the nature of ultimate power within the pluri-
national constitution, and not about secession. In other words, such moments of
deep disputation arise in exceptional circumstances within a broader context of
generally healthy constitutional relations. Nonetheless, by linking this type of dis-
pute to the broader dynamic between constituent power and constitutional form
a challenge is posed to the ways in the host state not only offers an account of the
demos but also conceptualizes the historical foundations of its constitution.
Tensions between Constitutional Form and Constituent Power

in the Plurinational State
by clinging solely to defining abstract legal norms . . . we deprive ourselves
of the power to make valid choices and thus to give meaning to law which is
anything but trivial.
J. Leclair, Impoverishment of the Law by the Law: A Critique of the Attorney Generals Vision
of the Rule of Law and the Federal Principle (1998) 10 Constitutional Forum 1, at 7.
These arguments concerning traditional understandings of the nature of

constitutional form within democratic constitutional theory highlight the depth
of the tensions that can exist between the commitment of sub-state nationalists to
constitutional form (albeit to a vision of constitutional form that diverges from
that of dominant voices within the state) and the claims which the same political
actors at other times make for the purpose of promoting constitutional change
outwith formal constitutional processes. Attempts by sub-state national societies
to engineer constitutional reform or reinterpretation can be unsuccessful for
varying reasons, but often their failure seems due simply to the power of the
dominant national society, which either conceives of the constitution differently
or sees no reason to amend the constitution better to accommodate minority
interests. Therefore, while a commitment to constitutional form frequently
emerges in the political strategies of sub-state nationalists, it is often paradoxically
from this very commitment that these same actors also claim a concomitant
legitimacy for resorting to sub-state constituent power when they feel that the
hegemonic rendition of constitutional meaning has failed them.
Commitment by minority sub-state national societies to constitutional form
stems from a genuine attachment to the constitution both because it is seen to
embody the spirit of a union state, and also because in practical terms it can be the
best way of guaranteeing parity of treatment for minority sub-state national
societies. It is perhaps not surprising that this level of attachment is to be found
among vulnerable or minority groups, insofar as they believe the constitution to
provide a bulwark against the unbridled constituent power of the dominant
society. But the same minority status that provides such a deep vested interest in
constitutional form is often the specific factor relied upon to justify resort to the
exercise of what sub-state national societies take to be their latent constituent
power, which remains immanent within the adapted version of Loughlins
relational theory of sovereignty.
The process of using a commitment to constitutional form to justify recourse
to constituent power begins with arguments that the dominant national society
has acted unconstitutionally by diverting the true purpose of the constitution
(to build and maintain a plurinational state), towards one which primarily serves
the interests of the dominant society. This constitutional realignment may have
taken place within the institutional processes of the constitution formally con-
ceived but, by running contrary to the plurinational purpose of the constitution,
it is treated by the sub-state national society to be nonetheless unconstitutional.
Attempts to alter this course using the existing institutional processes can be made
by sub-state national societies in two ways: either by formal constitutional
amendment or by seeking reinterpretation of the constitution, especially by a
constitutional court. When such amendatory and interpretational strategies fail to
achieve the desired outcome, sub-state actors may feel they have no further
recourse within formal constitutional structures. In such exceptional situations
they contend that their only recourse is to activate sub-state constituent power for
the purpose of kick-starting meaningful constitutional dialogue. And in this

context, Kompetenz-Kompetenz disputes emerge, as the dominant forces within
the host state contest the constitutional legitimacy of such a recourse to the
constituent power outwith the formal channels of the constitution.
I will outline briefly two examples of situations in recent times when sub-state
nationalists have had recourse to seemingly extra-constitutional constituent
power but where in doing so they have in fact claimed constitutional justification
to legitimize this popular mobilization. The first is the Quebec referendum on
sovereignty and partnership held in 1995. The backdrop to this event was a
process throughout the 1980s and 1990s whereby Quebec took part in a series of
constitutional negotiations with the Canadian federal government and the other
Canadian provinces, conducted through established constitutional channels, with
a view to changing the amendment formula contained in the Constitution of
Canada to provide a veto for Quebec over constitutional changea veto which
Quebec had long considered itself entitled to because of its conception of itself as
a distinct national society within the state. The paradox was that the provision to
which Quebec objected (the existing amendment formula) was precisely the
device which would have to be used to create a new amendment formula; and it
was this very device which allowed a minority of provinces to block constitutional
changes which Quebec had agreed to at the Meech Lake constitutional conference
in 1987. By 1995 Quebec nationalists (including many who had supported the
Meech Lake initiative), seeing no prospect of any change to the amendment
formula being accepted by English Canada, decided instead to hold a unilateral
referendum in Quebec on a new partnership with the rest of Canada based upon
the premise of Quebecs sovereignty. The assumption that the National Assembly
of Quebec could take such a unilateral step drew in part upon an innate sense of
the Quebec peoples constituent power founded in contemporary political
doctrines such as self-determination, but it also found sustenance in the argument
that this move was in fact also consistent with the Canadian Constitution when
viewed in wider focus than the narrow amendment process contained in Article V
of the Constitutions text. By this latter argument, the patriation of the Con-
stitution from the United Kingdom in 1982, by which the current amendment
formula had been entrenched, had itself been an unconstitutional act because it
was done without the agreement of Quebec (which many Quebec nationalists
took to be a fundamental requirement of such change). Consequently, the 1995
referendum was the only mechanism left open to Quebec to remedy this constitu-
tional defect, since the rest of the country had not been prepared to do so through
established constitutional channels.
See Tierney, above n. 3, ch. 5.

An interpretation seemingly accepted in part by the Supreme Court in the Secession Reference,
above n. 22.
One prominent Quebec academic expressed the view that the 1982 patriation process violated
the rule of law: G. Laforest, The True Nature of Sovereignty: Reply to my Critics Concerning
A similar attempt to construct constitutionally-based legitimacy for resorting

to sub-state constituent power can be found in the justifications put forward by
the Scottish Constitutional Convention (SCC) for their moves towards instigat-
ing extra-parliamentary constitutional change in the United Kingdom in the late
1980s and 1990s. Although not secessionist, these were unilateral moves towards
drafting a new constitutional settlement which took place outwith the normal
processes of parliamentary government. However, far from accepting that this
move was constitutionally rebellious, the SCC cast back the revolutionary
aspersion at dominant political actors within the host statein this case the
Conservative government whose abuse of the constitution in this period, it was
claimed, had been the truly revolutionary act. Like Quebec nationalists in 1995,
the SCC seemed to draw legitimacy from political doctrines such as self-
determination, declaring: we, gathered as the Scottish Constitutional
Convention, do hereby acknowledge the sovereign right of the Scottish people to
determine the form of Government best suited to their needs . . .. But rather
than using this declaration of constituent power to seek secession from the United
Kingdom, the SCCs declaration can be seen as a reaffirmation of the UK
constitutionthe constitution of a union state. The critique contended that the
union was being violated by an ongoing process of centralization, and this process
of unconstitutional behaviour entitled Scots to revise the union, if needs be,
unilaterally. Indeed in an earlier declaration of 1988 this same extra-parlia-
mentary campaign accused the UK constitution, or at least the dominant inter-
pretation of it, of betraying the 1707 union itself: the Scots are a minority which
cannot ever feel secure under a constitution which, in effect, renders the Treaty of
Union a contradiction in terms.
We see here a paradoxical linkage between these two doctrines: a commitment
to constitutional form (a constitutional form broken by a dominant power
controlling the formal constitution and offering no remedy for this breach) and a
Trudeau and the End of a Canadian Dream in R. Beiner and W. Norman (eds.), Canadian Political
Philosophy: contemporary reflections (Toronto: Oxford University Press, 2001), 298. The same author
(ibid. 306) also reflected that following Meech Lake: I believed that irreparable damage had been
done to the federal regime, that Quebecers no longer had any obligation to obey and respect Ottawas
authority. Of course it is important to observe that there has always been a wide spectrum of opinion
within Quebec nationalism from those who genuinely want to reconstitute a plurinational Canada
to those who seek traditional, independent statehood for Quebec.
Scotlands Claim, Scotlands Right (Edinburgh: Scottish Constitutional Convention, 1995).
Scotlands Claim, Scotlands Right also declared: This concept of sovereignty [the Westminster
model] has always been unacceptable to the Scottish constitutional tradition of limited government
or popular sovereignty. As Keating puts it, Thatchers attacks on civil society: were widely seen as an
abuse of Parliamentary sovereignty and therefore a violation of the unwritten norms of the constitu-
tion. This sentiment was . . . strong in Scotland, where the union is still seen as a compact.
M. Keating, Managing the Multinational State: Constitutional Settlement in the United Kingdom,
in T.C. Salmon and M. Keating (eds.), The Dynamics of Decentralisation: Canadian Federalism and
British Devolution (Montreal/London: McGill/Queens University Press, 2001), 2145 at 267.
A Claim of Right for Scotland, 1988, para. 4.8, cited in O. Dudley Edwards (ed.), A Claim of
Right for Scotland (Edinburgh: Polygon, 1989), 19.
claim that the sub-state national society is constitutionally entitled to revive the
pluralized vision of constituent power with which it and other national societies
entered the union. It is claimed that this pluralized constituent power continues
to provide the underpinning legitimacy for that constitution, and may be revived
in the event of the constitution being distorted in a way that undermines the
pluralist constitutional project. By showing that they are prepared, and feel it is
constitutionally legitimate, to step outwith the established patterns of con-
stitutional interpretation and amendment and call for change in bilateral or mul-
tilateral negotiations, these political actors are implicitly declaring that, in the
state of exception at least, they envisage the state, regardless of its institutional
appearance, in consociational or confederal terms, where ultimate legal supremacy
is shared across a set of political bonds between peoples and the state.
There is in this paradox perhaps a sense of revolution as the word was at times
used in English constitutional disputes of the seventeenth centurynot as a
radical device to bring about constitutional rupture, but as a conservative tool
designed to restore equilibrium to a constitutional order which has itself been
disrupted by those in a position of power (i.e. revolution as a circular motion
turning the constitutional wheel back through a full circle to its status quo ante
the unconstitutional fissure). In the rhetoric of many revolutionaries in the
1640s and late 1680s it was respectively Charles I and James II who were seen as
the real source of constitutional breach, usurping the ends of government, and in
James case subverting the laws and liberties of this kingdom. On each
occasion, powerful voices within the parliamentary opposition claimed to be
motivated by fidelity to the true meaning of the constitution and demanded the
restoration of a limited monarchy and a clear restatement that legal supremacy
was vested not in the king alone (per the unconstitutional interpretations of
Charles and James) but in the king-in-parliament, whereby the two institutions
shared sovereignty through a joint and inseparable relationship.
In the Quebec and Scottish experiences there is by analogy a sense that what was
happening was also not revolt but the attempt to restore constitutional regularity in
a situation where the proper balance of the constitution had been distorted by
hegemonic forces within the state. This involved the activation of revolutionary
constituent power, but in being mobilized for restorative purposes it in fact claimed
to represent fealty to a version of constitutional form. By this construction, events
such as the Quebec referendum or the resort to extra-parliamentary processes by
Bill of Rights 1688, 1 Will & Mary sess. 2 c. 2, Preamble. In a similar vein Thomas Hobbes
wrote after the Restoration of 1660: I have seen in this revolution a circular motion of the sovereign
power, through two usurpers, from the late king to his son: T. Hobbes, Behemoth [1679]; cited in
A. Woolrych, Britain in Revolution 16251660 (Oxford: Oxford University Press, 2002), 1.
Whether or not there was in fact such a clear constitutional position at the time of either revo-
lution is of course open to dispute, but what is important is the rhetoric of justification which allowed
the parliamentary cause to be presented as constitutionally conservative rather than radical. See also
the discussion of Loughlin in this volume (ch. 2).
the SCC are not, as often claimed by dominant constitutional actors, disputes
between legitimate constitutional actors represented by the central powers of the
state and unconstitutional sub-state rebels; they are disagreements as to the very
meaning of the constitution between two parties, each of which claims constitu-
tional legitimacy for its respective position. They are, in short, instances of deep
Kompetenz-Kompetenz disputation concerning the locus of ultimate constitutional
supremacy within a plurinational state.
Concluding Remarks
In recent times the issue of the demos and of constituent power has become a point
of focus in debates concerning the future of the European Union: how might a
multinational European polity be built? Is a unified demos needed for such a
process? Is the construction of such a demos feasible and, if so, what form might it
take? But in these deliberations it has been rare to find references to the plurina-
tional state as a case study in multinational coexistence, or the use of the experi-
ence of these states to explore points of comparison and contrast in the historical
and societal experiences of these different forms of polity. From time to time, the
EU has been compared to other supranational institutional frameworks such as
NAFTA when a better comparison might have been with Canada. The way in
which Quebec nationalists explained their goal of sovereignty and partnership at
the time of the 1995 referendumwhereby they openly used the EU as a model
for their aspirations for a future pan-Canadian constitutional partnershipmight
have alerted commentators to the idea that Canada was a more fruitful compara-
tor for the EU than the politically and constitutionally under-developed NAFTA.
However, it seems that statal assumptions precluded such analysis. There is a
further point to this. If the plurinational state offers a useful point of comparison
for more ambitious projects of multinational engineering, then lessons need to be
drawn from ongoing disagreements within these states concerning the nature of
constituent power and the possibility that a pluralized conception of this power
might underpin constitutional form.
In addressing the prospects for closer European union, commentators may do
well to consider more carefully why small-scale models of multinational
cohabitation have been at best a qualified success and why the constitutional
demands of sub-state national societies grow ever more radical even within those
territories where there is a high degree of identification with and loyalty to the idea
of a compound demos. It may be that contemporary cosmopolitan thinkers, of the
left and right, who have overlooked the resilience of sub-state national identity
and its modern, republican dynamics, may also have neglected a similar durability
among statal demoi within uninational states. Far from being a revanchist kick
against the current of political and constitutional modernity which is deemed to
be flowing inexorably towards a unified European demos centred around supra-

state institutions and extra-state economic relations, the progressive and adaptable
strategies of contemporary nationalist movements may in fact reflect a counter-
struggle for recognition and for democratic control over the issues which are
central to peoples lives. As such these strategies may well constitute relevant and
reflective attempts to reclaim political space for self-determining demoi in an age
where supra-state institution-building elevates governance further beyond
democratic control and where economic globalization constricts democracys
locus operandi at both state and sub-state levels.
In this age of homogenization it seems that the national society should be
retrieved from the pejorative connotations which have marginalized its normative
force within so much contemporary political theory, thereby freeing it of its
purported association with ethnic essentialism and reactionary, separatist strat-
egies, and instead allowing it to be reconceived as a vehicle of popular mobilization,
manifesting itself through organically-generated, republican constituent power.
Only by such a process of recognition can multinational, constitution-building
polities do justice to the popular demands of their demotic components. And in
homage to this democratic aim, strategies of supra-state construction should pay
careful consideration to inter-societal differences, stressing goals of union not
assimilation, celebrating rather than sublimating difference, and adopting an
imaginative approach to constitutional form which recognizes the heterogeneous
demotic constituencies which both together and separately give larger polities
their legitimacy.
13
Post-Constituent Constitutionalism? The Case
of the European Union
Neil Walker
The purpose of this chapter is to examine whether the challenge that constituent
power poses to constitutional authority in its familiar state setting also pertains to
the emergent form of constitutional authority that we associate with the suprana-
tional European Union (EU). The inquiry has an explanatory and a normative
dimension, being concerned both with how the issue of constituent power has
come to impact upon supranational constitutional practice and with how it might
ideally be addressed and treated. The two dimensions are closely related since,
because the very existence and quality of constituent power in the EU is so deeply
contested, the normative question has proved difficult to answer, or even to
formulate, without in practice appearing to take sides. It addition, the very depth
of that controversy provides an important part of the explanation for the EUs
increasingly conflicted constitutional record, especially concerning the impasse
reached in the recent attempt to ratify the EUs first documentary Constitution.
This dual-pronged inquiry is pursued in two main stages. By examining the
role of constituent power in its traditional state setting, I first aim to identify four
key questions that, especially in the European context, must systematically be
addressed. Focusing on these key questions, I then present four hypotheses
concerning the significance of the idea of constituent power in the EU polity,
highlight the deficiencies of the first three of these before arguing the case for the
fourth hypothesis, which I call post-constituent constitutionalism.
Four Questions of Constituent Power
If this investigation is to be located within a coherent theoretical framework, we

must first return to the point of departure: the state. It is, of course, the case that
constituent power has always carried ambivalent connotations not only in its
Treaty establishing a Constitution for Europe [2004] OJ C310/1 (hereinafter CT).

more exotic contemporary outposts but also in its traditional national domicile. It
conveys both a promise and a threat. Its promise lies in the suggestion of a basic or
constituent standard of constitutional evaluation and test of constitutional
legitimacy that lies beyond the constitutional text or doctrine itself, and thus
announces a direct challenge to the positivist premise that legal-constitutional
authority is conclusively justified by the fact of its successful reduction to canon-
ical constitutional form. The more basic standard suggested by the idea of
constituent power relates to the two conceptually separate if institutionally
intertwined facets of self-government, or democracy broadly conceived. The first
relates to the self dimension of self-government: it concerns the idea that
authority should be duly authorizedthat it should possess an authentic
democratic pedigree. That is to say, those who are constituted as the subjects of
constitutional authority should also be its constituent authors. The second
relates to the governmental dimension: it suggests that, as government refers to a
wide-ranging and ongoing set of political practices rather than a simple and
discrete decision, the realization of a democratically responsive system of
government requires more than the affirmation of an appropriate popular
pedigree. That is to say, in its design, execution, and application, the constitu-
tional form produced by the constituent power should carry a resilient guarantee
of democratic fidelity to the interests, values, potential, or otherwise-conceived
goods associated with that constituent power.
The threat posed by the idea of constituent power is also twofold, mirroring
the two dimensions of democratic promise. It resides, first, in the difficulties of
ascertaining just who is able to make a valid claim to constituent power, and of
ensuring that that pedigree is respected in the framework of constitutional
authorization. It resides, secondly, in the myriad problems associated with
ensuring that the formal design and substantive application of the constitutional
settlement do in fact guarantee the realization of a system of government that
remains faithful to the goods associated with the constituent power. In both
casespedigree and effective realizationthe problem has both an original and a
continuing dimension.
As regards pedigree, the initial task of identifying and ensuring the proper
democratic source for the constitutional settlement cannot avoid the spectre of
infinite regression in search of an elusive first authority, nor can it escape the
danger of boot-strapping in response to that difficulty. We can never warrant the
democratic credentials of any decisive act, including a decisive act of institution
(why these people using this process?), except in terms of an already constituted
system that purports to specify both the people and the processes through which
their collective will is represented. And while the original sin involved in the self-
arrogation of constituent power may be cured or mitigated by subsequent
See, e.g., H. Lindahl, Sovereignty and Representation in the European Union in N. Walker
(ed.), Sovereignty in Transition (Oxford: Hart, 2003), 87.
The European Union 249
homologation, the circle of membership problem never disappears. Infinite

progression succeeds infinite regression as the key foundational difficulty. The
identity of those affected by the constitutional settlement, and so entitled to be
considered its authors, changes over time, both empirically, as new generations
succeed the founders, and conceptually, as the evolving scope of constitutional
authority and changing demographic patterns and social identities give rise to
new claims for recognition.
As regards the guarantee of the effective realization of democratic government,
the problems here are conceptually distinct, but are exacerbated by their practical
inextricability from the problems associated with pedigree. So, lack of fidelity to a
conception of the collective good associated with a properly conceived constituent
power may either be a secondary effect of original sinthe partial constituent
power endorsing a partial framework of governmentor one of secular institu-
tional failure, redundancy, or transformation. Put simply, different institutional
systems may be more or less effective in ensuring that the various interests or
values represented in the constituent power are separately realized and collectively
reconciled. Furthermore, the level of effectiveness attributable to a particular
constitutional form may vary over time on account of evolving patterns of institu-
tional behaviour and of changes in the people as law-takers as much as law-
makersin their relevant attitudes and expectations and patterns of compliance
and interpretation as subjects of the law as well as in their changing constituent
composition and conception of the collective good.
If we turn to the ways in which these twin problems of constituent power may
in practice be addressed, again each carries its own distinctive risks. On the one
hand, constituent power may be viewed as being entirely contained within its
authorized constitutional form. In turn, there are static and dynamic variations on
this theme. Static versions risk setting undue store by founders intent or some
other originalist methodology: the significance of democratic pedigree is exhausted
by the act of institution, whereby constituent power is translated into constituted
power. Likewise, the guarantee of the effective realization of democratic authority
is perceived to lie precisely in the fact of that original translation. Yet originalism
threatens normative petrification, with the democratic future mortgaged to the
constituent intentions and constituted institutions of the (paradoxically) pre-
democratic past. Alternatively, as in the case of the many constitutional rules
which are not perfect, a form of concealed institutionalized licence is granted,
Much of the literature on constitutional interpretation implicitly or explicitly accepts this

distinction, and so the central importance of the background understanding of the nature of
constituent power in the development of any normative theory of the constitution. For example, in
his influential survey of different modalities of constitutional argument in the United States context,
Philip Bobbit distinguishes between those ( historical or textual) that are either clearly or tendentially
originalist, and those (ethical, prudential, structural, and doctrinal) that are clearly or tendentially
dynamic: P. Bobbit, Constitutional Interpretation (Oxford: Blackwell, 1991).
F. Michelman, Constitutional Legitimation for Political Acts (2003) 66 Modern Law Review 1, at
11 (perfect here being used in the sense of exhaustively specifying the terms of their own applicability).
with certain actors who have been granted significant interpretive or decisional
scope to implement the originally authorized constitutional form (typically hold-
ers of judicial and executive office) being able, under the cover of originalist
rhetoric, to pursue their own preferences.
Dynamic versions of containment, by contrast, are more alert to the
incompleteness and provisional quality of the original authorization, and remain
more open to the argument that both the identity of the constituent power and
the conditions for the effective realization of its associated collective goods may
alter. Here, however, there is an obvious tension over the terms and limits of
evolution: if ethical and prudential arguments are allowed to augment the founda-
tion, in what meaningful sense does such an open-ended conception of
constituent power remain contained by and within the original constitutional
form? And if the answer is claimed to lie with the text itselfin the scope for
development and revision explicitly countenanced by the original constituent
power and reflected in the abstractness of certain substantive provisions such as
the amendment clausethe opposite objection may be raised. Why, if it can
claim no special transgenerational standing, does the original constituent power
still occupy the privileged position of dictating the limiting terms and generative
proceduresthe already constituted frameworkof its subsequent reformula-
tion and refinement?
On the other hand, in response to these antinomies of containment,
constituent power may be considered not to be entirely eclipsed by the legal form
that it enacts, but as retaining a shadowy extra-constitutional presence in the post-
production phase. The difficulty here is that this simply replays the question-
begging circularity of the pre-constitutional understanding of democratic
pedigree, now exacerbated by two additional challenges. First, how can any such
continuing constituent power, even as a matter of democratic principle, ever
challenge and supersede the legitimacy of its duly constituted constitutional
alternative? And second, even if this possibility is accepted in principle, in what
circumstances and in accordance with whose judgement is such a challenge
permissible?
In the state constitutional context, then, the key questions of constituent power
concern the identity of the constituent power (who?) and the way in which such
constituent power is translated into and/or stands beyond positive constitutional
arrangements (how?). Viewed in this light, it can be seen that at least part of the
uniqueness of the EUs constitutional situationif unique it isseems to reside
in the additional layer of complexity that structures the EUs relationship to the
idea of constituent power. The who and how questions that are so central in the
state context must now be preceded by two other inquiries.
For a recent defence of the residual significance of constituent power notwithstanding these
significant practical and normative difficulties, see A. Kalyvas, Popular Sovereignty, Democracy and
the Constituent Power (2005) 12 Constellations 223.
First, there is the whether question: to what extent is it even plausible to think of
the EU constitution as being underpinned by its own distinctive constituent power
and, if it is not, is it feasible to think of its being so underpinned in future? Second,
in a more basic and more explicitly normative register, there is the why question:
why should we even concern ourselves with the issue of constituent power in the
transnational context? Is it a necessary feature of any constitutional arrangement
that it presupposes a constituent power? Or, from less essentialist premises, does the
presence or absence of constituent power mark a key division between different
types of constitutional arrangements? And we might note that if the answer is that
European constitutionalism neither requires constituent power nor is significantly
diminished by its absence, then the whether question becomes redundant.
To return, then, to the dual-pronged nature of our inquiry, we might observe that
just as illumination of the basic normative question of constituent power at the EU
level clearly requires close attention to the prior why and the whether questions
with engagement with the who and the how questions that are the basic fare of
national constitutionalism of only secondary significance, so this distinctive depth
of contestation informs our understanding and explanation of the unfolding of the
European constitutional process. Only through an appreciation of the shadow cast
by the why and the whether questions are we able to account for how slowly and
tentatively the discourse of European constitutionalism has developed, for some of
the restricted forms in which it has developed, or, indeed, for the peculiar shape and
unresolved fate of the current documentary constitutional process. In the conclu-
sion we will focus more closely on the current process and its navigation of
uncharted juridical waters, but first we must proceed to the main task of unpacking
and evaluating the structure of debate concerning constituent power in the EU.
Four Hypotheses on European Constituent Power

Arising from the different combination of answers given to the prior why and
whether questions, four basic positions on the issue of EU-specific constituent
power can be identified. First, it is possible to maintain that constituent power is
not a necessary feature of European constitutionalism, or at least that its absence
does not significantly diminish European constitutionalism, and therefore that
the whether question simply does not arise. The basic hypothesis, which is one of
redundancy, may be termed non-constituent constitutionalism. Second, it is
possible to hold that constituent power is a necessary or a desirable feature of any
constitutional project, that it is not present in the EU context, and neither is it
possible to envisage its generation in the future. The basic hypothesis here is one
of miscategorization: the attachment of the constitutional label to the European
enterprise is a simple category error, and the position it frames may be termed
G. Majone, The Dilemmas of European Integration (Oxford: Oxford University Press, 2005), 20;
A. Moravcsik, A Category Error, Prospect, July 2006, 226.
constitutional scepticism. Third, it might be agreed that constituent power is

indeed a necessary or desirable feature of European constitutionalism, whilst
claiming, contrary to the constitutional sceptics, that it is already properly
identified and more or less fully realized in the emergent constitutional form. This
basic hypothesis is that of maturity, framing a position that may be termed
constitutional vindication. Finally, it may be claimed (contrary to the redundancy
argument) that constituent power remains a necessary feature of European consti-
tutionalism, that (contrary to the maturity thesis) it has not yet been realized, but
that (contrary to the sceptics) this constituent power is capable of being developed
in the future. The basic hypothesis here is one of constructivism, and the position
it frames is post-constituent constitutionalism.
I argue that this last position offers the most coherent and most satisfactory
understanding of the normative potential of the idea of constituent power for the
EU, especially because it perceives in the lack of current resolution of the why,
whether, who, and how questions not just an impasse but also an opportunity
to develop an appropriately flexible response to the sustained problems of pedi-
gree and effective realization of a democratically responsive system of government
that these questions frame. Yet that conclusion is as precarious as it is attractive,
and as I explain in the final section, not necessarily the most likely long-term
outcome. But we cannot appreciate either the allure or the fragility of this fourth
option unless the deficiencies of the first three are examined.
The Submerged Foundations of Non-Constituent Constitutionalism

The argument from redundancy in favour of a non-constituent conception of
constitutionalism has long had significant resonance in the international Treaty-
based EU. In general terms, the argument from redundancy operates in two stages.
In the first place, it challenges one or other of the two normative claims that
underpin the idea of constituent power. It either makes a virtue of the apparently
non-democratic pedigree of the EUas an entity that in the orthodox tradition of
international law is a result of a series of compacts between states rather than people
(or even peoples)or it holds that its democratic (or other) origins are irrelevant
to the question of the ongoing quality of democratic responsiveness of the EU.
As regards the first of these possibilities, in their rather different ways, the
ordoliberal tradition and the idea of the EU as a special purpose association
perspectives that tracked influential political positions in the early years of
See, e.g., E.-J. Mestmacker, On the Legitimacy of European Law (1994) RabelsZ 615;
D. Chalmers, The Single Market: From Prima Donna to Journeyman in J. Shaw and G. More
(eds.), New Legal Dynamics of European Union (Oxford: Oxford University Press, 1996), 55. On the
continuities between the legal and political thought of the Weimar Republic and post-war thinking
about supranationalism more generally, see C. Joerges and N.S. Ghaleigh (eds.), Darker Legacies of
Law in Europe (Oxford: Hart, 2003).
See, e.g., H.-P. Ipsen, Europaische VerfassungNationale Verfassung (1987) EuR 195.
integrationtreated the supranational as a domain of activity that could and

should be shielded from direct expression or representation of popular political
interest. For the ordoliberals, the Treaty of Rome furnished Europe with its own
economic constitution, a supranational market-enhancing system of rights whose
legitimacy depended precisely on the absence of democratically responsive will
formation and consequential pressure towards market-interfering socio-economic
legislation at the supranational level. Ipsens special purpose thesis, to which
Majones work on the idea of a European regulatory state is a notable successor,
shares with ordoliberalism the idea that supranationalism transcends partisan
politics. Here, however, the invisible hand of the market is supplemented by the
expert hand of the technocrat. The scope of European law is no longer restricted
to negative integrationto the market-making removal of obstacles to wealth-
enhancing free tradebut extends to certain positive administrative measures. In
Majones model, these regulatory measures are not concerned with macro-
politically sensitive questions of distribution. Rather, they focus on risk-
regulation in matters such as product and environmental standards, where expert
knowledge is paramount and where accountability is served by administrative law
measures aimed at transparency and enhanced participation in decision-making
by interested and knowledgeable parties rather than the volatile preferences of
broad representative institutions.
Whether by providing a form of rights-insulation and guarantor of predictabil-
ity in market relations or by refining forms of governance which counteract
received models of representative government, these approaches suggest a
constitutional sensibility that treats democracy as something to be contained. The
second way of justifying the absence of a distinct democratic pedigree, by
contrast, puts the nurturing of post-national democracy back in the frame. It does
so, however, in a way that downgrades the value of a holistic conception of
democracy, since it is reluctant to understand democracy as the property or
heritage, still less as the constituent initiative, of a distinctive transnational
people. On this view, rather than being nominal (democracy), the key index of
value becomes adjectival (democratic). The worth of democracy is divorced from
the development of a self-conception of common political community and is
located instead in certain disaggregated and mobile virtues of democratic
arrangements. In particular, emphasis is placed on deliberative practices in com-
munities defined not in territorial terms but in functional, epistemic, or practical
problem-solving terms, with output at least as important as, and inextricable
from, democratic input in the legitimation of such forms.
See C. Joerges Good Governance in the European Internal Market: An Essay in Honour of
Claus-Dieter Ehlermann EUI Working Papers, RSC No. 2001/29.
G. Majone, The Rise of the Regulatory State in Europe (1994) 17 West European Politics 77.
On the connections between Ipsen and Majone, see ibid.
What the many variants of an adjectival conception of democracy in the

European debate have in common is an emphasis on the special treatment at the
transnational level of two of the mobile democratic virtues: the enhancement of
decision-making capacity through building common knowledge, and the express
consideration of the range of particular interests. It is claimed that democratic
contestation is best located in domains of discrete engagement, where the
necessary motivation and knowledge to put things in common already exists. It is
also claimed that such discrete engagement is best realized through innovative
institutional forms designed to nurture these motivational and knowledge capaci-
ties and to respond to the particular voices in question. The total sum of added
value is not ignored, but capacity and deliberative pluralism are seen as being
optimally developed in a bottom-up mode and through mutual learning and
exchange of good practice rather than as a function of a prior transnational
political identity.
As the term suggests, non-constituent constitutionalism in all of the above
variants stands in a counter-intuitive relationship with the dominant state-based
constitutional tradition. This is confirmed by the language used by partisans of
the various approaches collected under this banner. Their commitment to the use
of constitutional discourse to dignify their normative approach to the EU has
been hesitant and uneven. To the extent that we can discern a recent momentum
in favour of constitutional language in these quarters, this is not unconnected
with the emergence of constitutional discourse as the master trope of norma-
tive discussion in the EUa development signalled by the drafting of the
Constitutional Treaty. It has therefore been in some measure strategic. Be that as
it may, regardless of the presence or absence of self-proclaimed constitutional
credentials, such views do purport to provide an adequate normative theory for
the EU. And to the extent that they do not succeed, their (implicit or explicit)
constitutional vision and their attendant treatment of constituent power may be
considered deficient.
The common vulnerability of the various species of non-constituent
constitutionalism is exposed if we move to the second stage of the redundancy
Consider two relatively recent examples. For all their differences, both the influential defence of
the Open Method of Co-ordination in the name of democratic experimentalism and those forms of
deliberative supranationalism that look to the complex of national, supranational, and sectoral inter-
est representation and pooling of knowledge in EU comitology or committee structures as paying an
epistemic dividend share this adjectival conception of democracy. See, e.g., (for OMC and experi-
mentalism) O. Gerstenberg and C.F. Sabel, Directly-Deliberative Polyarchy: An Institutional Ideal
for Europe? in C. Joerges and R. Dehousse (eds.), Good Governance in Europes Integrated Market
(Oxford: Oxford University Press, 2002), ch. 10; J. Zeitlin, Social Europe and Experimentalist
Governance in G. de Burca (ed.), EU Law and the Welfare State: In Search of Solidarity (Oxford:
Oxford University Press, 2005), 213; (for deliberative supranationalism) C. Joerges, Deliberative
Supranationalism: Two Defences (2002) 8 ELJ 133.
For discussion of this strategic development, see, e.g., N. Walker, Europes Constitutional
Momentum and the Idea of Polity Legitimacy (2005) 3 ICON 211, at 22231.
argument: underlying most positions within the horizon of non-constituent

constitutionalism is a continued reliance on the indirect pedigree of national
constitutional authority and democratic origins. Whether couched in the
language of delegation theory, national sovereignty, international law, realist
or liberal versions of international relations, or whether simply taken for
granted, it is precisely the continuing employment of the idea of constituent power
at the national level and its extension to cover the authorization of the
transnational or supranational pooling of authority that accounts for the readiness
of thinkers in this category to accept the redundancy of the idea of transnational
constituent power. At this final stage the necessity of constituent power thus
reasserts itself and the secondary status accorded to the EU polity is made explicit.
It is not, then, the case that the majority of writers who accept the redundancy
thesis reject the purposes and merits normally associated with the idea of
constituent power as irrelevant to the supranational domain. It is just that
they believe these purposes to be well enough served by the combination of
indirect democratic legitimation from national means and whatever other first-
stage arguments they rely on at the supranational level itself, whether rights
insulation, technocratic expertise, or disaggregated and instrumentalized democ-
ratic benefits.
The argument that questions direct constituent power at supranational level,
then, is ultimately empirically based. It arises in the context of an investigation of
the application of a normative theory of constituent power directed towards the
discovery of its optimal location, rather than in the questioning of that normative
theory per se. Accordingly, it is only as convincing as the evidence it can muster
in its defence. Yet if, to recall the normative point of the idea of constituent power,
it is about the need for political power both to possess an authentic democratic
pedigree and to be genuinely responsive to the collective interests expressed in
Most, but not all. Some versions of constitutional scepticism are deep rather than contingent,
involving a critique of the very idea of constituent power as a meaningful or desirable way of thinking
about political authority in any of the political sites of late modernitynational or post-national.
Interestingly, such sceptical conclusions can issue from both ends of the ideological spectrum: from
positions highly supportive of the efficiency and other dividends of markets and critical of constitu-
tional steering mechanism that would too easily interfere with these dividends (e.g., K.-H. Ladeur,
Towards a Legal Theory of Supranationality: The Viability of the Network Concept (1997) 3
European Law Journal 33) as much as from positions highly critical of the injustices of the market and
of constitutionalisms tendency to act as a handmaiden to neoliberalism (e.g., G. Anderson,
Constitutional Rights after Globalization (Oxford: Hart, 2005)).
See, e.g., P. Lindseth, Delegation is Dead: Long Live Delegation. Managing the Democratic
Disconnect in the European Market Polity in C. Joerges and R. Dehousse (eds.), Good Governance in
Europes Integrated Market (Oxford: Oxford University Press, 2002), 139.
See, e.g., D. Grimm, The Constitution in the Process of Denationalization (2005) 12
Constellations 447.
See J. Klabbers and P. Leino, Death by Constitution (2003) 12 German Law Journal 1293.
See, e.g., A. Moravcsik, The European Constitutional Compromise and the Neofunctionalist
Legacy (2005) 12 Journal of European Public Policy 349.
that democratic pedigree, then there are several developmental features of the
supranational polity which appear to stretch the plausibility of the indirect
legitimation thesis to breaking point.
To begin with, constituent powerto take its pedigree dimensionrefers us to
a general affirmation of the virtues of self-rule and the standing of democracy as a
meta-value of modern politics, one that argues for a popular founding for those
political systems that attain a certain threshold of authority and of autonomy.
That threshold is reached in these systems that, in terms of their authoritative
scope and the quotidian procedures through which such authority is translated
into political decisions, are capable of significantly affecting the life-chances of
those subject to them and of doing so in a manner that cannot be effectively
counter-influenced at the level of any other political system. The relevance of this
to the EU is palpable. The double movement, accelerating over the twenty years
since the signing of the Single European Act, towards expanding the scope of the
EU from internal market regulation to large areas of social and security policy
combined with the reduction or sacrifice of national veto positions in legislative
and other decisional procedures, suggests such a profound transformation of both
the scope and autonomous capability of the EU as to undermine the claims for
indirect legitimation and underline the demand for direct legitimation.
What is more, if we move onto the second normative prong of constituent
powerthe effective realization dimensionthe case for an autonomous
constituent power becomes even more persuasive, although its tenor remains
speculative. This case can be developed on at least three grounds, the first two of
which mirror the instrumental arguments made by proponents of the disaggre-
gated democratic version of non-constituent constitutionalism. In the first place
there is a capacity argument. As at the state level, we can distinguish between the
formal legal competence and the effective political capacity of the EU polity. The
notorious joint-decision trap of a decision-making constellation that embraces
the different sites and multiple levels of collective action problems presented
under conditions of economic, cultural, and political globalization, speaks to the
ways in which the increase in competence at the EU level can reduce both compe-
tence and capacity at the state level without necessarily generating a compensatory
(still less a surplus) amount of extra capacity at the EU level. Super-majoritarian
decision rules and the residual veto positions they entertain are only part of the
problem. Much more important is the lack of shared political capital (and absence
of elements of mutual trust, mutual concern, and common terms of political
reference that such shared capital comprises) that is needed to put things in
See J. Dunn, Setting the People Free: The Story of Democracy (London: Atlantic, 2005).
See N. Walker, A Constitutional Reckoning (2006) 13 Constellations 140.
M. Loughlin, The Idea of Public Law (Oxford: OUP, 2003), ch. 5.
F. Scharpf, Problem Solving Effectiveness and Democratic Accountability in the EU Max
Planck Working Papers (2003).
common sufficiently to exploit European political capacity. The danger, then, is of

false negatives, of the EUs inability to fulfil its formal democratic potential by
effectively putting in common those matters that cannot any longer be adequately
addressed through national political agendas. And the possible contribution of a
theory of constituent power here is instrumental rather than intrinsic, not based
upon the political morality of democratic pedigree per se but on how proper recog-
nition of that pedigree can aid the realization of effective democratic practice. It is,
in short, based on the proposition that the political act of self-constitution, and
ongoing attention to the need for continuous self-reconstitution, may help foster
a sense of political community and generate the common political capital needed
to overcome the problem of false negatives.
In the second place, and less obviously, there is the argument from pluralism.
This holds that, however much the European people want to put things in
common and wherever they want to strike the balance between national and
supranational action, respect for diversity and responsiveness to the plurality of
internal opinion remains vital to the effective articulation of the complex of
collective goods endorsed by the holders of constituent power, and such pluralism
can only be enhanced by an increase in the resources of dedicated political capital
available at the European level. This argument is historical as well as normative.
The idea of constituent power developed by Locke and Sieys, and which inspired
many of the protagonists of the English, French, and American Revolutions, was
not intended simply to be an assertion of the greater power of a political authority
founded in popular opinion rather than proprietary right. Just as important
was the claim to the limitation of government authority. For the idea of an
indivisible collective which is foundational of government denies to any section of
that collective, or to any government operating in the name of any section of that
collective, final and unlimited exercise of constitutional authority. That is, if self-
government properly rests in the constituent authority of the collective people,
then any constitution based upon collective self-government must be concerned
as much with checking governmental factionalism or abuse of minorities as
with democratic empowerment of majorities. This ambitious thesis cannot be
dismissed as wishful thinking or pious hope: the normative strength of the
aspirational model of political community contained in much of Western
constitutionalism lies precisely in the promise that investment in a shared political
capital will engender a sufficient fund of shared political capital and a sufficient
sense of a community of attachment not only to make the idea of non-unanimous
P. Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency (Cambridge: Polity,
2001), ch. 7.
See, e.g., J. Habermas, Why Europe Needs A Constitution (2001) New Left Review Sep.Oct.,
5; N. Walker, Europes Constitutional Engagement (2005) 18 Ratio Juris 387.
See, e.g., B. Yack, Nationalism, Popular Sovereignty, and the Liberal Democratic State in
T. V. Paul, J. Ikenberry, and J.A. Hall (eds.), The Nation State in Question (Princeton NJ: Princeton
decision-making (of sometime winners and losers) fair to all in a longer perspec-
tive, but also reciprocally to restrain what can legitimately be done by the
sometime winners in the name of the whole.
In the third place, there is the argument from political reflexivity. The
undeniable fact that the quotidian regulatory structure of the EU inevitably
contains many of the democracy-containing or constraining mechanisms
applauded by the non-constituent constitutionalists is, on close analysis, an
argument for rather than against the more general democratic cradling that
original and continuing reference to the constituent power entails. The significant
extent to which the primary regulatory structure of the European supranational
political system emphasizes expert knowledge and the protection of core freedoms
alongside, and in some measure instead of, democratic mechanisms makes it all
the more important that a threshold sense of democratic collective subjectivity be
fostered and be reflexively monitored in the light of changing political conditions.
This is needed for two reasons: without such a threshold sense of collective
subjectivity the overall direction of the policy agenda to be pursued through the
semi-democratic primary regulatory structure will lack democratic articulation
(the substantive reason), and also (the procedural reason) the semi-democratic
form of the primary regulatory structure itself lacks an ongoing guarantee of
democratic approval.
Constitutional Scepticism or Constitutional

Vindication: a False Choice
My argument is far from providing a compelling response to the non-constituent
constitutionalist since, just as weaknesses in that position derive from its empirical
assumptions, the non-constituent constitutionalist might in turn question the
empirical assumptions of the critic. Even if the case in principle for a direct
democratic baptism for an entity as powerful as the EU is increasingly insistent,
the possibility of successfully performing such a baptism might be doubted (with
the cautionary tale of the present ratification crisis of the Constitutional Treaty
strongly to the fore). Furthermore, the benefits in political capital predicted
to flow from such an investment (increased capacity and pluralistic solidarity)
and the measure of collective political reflexivity involved in the continued
endorsement of semi-democratic political operating procedures might both
On the significance of reflexivity in modern politics see e.g. U. Beck, W. Bonss, and C. Lau,
The Theory of Reflexive Modernization: Problematic, Hypotheses and Research Programme (2003)
20 Theory, Culture and Society 133; and in modern constitutional development, see Grimm, above
n. 15, at 452; N. Walker, EU Constitutionalism in the State Constitutional Tradition (2006)
Current Legal Problems 5190.
See A. Follesdal and S. Hix, Why There is a Democratic Deficit in the EU: A Response to
Majone and Moravcsik (2005) European Governance Papers No. C-0502.
See Walker, above n. 19.
be questioned. Non-constituent constitutionalists might also argue that their

insistence on continuing to answer the why question in the negative (that an EU
constituent power is unnecessary since the EU is covered by an indirect state-
based form of democratic legitimation and boasts compensatory modalities of
regulation more appropriate to the kinds of things the EU regulates) can be
understood to be making a virtue out of necessity. Even if not optimal, their
solution is the least worst option insofar as the weight of evidence indicates that,
however the why question might ideally be answered, the whether question
stubbornly continues to invite a negative answer.
This suggests that behind the non-constitutive constitutionalists sui generic
approach to European constitutionalism lies the habitat of the constitutional
sceptic, which maintains that it is simply inconceivablea category errorto
imagine constituent power at the EU level. The EU is a secondary body both in
legal (as a creature of states and of international law) and in political-cultural
terms (as a parasitic political community comprising persons whose primary
political identity remains as citizens of member states). Legally, the states in
international law are already constituted entities making use of an already
constituted treaty-making and amending instrument in accordance with already
constituted international rules. There is therefore no scope for creation ex
nihilo of a distinctive constituent powerjust the insistent prior pedigree of the
twenty-five member states. Politically, the conditions do not exist for making of a
transnational demos, and they cannot exist so long as the priority of states as
communities of primary political attachment prevails. On this view, post-
national constitutionalism can only be a truncated constitutionalism, at best
committed to the non-constituent virtues set out above and at worst a quixotic
tilting at windmills or false ideology masking a grab for authority. Indeed, on
this view the legal register is a mere echo of the political register. The absence
of constituent power is not just the contingent accompaniment of the absence of
a demos; whatever the formal constitutional documents suggest, the absence of
a prior demos necessarily dictates an absence of constituent power.
From the perspective of international law, the EUs formal pedigree resides in the founding and
various successive revision treaties of the European institutions, of which the Constitutional Treaty is
but the latest example. Reinforcing this international law pedigree, the authority of these
amendments treaties is itself subject to the legal regime set out in Arts. 3941 of the Vienna
Convention on the Law of Treaties. See B. de Witte, Treaty Revision in the European Union:
Constitutional Change Through International Law (2004) Netherlands Yearbook of International
law 51.
See, e.g., D. Grimm, Integration by Constitution (2005) 3 ICON 191.
See Walker, above n. 25.
J. Weiler, In Defence of the Status Quo: Europes Constitutional Sonderweg in J. Weiler and
M. Wind (eds.), European Constitutionalism Beyond the State (Cambridge: Cambridge University
Press, 2003), 7.
For a critique of the frequent conflation of the no demos and no constituent power
arguments in the EU literature, see M. Wilkinson, A theoretical inquiry into the idea of
Postnational Constitutionalism: the basic norm, the demos and the constituent power in context
(unpublished PhD thesis, European University Institute, Florence, 2005).
This position stands in stark contrast to that of the constitutional vindication-

alist. On this perspective, evident in the work of the Convention on the Future
of Europe that in 20023 drafted the Constitutional Treaty for presentation to
the Intergovernmental Conference for approval and then to national audiences
for ratification, the Constitution is not the placebo depicted by the sceptics, but a
genuine social medicine and political cure. The (often) inarticulate major premise
of this position is that even though the political trajectory of the EU has been and
remains different to that of the state, it has now reached a point of constitutional
maturity or finalit appropriate to its aspirations. Constitutionality here works
for a simple but powerful purpose. Like all documentary constitutions, it provides
a model of political community, both as a snapshot of a supposed prior reality (an
imagined and synoptic past) and as an idealized projection (present as a construct-
ive resource). Unlike state constitutions, however, the symbolic substantializa-
tion of the EU is not directly articulated as an existing pan-European demos.
Rather, it appears only at the legal-institutional level, made out of the very same
material from which the the constitutions future-oriented design is crafted. So,
the Constitutional Treaty was presented not as an occasion for a first legal and
political institutionalization or even as an opportunity for a new institutional
beginning, but rather as an exercise in continuitya vindication of fifty years of
legal and political institutional cooperation that had led to the evolution of a
language of small c constitutionalism based on the twin ideas of autonomous
legal order and a system of secondary institutions and procedures for the gener-
ation of primary rules. Yet the deeper point of that ostensibly backward-looking
investment in an achievement constitutiona retroactive posture of such
symbolic force that it extended to most of the material content of the inherited
legal and political orderis to assert the constitutional maturity needed to
exploit the political capital of the EU and fulfil its untapped potential. In this
project, the idea of autonomous constituent power, whatever its legal or socio-
logical status, plays a crucial symbolic role. The very act of constitutional self-
coding of the institutional legacy announces the claim to constituent power on the
part of the dramatis personae and supporters of the inherited institutional complex.
It signifies an assumption of political reflexivity on the part of the EUa sense of
See Walker, above n. 12, at 22830.

See N. Walker, After finalit: The Future of the European Constitutional Idea in G. Amato,
H. Bribosia and B. de Witte (eds.), Gense et destine de la Constitution europenne (Brussels: Bruylant,
2007).
See N. Walker, A Constitutional Reckoning (2006) 13 Constellations 140.
C. Mortati, Le forme di governo (Padova: Cedem, 1973), 393. The idea of an achievement
constitution is historically associated with the ideological efforts of state socialist regimes to mark and
celebrate continuing progress towards a communist utopia through periodic constitutional renewal.
Indeed, the history of the Convention can be read as a tension between an initial and quite
resilient commitment to droit constant in accordance with the powerful symbolism of the vindication
of past achievement, and a growing temptation to amend those parts of the substantive acquis and of
the institutional framework where the short-term pragmatic imperatives of reform were most urgent.
See, e.g., J. Ziller, The European Constitution, M. Marquis, trans. (The Hague: Kluwer, 2004).
a self-conscious collective we that has come to understand and portray itself as

such and so to arrogate to itself a power of original and ongoing initiative.
Crucially, however, both the sceptical and the vindicationalist approaches
appear to operate with an inadequate social technologywith an insufficient
understanding of the kinds of things that constitutions can do and the role that
constituent power performs. From the sceptics, we see a stubborn sociological
reductionism. The people as putative holders of constituent power exist either as
a pre-constitutional essence or not at all. Everything else (including the explicit
and implicit claims of constitutions) that is not sufficiently grounded in that
social essence, is a matter of illusion. From the side of the vindicationalist, we see
instead a powerful investment in the imaginary power of constitutionalism, and
big C documentary constitutions in particular. Yet the danger here is the oppos-
itethat the hermeneutical circle of constitutional investment remains impervi-
ous to recalcitrant social facts. And in seeking to pull themselves up by their own
bootstraps, the myth-makers and self-appointed constituent actors of post-
national constitutionalism may instead remain firmly rooted in a state of societal
immaturity.
Post-constituent Constitutionalism: a Constructivist Alternative

Is it possible to devise a via media between these two stark alternatives that does
not threaten to revert to the foundationless foundations of non-constituent con-
stitutionalism? Such an approach must discover a more adequate social technol-
ogy of constitutionalism and a more rounded understanding of the ways that
constituent power can figure in the work that constitutions do. To achieve this, it
must take seriously the full range of means by which a constitution may engage in
the task of social construction. In particular, it must differentiate the various
mechanisms through which the people may be constitutionally recognized in
ways relevant to their putative role as constituent power. Such relevance can be
understood by reference to two sets of distinctions introduced earlier. One con-
cerns the point of interpellation of the people, whether statically in their original
and pre-constitutional mode, or dynamically in their continuing post-
constitutional mode. The other, which is more complex and which cuts across the
basic temporal distinction, lies between the twin set of aspirations associated with
constituent power; namely, identification of pedigree and realization of a
democratically responsive system of government. In adopting a classificatory
division between constitutive references and constituted references based on the
more basic temporal distinction, we must also, therefore, seek to highlight the
complex operation of the normative distinction.
On the significance of myth in the construction of peoplehood, see M. Canovan, The People
(Cambridge: Polity, 2005), ch. 6.
Within the class of constitutive-references can be included all the ways in which
the people may be deemed relevant to the constitutional enterprise in the pre-
constitutional phase. At least five such forms of reference can be imagined. First,
the people as datum, the largely implicit assumption of the prior existence of the
people as a sociological entity that provides the key plank of the sceptical stance
towards post-national constitutionalism. Second, the people as totemic inference,
the key plank of the vindicationalist position, suggesting that a documentary
constitution is itself a totem of peoplehood and therefore that the very making
of the constitution, without further specification, implies the existence of a
European people. The next three references speak to the various ways in which
the people may become more directly implicated in the making of the constitu-
tion. The people as drafters speaks to the process of popular involvement in the
substantive composition of the text, as in the role of constituent assemblies or, as
in the present EU context, the Constitutional Convention. The people as authors
refers directly to whether or not the text is formally authorized and endorsed by
institutions which claim to be express the popular will or, less directly, to whether
the text itself names and claims any popular constituency as its source or inspira-
tion. Finally, the people as narrators refers to the voice in which the constitu-
tional text is articulated, as We the People or some third party.
The elaboration of this typology highlights the poverty of understanding of
constitutional reference of both the sceptical and the vindicationalist positions.
The sceptics primarily think of the people as datum and disregard the other
constitutive references except insofar as the failure to register the people
adequately in the relevant textual arrangements corroborates their understanding
of the immature status of the people in that static sociological sense. The vindi-
cationalists, by contrast, are tempted to pay undue attention to the totemic
element, even if they also recognize that this element can be reinforced by the
mobilizing effect of involvement of the people as drafters. Yet behind the
sharpness of the contrasting particulars of the two positions, lies a more general set
of objections that can be levelled against both: each suffer from an originalist
fallacy, being concerned with the constitution only for what it does or does not
signify about the people as something prior to and already inscribed within the
constitutional moment. This originalist preoccupation also indicates an emphasis
upon pedigree and a neglect of the other normative dimension of constituent
powerthe realization of a democratic responsive system of government. The
democratic credentials of the constitution depend either upon original sin
(sceptic) or original grace (vindicationalist)upon failure or success in according
due power of authorization to the appropriate author, with little consideration
being given to how this pedigree may be refined in the post-foundation stage or of
how pedigree concerns relate to ongoing democratic systemic concerns.
The preamble and Art. I-1 of the CT make various such indirect references. On their possible
inconsistency, see discussion in the text below. See, e.g., Grimm, above n. 29.
See Walker, above n. 12, at 22838.
In what additional ways, then, may constituent power be invoked in the post-
foundational or constituted phase? We can identify at least another four forms of
reference. First, there is the people as subjects. To the extent that the people are
acknowledged as members of the political community and so as its very raison
dtre, this helps to engage their ongoing or even retrospective claim as putative
authors and as beneficiaries of a democratically responsive system of government.
More direct forms of continuing involvement in both the refinement of pedigree
and the sustenance of a democratic system of government are suggested first by
the people as legislatorspopular involvement in parliamentary and other
mechanisms of the law-making processand second by the people as editors, par-
ticipating in the process of constitutional revision. Finally, we might consider the
role of the people as reflexive interpreters. Like the people as datum, this speaks to a
sociological domain that cannot be directly accessed by positive constitutional
means and therefore, although of crucial importance, it can only ever be an
implicit mark of recognition. This role concerns the net result of the accumula-
tion of political capital; how the combined effect of various forms of constitu-
tional reference at both the constitutive and constituted stages establish the
context within which the people, through public discourse, may see themselves
involved in a continuous project of self-governmentone in which both the self
and the government (identity of the author and realizability of its creation) is
subject to ongoing renewal.
The potential of this approach to the question of giving due recognition to the
question of constituent power in the European constitutional debate can be
summarized by focusing on the two bases on which it may aptly be viewed as
post-constituentthe empirical and the normative/conceptual. Empirically, it
speaks to the fact that, even from a nuanced constructivist perspective that views
constitutive power in a multi-faceted and non-essentialist manner, the early
constitutionalization of the EUthrough the creation of a self-contained legal
order and a well-developed institutional structure, and now in the initial
documentary phasehas clearly predated a mature sense of popular identifica-
tion with the polity. By any standards, the EUs democratic pedigree is at most a
work in progress rather than a well-formed resource of collective consciousness.
There remains, therefore, a substantial constitutive deficit to be overcome in the
post-constituent phase.
In normative/conceptual terms, the approach I have taken in any case ques-
tions the relevance of originalist assumptions when assessing the legitimacy of
constitutional arrangements in general. Pedigree, we should remind ourselves,
cannot be regarded as fixed and immutable when assessing a social construct such
as the emergence of a political community rather than a biological pattern, such as
See, e.g., J. Habermas, On Law and Disagreement: Some Comments on Interpretative

Pluralism (2003) 16 Ratio Juris 187; J. Tully, The Unfreedom of the Moderns in Comparison to
their Ideals of Constitutional Democracy (2002) 65 Modern Law Review 204.
the evolution of a species. And given the sharpness of disagreement over the
whether and who of EU constitutive power, the early underdevelopment of an
EU-wide democratic culture may help preserve a necessary flexibility as that dis-
cussion waxes and wanes. Moreover, if we add the oft-neglected realization
dimension of constituent power to the equation, the relevance of post-constituent
constitutional forms and mechanisms becomes even more evident.
The post-constituent perspective, in summary, seeks to avoid the paths of false
pessimism and false optimism that an undue concentration upon the propitious-
ness or otherwise of original conditions brings, and tries to remain open to the
myriad ways in which different constitutional formsstatic and dynamic,
pedigree-identifying and system-realizingmay interact over time to tap the
fuller potential of the shifting title of constituent power.
The Prospects for a Post-Constituent Constitutionalism
None of this means that it can confidently be predicted that the European
Constitutioneither the faltering current brand or any likely successorwill
succeed in making good the promise of post-constituent constitutionalism. The
sheer depth of disagreement, especially over the whether and why of European
constituent power, has undoubtedly been a key factor in the present ratification
impasse. Under these conditions, the virtues of the post-constituent approach
remain theoretical, a window of opportunity that for now remains stubbornly
shut. But these problems cannot be dismissed as ephemeral, as differences that
will be overcome if the diverse constituencies of the EU stare for long enough into
the abyss of constitutional failure. Three sets of difficulties which will necessarily
impede new initiatives in supranational constitutionalism, and in its post-
constituent variety in particular, can be identified.
The first difficulty is conceptual: we lack an ideal understanding of the
supranational conception of constituent power. That is, if, against the sceptic, it
can be demonstrated that European constituent power is not merely derivative of
national constituent power, we nevertheless still must acknowledge the national
legacy of its foundations and, alongside the newer supranational authority, the
resilience of the original national constituent powers. The people of second-
order supranational understanding can never be just like the otherwise politically
For example, in the context of the debate over the territorial limits of the EU. This is clearly an
increasingly controversial topic in the wake of the CEE Enlargement, but the fact that the doors are
not closed and there remains significant room for manoeuvre as regards accession is not unconnected
to the underspecification and unsettled quality of existing understandings of the supranational
demos and constituent power. See, e.g., N. Walker, Constitutionalising Enlargement, Enlarging
Constitutionalism (2003) 9 European Law Journal 365.
See, e.g., R. Dehousse, The Unmaking of a Constitution: Lessons from the European
Referenda (2006) 13 Constellations 151.
unencumbered and unmediated people of our first-order state imaginary; the

second-order people necessarily describes a compound structure. Various formu-
lations in the current Constitutional Treaty hint at these complex origins. In the
Preamble and Article 1 the citizens [singular] and States are referred to as the
ultimate authors, but elsewhere in the Preamble the peoples [plural] of Europe
are also invoked. And in more recent official communications concerning the
Constitution, especially from the European Commission, we often find the
people reduced to the singular alongside the States. So what we have is a vague
sense of a dual constituent power, and indeed regular references in political
discourse to dual legitimacy, but disagreement and uncertainly as to the
identity of its components, and little sense of the relationship between the two.
Unlike other pluralist group-based understandings of the ingredients of
constituent power at the state level, where the groups in question tend to belong
to the same category or conceptual order (e.g. community of affinity, language, or
territory) this is not true of states and people(s). How we forge a meaningful
sense of constituent power out of such a hybrid of incommensurablesone that
does not collapse into its component parts and/or presumptively favour one
component over the otherremains a key puzzle.
The second difficulty is symbolic: although much has been invested in the idea
of constitutionalism as a way of articulating and operationalizing constituent
power, the sheer variety of ways in which constitutionalism is invoked suggests
that it is a deeply contested currency. The capacity of constitutions to do the
various kinds of symbolic work discussed above is not timeless or essential; the
symbolic capital of the constitutionalism is itself a contingent achievement of
social construction manifesting implicit agreement that written constitutions can
enhance political community. But for how long can this conviction survive such a
diversity of constitutional strategies, especially on the unfamiliar terrain of post-
state constitutionalism?
The third and most grounded difficulty is political: the problem of founda-
tions, which lurks in all contexts of constituent power, is vividly present in the EU
context. Although support for a European constitution is generated from the
recognition of the anachronistic inadequacy of a state-based indirect foundation,
states will not willingly divest themselves of authoritywitness the retention of
See, e.g., the frequent slippage between plural and singular in A Constitution for Europe:
Presentation to Citizens, an information document produced by the Commission in the wake of the
signing of the CT in 2003: <http://europa.eu.int/futurum>.
Not least by the President of the Constitutional Convention: see, e.g., Valry Giscard dEstaing,
The Convention and the Future of Europe: Issues and Goals (2003) I ICON 346.
See, e.g., J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press, 1995) (on first nation constitutionalism); S. Chambers, Democracy,
Popular Sovereignty, and Constitutional Legitimacy (2004) 11 Constellations 153 (on South Africa);
M. Rosenfeld, Constitution-Making, Identity Building and Peaceful Transition to Democracy
(1998) 19 Cardozo Law Review 1891 (on Spain).
On the exhaustion of constitutional language, see U. Haltern, Pathos and Patina: The Failure
and Promise of Constitutionalism in the European Imagination (2003) 9 European Law Journal 14.
their ratification powers in the present CT. And even if they did, the difficulties
of authenticating an alternative and uncontained constituent power are pro-
found. At this point the conceptual puzzle of dual legitimacy set out above shades
into a problem of political capability: Who decides who decides becomes a
deep problem of initiative. We see this even in current attempts to resuscitate the
first Constitution. In response to the invitation of the European Council in the
summer of 2005renewed the following yearto undertake a period of reflec-
tion on the future of the constitutional project in the light of the referendum no
votes in France and Holland, many institutional efforts have disappeared into the
authority vacuum. To give but one example: although, on behalf of the people of
Europe, the European Parliament sought during the first months of the reflection
period to seize the revivalist initiative, many of the national parliaments, acting on
behalf of the peoples, quickly refused this initiative.
What is more, especially in the case of post-constituent constitutionalism, the
problem of foundations does not disappear with the delivery of a duly ratified
text. A successful constitution is not just an open set of possibilities for the fluid
negotiation of the constituencies represented in the constituent power, but a
textually grounded set of institutional facts. And it is only possible to use
constructivist techniques to develop the idea of political community to the extent
that these textual reference points provide the appropriate cues. But the present
Constitutional Treaty, like any conceivable successor, has a textual content reflect-
ing a complex compromise that does not offer an unqualifiedly positive basis for
promoting the kind of constructivist, post-constituent understanding suggested
above. That is, the deep structural controversy over the very idea of post-national
constituent power has left its mark on the text just as much as it subsequently did
on the process of its adoption. So while we find modest but to some extent innova-
tive recognition of the people as drafters (in the Convention design), as subjects
(citizens), and as editors (through the involvement of the Convention mechanism
in any further major amendment), and some strengthening of their role through
parliament as legislators, the people are neither the final authors, nor even
invoked as the narrators of this text.
CT Art. IV-447.
M. Maduro, Where to Look for Legitimacy? in E.O. Eriksen, J.E. Fossum, and A.J. Menendez
(eds.), Constitution Making and Democracy Arena Report No. 5 (2002) (Oslo: Arena), 81, 91.
Council of the European Union, Presidency Conclusions, 15/16 June 2006, 10633/06 paras.
4249.
See, e.g., EUobserver.com, National Parliaments rebuff MEPs on constitution 17 January
2006.
CT Art. I-10; though this merely repeats existing Treaty provisions under Arts. 1722 EC.
CT Art. IV-443. CT Art. I-20; see also Arts. I-4552.
CT Art. IV-443 (intergovernmental conference required to prepare final text); Art. IV-447
(requirement of unanimous national ratification).
Again the states, or High Contracting Parties; see preamble to CT.
Does this sobering experience mean that we are forced after all to answer the
whether question of constituent power in the EU in the negative? I do not believe
this to be the case. First, nothing has happened to reverse the growth in
competence and capacity that persuades us to answer the why question in the
affirmative. Consequently, the case in political morality for continuing construct-
ive engagement with the whether, and if so, who and how questions, remain as
insistent as ever. Second, while the constitutional debate has hardly created the
practical conditions for its own success, it has, paradoxically, succeeded in creating
the conditions for its indefinite persistence. One consequence of the decision to
pose the constitutional question in terms of achievement, with such direct refer-
ence being made to the pre-constitutional acquis, is that success and failure alike
are apt to leave that pre-constitutional acquis looking inadequate: either it will be
eclipsed by the bright new constitutional model or, as is the current non-ratifica-
tion message, it will be perceived as having been denied basic (re)affirmation. To
make the same point more positively, we may suggest that simply by launching the
constitutional initiative, the EU has demonstrated sufficient common resolution
to deprive itself in the future of a pre-constitutional or non-constitutional com-
fort zone. Yet whether the indefinite absence of a non-constitutional default solu-
tion will over time itself provide the impetus for serious re-engagement with the
idea of a supranational constituent power, or will provoke an existential crisis for
the EU, is but the deepest uncertainty in the EUs shrouded constitutional future.
14
We the Peoples of the United Nations
Constituent Power and Constitutional Form in
International Law
Bardo Fassbender
If today the international community has a constitution, it is a constitutional

latecomer. He who comes too late will be punished by life, said Mikhail
Gorbachev. In any case, latecomers usually get bad seats. And the drama called
constitutionalism has been on the stage for a long time now, often, but not always,
being played to a full house. Are there still good seats available in the theatre? For
the longest time, the international community did not even care to get an admis-
sion ticket. It went elsewhere. And those who had had season tickets for decades
did not think it could really be interested in the show. This has changed. The
latecomer is about to become a regular, and is even starting to ask questions about
the programme. Sometimes she wonders about the actors old and threadbare
costumes and the obscure plot of the play.
Before addressing the problem of constituent power and constitutional form in
international law, we must first try to describe international constitutional law.
This subject must not be confused with comparative constitutional law. In the
latter field, scholars compare, for instance, ways and means of protecting
fundamental rights of citizens in various states, or different forms of state
organization between the poles of centralization and federalism. In the former,
by contrast, we are searching for a sub-discipline of public international law,
namely the constitutional law of the international community, a law which may be
influenced by constitutional ideas and practices developed in a national context,
but which stands on its own feet.
Statement during the celebrations of the fortieth anniversary of the German Democratic
Republic, 7 October 1989: see J. Thies and W. Wagner (eds.), Das Ende der Teilung (Bonn: Verlag fr
Internationale Politik, 1990), 92.
In 2003, a new journal was founded to study such issues: ICON (Int. J. of Constitutional Law).
See also the report by A.V. Bauer and C. Mikulaschek, The First Vienna Workshop on International
Constitutional Law (2005) 6 German Law J. 1109.

A Brief History of Constitutional Language in International Law
In their invitation to the 2006 Conference of the European Society of International

Law the organizers could rightly say that over the last few years the notions of
international constitution and international constitutionalism have become
real buzzwords in the legal discourse. How did this happen? Is it now agreed that
it is useful to introduce the notions of constitution and constitutionalism into the
language of international law? Is it established that there can be a constitution with-
out a state, without a people, and without a democratic content?
Today, as in the past, the use of the terms constitution, constitutionalism, and
constitutional law in international law and, more particularly, the law of the
United Nations is rarely based on a coherent idea or theory. Few writers have made
an effort systematically to explain both the reasons and the consequences of the
adoption of constitutional arguments. To illustrate the typically unsystematic use of
constitutional language in international law, one can first point to the practice of
speaking of a constitution in order to distinguish treaties establishing a permanent
intergovernmental organization from other international agreements. This is the
rather innocent reason for official expressions like the Constitution of the World
Health Organization or Constitution of the International Labour Organization.
Here, constitution is a synonym for what Article 5 of the Vienna Convention on
the Law of Treaties calls a constituent instrument. Wolfgang Friedmann invoked
this sense when referring to international constitutional law as the area of a com-
parative study of constitutions of intergovernmental organizations.
But there have been more ambitious intentions. In the final session of the San
Francisco founding conference of the United Nations, President Harry S. Truman
compared the Charter to a constitution that develops and expands as time goes
on. That emphasis on some sort of dynamism being inherent in the very concept
of a constitution is widely shared. Thomas Franck, for instance, has stated that:
[t]he law of, or about, international organizations is essentially constitutional law. This is
true not only because it is descriptive of the internal rules governing the operation of
institutions and societies, but because it is treated by lawyers in a manner different from
other lawtreated as being capable of organic growth.
See European Society of International Law, International Law: Do We Need It?, Agenda of the
Biennial Conference in Paris, 1820 May 2006, Forum 6: The Constitutionalization of International
Law (on file with author). See also A. Kemmerer, Conference Report: Global Fragmentations.
A Note on the Biennial Conference of the European Society of International Law (2006) 7 German
Law J. 729, at 731ff.
For a corresponding academic usage, see, e.g., H.G. Schermers, International Organizations, in
M. Bedjaoui (ed.), International Law: Achievements and Prospects (Dordrecht: Njihoff, 1991), 67, at 68.
See W. Friedmann, The Changing Structure of International Law (London: Stevens, 1964), 153.
See President H.S. Truman, Speech on June 26, 1945 in United Nations Information
Organizations (eds.), Documents of the United Nations Conference on International Organization
(New York, 1945), vol. I, 680.
T.M. Franck, Book Review (1964) 77 Harv L. Rev. 1565 (reviewing D.W. Bowett, The Law of
International Institutions (London: Stevens, 1963)).
International Law 271
Shabtai Rosenne has also demonstrated that scholars and judges advancing a
constitutionalist theory have conceptually distinguished constituent instru-
ments of intergovernmental organizations from the bulk of multilateral treaties,
in particular with regard to their interpretation, the acquisition and loss of mem-
bership, reservations, and amendments. Rosenne concludes that: the element of
treaty appears merely as the presupposition of the organization, the foundation
upon which the superstructure, the constitution of the organization, and even
more the constitutional practices based on that constitution, are established.
The International Law Commission (ILC) referred to the notion of constitu-
tion when seeking to explain that the legal capacity of an intergovernmental
organization does not only depend on the terms of its constituent treaty. With
regard to the UN Charter, the terms constitution and constitutional were
occasionally invoked by members of the International Court of Justice (ICJ) to
support a method of Charter interpretation oriented to the aims and purposes of
the UN and their pursuance in a changing global context. As Krzysztof
Skubiszewski noticed, the perception of the Charter as a constitution with its
See S. Rosenne, Developments in the Law of Treaties 19451986 (Cambridge: Cambridge

Ibid. 191.
Considering Sir Humphrey Waldocks report on the law of treaties, the ILC adopted the follow-
ing redraft of Art. 3, para. 4, on June 22, 1962: In the case of international organizations capacity to
conclude treaties depends on the constitution of the organization concerned. [1962] 1 YB Intl Law
Commission 240 (emphasis added). Sir Humphrey explained that the expression had been chosen
because it was broader than constituent instrument; it covered also the rules in force in the organ-
ization (ibid. 242). In its commentary, the ILC set out: The term constitution has been chosen
deliberately in preference to constituent instrument. For the treaty-making capacity of an inter-
national organization does not depend exclusively on the terms of the constituent instruments of the
organization but also on the decisions and rules of its competent organs . . . [I]t is the constitution as
a wholethe constituent treaty together with the rules in force in the organizationthat determine
the capacity of an international organization to conclude treaties: [1962] 2 YB Intl Law Commission
164. The Commission later decided to omit the question of the treaty-making capacity of inter-
national organizations from the draft articles.
For a particularly clear expression of this idea, see South-West AfricaVoting Procedure, 1955
ICJ Reports 67, 106 (Lauterpacht, J. sep. opin.): A proper interpretation of a constitutional instru-
ment must take into account not only the formal letter of the original instrument, but also its oper-
ation in actual practice and in the light of the revealed tendencies in the life of the Organization. See
also ibid. 112 (constitutional Charter), and International Status of South-West Africa, 1950 ICJ
Reports 186, 187 (de Visscher, J. dissenting) (a treaty of a constitutional character like the United
Nations Charter). A broad and liberal interpretation of Charter provisions commensurate with the
ever changing pattern of international existence was also advocated by Sir Percy Spender. See Certain
Expenses of the United Nations, 1962 ICJ Reports 151, 182, 1857 (sep. opin.). Judge Alvarez, who
perhaps was the strongest advocate of the method of teleological Charter interpretation on the bench,
referred to certain categories of multilateral conventions, among them those which seek to develop
world international organization, as the Constitution of international society, the new international
constitutional law, and explained: They are not established for the benefit of private interests but for
that of the general interest; they impose obligations upon States without granting them rights . . .
See Reservations to the Genocide Convention, 1951 ICJ Reports 49, 51 (diss. opin.). For comment, see
G. Schwarzenberger, The Problem of International Constitutional Law in International Judicial
Perspective in J. Delbrck, K. Ipsen, and D. Rauschning (eds.), Recht im Dienst des Friedens:
Festschrift fr Eberhard Menzel (Berlin, Duncker & Humblot, 1975), 241, at 2439.
emphasis on the purposes of the Organization favours the teleological method

and the application of the doctrine of implied powers.
The question of interpretation apart, constitution has been referred to as a
symbol of a higher form of (political) unity in the international sphere. Already in
1918, a draft constitution of a League of Nations was presented by a prominent
German politician influenced by President Wilsons ideas with the characteristic
words that the proposed League should be a higher community of peoples joining
together for the preservation of peace and their common well-being. In this
view, a community which can rightly call its fundamental rules a constitution has
realized a particularly high degree of cohesion.
In 1998, I identified three schools of thought of the twentieth century to which
systematic efforts to establish a constitutional reasoning in international law can be
attributed: first, the school founded by the Viennese jurist Alfred Verdross, who
started out from Kelsens legal theory but later both approached and influenced
the mainstream; second (and partially influenced by the first), a group of
scholars, led by the late judge of the ICJ, Hermann Mosler, and by Christian
Tomuschat, advocating what I named the doctrine of international commu-
nity; and third the New Haven School (or policy-science approach) with
Myres McDougal and Michael Reisman being the most prolific authors on the
subject under discussion.
See K. Skubiszewski, Remarks on the Interpretation of the United Nations Charter, in

R. Bernhardt et al. (eds.), Vlkerrecht als RechtsordnungInternationale GerichtsbarkeitMenschenrechte:
Festschrift fr Hermann Mosler (Berlin: Springer, 1983), 891, at 893. For characteristic elements of an
interpretative process as applied in a constitutionalist manner , see also Rosenne, above n. 8,
2373.
See M. Erzberger, Der Vlkerbund: Der Weg zum Weltfrieden (Berlin: Hobbing, 1918), 1612
(draft constitution at 18494).
See, in particular, A. Verdross, Die Verfassung der Vlkerrechtsgemeinschaft (Berlin: Springer,
1926), and A. Verdross and B. Simma, Universelles Vlkerrecht: Theorie und Praxis (Berlin: Duncker
und Humblot, 3rd edn., 1984). For an analysis of Verdross ideas, see F. Durante, Die Grundlage des
Vlkerrechts im Denken von Alfred Verdross-Drossberg (1991) 42 sterreichische Zeitschrift fr
ffentliches Recht und Vlkerrecht 59; B. Simma, The Contribution of Alfred Verdross to the Theory
of International Law (1995) 6 EJIL 33; and R. Walter, Die Rechtslehren von Kelsen und Verdross
unter besonderer Bercksichtigung des Vlkerrechts in R. Walter, C. Jabloner, and K. Zeleny (eds.),
Hans Kelsen und das Vlkerrecht (Vienna: Manz, 2004) 37.
See, in particular, H. Mosler, The International Society as a Legal Community (1974) 140
Recueil des Cours 1, revised version published as The International Society as a Legal Community
(Alphen aan den Rijn: Sijthoff/Noordhoff, 1980); C. Tomuschat, Obligations Arising for States
Without or Against Their Will (1993) 241 Recueil des Cours 195; Die internationale Gemeinschaft
(1995) 33 Archiv des Vlkerrechts 1; B. Simma, From Bilateralism to Community Interest in
International Law (1994) 250 Recueil des Cours 217.
See, in particular, M.S. McDougal, H.D. Lasswell, and W.M. Reisman, The World
Constitutive Process of Authoritative Decision in M.S. McDougal and W.M. Reisman, International
Law Essays: A Supplement to International Law in Contemporary Perspective (Mineola, NY: Foundation
Press, 1981), 191. See also R.A. Falk, R.C. Johansen, and S.S. Kim (eds.), The Constitutional
Foundations of World Peace (Albany, NY: State University of New York Press, 1993).
See B. Fassbender, The United Nations Charter as Constitution of the International
Community (1998) 36 Col. J. Transnatl Law 529.
Today, in the literature of international law, in particular the European, the

second-mentioned school is by far the most influential one of the three; my own
efforts, emphasizing the importance of the Charter of the United Nations, are
based on it. The term the international community has become commonplace,
but more so in continental Europe than in Great Britain or the United States.
(At the founding conference of the European Society of International Law, Martti
Koskenniemi critically discussed the international community school as an
example of the European imagination of an international order modelled on
European values and ideas.) A fourth approach, championed by Ernst-Ulrich
Petersmann, accentuates the importance of human rights: As long as international
law and the UN Charter focus on state sovereignty without effective protection of
human rights and without judicial safeguards against the frequent abuses of
government powers and violations of the rule of law, it seems misleading to denote
the UN Charter as the constitution of the peoples of the United Nations.
Constitutional Arguments in Contemporary International Law
In the last few years, the transfer or translation of the constitutional idea into the
sphere of international law, which until the mid-1990s had had only few advocates,
has become almost uncontroversialmany differences of opinion about how
exactly such translation should be understood or constructed notwithstanding.
For respective writings see, in particular, C. Tomuschat, Die internationale Gemeinschaft,

above n. 15; D. Threr, Recht der internationalen Gemeinschaft und Wandel der Staatlichkeit in
D. Threr, J.F. Aubert, and J.P. Mller (eds.), Verfassungsrecht der SchweizDroit constitutionnel
suisse (Zrich: Schulthess, 2001), 37; and A.L. Paulus, Die internationale Gemeinschaft im Vlkerrecht
(Munich: C.H. Beck, 2001). See also N. Tsagourias, The Will of the International Community as a
Normative Source of International Law in I.F. Dekker and W.G. Werner (eds.), Governance and
International Legal Theory (Leiden: Martinus Nijhoff, 2004), 97.
See M. Koskenniemi, International Law in Europe: Between Tradition and Renewal (2005)
16 EJIL 113, 117: We Europeans share this intuition: the international world will be how we are.
And we read international law in the image of our domestic legalism: multilateral treaties as legisla-
tion, international courts as an independent judiciary, the Security Council as the police. Today, that
tradition is most visibly articulated in the debateespecially vocal in Germanyabout the constitu-
tionalization of international law under the UN Charter.
See E.U. Petersmann, Constitutionalism, International Law and We the Peoples of the
United Nations in H.J. Cremer et al. (eds.), Tradition und Weltoffenheit des Rechts: Festschrift fr
Helmut Steinberger (Berlin: Springer, 2002), 291, 303. A related critique emphasizes the democratic
deficit, or lack of democratic participation, in international organizations: see H. Brunkhorst,
Globalizing Democracy without a State (2002) 31 Millennium 675.
See, e.g., D.M. Johnston, World Constitutionalism in the Theory of International Law in
R.StJ. Macdonald and D.M. Johnston (eds.), Towards World Constitutionalism: Issues in the Legal
Ordering of the World Community (Leiden: Nijhoff, 2005) 3; B.O. Bryde, International Democratic
Constitutionalism, ibid. 103; E. de Wet, The International Constitutional Order, (2006) 55 ICLQ
51; and A. von Bogdandy, Constitutionalism in International Law: Comment on a Proposal from
Germany (2006) 47 Harvard Intl L. J. 223 (focusing on the work of Tomuschat). For a critical dis-
cussion, see J Klabbers, Constitutionalism lite (2004) 1 Intl Organizations L. Rev. 31.
At the same time, the ambitions of the constitutionalist project have gone far
beyond the matter of how to interpret a constituent treaty of an international
organization. Today many writers use the concept of constitutionalism in inter-
national law as a sort of leitmotif to capture, name, and also promote the funda-
mental changes in the international legal order which we all are witnessing but
cannot easily express in the language of (international) law we learned.
When I wrote about the subject back in 1998, I still felt I had to devote
substantial space to showing that there is no compelling reason to reserve the term
constitution for the supreme law of a (sovereign) state and that, provided certain
conditions are met, the fundamental legal order of any autonomous community
or body politic can be addressed as a constitution. In order to define those
conditions, I tried to establish an ideal type of constitution, drawing on Max
Webers methodology. I agreed with Philip Allott that [a] constitution is a
structure-system which is shared by all societies. This understanding entails a
certain demystification of the institution of the (tatist) constitution and, with it,
of the sovereign state as the former constitutional monopolist.
To some extent, the discussion about the future legal order of the European
Union has contributed to the growing popularity of the constitutional idea in
international law. In the case of the EU, legal science identified, over the course of
the past ten or fifteen years, a gradual constitutionalization of a treaty-based
order, and this characterization was subsequently accepted by a broad majority
of member states. In the summer of 2003, the European Convention adopted by
consensus the Draft Treaty Establishing a Constitution for Europe which in an
amended version was signed by the Heads of State or Government of the EU
For a systematic review of scholarly efforts to understand the changed international landscape,
and for the place of the idea of constitutionalism in the current debate, see A. von Bogdandy,
Demokratie, Globalisierung, Zukunft des Vlkerrechtseine Bestandsaufnahme (2003) 63
Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht 853, 864ff, 869ff.
See Fassbender, above n. 17, at 5328, 55561. See ibid. 569ff.
See P. Allott, Eunomia: New Order for a New World (Cambridge: Cambridge University Press,
1990), 164. See also P. Allott, The Concept of International Law (1999) 10 EJIL 31, 35ff; id.,
The Health of Nations: Society and Law Beyond the State (Cambridge: Cambridge University Press,
2002), ch. 12.
For the meaning of sovereignty in international law, and its relationship with the constitutional
idea, see B. Fassbender, Sovereignty and Constitutionalism in International Law in N. Walker (ed.),
Sovereignty in Transition (Oxford: Hart, 2003), 115.
Of the extensive literature, I only mention J. Gerkrath, Lmergence dun droit constitutionnel
pour lEurope (Brussels: Presses Universitaires de Bruxelles, 1997); I. Pernice, Multilevel Con-
stitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited (1999) 35
CMLR 703; C. Joerges, Das Recht im Prozess der Konstitutionalisierung Europas (EUI Working Paper
LAW No. 2001/6); A. Peters, Elemente einer Theorie der Verfassung Europas (Berlin: Duncker &
Humblot 2001); N. Walker, The EU and the WTO: Constitutionalism in a New Key in G. de
Brca and J. Scott (eds.), The EU and the WTO: Legal and Constitutional Issues (Oxford: Hart, 2001)
31; The Idea of Constitutional Pluralism (2002) 65 MLR 317; Postnational Constitutionalism and
the Problem of Translation in J.H.H. Weiler and M. Wind (eds.), European Constitutionalism Beyond
the State (Cambridge: Cambridge University Press, 2003) 27. See also Walkers contribution to the
present volume (ch. 13).
member states on 29 October 2004 in Rome as the Treaty Establishing the

Constitution for Europe. Although the fate of that Constitutional Treaty is
uncertain, it is unlikely that the general view of an inherent and necessary
constitutional character of the EU will be abandoned.
Second, it was understood that one can apply the notion of constitution in the
realm of universal international law without necessarily being a proponent of a
world state. It is indeed a profound misunderstanding to equate the advance-
ment of the constitutional idea in international law with a weakening of the insti-
tution of the independent nation-state. To assume the existence of a constitution of
the international community does not place the state in new, and necessarily more
restraining, legal chains. On the contrary, it is that constitution which protects the
legal authority and autonomy of every state against unlawful interventions by other
states and international organizations, similar to the protection of the fundamental
rights and freedoms afforded to individual citizens by a state constitution.
Third, the constitutionalization of international law is used as a possible
remedy for what is conceived of as the fragmentation of international law. And
last, as it happens, some writers have jumped onto a wagon which appeared to be
increasingly popular, content with the interesting and progressive ring of the
words constitution and, especially, constitutionalization.
Most recently, the array of legal approaches was supplemented by an important
contribution from political philosophy. Re-examining the Kantian vision of a
world republic, Jrgen Habermas outlined the structure of a political constitution
of a decentralized world society as a multi-level system of governance. Based on a
dispassionate analysis of the present global situation, Habermas sees a conceptual
possibility of a political multi-level system which, as a whole, is not a state but nev-
ertheless able to safeguard, without a world government, on a supranational level
[2004] OJ C310/1.
See, e.g., C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a
New Century (1999) 281 Recueil des Cours 9, 89ff: The notion of an international community
living under a common constitution has nothing to do . . . with a super-State which could claim
supremacy over States, relegating them to pure provinces or other autonomous
entities, . . . International society finds itself at a medium point between the traditional model of
sovereign self-sufficient States and a world with a hierarchical structure, topped by a single command
centre. See Fassbender, above n. 26, 128ff.
See Klabbers, above n. 31, 49. See also M. Koskenniemi, Fragmentation of International
Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the
Study Group of the International Law Commission, UN Doc. A/CN.4/L.682 of 4 April 2006,
para. 334 (effects of Art. 103 of the UN Charter on the basis of the view of the Charter as a
constitution).
See J. Habermas, Hat die Konstitutionalisierung des Vlkerrechts noch eine Chance? [Does
the constitutionalization of international law still have a chance?] in J. Habermas, Der gespaltene
Westen (Frankfurt am Main: Suhrkamp, 2004 ), 113, 134. (Engl trans., C. Cronin, The Divided West
(Cambridge: Polity Press, 2006), 115, at 1356). For a critical discussion of Habermas turn to
constitutionalism in the context of his cosmopolitan position, see N. Walker, Making a World of
Difference? Habermas, Cosmopolitanism and the Constitutionalization of International Law in
O.A. Payrow Shabani (ed.), The Practice of Law-making and the Problem of Difference (Aldershot:
Dartmouth, forthcoming).
peace and human rights . . . and to solve on a transnational level the many practical
problems of global domestic politics (Weltinnenpolitik). He describes a post-
national constellation of international affairs as supportive of a constitutionaliza-
tion of public international law and agrees with this writer that in that
constitutional process the UN Charter is of central importance. In Habermas
view, the constitutionalization of international law is a complementary project of
cosmopolitanisma way to renew or sustain the cosmopolitan project itself at a
time in which it is threatened by alternative visions of world order, such as a US
hegemonic liberalism or a global Hobbesian order.
Finally, mention should be made of recent scholarship based on the work of
Niklas Luhmann, that argues against a state-centred constitutionalism (both on a
national and an international level). Instead, it recognizes the constitutionaliza-
tion of a multiplicity of autonomous subsystems of world society, giving rise to a
new notion of global civil constitutions (globale Zivilverfassungen).
However, this proliferation of constitutional language in international law
has increased terminological confusion. For instance, the different issues of a
constitutionalization of the law of a particular intergovernmental organization
or international regime on the one hand, and of the existence of a constitution
of the international community as such, on the other, are often not sufficiently
distinguished. Moreover, an inflationary use of the word constitution
carries the danger of its devaluation. Not every increase in legal regulation, and
not even every evolution of a hierarchical system of rules, equates to a
constitutionalization.
Different Constitutions: Fundamental Rules and Principles, Rules

Not Based on State Consent, Jus Cogens
In what can be seen as the present mainstream of constitutional thinking in
international law, advocated by authors more or less strongly associated with the
international community school, different categories of rules of positive
Habermas, Der gespaltene Westen, 143; see also 159ff (Divided West, 144, 160ff respectively).
See Habermas, Der gespaltene Westen, 176; Divided West, 177.
See G. Teubner, Globale Zivilverfassungen: Alternativen zur staatszentrierten
Verfassungstheorie (2003) 63 Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht 1. See also
A. Fischer-Lescano, Die Emergenz der Globalverfassung, ibid. 717, and A. Fischer-Lescano,
Globalverfassung: Die Geltungsbegrndung der Menschenrechte im postmodernen ius gentium
(Weilerswist: Velbrck, 2005).
But see C. Walter, Constitutionalizing (Inter)national GovernancePossibilities for and
Limits to the Development of an International Constitutional Law (2001) 44 German YB Intl L.
170, 191ff, who understands the statutes and basic rules of such organisations and regimes as
Teilverfassungen, or partial constitutions, of the international community.
See D. Grimm, Ursprung und Wandel der Verfassung in J. Isensee and P. Kirchhof (eds.),
Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. I (Heidelberg: C.F. Mller, 3rd edn.,
2003) 3, 4, and 7.
international law are identified as constituting the heart, or basis, of an inter-

national constitution: so-called fundamental rules and principles, rules not based
on state consent, and the rules of jus cogens (or peremptory rules of international
law). References to one of those categories by a particular author are usually not
exclusive. Instead, individual writers tend to lay stress upon one category without
dismissing the other categories as unimportant. This is understandable because
the three mentioned categories of rules, which I shall briefly discuss, overlap.
In a book that was of decisive importance for the introduction of the notion of
constitution into the doctrine of international law, Verdross in 1926 used the
word to describe those norms which deal with the structure and subdivision of,
and the distribution of spheres of jurisdiction in, a community. Accordingly,
Verdross held that the constitution of the international legal community was
composed of the fundamental rules and principles of international law determin-
ing its sources, subjects, and application, and the jurisdiction allocated by that law
to the individual states. To those rules of a formal nature one can add substantive
rules and principles, such as the principle of sovereign equality of states, the
principle of self-determination of peoples, or the ban on the use of force. The
exact delimitation of a constitutional law of the international community so
perceived varies from author to author.
But what is the specific value of such a terminology? What does it tell us apart
from what we all know by intuitionthat some rules of international law are of a
basic character and therefore more important than others? Or does constitu-
tional language mainly have an instructive purpose, helping us to distinguish
various types of rules, and thereby better to understand the substance of the
international law of our time?
Some authors do not stop here but emphasize, as the principal feature of
international constitutional rules, their non-consensual character. Consider this
statement by Tomuschat: States live, as from their birth, within a legal framework
of a limited number of basic rules which determines their basic rights and
obligations with or without their will . . . One may call this framework . . . the
constitution of the international community. According to that view, the
international constitution is the entirety of those basic ruleswhether formal or
For a more detailed treatment, see Fassbender, The Meaning of International Constitutional
Law in Macdonald and Johnston, above n. 21, 837, at 8426.
See Verdross, Verfassung, above n. 14, v. See also H. Kelsen, The Law of the United Nations: A
Critical Analysis of Its Fundamental Problems (London: Stevens, 1950), 9: the constitution of the
international community established by general international law, i.e., the rules concerning the cre-
ation of international law . . . .
For an authoritative description of fundamental principles of a substantive character, see the
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, Annex to UN General Assembly
Resolution 2625 (XXV) of 24 October 1970; (1970) 24 United Nations Year Book 788. The prin-
ciples in question are also addressed as the founding principles of the international legal order; see
Tomuschat, above n 29, 161ff.
See Tomuschat, above n. 15, 211 (emphasis supplied).
substantivewhich every state is bound to observe irrespective of its own will,

due to its membership in the international community. Those rules are distin-
guished from so-called contingent (i.e. accidental or non-essential) prescriptions
that in the same way as traffic rules on left-hand or right-hand driving, must be
determined for the sake of legal clarity and avoiding disorder. In the case of
contingent rules, state consent is said to be still the relevant basis of obligation,
whereas constitutional prescriptions are determined by community interests,
which may allow for at least some degree of majoritarianism.
This concept borders on another which sees the rules of jus cogens as the heart of
an international constitutioni.e. in the words of the Vienna Convention on the
Law of Treaties, rules accepted and recognized by the international community of
States as a whole . . . from which no derogation is permitted and which can be
modified only by subsequent norm[s] of general international law having the
same character. Jus cogens rules are higher law (a feature generally characteristic
of national constitutional law in comparison with other, ordinary law) because
they place certain norms beyond the reach of states when states, bilaterally or
multilaterally, exercise their treaty-making (i.e. law-making) function. In that
sense, Antonio Cassese noted that with jus cogens a body of supreme or constitu-
tional principles was created, and Tomuschat referred to norms of jus cogens as
belonging to a class of legal precepts which is hierarchically superior to ordinary
rules of international law, precepts which cannot even be brushed aside, or
derogated from, by the sovereign will of two or more States as long as the inter-
national community upholds the values encapsulated in them.
The jus cogens perspective of international constitutional law is a particularly
value-oriented one because all the rules presently recognized as jus cogens (in the
first place, the prohibitions on genocide, aggression, slavery, and of trading in
human beings, and the right of peoples to self-determination) are substantive in
nature and have a human rights dimension, the latter mainly accounting for the
use that the International Criminal Tribunals for the former Yugoslavia and for
Rwanda have made of jus cogens arguments. Jus cogens, one could say, is a sort of
Ibid. 286. Similarly, Allott, The Concept of International Law, above n. 25, 37 and 75 respec-
tively, distinguishes between international constitutional law and international public law.
See Art. 53 of the 1969 Vienna Convention on the Law of Treaties, opened for signature
23 May 1969; 1155 United Nations Treaty Series 331. For recent re-evaluations of the concept of jus
cogens, see R. Kolb, Thorie du ius cogens international (Paris: PUF, 2001); C. Tomuschat and
J.M. Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and
Obligations Erga Omnes (Leiden: Martinus Nijhoff, 2006); and D. Shelton, Normative Hierarchy in
International Law (2006) 100 AJIL 291.
See A. Cassese, International Law (Oxford: Oxford University Press, 2nd edn., 2005), 202.
See C. Tomuschat, Reconceptualizing the Debate on Jus Cogens and Obligations Erga
OmnesConcluding Observations in Tomuschat and Thouvenin, above n. 43, 425.
See B. Fassbender, Der Schutz der Menschenrechte als zentraler Inhalt des vlkerrechtlichen
Gemeinwohls [The protection of human rights as the central meaning of the common good in
international law] (2003) 30 Europische Grundrechte Zeitschrift 1, 5ff.
Decalogue of a secularized world, a minimal code of behaviour that can be

condensed into one rule: Thou shalt not do other human beings terrible wrongs!
There is a partial substantive identity of jus cogens and obligations erga omnes
which, as is well known, the ICJ described as obligations towards the inter-
national community as a whole. The category of obligations erga omnes was
advanced to give states that, according to traditional international law, were not
affected by a certain breach of rules, a legal interest in their protection. In this
way, pivotal community values should be safeguarded in the absence of effective
community organs. The Court gave a number of examples of such obligations
erga omnes, including the prohibition of acts of aggression and genocide; the
principles and rules concerning the basic rights of the human person, including
protection from slavery and discrimination; and the right of self-determination.
A related third concept, international crimes of states, which once had been
supported by the ILC, was eventually abandoned by the Commission.
What do these various approaches have in common? The international
constitutionalism supported by them is, one can say, a progressive movement
progressive in the sense that the UN Charter speaks of a progressive development
of international lawwhich aims at fostering international cooperation by
consolidating the substantive legal ties between states, as well as the organizational
structures of the international community built in the past. The idea of a constitu-
tion in international law (or of it), is summoned as an abbreviation for an increas-
ingly differentiated and also hierarchical law, and as a symbol of a (political) unity
which eventually shall be realized on a global scale. This implies that any person
who is basically satisfied with the present state of affairs, or who insists on
preserving the independence of the individual state vis--vis the international
See Barcelona Traction, 1970 ICJ Reports 3, 32, paras 3334, and East Timor, 1995 ICJ Reports
90, 102, para. 29. See also Art. 48, para. 1(b), and Art. 54 of the ILC Articles on the Responsibility of
States for Internationally Wrongful Acts of 26 July 2001, UN Doc. A/CN.4/L.602/Rev.1 (2001) and
UN Doc. A/Res/56/83 (2001) (annex).
See Barcelona Traction, 1970 ICJ Reports 3, 32, para. 33. Ibid. 34.
See East Timor, 1995 ICJ Reports 90, 102, para. 29.
Article 19(2) of the draft articles on state responsibility (part 1), adopted by the ILC on first
reading on 25 July 1980, defined an international crime as follows: An internationally wrongful act
which results from the breach by a State of an international obligation so essential for the protection
of fundamental interests of the international community that its breach is recognized as a crime by
that community as a whole constitutes an international crime. Report of the ILC, UN General
Assembly Official Records, Supp. No. 10, UN Doc. A/35/10 (1980), (1980) 2 pt 2 ILC YB 30, 32.
For discussion, see J.H.H. Weiler, A. Cassesse, and M. Spinedi (eds.), International Crimes of States:
A Critical Analysis of the ILCs Draft Article 19 on State Responsibility (Berlin: De Gruyter, 1989),
and A. de Hoogh, Obligations erga omnes and International Crimes: A Theoretical Inquiry into the
Implementation and Enforcement of the International Responsibility of States (The Hague: Kluwer Law
International, 1996).
For an analysis of the 2001 draft articles by the Special Rapporteur, see James Crawford, The
International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries
See Art. 13(1a) of the UN Charter. The idea of constitutionalism as a progressive movement is
critically discussed by Walker, above n. 32, sec. 4(b).
community as much as possible, has no reason to refer to the notion of an inter-

national constitution.
The relative success of the international community school is understandable
because this school (unlike, for instance, the New Haven approach) stays within
the limits of (European) mainstream legal thought. Rooted in positivism and
determined not to lose touch with actual state practice, but at the same time being
cautiously idealistic, it seeks to develop the international legal system towards
greater cohesion and effectiveness. This tension causes a certain doctrinal improviza-
tion, and even an indecisiveness, that cannot satisfy those looking for a clear and
convincing theoretical foundation upon which the concept of an international
constitution could rest. Characteristically, authors belonging to that school like to
compare the constitution of the international community with that of the United
Kingdom which has grown by stages and cannot be found in a single document.
In consequence, the content of a constitutional law as a part of international law
remains indistinct, and so do the legal consequences, if there are any, of character-
ising a specific rule as a constitutional rule. In particular, the supremacy of
international constitutional law in a hierarchy of norms of international law is
only a vague concept. Indeed, for the authors of the international community
school the symbolic value of the constitutional terminology prevails, constitu-
tion implying that high degree of interdependence and integration of peoples and
states which is regarded as a reality or, at least, a necessity.
Perhaps the vague character of that which is addressed as international constitu-
tional law offers a true representation of international law as it stands, i.e. an
international law characterized by the contradictions and tensions mentioned at
the beginning of this essay. Ulrich Scheuner, who was one of Germanys most
influential scholars of constitutional and international law of the last century,
once remarked that, as law always possesses a conservative and preserving
tendency, the interpretation of the foundations of the international community
by international law will usually lag behind real developments. By way of
example, Scheuner mentioned the tenacious clinging of legal writers to imperial
and curial ideas in the late middle ages, despite the formation in reality of a system
of sovereign states. He also contrasted the contemporary attachment to the concept
of equal sovereignty with the reality of transformed notions and diverse constella-
tions of international power. It may well be that present-day international law is
equally lagging behind the reality of the international system. In other words, the
See, e.g., Tomuschat, International Law, above n. 29, 88.

See explicitly Tomuschat, ibid. 88: [A substantive concept of constitution] constitutes no more
than an academic research tool suited to focus attention on the substantive specificities of a particular
group of legal norms. No additional legal consequences may be attached to the characterization of a rule
of international law as pertaining ratione materiae to the constitution of humankind (emphasis
supplied).
See U. Scheuner, Die grossen Friedensschlsse als Grundlage der europischen
Staatenordnung zwischen 1648 and 1815 in C. Tomuschat (ed.), Ulrich Scheuner, Schriften zum
Vlkerrecht (Berlin: Duncker & Humblot, 1984), 349, n. 1.
international community may in fact have advanced towards its constitutionaliza-

tion more rapidly than the doctrine of international law and the common wisdom
of governments have perceived. Mainstream international law may be defending a
world already gone.
The UN Charter as the Constitution of the

International Community
In my own work, I have tried to give the idea of an international constitutional
law a more precise meaning by closely associating it with the UN Charter. To
borrow language from Neil Walker, this has been an effort to invoke the United
Nations (Charter) as a point of reference for the work of reform and re-imagination
of international constitutionalism and to create, on the global level, a suitably
focused context of action. Drawing especially on the writings of Verdross, I have
suggested that the Charter, although formally created as a treaty, is characterized
by a constitutional quality which in the course of the last fifty years has been
confirmed and strengthened in such a way that today the instrument must be
referred to as the (substantive and formal) constitution of the international
community. The Charter shows a number of strong constitutional features. In
particular, it includes rules about how the basic functions of governance are
performed in the international community; that is to say, how and by whom the
law is made and applied, and how and by whom legal claims are adjudicated. It
also establishes a hierarchy of norms in international law (Article 103). Further,
I have tried to demonstrate that by understanding the Charter as a constitution we
gain a standard that permits adequate (legal) solutions to issues such as the
interpretation of the Charter, the relationship between its law and general
international law, the meaning of state sovereignty in contemporary inter-
national law, UN reform, and the question of the extent to which the Security
Council is bound by international law.
I also have sought to explain that addressing the UN Charter as a constitution
does not lead to equating the Charter with a state constitution; the constitutional
idea in international law must be understood as an autonomous concept rather
than an extrapolation from national constitutional law. In accordance with the
principle of subsidiarity, which regulates the allocation of competencies in a
multilevel system of governance, a constitution of the international community
shall not and need not replicate a national constitution. Instead, its content
See Walker, above n. 32, s. 4(b). See Fassbender, above n. 17, 531ff.
See ibid. 57384.
For an exposition of the main functions of governance of the international community, see
Tomuschat, International Law, above n. 29, Pt III. See Fassbender, above n. 26.
See B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective
(The Hague: Kluwer Law International, 1998), ch. 10.
See Fassbender, above n. 17, 572.
depends on the specific tasks and responsibilities of the international community.

Since those tasks and responsibilities are different from those of a national body
politic organized for civil rule and government, the respective constitutional rules
must differ. In particular, the task of maintaining and restoring international
peace, i.e. peace between independent political communities, is a task peculiar to
the international community. Compared to national constitutionalism, inter-
national constitutionalism is not lite but simply different. And this position
was essentially endorsed by Thomas Franck when, in 2003, he wrote:
Perpetuity, indelibleness, primacy, and institutional autochthony: these four characteris-
tics of the UN Charter relate that unique treaty more proximately to a constitution than to
an ordinary contractual normative arrangement. But does it make a difference? Indeed it
does. Whether or not the Charter is a constitution affects the way in which the norms of
systemic interaction are to be interpreted by the judiciary, the political organs and by the
Secretary-General . . . [T]he questionis the UN Charter a constitution?is not one of
purely theoretical interest . . . Indeed, how it is answered may well determine the ability of
the Organization to continue to reinvent itself in the face of new challenges, thereby assur-
ing its enduring relevance to the needs of states and the emergence of an international
community.
In his recent book, The Divided West, Jrgen Habermas has also taken up my ana-
lytical effort by identifying three normative innovations which provide the UN
Charter with a constitutional quality and make it possible to interpret the Charter
as a global constitution: (1) the explicit combination of the goal of safeguarding
world peace and a human rights policy, (2) the connection of the prohibition of
the use of force with a realistic threat of sanctions and criminal prosecution, and
(3) the inclusiveness of the United Nations and the universality of UN law.
Habermas concluded that the UN Charter is a framework in which UN member
states must no longer understand themselves exclusively as subjects bringing forth
international treaties; they rather can now perceive themselves, together with their
citizens, as the constituent parts of a politically constituted world society.
Today, the outstanding importance of the UN Charter within the international
legal order is generally accepted. As Ronald Macdonald had already remarked in
1988, the majority of international lawyers would probably classify the Charter as
something more than a treaty yet less than a world constitution. Pierre-
Marie Dupuy called the Charter un trait sans quivalent, un acte fondateur,
See Klabbers, Constitutionalism lite, above n. 21.

See T.M. Franck, Is the UN Charter a Constitution?, in J.A. Frowein, K. Scharioth,
I. Winkelmann, and R. Wolfrum (eds.), Verhandeln fr den FriedenNegotiating for Peace: Liber
Amicorum Tono Eitel (Berlin: Springer, 2003), 95, 102, 106. See also R.StJ. Macdonald, The
International Community as a Legal Community, in Macdonald and Johnston, (above n. 21), 853,
85968 (describing characteristic features of the UN Charter as the global constitution).
See Habermas, above n. 32, 159; Divided West, 1601. Ibid. 159/161 respectively.
See R.StJ. Macdonald, The Charter of the United Nations and the Development of
Fundamental Principles of International Law, in B. Cheng and E.D. Brown (eds.), Contemporary
constitutif dun nouvel ordre international. In even stronger, and laconic,

language, Yoram Dinstein claimed that: The status of the UN Charter as the
equivalent of a constitution of the international community is undeniable at the
present juncture. Almost all authors who use constitutional language refer in
one way or another to the Charter; and there is a tradition in political speech and
legal writing of speaking of the Charter as a constitution. Consider, for instance,
the following statement by Lord McNair in 1961:
[T]he Charter . . . is the nearest approach to legislation by the whole community of States
that has yet been realised. Our submission is that those of its provisions which purport to
create legal rights and duties possess a constitutive or semi-legislative character, with the
result that member States cannot contract out of them or derogate from them by treaties
made between them, and that any treaty whereby they attempted to produce this effect
would be void.
This statement draws our attention to the problem of the legal consequences of
attributing to the Charter a constitutional quality. In that respect, McNair did not
go beyond what is expressly provided for in Article 103. He did not suggest, as in
fact I do, that the Charter, as the constitution of the international community, is
the supporting frame of all international law and the highest layer in a hierarchy of
norms of international law leaving no room for a category of general international
law existing independently beside the Charter.
The main reason for my suggesting that the UN Charter must be understood as
the constitution of the international community was to get out of the fog of the
indistinct constitutional rhetoric by turning to one visible document which is the
basis of the most important community institutions and which provides an
authoritative statement of the fundamental rights and responsibilities of the
members of the international community and the values to which this com-
munity is committed. I have also pointed out that there is no irreconcilable
contradiction between the idea of such a written constitution and that of a
more inclusive constitutional process. Additionally, I have not overlooked the
shortcomings of the Charter as a constitution, in particular its limitations with
respect to a definition of the basic rights of the individual (international bill of
rights), and the concomitant necessity to read the Charter together with other
customary and treaty law of a fundamental nature (which I called the
Problems of International Law: Essays in Honour of Georg Schwarzenberger (London: Stevens, 1988),
196, 197.
See P.M. Dupuy, Lunit de lordre juridique international (2002) 297 Recueil des Cours
9, 217.
See Y. Dinstein, Book Review (reviewing B. Simma (ed.), The Charter of the United Nations: A
Commentary (Oxford: Oxford University Press, 2nd edn., 2002)), (2004) 98 AJIL 371.
See A.D. McNair, Law of Treaties (Oxford: Oxford University Press, 1961), 217. See also
I. Brownlie, The United Nations Charter and the Use of Force, 19451985 in A. Cassese (ed.), The
Current Legal Regulation of the Use of Force (Dordrecht: Martinus Nijhoff, 1986), 491, 495.
See Fassbender, above n. 17, 585. See ibid. 616ff.
constitutional by-laws of the international community), such as the two

International Covenants on Human Rights, the Convention on the Elimination
of all Forms of Racial Discrimination, the Convention on the Prevention and
Punishment of the Crime of Genocide, and the Rome Statute of the International
Criminal Court (ICC).
So far, however, most scholars promoting international constitutionalism
prefer to stay in conceptually vaguer worlds. Some seem to suffer a reality shock
when encountering a United Nations so far from their ideals. Others acknowledge
the necessity of a steadily intensifying degree of international organization but,
remaining under the formative influence of a legal training based on the sovereign
state, cannot in their legal map of the world find a proper place for a global
constitution. They thus represent the contradictions of an international legal
theory, already lamented by Kelsen in the 1920s, which in an almost tragic
conflict aspires to the height of a universal legal community erected above the
individual states but, at the same time, remains a captive of the sphere of power of
the sovereign state. This dilemma is also the reason for the comparative
attractiveness of jus cogens. In its quality as customary international law, it can
readily be fitted into the traditional system of sources of international law and,
more importantly, the traditional idea of international law as a system of rules
based on the consent of states. Accordingly, Charter law is ranked below jus
cogensas if those peremptory norms, all of which are based on rules and values
of the Charter, could survive without the Charter. The true relationship between
the UN Charter and jus cogens is turned on its head. Besides, as Cassese
reminded us, the fact remains that undeniably, at least at the level of state-to-state
relations, peremptory norms have largely remained a potentiality.
The supporters of a concept of a fragmented international constitutiona
constitution not unified by a central text such as the UN Charteralso neglect
the fact that an established legal notion such as constitution is malleable only up
to a certain degree. It cannot be adapted or extended at will. Since the American
and the French Revolutions, and notwithstanding the British exception, Western
political thinking associates that notion not only with a system of fundamental
principles according to which a state is governed, but also with a document
embodying these principles and claiming superiority over all other domestic
law.
See ibid. 588ff. An important interpretation of the Charter in the wider context of such funda-
mental treaty law is the Declaration on Principles of International Law (above n. 40).
See H. Kelsen, Das Problem der Souvernitt und die Theorie des Vlkerrechts. Beitrag zu einer
Reinen Rechtslehre (Tbingen: Mohr, 2nd edn., 1928), 320 (authors translation).
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
1993 ICJ Reports 407, 440, para. 100 (E. Lauterpacht, J. sep. op.). For critical discussion, see
Fassbender, above n. 17, 589ff. See also Dupuy, Lunit de lordre, above n. 69, 307.
See Cassese, above n. 44, 210 (see also at 202).
See Fassbender, above n. 17, 5328. For a thoughtful analysis of the relationship of state and
constitution, which reflects much of the great tradition of the German Staatslehre of the nineteenth
The reluctance to give the UN Charter a central place in a constitutional

structure of the international community is, however, also politically motivated.
At the beginning of the twenty-first century, both the position and the role of the
United Nations in international affairs find themselves under great stress. As
Habermas has stated, the League of Nations and the United Nations are great,
even though risky and reversible, achievements on the arduous way to a political
constitution of world society. In turbulent times, the organization faces an
environment which is partly openly hostile, partly uninterested, and partly
friendly but not actively supportive. Fundamental rules of the Charter, such as the
ban on the use of force, are being challenged, and the legitimacy of the Security
Council as the organizations institutional backbone is called into question. The
members of the international community are far from uniting their strength in an
effort to give new life and vigour to the Charter system of international
governance. To many, the Charter looks more and more like a monument of a
distant pastan embodiment of an idea of multilateralism and collective security
whose days are over. In this situation, how can one dare to regard the Charter as
the foundation of the entire house of contemporary international law?
Philip Allott once remarked: Failing to recognize itself as a society, inter-
national society has not known that it has a constitution. The future of the con-
stitutional understanding and effectiveness of the UN Charterwhich is,
I suggest, tantamount to the foreseeable future of constitutionalism in interna-
tional law in generalwill ultimately not depend on the interpretive and con-
structive efforts of legal science but on the fate of the United Nations itself. Only a
and twentieth centuries, see J. Isensee, Staat und Verfassung in J. Isensee and P. Kirchhof (eds.),
Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. 2 (Heidelberg: C.F. Mller, 3rd edn.,
2004), 3. For a brief narrative of the idea of the modern state constitution, see H. Hofmann, Zu
Entstehung, Entwicklung und Krise des Verfassungsbegriffs in A. Blankenagel et al. (eds.),
Verfassung im Diskurs der Welt: Liber Amicorum fr Peter Hberle zum siebzigsten Geburtstag
(Tbingen: Mohr Siebeck, 2004), 157.
See, e.g., C. Tomuschat, Multilateralism in the Age of US Hegemony in Macdonald and
Johnston, above n. 21, 31. For a description of possible alternatives to a constitutionalization of inter-
national law as a continuation of the Kantian project, see Habermas, above n. 32, 178ff (Divided
West, 179ff ). As such alternatives, Habermas identifies (1) a US hegemonic liberalism, (2) a neo-
liberal global market society with marginalized states, (3) a postmarxist scenario of a scattered
imperial rule without a capital, and (4) a global Grossraumordnung based on the ideas of Carl Schmitt.
See Habermas, above n. 32, 145 (Divided West, 147).
See B. Fassbender, Die Gegenwartskrise des vlkerrechtlichen Gewaltverbotes vor dem
Hintergrund der geschichtlichen Entwicklung [The crisis of the prohibition of the use of force
against the historical background] (2004) 31 Europische Grundrechte Zeitschrift 241.
See B. Fassbender, All Illusions Shattered? Looking Back on a Decade of Failed Attempts to
Reform the UN Security Council (2003) 7 Max Planck UNYB 183; On the Boulevard of Broken
Dreams: The Project of a Reform of the UN Security Council after the 2005 World Summit (2005)
2 Intl Organizations L. Rev. 391; UN-Reform und kollektive Sicherheit: ber den Bericht des UN
High-Level Panel on Threats, Challenges and Change vom Dezember 2004 und die Empfehlungen
des UN-Generalsekretrs vom Mrz 2005 in Heinrich-Bll-Stiftung (ed.), Die Zukunft des
Vlkerrechts in einer globalisierten Welt (Baden-Baden: Nomos, 2006), 165.
See Allott, Eunomia, above n. 25, 418.
strong political move, comparable to the founding of the UN in the constitutional

moment of 19445, could reaffirm the Charters claim to be the constitution of
the international community.
The UN Charter: Constituent Power and Constitutional Form
Assuming that the UN Charter is indeed the constitution of the international

community, who and where is the constituent power which, in their intro-
duction to this volume, Martin Loughlin and Neil Walker have described as the
power of the people to makeand breakthe constitutional authority of
the state? Is there an equivalent of the people in the case of the international
community?
The text of the UN Charter commences with the words: We the Peoples of the
United Nations . . . have resolved to combine out efforts to accomplish these
aims. These opening words seem to us to express the democratic basis on which
rests our new Organization for peace and human welfare, the representative of the
United States, Dean Virginia Gildersleeve, said in the first meeting of
Commission I of the San Francisco Conference. Obviously, this opening was
modelled on the preamble of the Constitution of the United States (We the
People of the United States). The Covenant of the League of Nations of 1919, by
contrast, opened with the classical words of a treaty: The High Contracting
Parties . . . .
The drafters of the Charter phrased the text in terms of a constitution enacted
by the peoples represented at the UN founding conference: Accordingly, the last
paragraph of the Charters preamble says, our respective Governments, through
representatives assembled in the City of San Francisco . . . have agreed to the
present Charter of the United Nations. The conference of the United Nations
convened to prepare a charter for a general international organization for the
maintenance of international peace and security understood itself as a constitu-
tional convention of the world, composed of representatives of the fifty participat-
ing states. This idea was again taken from the constitutional history of the United
States; it was based on the model of the Philadelphia Convention of 1787 which
See Verbatim Minutes of First Meeting of Commission I, 14 June 1945; in Documents of the
United Nations Conference on International Organization (n. 6 above), vol. VI, 12, 19, and in US
Department of State (ed.), The United Nations Conference on International Organization: Selected
Documents (Washington, DC, 1946), 529, 533. See also L.M. Goodrich and E. Hambro, Charter of
the United Nations: Commentary and Documents (New York: Columbia University Press, 1946), 55:
the Charter reflected the resolution of peoples.
See also the closing lines of the Charter: In faith whereof the representatives of the Governments
of the United Nations have signed the present Charter. Done at the City of San Francisco the twenty-
sixth day of June, one thousand nine hundred and forty-five.
See invitation letter of the United States of America to the Conference, 26 April 1945, in The
United Nations Conference, above n. 85, 3.
had drafted the US Constitution. And in the same way as Article VII of the US
Constitution had provided for the establishment of this Constitution by a
Ratification of the Conventions of nine States, it was stated in Article 110 of the
UN Charter that [t]he present Charter shall be ratified by the signatory States in
accordance with their respective constitutional processes.
Originally Committee I/1 and Commission I of the San Francisco Conference,
on the recommendation of the US Delegation, had proposed a phrasing depicting
the Charter in even clearer terms as a product of the will of the peoples joining
together as the United Nations: We the Peoples of the United Nations . . .
through our representatives assembled at San Francisco to agree to this Charter.
Similarly, the Advisory Committee of Jurists had suggested the following wording
of the preamble:
We, the Peoples of
Argentine
Australia
Belgium, etc.
...
Through our representatives assembled at San Francisco agree to the present Charter of the
United Nations.
In the end, however, the Coordination Committee decided to say that it was
the governments through their representatives at San Francisco, rather than the
peoples of the United Nations directly, who were agreeing to the Charter and
establishing the Organization. And indeed, contrary to the delegates who met at
Philadelphia in 1787 (who had been appointed by the legislatures of the thirteen
United States), the members of the delegations present at San Francisco in the
summer of 1945 were designated by the governments of the respective states.
Hans Kelsen criticized the opening words of the Charter as legally not correct:
The Charter is an international treaty concluded by states represented by their govern-
ments. These governments, not the peoples, were represented at the San Francisco
Conference. Some of these states have a written or unwritten constitution which does not
See Appendix to Report of Rapporteur of Committee I/1, 13 June 1945: Approved Texts of
Preamble, Chapter I, and Chapter II, ibid. 499; Report of Rapporteur of Commission I to Plenary
Session, 24 June 1945, ibid. 592, 593. This wording was also approved by the Technical Committee;
see Documents (n. 85 above), vol. XVIII, 10005.
Text prepared by the Advisory Committee of Jurists, 9 June 1945; Documents (n. 85 above), vol.
XVIII, 106. A later version, adopted by the Committee on 19 June 1945, read: We, the Peoples of
the United Nations, . . . Through the representatives designated by our respective Governments . . .
agree in conference at San Francisco to the present Charter of the United Nations; see Documents,
vol. XVII, at 289.
See Summary Report of Thirty-fifth Meeting of Coordination Committee, 20 June 1945;
Documents, vol. XVII, 276ff, and R.B. Russell and J.E. Muther, A History of the United Nations Charter:
The Role of the United States 19401945 (Washington, DC: Brookings Institution, 1958), 917.
See M. Farrand, The Framing of the Constitution of the United States (New Haven and London:
Yale University Press, 1913), 14ff.
concede any essential influence on the conclusion of treaties to the people or does not
imply the political ideology of popular sovereignty. . . . Not the peoples, but the govern-
ments resolved to combine their efforts to accomplish these aims. . . . [T]he governments
are not organs of the peoples, but of the states . . .
However, the fact that formally the UN Charter was established as an inter-
national treaty by states represented by their governments does not impair the
Charters constitutional quality to which our attention is drawn by the words:
We the Peoples of the United Nations. These words, proposed and supported
at the San Francisco Conference as an expression of a firm belief, and retained
in spite of major opposition, are not hollow rhetoric or political fiction but
a manifestation of the higher meaning of the Charter. As a matter of fact, the
adoption of the Charter as a treaty was the only legal method practically available
to the founders of the United Nations in the actual conditions of 1945.
Notwithstanding this method, the Charter was intended to safeguard peace, secu-
rity and social and economic progress for all peoples of the world in a new way and
form. There is ample evidence that the delegates at San Francisco realized that this
was a constitutional moment in the history of the international community; they
were not simply negotiating another treaty but reorganizing the world commu-
nity for the benefit of succeeding generations.
The UN Charter was established by the peoples of the United Nations through
their governments. In the words of a French proposal, on behalf of the peoples of
the United Nations, the governments of the United Nations have agreed to the
Charter. As the President of Commission I of the San Francisco Conference,
Mr. Henri Rolin of Belgium, said, the Charter was drafted in the name of the
peoples of the United Nations (au nom des peuples des Nations Unies, au nom de la
collectivit humaine)which is already an indication that we are considering not
so much the official states and governments as the human collectivities of the
peoples which are forming the bulk of the states. Not only is it impractical to
demand that a constitution of the international community be established by
direct action of the peoples of the world, for instance in the form of a universal
plebiscite. Such direct action is also not required from the point of view of consti-
tutional theory. Nor is it mandatory that an international constitution be adopted
by a convention composed of representatives directly elected by their respective
peoples for that particular purpose. In light of the fact that today the members of
the international community predominantly consider democracy to be the only
legitimate form of government, popular participation is not only effected by a
Kelsen, above n. 39, 7.

But see R. Wolfrum, Preamble, in Simma, above n. 69, vol. I, 33, 34.
For the notion of a constitutional moment in the development of international law, see
Fassbender, above n. 17, 573ff. See Summary Report, above n. 90, 277, 289.
See Verbatim Minutes, above n. 85, 13, 36ff, and 529ff, respectively.
See T.M. Franck, The Emerging Right to Democratic Governance (1992) 86 AJIL 46, and
Tomuschat, International Law, above n. 29, 64ff.
possibility of determining the makeup of national governments and, indirectly,

those governments politics in a process of international constitution-making, but
also by a rule providing for a ratification of the results of such a process in accord-
ance with respective constitutional processes.
Moreover, the opposition of treaty and constitution, which is often used to
deny the constitutional character of the UN Charter, is far from self-evident. To
the contrary, in the classical works of Hobbes, Grotius, Locke, and Rousseau, the
establishment of governmental power is seen as a result of a free association and
agreement of individuals. Men being . . . by nature all free, equal, and independ-
ent, Locke said, no one can be . . . subjected to the political power of another
without his own consent, which is done by agreeing with other men, to join and
unite into a community . . .. In the European constitutional history of the
nineteenth century, some constitutions were created as a compact between the
monarch and the people (Verfassungsvertrag, or consented constitution).
There is another combination of treaty and constitution in the form of a treaty
by which several independent states establish a federation or confederation.
German constitutional doctrine has called such an agreement a Bundesvertrag, or
treaty-constitution. Historical examples are the Articles of Confederation and
perpetual Union between the thirteen original United States of America of 1777,
the Constitution of the United States of 1787, the fundamental acts of the
German Confederation of 1815 and 1820, and the constitutions of the North
German Confederation and the German Empire of 1867 and 1871, respectively.
To answer the question put at the beginning of this section, in the international
community the constituent power lies with the Peoples of the United Nations,
who today are virtually all peoples of the world, and who normally act through
their governments. The use of that constituent power in 1945 resulted in the UN
Charter as a formal framework of rule (constitutional form).
Chapter XVIII of the Charter provides for formal amendment procedures.
According to Article 108, amendments shall come into force when they have
been adopted by a vote of two-thirds of the members of the General Assembly and
ratified in accordance with their respective constitutional processes by two-thirds
Art. 110, para. 1, of the UN Charter.

See J. Fisch, Vertrag, Gesellschaftsvertrag, Herrschaftsvertrag in O. Brunner, W. Conze, and
R. Koselleck (eds.), Geschichtliche Grundbegriffe, vol. 6 (Stuttgart: Klett-Cotta, 1990), 901,
91832.
See J. Locke, Two Treatises of Government [1690] W.S. Carpenter (ed.) (Cambridge: Cambridge
See, e.g., the constitutions of the Kingdoms of Wrttemberg and Saxony of 1819 and 1831,
respectively; in W. Altmann (ed.), Ausgewhlte Urkunden zur deutschen Verfassungsgeschichte seit 1806,
vol. 1 (Berlin: R. Gaertners Verlagsbuchhandlung, 1898), 44, 113.
See Art. VII, cl. 2: Done in Convention by the Unanimous Consent of the States present . . . .
For texts, see Altmann, above n. 101, 9 and 73 respectively.
For texts, see E.R. Huber (ed.), Dokumente zur deutschen Verfassungsgeschichte, vol. 2 (Stuttgart:
Kohlhammer, 3rd edn., 1986), 272 and 384 respectively.
of the Members of the United Nations, including all the permanent members of
the Security Council. The same majorities are required for amendments
recommended by a general conference of the United Nations for the purpose of
reviewing the present Charter, which was devised on the model of the
Convention for proposing Amendments mentioned in Article V of the US
Constitution. Amendments so adopted and ratified shall come into force for all
Members of the United Nations (Article 108), i.e. also for states which voted
against an amendment in the General Assembly or the General Conference
and/or refrained from ratifying an amendment. Such a blank cheque commit-
ment to future change is unusual for a treaty, where normally consensus among
the parties is required for an amendment to become effective, but typical of a
constitution following the example of the US Constitution (Art. V).
As with all constitutions, the UN Charter aspires to eternity. However, the
constituent power of the Peoples of the United Nations is not exhausted by, or
absorbed within, the constitutional form of the Charter. By virtue of their
constituent power, the Peoples always may, in joint action, replace the Charter
with a new constitution of the international community. And it is also conceivable
that the Charter could lose its legal force without being replaced by a new consti-
tution, in which case public international law would return to its former pre-
constitutional state.
Concluding Remarks
Since the arrival of the international community, the play called constitutionalism
has become more complicated. The old regulars mourn the loss of its earlier sim-
plicity and beauty (some, however, concede that their memory could deceive
them). Not only have new characters and episodes been added, but these changes
have also altered those parts of the play which have remained formally intact. In
the neighbourhood, new theatres with alternative programmes have been opened
and attract a good crowd, old and young. Some of them lure potential subscribers
with special rates. Sometimes the international community, although being partly
responsible for the difficulties of the old house, is tempted to go there too. After
all, patience is not her principal virtue.
See, in contrast, Art. 26 para. 2 of the Covenant of the League of Nations: No . . . amend-
ment shall bind any Member of the League which signifies its dissent therefrom, but in that case it
shall cease to be a Member of the League.
See W. Karl, Article 108, in Simma, above n. 70, vol. II, 1341, 1354.
See Fassbender, above n. 17, 578.
15
Constituent Power and the Pluralist Ethic
Damian Chalmers
Constitutions constitute in a number of ways. At a formal level they identify the

subjects of the settlement, be this the individual (the citizen) or the collective (the
people or the nation), and set out their rights and entitlements. At an epistemo-
logical level, they set out conditions which enable individuals to have a concep-
tion of the political or legal, to recognize political or legal power and to distinguish
political and legal consciousness from other forms of consciousness. They also
engage in a politics of the soul, setting out ideas of desirable individual and
collective behaviour within the polity. All liberal constitutions engage in these
tasks, but the only instance where these have been combined into a single term is
with that of constituent power. Yet if constituent power performs tasks implicitly
embraced by all models of liberal constitutionalism, it has an illicit reputation. Its
associations with fascism, through the writing of Carl Schmitt, have seen it used
to justify both administrative centralization and xenophobia, all in the name of
the nation. This is paradoxical. Careful readings of Schmitt show that, despite his
rhetorical invocation of the nation, his writing grants little room to constituent
power as an autonomous force separate from the State.
This essay argues that constituent power should have an active and indepen-
dent presence within a constitutional settlement as its tasks are too central to be
left unarticulated and unaddressed. The first part of this essay considers the nature
of constituent power and its relationship to the constitutional settlement. It
argues that within a constitutional democracy constituent power always has three
dimensions. It is in the first place a text setting out the Individual and Collective
Subject as mutually constitutive entities and putting forward the idea of the
K. Appiah, The Ethics of Identity (Princeton: Princeton University Press, 2005), 1656.
On this connection see D. Dyzenhaus (ed.), Law as Politics: Carl Schmitts Critique of Liberalism
(Chapel Hill: Duke University Press, 1998), esp., 5692, 21741.
D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Herman Heller in Weimar
(Oxford: Clarendon Press, 1996), 568; O. Lepsius, The Problem of Perceptions of National
Socialist Law or: Was There a Constitutional Theory of National Socialism? in C. Joerges and
N. Ghaleigh (eds.), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascim
over Europe and Its Legal Traditions (Oxford: Hart, 2003).

political as a discrete order. Constituent power is, in the second place, always
articulated as a discourse in relation to a particular constitutional settlement used
to inform and condition that settlement. It sets the limits of the settlement,
imbues it with ideas of change, accountability, and internal critique, and locates it
within a particular historical and geographical setting. The third dimension to
constituent power derives from these roles taking place against a backdrop of
wider sources and processes of meaning and legitimation. Constituent power has
to mediate the relationship between the formal constitutional settlement and
these ideas about the nature of the human condition and what it is to lead a good
life in the society in question.
The second part of this essay argues that intolerance and authoritarianism
emerge where one of these dimensions of constituent power is neglected. Fascism
thus emerged from an over-emphasis on the Collective Subject (the Nation) at the
expense of the Individual and, by making constituent power synonymous with
the State, destroying the second dimension of constituent power (its position as
an autonomous structure within the political order for internal reflection, change,
and critique). To make this argument, a case study is chosenthat of legal
pluralism in Brazil, in which there is no politically differentiated sphere and an
equivalent over-emphasis on the Individual Subject is to be found. For the same
reasons, it is argued that similar problemsauthoritarianism, statis, lack of
autonomy, and lack of internal critiqueemerge.
The final section of the essay argues that if constituent power conditions are not
only the subjects idea of the political but also its emancipatory potential, the form
of expression of constituent power is of central interest to constitutional law. In
this regard, it will be argued that the nation has emerged as a central form of
constituent power not merely for historical reasons, but also because it embodies
three filaments of the idea of the politicalfreedom, equality, and authenticity
which are profoundly ethical. The nation should not be discarded since there are
few other terms with this pedigree. However, like constituent power, it has a
tarnished reputation for infusing political consciousness with ideas of persecutory
hatred. This essay will argue that it has acquired this through its investiture with
two elements, that of the sublime and that of its unique destiny. The former
conveys faith in the absolute and the overpowering. The latter suggests any one
nation has a monopoly over the meaning of political community. Neither is
inherent to the idea of the nation, but any emancipatory interpretation has to
disentangle these elements. This is most easily done within the context of a
multinational democracy in which the political imaginary is, by definition, beset
by different political communities each with competing claims about the
meanings of freedom, equality, and authenticity, each of which limit and
condition the other.
Constituent Power and the Pluralist Ethic 293
The Three Dimensions of Constituent Power
The modern debate on constituent power is traced back to Sieys famous defin-
ition in his essay What is the Third Estate?:
the constituent power can do everything in relation to constitution making. . . . The
nation that exercises the greatest, the most important of its powers, whilst carrying this
function must be free from all constraints . . . except the one that it deems better to adopt.
This bald definition suggests a collective subjectbe it a Nation, demos, public
or peoplewhich has some originary power to give birth to the constitutional
settlement and which stands transcendental and normatively pre-eminent over it.
Yet Sieys paper was a revolutionary tract, concerned not with the mystical
qualities of the French nation but with the development of citizenship and the
destruction of the privileges of the nobility. The nation for him was, therefore, a
body of associates living under a common law, and represented by the same legis-
lature. He not only recognized the individual subjectin this instance the
citizenbut also the extent to which it and the collective subject balance and
constitute one another.
Sieys paper has to be read against a background where if the phrase con-
stituent power was not widely used, then the term constituent was. By the
eighteenth century, the term had a double meaning. One was that of being an
element of a complex whole. Constituent power therefore had a second dimen-
sion in which it existed as something related to the constitutional settlement, and
had to be understood through this. This was articulated most clearly in its
relationship to the idea of constituted power, the power of institutionalized polit-
ical order, which arose out of but is separate from constituent power. Beyond this,
however, it is possible to see it as having a broader relation to the body politic.
Siyes, for example, conceived the nobility to be part of the political orderas
something that was neither part of constituent nor constituted power, but still
part of the polity.
The word constituent, mentioned fifty-three times in The Federalist, had
another meaning: somebody who appoints an agent to stand for him or her. This
idea of constituency suggests that constituent power mediates the relationship
between the political system and society. It is part of a broader panorama which
locates the political and legal system within a way of life in which law and politics
play a limited role and in which there is a conception of the human condition to
which they must orient themselves.
E.-J. Sieys, What Is the Third Estate?, M. Blondel, trans. (London: Pall Mall Press, 1963), 124.
A. Rehfeld, The Concept of Constituency (Cambridge: Cambridge University Press, 2005), 34.
The Static Qualities of Constituent Power

Constituent power comprises in the first place a mutually constitutive Collective
and Individual Subject, each of which is recognized and represented but not
subsumed by the formal constitutional settlement. Although independent
entities, the constitutional settlement renders each notion visible, public, and
tractable and acquires if not a monopoly then at least a hegemony over the
depiction of each. Nationhood and citizenship are substantially understood
through the contours set out in the constitution, but these constitutional artefacts
do no more than reproduce some prior notion. Second, both the Individual and
Collective Subject are endowed with rational and moral qualities of their own. If
the conception of the individual subject is a naturalistic one rooted in some idea of
human nature, she is also taken to be a vehicle for introducing into the settlement
notions of a priori right, civic values, or public reason. Similarly, the nation is
imbued with virtues of solidarity, belonging, mutual commitment, and equality.
A consequence of these qualities is that whilst each is constituted by the other,
neither can be reduced to the other. Constituent power, at least under Sieys
formulation, mediates the relationship between the individual and the collective
as political notions without either being able to submerge the other. Finally,
constituent power endows each subject with some sense of active agency over the
settlement; rather than being simply bound by the settlement, these subjects are
able to make independent demands that must be satisfied for legitimacy to be
maintained.
In addition to establishing the forms of political and legal subjectivity, con-
stituent power also marks a constitution as political. In Badious words:
An event is political if the subject of this event is collective, or if the event is not attribut-
able to anything other than the multiplicity of a collective. . . . We say that the event is
ontologically collective inasmuch as this event conveys a virtual requirement of the all.
Politics is marked out for Badiou as something that is done for Us. The Us is,
moreover, infinite as it transcends any fixed group of people to involve a collective
that stretches indefinitely across time and which includes anybody deemed to fall
within it. This view of politics is inimically conditioned by the notion of
constituent power, which both ties politics to the idea of collective agency and
indivisibly subsumes the subject into the collective.
D. Kelly, Carl Schmitts Political Theory of Representation (2004) 65 Journal of the History of
Ideas 113.
I. Kant, Groundwork of the Metaphysics of Morals, M. Gregor, trans. (Cambridge: Cambridge
In the nineteenth century, see, e.g. E. Renan, What is a Nation? in H. Bhabba (ed.), Nation and
Narration (London: Routledge, 1990), 8 at 19, who describes the nation as a common solidarity
made up of an idea of common sacrifice and a wish to lead a common life.
R. Brassier and A. Toscano, Badiou: Theoretical Writings (London: Continuum, 2006), 155.
Constituent Power as an Attribute of the Constitutional Settlement

The Individual and Collective Subjects are artefacts which exist only through
their articulation within the political and legal settlement. As Lucien Jaume notes,
it is the representative sovereign who institutes the people as a political entity
from the starting point of a disunited multitude. Indeed, Rancire has observed
more generally how the people is not something given any independent meaning
in any of the many contexts in which it is usedbe this poetry, politics, film,
journalism, or literaturebut instead functions as a point of reality upon which
the voyager can drape a conceptual framework shaped by the circumstances not of
the other but the self . Constituent power acts as this relay for such reflective
constitutional self-evaluation through drawing a dichotomy between what the
constitutional settlement is as a material presence (constituted power), and what it
represents as a political presence, in terms of its symbols and spatio-historical
identitity (constituent power). As a mechanism for critical self-evaluation and
regeneration, constituent power conditions the settlement in at least six ways.
Constituent power signifies, first, the idea of political and legal surplus. The
formal institutions of politics or law can neither exhaust nor fully satisfy the idea
of politics or law. It is only through this notion of insufficiency that politics
understood as competition for office can emerge. It suggests that there is another
politics outside the administration which conditions both who administers (e.g.
who wins the elections) and how they govern. Similarly, the idea of the Legal
Subject who must be given reasons why she should obey places constraints on the
pedigree and quality of the law; this suggests minimally the need for law-making
through recognizable public procedures marked by formal equality.
Second, constituent power enables law-making and politics to be conceived of
in terms of agency. It establishes politics and law as something done for an Us
and for an I and as something that owes its presence to an Us and an I. It is put
at its most literal in Schmitts account of parliamentary democracy, in which he
argues that democracy exists through the people putting in place the rules to gov-
ern themselves and set out the political foundations of the nation. A similar style
of argument with regard to the individual subject pervades Habermas account of
the relationship between public autonomy and private autonomy where he argues
that the only justification for legal constraints being imposed on a subjects private
autonomy is the grant to her of public autonomy through enabling the possibility
of her participation in the law-making process. Less literal accounts do not take
See ch. 4 of this vol. at 84.

J. Rancire, Short Voyages to the Land of the People (Stanford: Stanford University Press, 2003), 3.
On this see the contribution by Lindahl, ch. 1 of this volume.
M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 112.
See D. Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max
Weber, Carl Schmitt and Franz Neumann (Oxford: Oxford University Press, 2003), 2048.
J. Habermas, Between Facts and Norms (Cambridge: Polity Press, 1996), 31214.
the Subject as an active being but rather a figure that enables a particular relation-
ship between the administration and its subjects, where the former is posited as
either the agent or the fiduciary of the latter. In such accounts, the administra-
tion, as an agent of the people or individual citizens, is both independent of them
and has an active relationship with them.
This relationship generates modern notions of representation and authority. It
endows government with a notion of direct representation in which there must be
some electoral prior authorization and some correlation between the make up of
the administration and the make up of the electorate. The form and mandate of
this electorate is shaped by some prior notion of the people. It also implies a more
indirect notion in which government must stand for the people and thereby
symbolically represent them, by, for example, setting out their interests in order to
take account of them. With regard to political authority, it distinguishes itself
from other forms of power by rejecting coercion or force as the basis for
obedience, and this has led to constituent power being associated with the idea of
original consent. Yet if authority rests neither exclusively in the power of those
who command nor the assent of the subject but rather in the common identifica-
tion with the legitimacy of a particular hierarchy, constituent power legitimates
this hierarchy in a particular way. It admits the administrative violence of
sovereign power as the force underpinning legal authority, whilst imposing the
constraint that any administrative violence safeguarding or changing the constitu-
tional settlement must advance itself for political reasons. Action must be taken
only to further some public interest.
Third, constituent power mediates constitutional change. The best way of
explaining this is through Agambens notion of the ban. Agamben argued that a
central feature of legal sovereignty is that it can suspend itself. It can say when it
does not apply. From this, he argues that a feature of sovereignty is that it is
vested not just in formal institutions but has an extra-legal dimension. This raises
the important point that, even within liberal constitutional settlements, there
must be some recognition of means through which extra-constitutional change
can take place. Agamben suggests that change is determined by the biggest gun in
town, namely the sovereign state. The liberal constitutional notion of constituent
power suggests that it is not so black and white. Constituent power places limits
on formal constitutional change: even where constitutional arrangements are
Loughlin above n. 13, 634.

H. Pitkin, The Concept of Representation (Berkeley: University of California Press, 1972), 99ff.
The most striking example of this is A. Negri, Constituent Power and the Modern State
(Minneapolis: Minnesota University Press, 1999).
H. Arendt, What is Authority? in H. Arendt, Between Past and Future: Eight Exercises in
Political Thought (New York: Penguin, 1968), 93.
On the long list of writing which has drawn a tight relationship between constituent power and
sovereignty, see A. Kalyvas Popular Sovereignty, Democracy and the Constituent Power (2005) 12
Constellations 223
G. Agamben, Potentialities (Stanford: Stanford University Press, 1999), 162ff.
dissolved, the idea of constituent power suggests that a void does not exist. It is not
open to any interest using any justification to claim power. Instead, constituent
power suggests that some historically situated idea of public good and political
community sustains currents arrangements, and these cannot be abandoned with-
out recourse to such ideas as justifications. These ideas also provide a justification
in extremis for extra-constitutional change, and the norms through which the
foundations for new constitutional settlements are established.
Fourth, constitutent power acts as a point of reflexivity and critique.
Constituent power is something that is never constituted, but always calls upon
the constituted power to act. The interests or values of the nation do this in both
an incessant and indefinitely dissatisfied way. As an idealization of a collective way
that can be appropriated by anybody, they provide permanent points of critique
and contestation. To be sure, bills of rights can serve a similar role, but if the latter
provide for a polity centred around individual freedoms, there is a danger of their
being debated in too atomistic terms. Constituent power insists that the debate be
framed equally in terms of the collective good.
The fifth role of constituent power in modern liberal constitutional settlements
is placing limits on law and politics. By positing the Individual and Collective
Subjects as Beings that sit outside and enjoy a freedom outside the constitutional
settlements, constituent power helps locate the modern political imaginary.
Politics is not something which micro-manages all spheres of life, but must reckon
with the autonomy of the economy, society, and the private sphere. These might
be capable of being governed by collectively binding decisions made by political
actors, but they can never be reduced to a branch of politics. In like vein, the idea
of the legal subject as something autonomous from the law is based on the central
principle of modern legal liberalism that individuals are free to do everything that
does not break the law. Individual agency and private autonomy is posited as the
norm with law being required to publicize itself whenever it impinges on this
autonomy.
The final role of constituent power is to root the constitutional settlement in
particular spatial and temporal trajectories. The idea of acting for a people implies
jurisdiction over a particular geographical location and acknowledgement of a cer-
tain common history. Administration and constitutional change are conditioned
by these trajectories, which can be reinterpreted but cannot be denied. The
German constitutional settlement cannot, for example, state that it will cease to
act for the German people in favour of the French. The meanings and values
associated with them, moreover, condition the art of the legally and politically
possible. Law and politics are not idealistic projects; they are rooted in issues of a
particular time and place.
G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press,
1998), 435.
Constituent Power and the Locating of Politics

Constituent power is premised on a particular view of society. It posits, first, a
certain view of subjectivity. The subject is considered to be a self-conscious being
with sufficient awareness and resources to recognize and realize her own freedom.
Through the notion of self-determination, she is also posited as the source of her
own freedom, and possesses a monopoly over judging her particular route to
happiness. This idea is central to granting her legal and political emancipation
and making her the normative lodestone on which the constitutional settlement is
built. It is also critical when judging political and legal outputs, which are
expected to respect her freedom. Such outputs are enabling goods: they comprise
a series of rights, entitlements, responsibilities, and constraints that cumulatively
enable the Subject to build a Good Life for herself, premised on the conviction
that only she has the resources to develop this.
Second, society is understood in a dual manner: on the one hand, it is a place
where inequality and injustice is to be found; on the other, the social is also a
commitment to emancipate individuals from this injustice and dominance. The
latter conception is found in Kants notion of civil society, in which individuals
enter into a state of right with all others under which they recognize each others
equality and autonomy, and is also present in Hegels notion of civil society as a
collective project between family and State concerned with elevating the ethical
quality of situated institutions and traditions. As an emancipatory project, this is a
commitment to realizing not just freedom and equality, but also truth and
rationality.
The third perception of society follows: a politics of fear is central to the
maintenance of a constitutional settlement. Fear is seen as the saving agent of self
and society. Without it, there would be a return to a brutish, primal state of
nature. Fear justifies the creation of ordering seen as central to protection of
human creation from nature, be it human nature or the wider physical environ-
ment. This has led to a justification for the idea that society must be ordered and
that certain laws are immanent to society, causing it to function in a particular
way. Each social institution has a distinct order and intelligibility which protects it
from falling into a brutish state of nature.
J. Habermas, Conceptions of Modernity: A Lookback from Two Traditions in Habermas, The

Postnational Constellation (Cambridge: Polity, 2001), 130, at 133.
See, e.g., C. Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press,
1989), Bk V, chs 10, 11; Kant, above n. 7, 8990.
G.W.F. Hegel, Philosophy of Right, T.M. Knox, trans. (Oxford: Oxford University Press, 1952),
paras 33, 118.
C. Robin, Fear: The History of a Political Idea (New York: Oxford University Press, 2004), 16
Constituent Power and the Political Imaginary
Writing on constituent powerbe it that of Sieys, Schmitt, Negri, or

Agambenhas occurred either in an epoch of constitutional destabilization or
because the authors seek constitutional destabilization. Taken as a freestanding
doctrine, it is easy to envisage constituent power as being antithetical to formal
constitutionalism, as standing outside and opposed to formal constitutionalism.
There may, however, be another interpretation.
Agamben suggests that constituent power is not concerned with the truism of
the constitution having some prior founder, but rather with the idea that the
constitution presupposes itself as constituting political power more generally.
He argues that constituent power and constituted power are merely a sub-species
of sovereign power, and this seems contrary to Sieys notion that the nation
cannot be subject to the constitution. But there is another way of understanding
this. Constitutions can be understood as constituting political power not only
through instituting and constraining how actors behave within the formal consti-
tutional settlement (constituted power) but also through determining the limits of
their own finitude. If a constitution is truly sovereign, it should be able to
determine when it does not apply and the conditions of its demise. This is the
remit of constituent power which sets out the idea of a political community and
political order, which not only transcends the formal constitutional order but is
also acknowledged by that order as having the capacity to supercede it. Loughlin is
therefore right to argue that it is the central vehicle for maintaining the inter-
dependence between constitutionalism and democracy by requiring formal
constitutional norms to be responsive to the democratic Zeitgeist.
If the doctrine of constituent power addresses constitutional birth, abeyance,
and death, it is a truly frightening power, and one that, given its necessary
nebulousness, is susceptible to abuse. Yet if constituent power is the metaphor that
bespeaks constitutional death or malaise, it also provides the constitutional imagin-
ary of political community. It provides both a description of political community
and an imagination of what it could become. The people and the citizen are
simultaneously descriptions of the subjects of the settlement and of the supreme
good. Constituent power sets out perpetual incompleteness and perennial
objectives as a central part of constitutional self-realization. It does not emerge as
an exceptional intervention, but is a powerful background presence bearing (e.g.
through reference to the public good and the national interest) on all aspects of
politics and constitutional law.
If constituent power is a powerful drive structuring institutional actors to think
about what their political community is and should be, two things suggest
Agamben, above n. 22, 40. Sieys, above n. 4, 126.

Loughlin , above n. 13, 11213.
themselves. One is that it needs to be something located outside of and existing

independently of the constituted settlement. The imaginary, it will be recalled, is
formed through the childs identification of herself for the first time in the mirror.
She identifies a representation of herself, but this representation is formed
through an external instrument, the mirror. Within constitutions, it is precisely
this idea of constituent power as an external referent that allows it to act as a
source of critique, regeneration, and change. The other goes to the qualities of
constituent power. As a powerful referent structuring political consciousness, its
ethical qualities become paramount. Consequently, all the elements and dimen-
sions of constituent power described earlier are deployed in developing an ethical
vision for constitutional democracy. The Individual Subject and the Collective
Subject are central to mediating the relationship between personal autonomy and
public goods. The idea of a differentiated political order is needed both to limit
the scope of administrative intrusion and to secure an arena autonomous from the
asymmetries of social and economic life. Ideas of internal critique, accountability,
change, reflexivity, and embeddedness are central to all desirable forms of political
order. And last, it is difficult for politics to legitimate itself without reference to a
broader way of life and without offering an account of its contribution to that way
of life. It is precisely this internal pluralism and multi-dimensionality that allows
constituent power to imbue the settlement with such a rich array of ethical sources
and such a wide variety of checks and balances.
The most chronic example of the failure of this political imaginary has been the
growth of fascist and authoritarian constitutional ideologies during the 1930s.
These ideologies emerged from twin concerns that politics was being interpreted
in too atomistic and sectarian a manner, and also over the effectiveness of the
political system to deliver public goods. Fascisms response was to focus on the
static qualities of constituent power, and to make it, in Schmitts words, an inten-
sified being. It was given powerful qualities of agency (the power to found and
dissolve constitutions), immutable attributes (substantive homogeneity), and a
material presence of its own. For Schmitt, the state is the institutional expression
of the people: state and people were to be synonymous. This failure to take
account of the multifarious nature and different dimensions of constituent power
resulted in the relationship between the Collective Subject and the Individual
Subject being under-specified. The failure to mark constituent power as a vehicle
through which constitutional settlements generate certain dynamicsbe it
processes of surplus, accountability, critique, or autonomyled to the absence of
these features from the political system: constituent power and constituted power
were collapsed into one another so that a modern raison dtat emerged in which
any exercise of State power could be justified as necessary to sustain State power.
And the inability to locate the political system within a broad schema of society
led to an inflation of the political, which encroached on all walks of life.
For a survey see M. Mann, Fascists (Cambridge: Cambridge University Press, 2004), 69.
Dyzenhaus, above n. 3, 52.
These disorders stemmed not from the idea of a Collective Subject but from the
absence of an autonomous and active concept of constituent power. And if this
argument is right, one would expect similar pathologies to emerge where the
Individual Subject is exalted and the exaltation of institutionalized political order
is replaced by law-making taking place in the absence of an institutionalized
political order. Such tendencies can be found in writing on human rights, libertar-
ianism, and cosmopolitanism, but they have been taken furthest in the work of
legal pluralists, whose starting point is the rejection of a legal consciousness
focused on the modern State. They reject it on ethical grounds, claiming that the
modern state reproduces the conditions for the excesses of modern capitalist
economies and erases more emancipatory forms of ordering from the legal
consciousness. They reject it on epistemic grounds, arguing that new institu-
tional orderings do exist outside the state which structure legal consciousness and
generate their own institutional subjectivities. They also reject it on pragmatic
grounds, claiming that state structures are too rigid to encompass the diversity of
collective organization. If Schmitt and other fascist writers were keen to under-
line the close link between the political and law and to emphasize the necessity of
a strong political system as a condition for legitimate law-making, legal pluralists
do the reverse. There is a rejection of the political, either through inflating it so
that every form of law-making, whatever its forum, is described as political, or by
ignoring it altogether.
Legal pluralists found the presence of law on three premises. First, there is a
concern to give the social its own immutable rationalities and qualities similar to
those ascribed to the political. To be sure, legal pluralists do not take a unitary
view of society. Instead, they vest law-making capacities in social groups or
processes, discursive practices, shared normative orientations, or common
practices. Most famously, de Sousa Santos has adopted a topoi of different types
of law each of which is characterized by a body of rules regulating a given group:
domestic law (household), community law (community), territorial law (State),
production law (workplace), exchange law (the market), and systemic law (the
globe). In all cases, these are formalized and considered to have their own
B. de Sousa Santos, Toward a New Legal Common Sense (Cambridge: Cambridge University
Press, 2nd edn., 2002); G. Anderson, Constitutional Rights after Globalization (Oxford: Hart, 2005).
G. Teubner, Breaking Frames: The Global Interplay of Legal and Social Systems (1997) 45
American J. of Comparative Law 149; H. Schepel, The Constitution of Private Governance (Oxford:
Hart, 2004); O. Perez, Ecological Sensitivity and Global Legal Pluralism (Oxford: Hart, 2004).
N. Walker, The Idea of Constitutional Pluralism (2002) 65 MLR 317; J. Tully, The
Unfreedom of the Moderns in Comparison to their Ideals of Democracy (2002) 65 MLR 204.
Santos, above n. 32, 86.
S. Falk Moore, Law as Process (London: Routledge & Kegan, 1978), 2223.
Teubner, above n. 33; B. Tamanaha, A General Jurisprudence of Law and Society (Oxford:
Oxford University Press, 2001), 1934.
R. Cover, Nomos and Narrative (1983) 97 Harvard Law Rev. 4; E. Melissaris, The More the
Merrier? A New Take on Legal Pluralism (2004) 13 Social and Legal Studies 57.
W. Reisman, Law in Brief Encounters (New Haven: Yale University Press, 1999), 3950.
Santos, above n. 32, 38495.
internality, rationalities, rules of recognition, and processes. Indeed, it is precisely

the observation of these, which allows these forms of law to be distinguished
from other social practices. Just as the political is seen to be substantively homoge-
nous and autonomous in Schmitts theory of constituent power, so a parallel over-
institutionalization occurs to these social institutions, discourses, and norms.
They are treated as monolithic and opaque. The internal patterns of difference,
contestation, and solidarity are ignored, as are cross-cutting institutions or
relationships. The consequence tends to be impoverished examinations of their
geographies of power, processes of representation, institutional identities, and
patterns of regionalization.
Second, the Individual Subject is seen as constitutive of legal power. The
authority of any law-making organization or process is founded on the presence of
reflective subjects, who endow it with legal authorship. This is easiest to illustrate
in the work of de Sousa Santos and Cover, both of whom ground the idea of
a common normative order in a common human subjectivity, which is seen as a
precondition for, rather than as an outcome of, this order. All members are
assumed to share the same legal consciousness. The employee obeying the laws of
the workplace is presumed to believe in the norms governing her employment,
and therefore to be self-governing. In like manner, the family is self-governing
because all members have a common idea of the family which allows each to
exercise authorship through obeying its rules. In this manner, the notion of the
Individual Subject transforms private preferences into collective public acts more
generally recognizable as law. Work, family, and global networks cease to be
simply a series of embodied practices governed by convention and informal
knowledge, and become sites amenable to universal discursive and reconstructive
techniques.
Legal pluralisms universalization and empty characterization of the Individual
Subject over-extends the use of the term law and imposes massive responsibilities
on the individual. Free to rule the workplace, community, etc., she is no longer
responsible just for her private life, but is now responsible for the success and
equity of social institutions. Duties of guardianship, foresight, and comity are
thrust on her. A central tenet is love thy neighbour as thyself , for the project can
only work as an emancipatory one if individuals see themselves as co-equals and
vision these places as sites of local democracy. Yet this dictum is absurd and cruel,
fostering a life where obligation and collective interestin short totalitarianism
become the central norms. It is particularly absurd outside the public sphere,
where the structure of social and economic relations casts individuals in roles
Approaches based on discursive rationality or organizational rationality suffer from the same
defect, as they presuppose a common cognitive and discursive consciousness.
S. Roberts, After Government? On Representing Law without the State (2005) 68 MLR 1,
at 17ff.
K. Shapiro, Sovereign Nations, Carnal States (Ithaca: Cornell University Press, 2003), 34.
where they are clearly not equals. Setting up individuals to navigate such norms
leads to them running the risk of either acting insufficiently independently and
thus simply reproducing prevailing hegemonies, or acting too independently,
thereby crushing the ties, trust, and implicit understandings that underpin social
relations.
Finally, a process is present in legal pluralism similar to Schmitts collapse of the
Collective Subject (e.g. the Nation) into the State. In this case, it takes place
between social institutions and the Individual Subject. These become fused into
one another and are unable to engage in their own critique or regeneration, since
individual emancipation is presumed to come through popular democracy and
collective self-authorship. This problem is reflected in de Sousa Santos recent
work where he acknowledges that law per se cannot be repressive or emancipa-
tory. For him only movements engaged in subaltern cosmopolitanism opposing
the liberal global economy acquire the latter qualities. Yet if this is so, it suggests
constitutional settlements are only instruments of the groups governing them and
have no system of internal critique of their own. And this begs the question: why
have them at all?
To make these points more tractable, the next section offers a case study of a site
engaged in legal pluralism, where emphasis is placed on the Individual Subject
rather the Collective Subject and which is marked by a subaltern cosmopolitan
ideology of resisting oppression.
COPAVI and the Life and Death of the Individual Subject
Land Reform and Rural Settlements in Brazil

To this day, only Paraguay has a worse pattern of distribution of land ownership
than Brazil. By 1985, twenty million of the remaining thirty million rural popu-
lation in Brazil were classified as landless, living by the side of the road or in shanty
towns outside rural town and villages. With the return to democracy in 1988,
some attempt to redress was made in the Brazilian constitution. Article 184
provides that the Union is to expropriate land not fulfilling a social function to be
distributed to the landless, with the property owner compensated in bonds
redeemable after twenty years. The procedure for this was set out in a 1993 law, lei
8629.1993, which provides that productive land and small or medium sized plots
will not be expropriated. Land is productive where at least 80 per cent of the land
area is being used and it has above average levels of efficiency. The procedure for
expropriation is that landless workers will typically occupy (normally by squatting
He is the only pluralist to acknowledge the problem: Santos, above n. 32, 45895.
The cardinal work is J. Graziano da Silva, A Modernizao Dolorosa (Campinas: Unicamp,
1981). In English, see J. Helcamp, The Political Economy of Agricultural Policy in Brazil: Decision
Making and Influence from 19641992 (1999) 34 Bulletin of Latin American Research 3.
by the entrance) a property (acampamento). This alerts the relevant ministry,

INCRA, to organize an inspection (vistoria) to decide whether or not the land is
productive. If it deems the land unproductive, the owner can appeal over the levels
of compensation but not the declaration that the land fails to promote a social
function. A grant of possession is then made to a group of the landless (imisso de
posse). It must always be a group, and they must form a settlement (an assenta-
mento). The size will vary according to the size of the land expropriated, but it
will not be less than 10 families, and the biggest involve 600700 families. Title
passes to them after 10 years possession. The only other role of the State is to offer
them small amounts of credit during the first two years of possession.
These settlements are, in principle, a prime site for pluralist analysis. The State
rarely enters them, as they are remote communities which it treats as self-policing.
All parties encourage collectivization. In the case of the government, this is for
pragmatic reasons, since individually farmers do not have enough resources to buy
anything but the most basic tools or sufficient land to generate surplus capital. In
addition, if organized individualistically, their properties are thinly dispersed with
poor access, whereas collectively organized they form agrovillas (hamlets based
around one or two tracks), which are easier to service. The central social actors, the
Commisso Pastoral da Terra (CPT) and the Movimento Sem Terra (MST), who
hold considerable influence within the settlements, support collectivization for
more ideological reasons. They see these settlements as mini-political communi-
ties, which project a communitarian model of life to which others will aspire and
which govern their members. Second, there are material incentives for collect-
ivization since income in collective settlements will typically be three to four times
higher than those run individualistically, and the provision of educational and
health services from the local authorities can best be negotiated by collectives.
Finally, the system of land title provides strong incentives for collectivization as
individuals acquire no land if they leave during the first ten years. Full collectiviza-
tion is rare, existing only in about twenty settlements centred in the south. In all
cases, these settlements are relatively small, comprising about twenty-five to
thirty-five families. Notwithstanding their material success, collectives are
unsuccessful compared to other settlements on two scores: there is a high rate of
defection with many members leaving and even where this does not happen, most
settlements which set up as collectives de-collectivize.
I visited six settlements in 2000, five run by MST and one by CPT. All had
attempted collectivization, but in only one case had it endured. This was the
The political and dynamics of rural settlements are best dealt with in L. Medeiros and S. Leite,
A Formao dos Assesntamentos Rurais no Brasil (Porto Allegre: Editora da Universidade RGS, 1999).
On the MST, see B. Fernandes, A Formao do MST (Petropolis: Editora Vozes, 2000).
By contrast, associative relations are common where farmers band together to grow a particular
cash crop or buy a tractor are the norm. Less common, but also pretty frequent, is semi-
collectivization, whereby farmers have a piece of their own land which they work a proportion of the
time and there is a piece of collective land which they work together the rest of the time.
settlement of COPAVI, situated three kilometres east of the small town of

Paranacity in the southern state of Parana. COPAVI comprised twenty-six
families. These (and others) had occupied the land which had previously been a
large disused estate in 1992. Possession had been granted to them eighteen
months later.
The Government of COPAVI

Brazilian law requires any community seeking to regulate itself collectively to
form itself in accordance with the 1971 Brazilian law on cooperatives. This
requires that each cooperative have its own statute, and lays out three require-
ments which were vigorously observed by COPAVI. There must be a General
Assembly, comprising all adult members of the settlement, which must be able to
consider all areas of planning of the settlement and the general accounts. There
must also be an administration comprised of at least five members (President,
Vice-President, Treasurer, Secretary-General, and Vice Treasurer), and annual
accounts had to be presented. Whilst the statute gave legal presence to the collec-
tive and gave it an external face, this was a bare document; members admitted that
they kept the document as minimalist as possible.
The central document governing life within the settlement was, by contrast, a
private document, the Regimento Interno (RI), which had been developed with the
help of the MST, sympathetic lawyers, and the Church, and had only once been
revised. This document governed the lives of those in the settlement far more
intimately than most state constitutions.
First, it put in place a constitution of government. The duties of the General
Assembly were recast as a constitutional assembly. It was bound by certain norms of
process: it was to meet monthly, was bound by publicity requirements, and agendas,
which could not be amended, had to be posted two days in advance. Participation
was not a constitutional right but a duty; the only ground accepted for non-
attendance was that one was away on activities financed by the settlement.
The General Assembly acted not simply as a legislative or managerial body, but
dealt with issues concerning the general framework of the settlement. These
included: inclusion and expulsion of members, election of the President, the role
of the different sectors within the settlement, amendment of the RI, securing
observance of the general norms of the MST, and ensuring that the settlement
contributed to the movement. There was also a hierarchy of norms: if there is
conflict between the general norms of the MST and the RI, the former would
prevail. The Assembly was also responsible for dispute settlement. Allegations of
breach of the RI or generally egregious behaviour were put to it for resolution;
there existed a three strikes and out rule (although it had never been used), with
parents being responsible for acts of children older than 18.
The documents regulating COPAVI are on file with the author.

The more active government (or mini-legislator) of the settlement was the
administration which renamed itself the Deliberative Council (DC). This met
twice a week or when necessary, according to the RI, and comprised the five
executive officers. This body could not be seen separately from two forms of
differentiation within the settlement. There is an administrative differentiation in
the RI whereby the work of the settlement is divided into seven sectors (cows,
crops, industry, sales, secretariat, deliveries, and finance). There is then a political
differentiation where the settlement is divided into groups (nucleos) of four
families. In principle, each nucleo should be represented on the DC.
The duties of the DC were to ensure unity, discipline and participation and to
provide a work strategy for the settlement. It therefore managed the sectors,
setting out instructions and targets for each. It also had a political mission of
managing common life and regulating the settlements economic and political
relations with the outside world. In this regard, it enjoyed a dialectical relationship
with the nucleos, who were required by the RI to debate the views of the DC,
political questions, consider the accounts, and to provide feedback.
There was thus a complex machinery of government in place with a system of
norms stabilizing expectations, setting out the powers of collective institutions,
providing administration, and mechanisms of adjudication, administration, and
norm-setting. In short, it had, albeit in embryonic form, all the institutions
expected of a state constitution. Yet it is not quite that, and it is more than that.
The governing structures also acted as structures for the internal management
of the settlement, management structures for the commercialization of production,
the creation of a public space for negotiating with government agencies, and a
means of reaffirming a social movement (the MST) as a point of democratic
management.
A similar reach and hybridity is found in the substantive norms set out in the
RI, which governed almost all aspects of human life.
Private Life: There were norms on the maintenance of each farmers house and behav-
iour within the house. All had to hang MST flags within their living rooms; houses must
be kept clean; no animals were allowed; and drunkenness even within the domestic
property was prohibited.
Environment Protection and Common Patrimony: All members committed themselves to
the patrimony of the cooperative. The possibility of sale of any part of the cooperative
by individuals was prohibited. There was also a general commitment to protect the envir-
onment, and surrounding woodland. Beyond the RI, there are MST norms prohibiting
use of GM crops and over-intensive fertilizer use.
Labour Law: All adults were required to work 176 hours per month from Monday
Saturday morning. The adult hourly rate was calculated on the projected surplus of the
collective and working hours were monitored so that if individuals did not meet these
targets, they would not receive this surplus. There was also provision for holiday rights
and for children over 14 to work, provided it did not interfere with their studies. Adults
were not required to work if they had to depart the settlement for political or
educational reasons, but they required the DCs authorization.
Political Duties: All members committed themselves to work for the MST, to respect its
symbols and norms. There was a commitment to raise the political consciousness of
members through education. This was partly ideological, but also educational as there
were low levels of literacy.
Welfare: Provision was made for a crche and refectory. This crche was designed to
allow the women who were not managing it to work, and there was a formal commit-
ment to gender equality.
Anti-Social Conduct: There were also a series of prohibitions on anti-social conduct,
which included criminal acts such as theft and assault, but also extended to excessive
noise in the agrovilla, verbal abuse, and provoking a scandal.
These rights and responsibilities were expressed to be those of individual members
of the settlement; there were no responsibilities described as overall collective
responsibilities. Instead, the law of the settlement was expressed in the name of the
Individual Subjects of the settlement. The settlement was in their name, and they
acquired rights and responsibilities as individual subjects.
The Demands of Legal Pluralism in COPAVI

Externally, COPAVI could be viewed as a success. The welfare of individual mem-
bers was better served than in any other settlement I visited. The average income
was about eight minimum salaries per month, double the norm of four minimum
salaries. There was access to good health care and education and, if not already
literate, members were pressurized into taking literacy classes. The common
infrastructure was well maintained. Through economies of scale, the settlement
had been able to exploit further commercial opportunities, by producing and
branding its own dulce de leite. In short, collectivization had allowed it to move
from an existence where life is a series of responses to outside interventions to a
more strategic one, in which the settlement could plan its own future and promote
its own values. Symbolically, this was reflected most strongly in its relationship with
the nearby town of Paranacity. The settlement was seen as the most powerful actor
in the town, not merely because of its size, but because of its history, active politi-
cization, symbolic authority, and collective nature. It had a member on the local
council and was considered to have significant purchasing power. Town members I
spoke to were a little in awe of it, and it had had an effect of raising consciousness
which was reflected in a swing to the left in the local town politics.
And yet, of all the settlements in which I stayed, it was the least enjoyable. This
was not because of the food or housing, which were the best. Individual members
were all accessible, friendly, and hospitable. And my feelings were shared by
exactly half of the original families who had occupied the land. Twenty-six had
left, a higher number than any other settlement. The reasons for this go to the
nature of legal pluralism.
The first challenge was posed by the hybridity of the organization. There was
no differentiation between political, economic, social, and private spheres: these
merged into common contributions to collective life. To be a successful member

of the groupindeed probably to remain within the groupone had to perform
a number of tasks well: as worker, neighbour, parent, activist, and friend. The lack
of differentiation meant that failure in any one domain spilled over into the others
and into the collective life of the settlement. A poor parent, for example, affected
not merely her own children, but, if they were in charge of the crche, the other
children. Weak workers were regarded by older members as not having
commitment to the political project. These duties are not only incessantly
demanding, but led to high levels of self-censorship. Two interviewees told me
that it was important to renounce individualism. Another stated that it was
important to socialize oneself to renounce desire. It provoked anxiety, even with
the President, as he told me that collectivization was about making a great compro-
misso (renunciation) and he worried about whether he was doing enough to fulfil
the project. The self-censorship imposed on individuals desires and activities led
one, in turn, to question the emancipatory nature of the project: what act of
authorship was taking place here when one could not even think let alone express
what one wanted?
The second challenge was posed by the absence of any distinction between the
public and the private. The sense of individuals being free to do what is not illegal
was not present. Instead, individuals were always collective actors as well. This led
to the presence of intrusive controls. The dcor and maintenance of individual
houses was regulated in the RI. Most draconian, however, was the regulation of
eating at meal times. During the week, for lunch and breakfast, the settlement ate
in the refectory. Each individual was required to weigh the volume of food and
note it down. This was then deducted against her final salary at the end of the
month: the purpose being to stop individuals free-riding on the group by eating
too much.
The third challenge was the crackdown on dissent owing to the fear of breaking
the complex patterns of trust within the group. Political divergence was impos-
sible. This was not simply ideological intolerance. Individuals felt this convergence
was important predominantly to sustain organizational structures, since diversity
would lead to the possibility of individuals free-riding on collective actions. More
invidiously, because of the absence of distinction between the political and the
social, there was also strong pressure for social conformity. Drunkenness was
frowned upon and provoking a scandal (a Brazilian phrase that includes anything
from gossip, to arguing, to flirtation) was also a breach of the RI.
The fourth criticism was the lack of dynamism of the project. All parties
commented on the danger of changing the RI, as if that would cause the project to
implode. This sacralization of structure was reflected in a more general inability to
adapt. The newest member of the group, a former guerrilla in Bolivia, complained
bitterly of the stasis and of the inner hierarchies within the group where institu-
tional memory equated to status. More threateningly, the settlement was having
difficulties in sustaining itself. The older children did not want to stay on the
settlement seeing it as too confined, whilst the parents saw this as essential to the
settlements survival.
Finally, there was a considerable complexity and masking of the institutional
sources of power. This came to the fore when one asked about children of 14 or
over working on the settlement. The RI provided for this, and for them to receive
50 per cent of pay. Nevertheless, there is provision in Brazilian law for children to
stay longer at school, should they wish. When asked what would happen in the
event of a conflict where a child wants to stay at school or go to university to study
something not of use to the settlement, members were vague. They talked of its
being resolved by common sense and of people needing not to be too individualis-
tic. Yet the question created dilemmas for them since the RI did not challenge in
their minds the broader visions of the Brazilian state, one of which is the right to
education. One was led to feel that in the event of such clashes of norms, a deci-
sionistic approach would be taken where everything would be decided by the per-
sonal feelings of the group towards the individual involved.
Constituent Power and the Nation
The central argument of this essay has been that constituent power conditions
and limits political consciousness. It forms the political imaginary for any
constitutional settlement where questions of Self and Other can be framed and
collective identity formed. This essay has argued that authoritarianism, oppres-
sion, and stasis emerge where constituent power is not allowed to make this
distinction between Self and Other, and where notions of political subjectivity
and institutional presence have been collapsed into one another so that the State
becomes the Nation or the settlement becomes self-authorship. The study of
COPAVI suggests that this space for collective reflection should above all be a
political one free from material conditions. The difficulty with locating the family
or the workplace as constitutional sites is that they never can just be that. There is
another symbolic order present which creates its own asymmetries and tensions
(e.g. employeremployee or fatherson relations), which gets in the way of
constitutional self-reflection. COPAVI also suggests that this imaginary must put
into play a continual dialectic between the idea of individualism and that of com-
munitarianism, in that the demands of collective life and personal autonomy are
such that neither can ever be forgotten and that the demands of each are
omnipresent.
This all begs the question about which presence can provide the necessary
structures to allow politics and law to develop. My argument is that no other
presence has the emancipatory potential of the nation. The nation, as a form of
constituent power, embodies three structures central to the shaping of conscious-
ness about politics and political emancipation. The nation has no necessary
monopoly over these structures in that technically it would be possible for other
entities to possess them. This alone would be insufficient. It is important in this

regard that the nation embodies them. It provides a metaphor for these structures
with which the individual can identify and which form part of his collective and
individual identity. Thus, a French national will believe that the French Nation
possesses them, and he enjoys them by virtue of his Frenchness. Indeed, so power-
ful is this embodiment that many individuals are ready to die for the nation
because of their belief in its articulation of these structures.
The first structure is political freedom. The nation has been described by Hardt
and Negri as a spiritual construction. In this, they are referring to the fact that it
is both a transcendental structure, untied to any specific factual circumstances,
and a deeply humanist one in that it vests itself in a discrete collection of human
beings (the French, Germans, etc.). It represents a teleology, which can never be fully
realized, dedicated to human ends. It also represents a coming into being. Since the
nation gives life, the only attribute granted to nations is self-determination. They
exist for no other end than their coming into being into something that will better
their members. It is freedom in a profoundly Arendtian sense: the realization of a
project which is both profoundly human and worldly.
The second is equality. The nation is conceived as a deep, horizontal comrade-
ship between members, who are also strangers to one another. All nationals are
equals in the purest sense. Indeed, the practical devices in the public sphere to give
expression to thisuniversal suffrage, deliberation, citizenship rightsare
historically secondary consequences of this. Individuals gain these by virtue of
their co-equality as nationals. The division of labour and capital accumulation
prevents it in the market place. Hierarchies and notions of kinship prevent it in
social arenas. Nationhood, partly because it is a transcendental term committed to
recognizing the humanity of all its members and facilitating their self-
development and partly because it is indivisible, is the only term not tarnished by
it. It is the ethical corrective requiring a polity to vision its society as a series of
inequalities to be remedied.
The third structure is authenticity. Nations are communities of fate. One can
not help ones nationality. It is who we are and how we are identified whether we
like it or not. Authenticity is concerned both with understanding who I am and
being true to myself. Its value lies in its requiring the subject to identify with a core
Legal pluralism has therefore flourished in communities with analogous structures of freedom,
equality, and authenticity to the nation. See W. Weyrauch and M. Bell, Autonomous Lawmaking:
The Case of the Gypsies (1993) 103 Yale Law J. 323; Symposium on Gipsy Law (1997) 45
American J. of Comparative Law no. 2; A. Bradney and F. Cownie, Living without Law: An Ethnograpy
of Quaker Decision-Making, Dispute Avoidance and Dispute Resolution (Aldershot: Ashgate, 2000).
M. Hardt and A. Negri, Empire (Cambridge, MA: Haravard University Press, 2001), 101.
H. Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 46. On
Arendts idea that freedom must straddle not just the transcendental and the material, but also the
interior sense and the public, see J. Kristeva, Hannah Arendt (New York: Columbia University Press,
2002), 2028.
S. Reicher and N. Hopkins, Self and Nation (London: Sage, 2001), 1718.
of values and commitments that are seen as in some way defining her. Insofar as
identities are shaped, at least in part, dialogically, it also calls upon the subject to
attempt to see herself as others see her. Guignon has shaped these two elements to
argue that authenticity involves a sense of social embodiment, which involves not
just concentrating on ones own self but the conditions that make it. It therefore
involves a sense of indebtedness and belongingness to the wider environment.
Nationhood is probably the strongest expression of this sense of indebtedness. It
is marked by symbols, such as the cult of the unknown soldier, which vest self-
immolation for the sake of the community as one of the highest virtues. Yet this
solidarity is equally ill-defined so as not to be oppressive. Nations set out what
nationals share, but also, equally importantly, what they do not. It is presumed
therefore to entail different beliefs, and an autonomous non-national sense of
private life.
Nations historical associations with intolerance, hatred, oppression, and
murder lead them to be equally capable of being a receptacle for poisonous and
vicious pathologies. Any account of the nation as an ordering political ethic must
explain how it will not easily fall back on these. Kristeva has argued that those
features of nationalism that turn it into a persecuting hatred are located in a cult
of origins:
The cult of origins is a hate reaction. Hatred of those others who do not share my origins
and who affront me personally, economically and culturally: I then move back among my
own, I stick to an archaic, primitive common denominator: the one of my frailest
childhood, my closest relatives, hoping that they will be more trustworthy than foreigners
in spite of the petty conflicts those family members so often, alas, had in store for me but
that now I would rather forget.
The cult of origins suggests the nation to be not merely an origin, but the exclusive
origin of the values of freedom, equality, and authenticity. It is taken to constitute
and subsume these values. For a British national, Britishness becomes freedom,
equality, and authenticity whatever the actual history of that project. Other
sources of these values, be they nations or other institutions, become threatening
as they challenge this belief. Alongside this, the national home is seen as
immutable, uncontestable, and monolithic. The challenges and pluralism of the
present is dissolved into a fantasized past in which all difference and debate is
erased.
Kristevas solution is a nation built upon Montesquieus esprit gnral which is
marked in the first place by a historical identity, which is self-consciously rooted in
H. Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press,
1988), 848.
C. Guignon, On Being Authentic (Cambridge: Cambridge University Press, 2004), esp. ch. 8.
The most well-known writer on this is D. Miller, Citizenship and National Identity (Cambridge:
Polity, 2000), 313.
G. Schpflin, Nations, Identity, Power: The New Politics of Europe (London: Hurst, 2000), 326.
J. Kristeva, Nations without Nationalism (New York: Columbia University Press, 2003), 23.
both tradition and the idea of evolution. This nation would, in the second place,
be marked by a logical multiplicity. This latter notion means that it must be
marked by both internal diversity and confederacy, a willingness to consider
external orders. To be sure, it is normatively attractive to replace the ideas of
monolith, exclusivity and primalism by those of finitude, evolution, cosmopol-
itanism, and heterogeneity. And Kristeva is vague about the balance between the
different elements in her notion of nation and how one avoids slipping into the
grip of the cult of origins. But two other authors have suggested interesting
refinements.
Eagleton has suggested one difficulty lies in the idea of the sublime. The
sublime is any force which is simultaneously uplifting, excessive, and uncontain-
able. In a secular world, he observes, the Nation has often been accorded
sublime qualities as some supreme good for which people are prepared to die. In
more recent times, such a power has increasingly been given to the term freedom,
especially when it is described in absolute terms. Absolute freedom, he observes, is
vacuous as it provides no indications of how to behave. It is also something that
leads ultimately to self-immolation, for the most absolute freedom is the question
of disposing of ones own finitude. Equality and authenticity can be interpreted
in equally destructive ways. For, as Badiou has observed, absolutist visions of
equality or authenticity attempt to impose universal truths on the whole reality.
Everything must conform to a complete vision of equality or a particular identity.
Forgetting that perspectives and knowledge are necessarily partial in nature, they
impose a procrustean and totalitarian view of the world. Nation should neither
be seen to have a monopoly of meaning over the ideals of freedom, equality, and
authority nor can these be seen as absolute ends. The value of the Nation as an
artefact of constituent power lies in making these ideals prosaic, binding them to a
time and place and series of events that makes them tractable, contestable, and
contingent. How can this happen? For Eagleton, the sublime exists in those who
fear the monstrous lack of being at their own heart. Nations can create this
reality through which ideals can be articulated by generating a tapestry of dense
memories, symbols, and hopes. As a common resource with no single interpret-
ation, these are necessarily contestable. They also ground political ideals in a
reality which exposes their limits, for there is no history which corresponds to
these ideals and which is not in some way blemished. The feature of much modern
liberal nationalism is therefore an irony: nationals know there is much to despair
in their nationality, but they are nevertheless compelled to invest in it.
The other dangerous feature of nationalism is its idea of uniqueness.
Uniqueness can suggest only one identity, the national identity, per person, thus
eliminating internal sources of contestation and debate. The other feature of
J. Kristeva, Nations without Nationalism (New York: Columbia University Press, 2003), 558.
T. Eagleton, Holy Terror (Oxford: Oxford University Press, 2005), 44.
A. Badiou, Ethics: An Essay on the Understanding of Evil, P. Hallward, trans. (London: Verso,
2002), 83. Eagleton, above n. 60, 140.
uniqueness is its relationship with destiny. The uniqueness of my national

identity suggests it both to be special and special merely by virtue of its existence as
it is something destined to be special. In this, there is an exaltation of ones own
community and a dehumanization of non-national identities. They have only one
identity, their nationality, and it is destined to be less than mine. Any imaginary
rooted in nationality must be one that must somehow enable a politics not just of
recognition but of solidarity with non-nationals. Yet the sense of indebtedness to
others on which national and other identities may be rooted can be used as a basis
for dispelling this idea of uniqueness. A cosmopolitan approach rooting solidar-
ity in a common humanity evades the problem by dismissing the existence of the
nation as a basis of solidarity. Instead, solidarity must be rooted in the idea of
political identity being indebted to a system of nations. It roots its presence in an
idea, institutionalized in the Westphalian system, which involves a mutual recog-
nition of other nations and an acceptance of its own partiality and finitude. The
difficulty with the modern national state system is that acceptance of the finitude
of ones own nationality has been also used as a veil to deny interest and respect for
the solidarities generated by other nationalities. It says because I am British,
I cannot be interested in the French and they are archetypically different from me.
In a world characterized by mass migration and multiculturalism in which nation-
alities are less territorially divided, this is nonsense. Difference in nationality
means not only accepting each other differences, but accepting that these
differences affect others in analogous ways to the manner in which my national
identity affects me. This generates its own commonalities and solidarities.
Crudely, individuals can know what it is for another to support their national
team as they know what it means to them.
Conclusion
What might such a national political community look like? The simple answer is
that it might look like the vision of political community expressed in the contem-
porary idea of Europe. Europe as a political community is centred, inter alia, on
the ideas of freedom, equality, and authenticity. The first two are set out as part of
its founding principles in Article 6 TEU. The idea that it cannot be an empty
vessel for these principles is marked in the anguished debate about enlargement,
which is very much a debate about the weight Europes memory of its past should
carry in determining its present. Despite the pompous rhetoric of its institutions,
it is, moreover, a political community which cannot claim a monopoly over the
meaning of these ideals. Every invocation is subject to contestation by the
These features are set out in A. Sen, Identity and Violence: The Illusion of Destiny (London:
Penguin, 2006), esp. 1617 and 1728. Guignon, above n. 55, 1203.
member states. Its past hinders it from excessive invocation of these ideals, for
much wrong has been done in Europes name often under the justification of these
ideals. Yet, it might be argued, does not the diffuse and amorphous nature of the
European political community not illustrate the weak nature of the national
community being argued for? It is precisely this weak nature which renders the
European political community so attractive. It does not subsume the nation-state
nor does it challenge it in some profound existential way. Instead, it undermines
its universalistic claims and introduces contestation and debate about the central
ethical issues through providing alternate meanings and horizons to those
generated by the hegemonic national community. If this argument is right, the
European ideal suggests that an emancipatory ethic of constituent power resides
most happily in multinational democracies in which there is internal competition
by different political communities for defining the ideals of the political
imaginary.
This is most amply seen in the European Union Charter of Fundamental Rights and Freedoms,
which defers to the authority of interpretations of its ideals by national constitutional and inter-
national human rights courts, [2000] OJ C364/1, Art. 52(3)and (4).
The centrality of memory to any emancipatory European idea is the main theme of J. Derrida,
The Other Heading: Reflections on Todays Europe (Bloomington: Indiana University Press, 1992), esp.
1419 and 767.
16
The Imperialism of Modern Constitutional
Democracy
James Tully *
The title of this chapter derives from an article in The Economic History Review in
1953 by John Gallagher and Ronald Robinson entitled The Imperialism of Free
Trade. The authors showed that the foreign policy of free trade by the imperial
powers in the nineteenth and twentieth centuries was not anti-imperial but,
rather, an alternative form of imperialism to colonial imperialism that gradually
won out in the late-twentieth century. The great powers, with Great Britain in
the lead, realized that they could orchestrate the formation of legal and political
regimes in non-European countries so they would function to open their
resources, labour, and markets to free trade dominated by economic competition
among European powers, without the need for the expensive and increasingly
unpopular old imperial system of formal colonies and monopoly trading compa-
nies. In a series of publications in the following decades Robinson, the German
imperial historians Wolfgang J. Mommsen and Jrgen Osterhammel and their
many followers went on to document the long and complex history of free trade
imperialism since the eighteenth century and to argue that decolonization and the
Cold War comprised its triumph over colonial imperialism. Decolonization and
the Cold War, they argued, involved the dismantling of the remaining formal
colonies, mandates, and trusteeships; the transfer of limited powers of self-rule to
the westernized elites of nominally sovereign, yet dependent indigenous govern-
ments in a global network of free trade imperialism. This imperial network is
governed by: the post-World War II great powers (the Great Eight with the
United States taking the military and economic lead); their transnational corpora-
tions; the Bretton Woods institutions of global governance and their successors
* I would like to thank Jonathan Havercroft, Neil Walker, and the participants at the initial semi-
nar for their helpful comments. Further research on the relationship between constitutionalism,
democracy, and imperialism will be developed in E. Christodoulidis and S. Tierney (eds.), Public Law
and Political Theory (Aldershot: Dartmouth, forthcoming) and my book, Understanding Imperialism
Today (Cambridge: Cambridge University Press, forthcoming). I have thus dispensed with the
detailed bibliography of those more expansive texts and included only a minimum of references.

(the World Bank, International Monetary Fund (IMF), the General Agreement
on Trade and Tariffs (GATT), the World Trade Organization after 1995 (WTO),
and its evolving transnational trade agreements such as TRIPS and GATS);
supportive non-governmental organizations; and the North Atlantic Treaty
Organization (NATO). They called this complex transition period the imperial-
ism of decolonization and the end of empire and the continuity of imperialism.
Since the defeat of the Soviet Union and its Third World allies at the end of the
Cold War in 1989, this complex form of rule has been extended over the planet.
This now widely-used interpretation of the modern world order is often termed
open door and free trade imperialism, neo-colonialism, imperialism without
colonies, and postcolonial imperialism, but for two defining reasons it is now
usually called informal and interactive imperialism. First, it is a complex form of
rule that governs imperialized peoples by means other than formal colonies
(informal and indirect means). Second, the hegemonic great powers and their
accompanying institutions recognize the imperialized or subalternized peoples as
self-governing constitutional states and they interact with them on this basis, yet
within the deeply unequal hegemonsubaltern relations of economic, political,
legal, educational, and military power laid down over centuries of Western
expansion (interactive rule among unequal sovereigns rather than the unilateral
domination of colonialism).
While Gallagher, Robinson, and Mommsen stressed the importance of the legal
and political institutions in dispossessing non-European peoples of popular sover-
eignty over their resources, labour, and markets and opening them to the informal
paramountcy of the great powers and their trading companies, they did not treat
this aspect in detail, concentrating instead on economic, administrative, military,
and educational means of informal dependency and rule. The objective of this
chapter is to describe the imperial roles that modern constitutional forms and con-
stituent powers have played on this interpretation of global rule. The first section
sets out seven main aspects of the modern, Western configuration of constituent
powers and constitutional forms that is commonly called constitutional democ-
racy and democratization today. The second section goes on to show the many
ways that legal and political prototypes of constitutional democracy have been
extended around the world by formal and informal imperial means to subalternize
non-European peoples. The third and final section examines democratic efforts to
de-imperialize the imperial dimensions of modern constitutional democracy, that
is, to bring them under the shared democratic authority of the peoples who are
The importance of the theory of informal imperialism advanced by Gallagher and Robinson is
discussed in W.J. Mommsen, Theories of Imperialism, P. S. Falla, trans. (Chicago: University of
Chicago Press, 1977), who argues that it is the most important theory of imperialism in the modern
period.
The Imperialism of Modern Constitutional Democracy 317
subject to them. I call these de-imperializing attempts democratic constitutional-

ism (in contrast to constitutional democracy).
Western Constitutional Democracy: the Modern Arrangement of

Constituent Powers and Constitutional Forms
In their perspicuous Introduction to the Florence seminar, Loughlin and Walker
described the central tension of the modern organization of constituent powers
and constitutional forms as follows:
The paradox [of constituent power and constitutional form] is the expression of the fact
that modern constitutionalism is underpinned by two fundamental though antagonistic
imperatives: that governmental power ultimately is generated from the consent of the
people, and that, to be sustained and effective, governmental power must be divided,
constrained and exercised through distinctive institutional forms. Although each of the
imperatives is expressed in early-modern formulations of legitimate governmental power,
it is only with the emergence of the modern sense of a constitution that this tension
between constituent power (the power of the people to makeand breakthe consti-
tuted authority of the state) and constitutional form (the formal framework of rule erected
as a bargain or contract, or evolved in their absence) becomes more acute.
I start from their description and analysis to set out seven salient aspects or fea-
tures of this paradoxical modern configuration of constituent powers and consti-
tutional forms. I follow common usage in calling this conjunction of modern
Western-style constitutions and representative governments constitutional
democracy (without scare quotes) yet bearing in mind that this elegant phrase
hides its historical particularity and makes it appear universal (which is precisely
its rhetorical function). I call it constitutional democracy in the narrow sense
when I contrast it with constitutional democracy in the broad sense, which
includes non-western customary legal and political orders of constitutional
forms and constituent powers.
I have discussed democratic constitutionalism as an alternative to the imperialism of modern
constitutional democracy in Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press, 1995) and The Unfreedom of the Moderns in Relation to their Ideals
of Constitutionalism and Democracy (2002) 65 MLR 204.
Introduction, Seminar on Constituent Power and Constitutional Form, Florence, 2425
March 2006; reproduced in part in the Introduction to this volume, at 12.
That is, constitutional democracy appears to refer to any legal and political order that has some
kind of constitution and democracy, and so it appears inclusive of pluralism (constitutional democ-
racy in the broad sense). Yet, it is then standardly used to refer exclusively to (1) a particular type of
modern constitutional representative government in the West, and (2) particular legal and political
orders in the non-West that are similar in some respects and thus are said to be on the historical path
to developed constitutional democracy in the Western sense (constitutional democracy in the nar-
row sense). This slippage is intrinsic to the standard usage of the phrase constitutional democracy.
The seeming inclusiveness of the broad sense comes to be predicated only of instances of the narrow
sense in the course of its use.
First, I take a modern constitutional form to be a structure of law that has a

degree of separation or disembeddedness from the activities of those who are
subject to it and it has the compliance capacity to structure or even constitute the
field of recognition and interaction of the people subject to it. If it did not have
this degree of autonomy or formality there would not be the paradoxical
relationship between the rule of law and constituent powers at its centre. Like
most historians of Western constitutionalism, Loughlin and Walker see this
disembeddedness to be distinctive of the modern phase of constitutionalism,
perhaps no earlier than the building of absolute and constitutionally limited
centralized states in the seventeenth and eighteenth centuries. In my opinion,
historians and anthropologists are correct to say that many non-Western civiliza-
tions do not have indigenous constitutional forms of this specifically modern
disembedded sense. This difference is usually indicated by calling Western legal
orders mostly formal and non-Western mostly customary, and ranking modern
Western law as superior and more advanced for this reason (among others). This
is not to say that non-modern legal orders do not have a constitution, since any
persisting legal order is a constitution in the Aristotelian or ancient sense,
whether customary or formal. But in the influential debates over the American
and French Constitutions (and the constitutional debates that have followed
down to today in Afghanistan and Iraq), an embedded (customary) constitution
was defined as ancient in contrast to a modern (formal) constitution, and thus
said not to be a constitution at all. This elision was then applied to virtually all
non-European legal orders by the nineteenth-century authors of modern
international law.
Let us call this first aspect of modern constitutionalism the formality or auton-
omy condition. That is, there are laws that are not immanent norms within the
activities they regulate and which change as subjects interact with them in day-to-
day rule following (as with customary laws), but are external to them. They con-
stitute or legislate the field of practice and subjects comply. If people wish to
change the laws they must go to a separate institutionalized procedure such as a
court, a legislature, and through a formal amending mechanism or judicial review.
Kants imposition theory of law is the classic modern theory of law in this formal
sense, yet it goes back to Samuel Pufendorf s theory of modern law in 1672, the
first theoretical reflection on the post-Westphalian order.
See Tully, Strange Multiplicity, above n. 2, and s. 2 below.

Of course, this formality aspect is a feature of much of a modern legal system and not just the
constitution in the narrow sense. As Walker points out, a modern constitution is closely connected to
the legal system it constitutes and thus some properties of constitutional law will also be properties of
some non-constitutional laws. Formality or autonomy is one such shared property: see Neil Walker,
European Constitutionalism in the State Constitutional Tradition (2006) Current Legal Problems
51. I am greatly indebted to Walkers work on constitutionalism and to M. Loughlin, The Idea of
Public Law (Oxford: Oxford University Press, 2003) for my formulation of the seven features of sec-
tion one. For Pufendorf, see my Introduction to S. Pufendorf, On the Duty of Man and Citizen
(Cambridge: Cambridge University Press, 1991), xivxxxvii.
There are two classes of modern constitutional forms that develop together in
the West: the constitutions of modern states and the constitutions of systems of
law beyond the state. The second class today includes not only what is called
international law (the basic laws among modern constitutional states) but also
subsystems of other suprastate bodies of law that have at least some of the proper-
ties of a modern constitutional form: the basic laws of the European Union, the
North American Free Trade Agreement, the United Nations Charter of an
international society of states, basic international human rights law, and the vast
array of transnational trade agreements from GATT (1947) to those under the
WTO. In addition, these post-decolonization constitutional forms were built on
the basis of much older bodies of transnational law that were developed along
with the European constitutional states when they were formal empires. These are
the bodies of imperial law and colonial law of the European imperial states, and of
the old law of nations, ius commercium and lex Mercatoria, that were designed to
regulate inter-imperial competition. Subsystems of these vast systems of law
constituted the respective European empires and their colonies. They were
gradually transformed into the world system of constitutional states and trans-
national and international laws in the twentieth century.
It is thus misleading historically to picture constitutional states developing first
and then beginning to experiment with transnational and international constitu-
tional forms in the twentieth century, as legal and political theorists have done
since decolonization. European constitutional states, as state empires, developed
within global systems of imperial and colonial law from the beginning, and this
whole intertwined complex of two classes of constitutional forms is the historical
basis of the very recent, post-decolonization global legal order. Indeed, like most
nineteenth century theorists and legal historians, both Marx and Weber argued
that the modern European constitutional state form was dependent for its
peculiar historical formation on the legal incorporation and exploitation of its
colonies, just as the legal historians of informal imperialism today argue that the
current constitutional form of the great power states is equally dependent on the
post-colonial legal incorporation and exploitation of the former colonies by
means of the new systems of international and transnational law. Hence, it is
impossible to understand the relationship between modern constitutional forms
and constituent powers unless the imperial and post-imperial supra-state
For an excellent introduction to transnational law since World War II, see P. Zumbansen,
Transnational Law in J. Smits (ed.), Encyclopedia of Comparative Law (Cheltenham: Elgar, 2006),
738. For its origins in lex Mercatoria (Merchant law) and ius commercium of the age of empires, see
B. de Sousa Santos, Toward a New Legal Common Sense (Cambridge: Cambridge University Press,
2nd edn., 2004), 20836. The systems of transnational law, especially trade law, function as consti-
tutions in the sense that they subordinate national constitutions, that is, treat national constitutions
as legal regimes under their jurisdiction (first order rules in H.L.A. Harts sense) and open them to
free trade. See s. 2 and references at n. 37.
constitutional forms are seen as internally related to the state constitutional

forms.
Second, I take constituent powers to be the powers of humans (individually
and collectively) to govern themselves. Constituent powers refers to these powers
in abstraction or separation from any specific form they take in order to be
exercised. They take different forms in different constitutional forms (since the
constitutional form is the form that the constituent powers take): for example, the
people, the nation, representative democracy, modern citizenship, federalism,
self-determination, participatory democracy, revolution, and so on. Even the
concept of constituent power as popular sovereignty already recognizes these
powers under a concept and thus presupposes a form and is one step away from
the distinctly modern idea of constituent power as a capacity or potentiality, prior
to taking on a concrete form, as Loughlin and Walker remind us. This modern
concept of unformed constituent power is of course the condition of possibility of
the modern idea of popular sovereignty and, more radically, the multitude: that
the people or the multitude could stand back from any constitutional form of
organization of themselves as a specific people and bring their form of constitu-
tional organization into being in some founding moment or process of deliber-
ation (the procedures of which would themselves be brought into being by the
deliberators, and so on). Perhaps Rousseau was among the first to explore this
paradoxical idea, and Hardt and Negri among the most recent.
If we did not have this concept of a constituent power that exists prior to its
actual forms in conjunction with the concept of a disembedded constitutional
form, then we would not have the paradoxical relationship between them that
Loughlin and Walker describe, and which is constitutive of the contingent
historical ensemble of nomos and demos we call constitutional democracy.
Indigenous peoples have a different idea of constituent power. For them the
constituent powers of humans (and non-humans) are always already immanent in
the specific forms of transposable habitus they take in the countless normative
relationships of interaction (non-formal customary laws) humans and non-
humans both bear and transform en passant. And if the twentieth century
This internal relation between constitutional state formation and imperialism has always been a
commonplace in theories of imperialism: see Mommsen, above n. 1.
M. Hardt and A. Negri, Multitude (New York: Penguin, 2004). For a genealogy of the con-
stituent powers of citizens within states to which I am deeply indebted see Q. Skinner, States and the
Freedom of Citizens, in Q. Skinner and B. Strath (eds.), States and Citizens (Cambridge: Cambridge
University Press, 2003), 1127, and, for the incorporation of constituent powers into the form of
rights, A. Brett, The Development of the Idea of Citizens Rights in Skinner and Strath (eds.), ibid.
97114.
For this account of Indigenous customary constitutionalism and constituent power internally
related to the law, see the important work of two Indigenous legal scholars: J. Borrows, Recovering
Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); id.,
Indigenous Legal Traditions (Ottawa: Law Commission of Canada, forthcoming), and V. Napoleon,
Law as Governance: Thinking about Indigenous Legal Orders and Law, a paper prepared for the
National Centre for First Nations Governance (Ottawa, forthcoming).
philosophers of practice from Heidegger to Pierre Bourdieu, Charles Taylor, and

Lon Fuller are correct, the modern systems of formal law and abstract constituent
power, which modern theorists take as their starting point, are actually grounded
in everyday practices of custom and transposable habitus that go without saying,
which indigenous philosophers take as their starting point.
The constituent powers of the people are constituted by the two classes of
constitutional forms (state and suprastate) into two main political formations.
The first is representative democracy (or constitutional democracy), with its
various forms of modern citizenship, representation, and institutionalization of
various constituent powers (legislative, judicial, federative, military, administra-
tive, etc.) within a constitutional state. And the forms of oppositional constituent
powers intrinsic to constitutional representative democracy are extra-parliamen-
tary opposition, the general strike, direct action, revolution, and so on. The second
comprises the mostly non-representative (or distantly representative) forms of
organization of constituent powers characteristic of suprastate constitutional
forms. These include the governing institutions of the old imperial systems, the
European congresses and conferences of the nineteenth century (which never
included colonial peoples), the League of Nations, the United Nations, the
Bretton Woods institutions and WTO, meetings of the G8, and the (more repre-
sentative) institutions of the European Union. And, in democratic opposition,
the great decolonization movements of the twentieth century (and earlier),
internationalist movements, alternative non-governmental organizations, the
World Social Forum, and global civil society claim to manifest or represent the
constituent powers of the people and struggle to democratize these suprastate
constitutional form and constituent power complexes.
Third, it is not possible to understand the field of interactive relationships
between constitutional forms and constituent powers without seeing a third actor
internally related to these first two features. As Loughlin and Walker point out,
modern constitutionalism did not derive historically from the exercise of
constituent powers of sovereign peoples or multitudes alone. If it had, we would
not have the antagonistic relationship between the two. Rather, as Quentin
Skinner has shown, modern constitutions are also the product of the sovereign in
the traditional sense of the ruler: the monarch, emperor, Crown, aristocracy,
ruling class, elite or, more commonly, the sovereign state, in an agonistic
See the classic formulation in C. Taylor, To Follow a Rule in his Philosophical Arguments
(Harvard: Harvard University Press, 1995), 16581. Like Taylor, I see the best treatment of the
internal relationships between a formal system of rules and the transposable dispositions of the agents
who act in-with-against it, which is at the heart of this chapter, is L. Wittgenstein, Philosophical
Investigations, G.E.M. Anscombe, trans. (Oxford: Blackwell, 1953). For an introduction see J. Tully,
Wittgenstein and Political Philosophy in C. Heyes (ed.), The Grammar of Politics: Wittgenstein and
Political Philosophy (Ithaca: Cornell University Press, 2003), 17.
The World Trade Organization describes itself as an institution of global governance. For its
ascension to this role see A. Narlikar, The World Trade Organization (Oxford: Oxford University
Press, 2005).
relationship with the people. This is the form of constitutive power that is
traditionally said to constitute the legal and political order in the West since
Roman law. Constituent power in the sense of popular sovereignty arose in
opposition to sovereignty in this Hobbesian sense and continues to be in a gaming
relationship with it (over the form of the constitution itself, popular freedoms,
and constitutional limitations). Even when the sovereign in this sense can plaus-
ibly be said to derive its powers from the consent of the governed, it is still able to
separate itself from dependency on them and to exercise sovereignty over them
and the constitution that is supposed to limits its power, especially in the great
game of foreign power with other sovereigns, as the realist tradition from Bodin to
Morgenthau has always argued.
This doctrine of state sovereignty gives rise to a third kind of separation: the
relative autonomy of the state (or executive) from both the people and the
constitution. It is integral to modern constitutionalism. A modern constitution,
Kant famously argued, does not arise from the spontaneous interaction of the pre-
civil people but requires some kind of master or legislator to impose law on the
crooked timber of the people and to act without their consent and independent of
law in exceptional circumstances until they are civilized by centuries of
subjection to civil law. As Machiavelli and Chomsky add, these constitutive
powers are supplemented with the powers of manufacturing the consent of the
people and making non-constitutional actions appear constitutional in order to
gain legitimacy. Far from disappearing, some contemporary theorists argue like
Hobbes that sovereignty in this sense structures the constitutional form and the
form that constituent powers take within it. That is, the field of constitutional
form and constituent power is really a game between the constitutive sovereign
and the constituent people within and over the constitutional form (the contract
between them)a game that, according to the realists, the sovereign dominates.
As with constitutional forms and constituent powers, there are two correspond-
ing classes of constitutive sovereignty: state sovereignty in its various forms and
the candidates for sovereignty over the various global constitutional forms listed
above. The global sovereigns range from the competing imperial powers in the
colonial age to the informal sovereigns today, such as a single superpower (the
United States since 1989), the G8 or G20, a coalition or balance of civilized,
advanced or democratic states, the Bretton Woods institutions and WTO, the
transnational corporations empowered by trade agreements under the WTO, an
empowered United Nations, or some combination of these contenders.
Fourth, I have been writing as if constituent powers (second aspect) consist only
of political powers, that is, powers of self-government that are said to be
Q. Skinner, The Foundations of Modern Political Thought vol. 2 (Cambridge: Cambridge

University Press, 1978). See also, I. Hunter, Rival Enlightenments (Cambridge: Cambridge University
Press, 2004) and M. Loughlin, Ten Tenets of Sovereignty in N. Walker (ed.), Sovereignty in
Transition (Oxford: Hart, 2003), 3586.
See J. Tully, Diverse Enlightenments (2003) 32 Economy and Society 485.
delegated or alienated to representative institutions and also exercised directly in

public spheres. But this is too narrow. As Locke, Marx, and Weber insisted, the
constituent powers of the people that are institutionalized by a modern constitu-
tional system of laws consist of three distinct types of powers: political power or
the powers of self-government; labour or productive powers; and the powers to
protect oneself and others, or military and police power. Modern constitutions
differentially distribute these three types of constituent powers into three distinct
sets of legal institutions of modern societies: political, economic, and police and
military.
Labour power is exercised by selling it for a wage on the market to competing
national or multinational corporations that manage its exercise and extract a
profit. These capitalist forms of constituent labour power, private property in the
means of production, and contractual relations are stipulated by the constitu-
tional forms of state and international legal regimes and enforced by the
corresponding sovereigns. This form of organization of productive power is
distinctive to modern constitutionalism, where humans have been dispossessed of
their access to the land and independent means of production, first with the
enclosures within Europe and then with the dispossession of the non-European
peoples of their indigenous legal and political control over their resources and
labour during the spread of Western imperialism and its legal orders, as Marx and
Hobson concurred. Just as one can think of political powers being either
delegated or alienated to the representative institutions, so too can one think of
economic powers being either delegated or alienated to the capitalist corpor-
ations, as Weber neatly demonstrated. Productive powers are also conceptualized
in the same abstract way as political powers: that is, as capacities capable of being
shaped and exercised in a multiplicity of forms within the corporatized division of
labour.
The third aspect of constituent powers, the powers of self-and-other defence, is
alienated to the police and the militaryindustrial complex in modern constitu-
tional formations. Although rebellions were fought in the name of no standing
armies in the seventeenth century, by the early nineteenth century every modern
state had a constitutionally protected permanent military complex. These
complexes are standardly connected to the most advanced research and develop-
ment institutions, the largest commercial firms, a secure tax base, a permanent
See J. Tully, An Introduction to Lockes philosophy in Tully, An Approach to Political Philosophy
(Cambridge: Cambridge University Press, 1992), 970, and M. van Creveld, The Rise and Decline of
the State (Cambridge: Cambridge University Press, 1999).
J.A. Hobson, Imperialism: A Study [1902] (New York: Cosimo Classics 2005); K. Marx,
Capital (London: Penguin, 1990), 873942. For a recent history of the legal dispossession of colo-
nized peoples, see J.C. Weaver, The Great Land Rush and the Making of the Modern World 16501900
(Montreal: McGill-Queens University Press, 2003).
J. Tully, Rights in Abilities in An Approach to Political Philosophy, above n. 16, 24261.
V.R. Berghahn, Militarism: The History of an International Debate (Cambridge: Cambridge
University Press, 1981); W.H. McNeil, The Pursuit of Power (Chicago: University of Chicago Press,
1982).
supply of recruits through the leve en masse, the draft and, more recently, the
states purchase of private armies on the market, a separate class of influential
military-political leaders, naval, and army bases throughout the old European
empires and the paramount global military system of the United States that claims
to exercise full spectrum dominance of the planet today. As Montesquieu foresaw
in 1748, this peculiar formation of protective powers is caught in an ever-
escalating arms race with other constitutional states and, since decolonization, an
expanding arms-sales industry to dependent and indebted former colonies and
proxy states. As Locke warned in 1675, the resulting power imbalance between
the permanently-armed sovereign state and the legally disarmed people under-
mines the rough equality between the people and their representatives that was
the guarantee of a free and constitutionally bound polity, opening the people to
abuse by their own government and to unlimited military adventures abroad
without an effective counter-balance. Yet, because the people always desire to be
free of oppression, the system is a recipe for inevitable wars and revolts.
Just as constituent political powers are organized in different governance
institutions within constitutional states and suprastate organizations (second
aspect), so too are economic and military constituent powers. The Bretton Woods
institutions, the G8, and the most powerful transnational corporations govern
economic power through the suprastate systems of trade and finance law. The
United States now claims to exercise full spectrum military dominance over the
worlds forms of constituent military power to protect democracy and free trade,
multilaterally and in accord with international law and the Security Council if
possible (juridical dominance), but unilaterally and without the law if necessary
(executive dominance).
I would like to suggest that we cannot understand the dynamics and paradoxes
of the relationship between modern constitutional forms and constituent powers
unless we include in the field of interaction these two dimensions of constituent
power. I concede that the monopolization of economic constituent power by
networked multinationals and international legal regimes and the monopoliza-
tion of powers of self and other defence by huge networked military complexes are
considered beyond question in the dominant democratic and constitutional
theories today, except for a few notable exceptions. However, the global popular
protests from decolonization to the movements against the current imperial wars
in the Middle East and against the neo-liberal form of free trade imperialism today
This line of argument was put forward in anonymous pamphlet believed to be by Locke, A
Letter from a Person of Quality to a Friend in the Country (1675) and is repeated in the Two Treatises of
Government (1690): see Tully, above n. 16, at 3747. For Montesquieu on the arms race, see The
Spirit of the Laws [1748] (Cambridge: Cambridge University Press, 1989), Bk 13, s. 17.
The trade agreements under the WTO are seen as global constitutions and charters of rights of
transnational corporations: see S. Shrybman, The World Trade Organization (Toronto: Canadian
Centre for Policy Alternatives, 1999), 118.
See President of the United States, The National Security Strategy of the United States (2004):
<www.whitehouse.gov/nsc/nss.pdf> . The new National Security Strategy of March 2006 is similar.
are over precisely the present concentration and exercise of these two forms of
constitutionalized constituent powers and the inability of the available forms of
political power to make any significant difference whatsoever. And this is not
surprising, for the low intensity representative democratic institutions and
modern constitutional formations have been powerfully shaped and formed by
the parallel de-politicalization and concentration of these other two forms of
constituent power. Indeed, for many social scientists today, these two concentra-
tions of economic and military power have not only disempowered the people.
They have usurped the de facto role of the sovereign within state and global
formations. Therefore, an analysis of constitutional form and constituent power
would be out of touch with the populist global constituent discomfort with the
existing order if these two aspects of constituent power were left unexamined.
Fifth, all three types of constituent powers of individuals and collectivities are
guided and habituated into their various constituent forms of subjectivity by the
vast repertoires of modern techniques of governmentalit. We know from Weber,
Foucault, Loughlin, and the governmentality school that these techniques of
modern subjectification cannot be reduced to or derived from the sovereign state,
constitution, the rule of law, representative government and citizenship regimes,
or to the self-fashioning practices the people and peoples apply to themselves. The
historical development of dispersed regimes of governmentality within modern
and advanced liberal constitutional states has been well researched. The parallel
history of regimes of formal colonial governmentalit and the more recent
postcolonial governmentalit by various informal means of global governance has
not received as much attention.
Sixth, the dynamic relationship between constitutional forms and constituent
powers is a function of the complex interactions among the actors within and
against the constitutional formations. To summarize, I outlined the two classes of
constitutional forms under which constituent powers are configured into consti-
tutional actors (the state and transnational classes of aspect one); constituent
political powers (aspect two), constitutive sovereign authorities (aspect three),
constituent productive and defensive powers (aspect four), and regimes of
governmentalit (aspect five). Loughlin and Walker summarize the four main types
of interaction of constituent-power actors with their corresponding constitutional
forms as follows.
See, e.g., D. Harvey, The New Imperialism (Oxford: Oxford University Press, 2003).
See the similar argument of B. de Sousa Santos, The World Social Forum: A Users Manual
(2005): <www.ces.uc.pt/bss/documentos/fsm_eng.pdf > . For a survey of populist global resistance
movements against these two forms of power, see L. Amoore (ed.) The Global Resistance Reader
(London: Routledge, 2005).
See A. Ayers, Demystifying Democratization: the Global Constitution of Neo-Liberal Polities
in Africa (2006) 27 Third World Quarterly 31238, and the now classic article on colonial govern-
mentalit, P. Pels, The Anthropology of Colonialism: Culture, History and the Emergence of
Western Governmentality (1997) 26 Annual Review of Anthropology 163. For a review of the limits,
compromises, and failures of colonial governmentalit, see A. L. Stoler, Carnal Knowledge and
Imperial Power (Berkeley: University of California Press, 2002), and 334ff below.
In the first type of interaction the actors all exercise their political, economic,
and protective powers more or less routinely in accord with the two constitutional
formations and their corresponding institutions of constituent powers. This
interaction approximates what Loughlin and Walker in the Introduction to this
volume call the juridical containment thesis. That is, the constitution founds and
structures the exercise of constituent powers, as in modern liberal theories of
constitutional democracy. When the people seek to change the particular consti-
tutional forms and the corresponding ways their constituent powers are contained
by exercising their popular sovereignty within a modern, constitutional, and
democratic order (and within its traditions of interpretation), either by constitu-
tional reform or democratic revolution, then the whole interaction accords with
the co-originality and mutual articulation thesis. That is, the constitutional form
and the constituent powers of democratic self-rule are equiprimordial (equally
basic), as in many theories of democratic constitutionalism. Third, when the
people subject to a constitutional form see themselves as a multitude (an as yet
unorganized and unrecognized potential agent) behind the whole constitutional-
constituent formation and strive to exercise all three constituent powers together,
overthrow the regime and bring into being a new kind of constitutional
formation, which in turn must be subject to ongoing constituent transformation
(so the multitude remains sovereign over the constitutional form to which it
subjects itself), then interaction accords with the radical sovereignty or self-creation
thesis, as in radical democratic theories. When, finally, diverse individuals and
groups exercise their constituent powers in countless ways within and against the
constitutionalized forms of constituent powers to which they are subject, in the
hopes of modifying or transforming them agonistically en passant, or if they
invent new forms of constituent organizations (such as networks) yet are unable to
transform the hegemony of the prevailing sovereigns and constitutional forms,
interaction is in accord with the irresolution thesis. It is irresolvable because the
subalterns are able to modify but not to transform the unequal relations in which
they act. The irresolution thesis in this rather pessimistic form characterizes
fairly accurately the way subalternized states and non-state actors are constrained
to interact in the current informal imperial order, as we saw in the Introduction to
this chapter. While this list leaves out a crucially important form of interaction
I highlight in the final section (acting otherwise), it nevertheless encapsulates
fairly well the major forms of interaction characteristic of modern constitutional
democracy.
See Tully, The Unfreedom of the Moderns, above n. 2.
M. Hardt and A. Negri, Empire (Cambridge, MA: Harvard University Press, 2000).
E. Christodoulidis, Constitutional Irresolution: Law and the Framing of Civil Society (2004)
9 European Law J. 401.
But see the final section below for my reformulation of this thesis in tandem with the
co-articulation thesis. For a more optimistic version of the irresolution thesis, see J. Brunne and
S. Toope, International Law and Constructivism: Elements of an Interactional Theory of
International Law (2000) 39 Columbia Journal of Transnational Law 19.
Of course, at the same time, the respective constitutive sovereigns of modern

constitutional states and of global constitutional formations have a repertoire of
constitutional and extra-constitutional ways of re-naming and responding to the
irruptions of popular sovereignty, radical sovereignty, and agonistic irresolution
domestically and internationally, and of bringing them in line with the
containment thesis or a manageable form of the mutual articulation thesis.
Indeed, we can think of these four types of game of interaction between
constituent powers and constitutive sovereigns within and over constitutional
forms as co-extensive with, and the driving force of, the reign of modern constitu-
tional democracy.
Seventh, as we have seen, this complex of constitutional forms and constituent
powers has a dynamic history. This history is portrayed as a dynamic set of world-
historical processes that coordinate the six aspects: respectively, constitutionaliza-
tion, representative democratization, centralization of sovereignty, capitalization,
militarization and securitization, governmentalization, and citizenization in the
state sphere and the transnational and international spheres. These so-called
processes with their purported necessary logics of development bear a number of
descriptive-evaluative names that serve to legitimate them and put them beyond
question: civilization, development, modernization, decolonization, globaliza-
tion, democratization, opening to free trade, and so on. They have their origins in
Europe but they sweep up the rest of humanity, which is portrayed as at lower
stages of historical development and in need of Western imperial aid, and grad-
ually make the world over in accord with constitutional democracy (in its various
iterations over time). This telos is defined in different ways by writers such as
Vattel, Smith, Kant, Hegel, Marx, Mill, Lauterpacht, Westlake, Hartmann,
Wheaton, Wilson, Rostow, Fukuyama, Friedman, Hardt and Negri, and Habermas,
but, as Herder objected to Kants model, it is always posited as a universal and
cosmopolitan endpoint for one and all. These legitimating meta-narratives are
Of course these six features were not called constitutional democracy until recently, after
decolonization and the emergence of a world of formally equal nation-states. But, the present usage
of this phrase makes it appear that the contingent histories of the six features make up aspects of
underlying processes that necessarily lead to constitutional democracy as the end point. And the con-
tingent histories can be arranged so they appear to illustrate the stages of their development and that,
at the highest stage, we can see into constitutional democracys essential aspects. As I mentioned in
the Introduction, this is the rhetorical function of the phrase in its narrow sense. But it is also import-
ant to remember that we can also arrange descriptions of customary legal and political associations so
they appear as natural extensions of constitutional democracy (by showing, for example, that they
perform similar functions), so modern constitutional democracy then can be seen as a particular
instance of a much broader class of constitutional and democratic association, rather than as the uni-
versal end point. The resulting legal and political pluralism is what I call common constitutionalism
in Strange Multiplicity, above n. 2.
For critical analyses of these legitimating discourses of imperialism see: J. Tully, The Kantian
Idea of Europe: Critical and Cosmopolitan Perspectives in A. Pagden (ed.), The Idea of Europe
(Cambridge: Cambridge University Press, 2002), 331; M. Koskenniemi, The Gentle Civilizer of
Nations: The Rise and Fall of International Law (Cambridge: Cambridge University Press, 2001),
179352; D. Chakrabarty, Provincializing Europe (Princeton: Princeton University Press, 2001); and
B. Ashcroft, Post-Colonial Transformation (London: Routledge, 2001).
woven into the horizons of modern humanities and social and legal sciences, and
into the day-to-day administration of all aspects of constitutional democracies, so
deeply that even critics accept them as the bounds of reasonable argument. Like
the other six aspects, these world-process discursive formations have been
predicated of both modernizing constitutional states and their imperializing
projects simultaneously since the early modern period. Again, I would like to
suggest that one can not adequately analyse the dynamics of an ensemble of
constitutional forms and constituent power without taking into account the
discursive formations employed in its operations.
The Imperialism of Constitutional Democracy
The previous section set out seven aspects of the modern arrangement of
constituent powers and constitutional forms commonly called constitutional
democracy. I suggested that it cannot be adequately understood by focusing
exclusively on its histories within Western states. It should be set in the broader
context of its global spread by means of Western imperialism in its formal
(colonial) and informal (free trade) phases, which was briefly summarized in the
Introduction. I then introduced this broader imperial context by distinguishing
between two intertwined classes of constitutional forms (state and imperial), and
then the two classes of the following five features. The seventh aspect showed how
they are integrated in the grand discursive formations (or meta-narratives) of
constitutional democratic modernization. I will now bring together these imper-
ial dimensions of constitutional democracy in a very brief historical synopsis.
Since the early-modern period, European states have asserted a crucial eighth
aspect of modern constitutional democracy: the right of European states and their
companies to trade freely in non-European societies and the duty to civilize non-
European peoples, and the correlative duty of hospitality of non-European
peoples to open themselves to trade and civilization. If indigenous peoples resist
and defend their own constitutional forms and constituent powers and civiliza-
tions, and thus violate the international duty of hospitality, the imperial powers
have the right and duty to impose coercively the conditions of trade, hospitality
and civilization; namely, the appropriate features of modern constitutional forms
and constituent powers. The right and two dutiesin their many formulations
from Francisco de Vitoria through Locke and Kant to the GATT/WTO, the
World Bank, and the norm of democratization under international lawserve to
legitimate the coercive imposition and protection of the conditions of the
A. Pagden, Lords of all the World: Ideologies of Empire in Spain, Britain and France 15001800
(New Haven: Yale University Press, 1995).
Western imperialization on the non-West. I will call the right and two duties the
imperial right.
The imperial right has been exercised in three major ways over the last half
millennium. The first is the implantation of European settler colonies in the
Americas, Australia, and New Zealand. In these cases of replication imperialism
the rudimentary colonial structures of modern constitutional forms and con-
stituent powers were imposed over the legal and political systems of the
Indigenous peoples, dispossessing them of their territories and usurping their
governments, by force or dishonoured treaties. Approximately 80 per cent of the
indigenous population, which was larger than Europes in 1492, was exterminated
by 1900. The remaining indigenous peoples were subjected to forced assimilation
or removed to tiny reserves with miniscule powers of local self-government and
ruled despotically by ministries of indigenous affairs. When the colonies freed
themselves from the British, Spanish, and Portuguese empires, they retained the
legal structures of the colonial period and continued to exert and extend imperial
sovereignty over indigenous peoples and their territories throughout the four
continents.
The second method of constitutional imperialization is indirect colonial rule.
The imperial powers established a small colonial administration or trading com-
pany to rule over a much larger indigenous population indirectly, by establishing a
formal infrastructure of imperial law and lex Mercatoria while also preserving and
modifying the existing indigenous customary constitutions and constituent
powers so resources and labour are privatized and opened to trade, labour
discipline, and investments and contract law dominated by the European trading
companies. Once this legal system is in place, resistance is illegal by their own
laws. As Hobson explained in Imperialism in 1902, the various means include rec-
ognizing local rulers as quasi-sovereigns and making unequal treaties with them,
civilizing or westernizing local elites and making them dependent on imperial
economic and military power and bribes, dividing and conquering opposition,
training the indigenous armies to protect the imperial system of property and
trade law and to fight proxy wars for them, inciting resistance so the trading
For an introduction to the complex history of the imperial right, see A. Anghie, Imperialism,
Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005);
Tully, Strange Multiplicity, above n. 2; Koskenniemi, above n. 31; and Pagden, above n. 32. For the
norm of democratization under international law today, see S. Marks, The Riddle of all Constitutions:
International Law, Democracy and the Critique of Ideology (Oxford: Oxford University Press, 2000). A
well-known and illustrative example of the duty of hospitality of non-Europeans to open themselves
to European trade, or face punishment under international law, prior to nineteenth-century
International Law, is Kants cosmopolitan right and duty of hospitality; the third definitive article of
Perpetual Peace. There is a long history of this cosmopolitan right and correlative duty of openness,
referred to as ius commercium, in the earlier law of nature and on which Kant draws.
For an analysis of these forms of imperialism, see M. Doyle, Empires (Ithaca: Cornell University
Press, 1986), 3050.
P. Havemann (ed.), Indigenous Peoples Rights in Australia, Canada and New Zealand (Oxford:
Oxford University Press, 1999).
companies can claim compensation for damages and lost profits (as in Iraq after
2003), and so on. This is the major way the imperial right was exercised in India,
Ceylon, Africa prior to its violent recolonization after 1885, and the Middle East
in the twentieth century.
The third wayinformal or free trade imperialismcan be seen as one step
beyond indirect rule. The imperial power permits the self-rule, and eventually
self-determination, of indigenous peoples within a protectorate or sphere of influ-
ence while exercising informal paramountcy (hegemony) to induce them to open
their resources, labour, and markets to free trade by establishing the appropriate
legal and political forms, thereby combining empire and liberty, the oldest
rallying cry of British and US imperialism. The informal ways and means include
the recognition of quasi-sovereignty and unequal treaties, economic, military and
aid dependency, bribes, sanctions, the civilization of the natives by voluntary and
religious organizations and by western legal, political, economic, and military
experts, and threats of military intervention and actual military intervention if all
else fails. These diverse means of open door or intervention imperialism, as it is
also called, replace and often supersede historically earlier formal colonization or
indirect rule (which laid the groundwork). The ultimate guarantee is the
establishment of small yet overwhelming naval and military bases (originally
coaling stations) established throughout the imperialized world, such as
Guantanamo Bay (1901), that can threaten or actually intervene on a moments
notice if subaltern peoples threaten to take democratic control of their own
resources or foreign companies. The British Empire and the United States
illustrated the superiority of informal imperialism over the expensive old colonial
system during the nineteenth century in their competitive free-trade para-
mountcy over the independent former colonies of Latin America (with frequent
interventions). As I mentioned in the Introduction, it has grown to become the
dominant form of imperialism since decolonization and the United States now
has over 750 military bases strategically located around the world.
The different formulations of the imperial right were brought together in an
authoritative form in the European and US construction of modern international
law in the nineteenth century. As Gerrit Gong, Martti Koskenniemi, Edward
Keene, and Antony Anghie have shown in their remarkable studies of the creation
of modern international law, the centrepiece of this project is the standard
of civilization. Civilization refers to both a set of world-historical processes
and an end-point: namely, the seven aspects of constitutional democracy of
the previous section. (After decolonization and the criticism of the imperial
For the Middle East, see R. Fisk, The Great War for Civilization: The Conquest of the Middle East
(New York: Harper/Collins, 2006), and Doyle, Empires, above n. 34, for a comprehensive survey.
For the rise of US-led informal imperialism, see A. Bacevich, American Empire: Realities and
Consequences of US Diplomacy (Cambridge, MA: Harvard University Press, 2002); C. Johnson,
Sorrows of Empire (New York: Owl Books, 2004).
uses of civilization by the new Third World states at the United Nations, the term
civilization was replaced by modernization and democratization, although
civilization has come back in use.)
The modern constitutional state with its constituent powers (the seven aspects)
was defined as the uniquely civilized and universal legal and political order. Only
European states (and the United States in 1895) met the standard and were thus
recognized as sovereign under international law. The complex and overlapping
legal and political associations of the non-Western peoples who had been colo-
nized over the previous four hundred years were defined in contrast as customary
and uncivilized. Hence they were not recognized under international law but were
subject to the imperial law of the respective sovereign powers. In Kants influential
formulation, the very fact that the so-called uncivilized peoples lacked a modern
constitutional form was asserted to be a threat to civilized states and thus to give
them the right to impose Western law, by treaty or by removing them from their
traditional territories if possible, or, if they failed to submit, to employ coercion.
Since openness to free trade, acceptance of corresponding domestic and inter-
national legal orders, and a Western territorial state form were defining aspects of a
civilized society, if an indigenous society tried to retain customary jurisdiction and
sovereignty over their own association, they proved themselves to be uncivilized
and a civilized legal order was imposed in one of the three ways above. The few
non-Western civilizations that were too strong to be bullied in this way were
brought into or alongside the club of great powers and restructured accordingly
(as with China and Japan).
The right of the self-proclaimed civilized imperial powers to extend colonial
and international modern constitutional regimes around the world correlated
with a sacred duty to civilize the indigenous peoples under their rule. Non-
Western civilizations, many of which are older and more complex than the
aggressive Western states, were scientifically classified at various stages of historical
backwardness or underdevelopment relative to the civilized imperial states, and
subjected to calibrated techniques of civilization and modernization. The civiliz-
ing duty involved, first and foremost, imposing the civilizing Western laws over
indigenous legal order, dispossessing or marginalizing or transforming their
customary forms of cooperative ownership, work and governance, and introdu-
cing capitalist corporations, foreign investment, labour discipline, modern
G. Gong, The Standard of Civilization in International Society (Oxford: Oxford University

Press, 1984); E. Keene, Beyond the Anarchical Society (Cambridge: Cambridge University Press,
2002); Koskenniemi, above n. 31; Anghie, above n. 33.
Immanuel Kant, Perpetual Peace in his Political Writings, H.S. Reiss (ed.) (Cambridge:
Cambridge University Press, 2001), 93, at 98. See Anghie, above n. 33, 2957 for the significance of
this justification of pre-emptive intervention in the context of the imperial war on terror today.
Gong, above n. 38, 1415 summarizes the features of the standard of civilization. The open-
ness to trade and subordination to Western free trade laws is the first feature. This fundamental
feature is repeated in the latest trade agreements under the WTO, in the Most Favored Nation Rule,
which derives from GATT (1947).
contractual relationships, and a territorially-based colonial political order. The

second dimension of the duty to govern those who were too uncivilized to govern
themselves was to apply colonial governmentalit in detail to shape and form their
forms of subjectivity so they would become able to take on in stages civilized
forms of self-government and competitive individualism of a modern, foreign-
controlled capitalist economy in a global system led by the developed states.
International law was powerless to enforce this civilizing duty on the imperial
states in the nineteenth century. Although it was clearly in their long-term interest
of a stable, juridical imperial system, the competing imperial states reverted to
the short-term executive strategy of war, pillage, slavery, hyper-exploitation,
genocide, and destruction in Africa, and the tropics more generally, after the Berlin
Conference of 1885 (similar to the atrocities in Afghanistan, Iraq, and Lebanon
118 years later). This unbridled imperial competition culminated in World War
I, the great war for civilization. In 1919 the great powers realized that they
could not continue the mutually destructive great game of competing militarily
over the domination and exploitation of the non-Western world. They tried to set
up a League of Nations and an international legal order that would, first, force the
great powers into a more cooperative and law-based form of imperialism, and
second, establish a shared, international project of civilizing the natives and
guiding them to self-rule. The first project, which Hobson and Kautsky feared as
the coming cooperative hyper-imperialism, was not achieved until after World
War II, the establishment of the United Nations, decolonization, and the Cold
War triumph of the Western powers over the socialist states. The second project
took the form of the Mandate System under the League of Nations. The colonized
peoples were classified into three main uncivilized types and techniques of
modernization were applied (irregularly) by the respective mandatory imperial
states as they increased resource exploitation, especially in the oil-rich Middle
East. These processes of preparing colonial peoples for Western-style self-
government continued during the Trustee System of the United Nations and,
after formal independence, the duty to civilize took the form of the trade
agreements of the WTO and imposition of neo-liberal structural adjustment and
privatization programmes by the World Bank and International Monetary Fund,
and the norm of democratization under international law.
In addition to the excellent treatment of the sacred duty of civilization by Gong, Keene,
Koskenniemi, and Anghie, see the classic critique of it in Marx, Capital, above n. 17, 93142, and
Hobson, Imperialism, above n. 17, 113327.
Koskenniemi, above n. 31, 98166, for the new imperialism of the 1890s, and D. Gregory,
The Colonial Present: Afghanistan, Iraq, Palestine (Oxford: Blackwell, 2005) for the new imperialism
of the 2000s.
J.H. Morrow Jr, The Great War: An Imperial History (London: Routledge, 2005).
See Anghie, above n. 33, 115272; Ayers, above n. 25; Marks, above n. 33; Koskenniemi, above
n. 31, 465509; Shrybman, above n. 21. For the Mandate System see M.D. Callahan, Mandates and
Empires: The League of Nations and Africa 19141931 (Sussex: Academic Press, 1999) and A Sacred
Trust: The League of Nations and Africa 19191946 (Sussex: Academic Press, 2004).
The great decolonization movements of the mid-century temporarily

disrupted these two projects. The former colonies tried to free themselves from
both formal and informal imperialism, to form a Third World not aligned with
Western or Soviet imperialism, and to continue to develop their own distinctive
constitutional forms, constituent powers, and civilizations (as both Fanon and
Gandhi hoped). However, the former colonies were constrained by the informal
means available to the great powers to exercise their constituent powers of self-
determination in accord with modern constitutional forms and constituent
powers, open themselves to free trade dominated by the great powers, and submit
to international legal regimes that denied them permanent sovereignty over their
own resources, or face military intervention and regime change. This moderniza-
tion and dependency project was often carried through by the Third World
westernized elites, corrupted by massive economic and military dependency,
against the resistance of the majority of their own people, who dreamed of
creating their own democracies, rather than the low intensity nationalist
democracies they were forced to accept. The resulting resource rich petro-
tyrannies, sweatshop dictatorships, and strategically important regional depend-
encies remain unstable failed states as a direct result of their continuing
subjection to informal imperial manipulation: the dependent elites are
constrained by their dependency to suppress the democratic aspirations of their
people to control their own resources and work conditions; the people are driven
to violence in self-defence; this is called failure and terrorism; andas Locke
predictedintervention follows.
This synopsis brings us up to the global network of informal imperialism I set
out in the Introduction, now with the roles of the institutions of constitutional
democracy added to it. The result is that the low intensity constitutional democra-
tization of the former colonies and the quasi-constitutional transnational and
international legal regimes that override them if necessary now provide the legal
and political basis of a new phase of Western imperialism. With the international
power of the great powers concentrated in the Security Council, the institutions
See P. Duara (ed.), Decolonization: Perspectives from then and now (London: Routledge, 2004).
This history explains why Indigenous peoples and Indigenous laws are used in broad and narrow
senses. In the broad sense, Indigenous peoples refers to all non-European peoples who have been
subject to Western imperialism. As Western-style formal legal systems were imposed and decoloniza-
tion carried out the peoples who acquired statehood (and were thus considered civilized) ceased to
be called indigenous. Indigenous peoples came to be used narrowly to refer to those peoples who
are subject to the continuing internal colonization of the original settler states and the new post-
decolonization states; that is, the Fourth World of 250 million people today.
See above n. 20.
B. Gills, J. Rocamora, and R. Wilson (eds.) Low Intensity Democracy: Political Power in the New
World Order (London: Pluto, 1993); and A. Wendt and M. Barnett, Dependent State Formation and
Third World Militarization (1993) 19 Review of International Studies 32147. For more recent sur-
veys see: N. Chomsky, Failed States: The Abuse of Power and the Assault on Democracy (New York:
Metropolitan Books, 2006), Gregory, above n. 42; J. Petras and H. Veltmeyer, Globalization
Unmasked: Imperialism in the 21st Century (London: Zed Books, 2004), Fisk, above n. 36.
of global governance, NATO and the US full spectrum dominance, these unequal
sovereigns are able to exercise legalized hegemony over the nominally sovereign
yet substantively subalternized former colonies. The resulting inequalities,
extreme poverty, dispossession, irresponsible foreign control, and destructiveness
are greater under post-colonial imperialism than under colonialism. Yet the only
official debate in the West is whether global rule will be primarily executive-based
and unilateral (the current policy of the United States and United Kingdom) or
primarily law-based and multilateral (the European alternative). The shared
historical foundation of these two historically intertwined strategies (warfare and
lawfare) in the imperialism of constitutional democracy we have surveyed goes
without saying.
Beyond Imperialism: Democratic Constitutionalism
In summary, constitutional democracy, consisting of the eight aspects, plays three

main roles in Western imperialism. Low intensity constitutional democratization
has been imposed on non-Western peoples without their consent or democratic
participation. These colonies and post-colonial replicas are in turn subject and
subordinate to a cluster of regimes of transnational and international laws over
which they have no or little say. These regimes in turn are governed by the most
powerful constitutive sovereign states through global institutions and military
networks in which the governed have no or little say, even though they are the vast
majority of the worlds population. All three dimensions are imperial and
abhorrent in their inequalities and injustices, yet each is composed of aspects of
constitutional democracy in its dominant narrow sense.
How can these three dimensions of constitutional democracy be de-imperialized?
A democratic answer is to work to bring the basic constitutional and constituent
structures of each of the three dimensions under the participatory shared author-
ity of those who are subject to them. This is the basic idea of democratic freedom
and democratic constitutionalism: the laws must always be open to the criticism,
negotiation, and modification of those who are the subjects of them as they follow
them. As we saw in section one, aspect two, this participatory and reflexive
freedom of negotiating the norms to which we are subject en passant is at the heart
G. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal
Order (Cambridge: Cambridge University Press, 2003).
J. Seabrook, The No Nonsense Guide to World Poverty (London: Verso, 2003).
P. Swan, American Empire or Empires? Alternative Juridifications of the New World Order in
A. Bartholomew (ed.), Empires Law (London: Pluto Press, 2006). Swan argues for a renewed
European imperialism based in the European Union.
It is worth noting that these two strategies or wings within the shared meta-narratives and
institutions of constitutional democracy have been a feature of western imperialism for over a cen-
tury. The debate over the new imperialism today is very similar to the debate over the new imperial-
ism at the beginning of the twentieth century.
of non-modern, customary constitutional forms and immanent constituent

powers. The formalization and disembedding of modern constitutionalism and
constituent powers displaced this freedom to representative institutions. The
imposition of proto-constitutional democracy under imperialism has attenuated
this participatory freedom even further in the low intensity democratization of
colonial and post-colonial regimes. And, finally, the transnational and inter-
national legal regimes attenuate this freedom of the governed even further. Yet, as
we also saw, even formal systems of law are grounded in everyday customary-
practices underlying the formal institutions of law-making, law-following, law-
enforcing, law-interpreting, and law-adjudicating in which the laws are
negotiated within limits in the course of interaction. So the project of democratic
constitutionalism is not one of bringing even more cumbersome representative
institutions to bear from the outside. It is to exploit and expand the existing yet
severely limited field of possibilities of direct participatory freedom (the exercise of
constituent powers) within and against the constitutional forms to which the
governed are now subject, directly or indirectly, at the very sites where these
unjustly constrain their ability to exercise shared authority over the conditions of
their activities. This is not the freedom to protest imperialism or to confront it
directly in a revolution aimed at overthrowing it. The co-optation of decolonization
revolutions and protests by informal imperial means has caused anti-imperialists
to turn to these concrete practices of democratic constitutionalism: of organizing
non-imperially and modifying the imperial dimensions of constitutional democ-
racy from within. This is a reformulation of the kind of limited freedom depicted
in the irresolution thesis or, conversely, a more realistic reformulation of the
co-articulation thesis under real-world conditions of hegemon-subaltern relations
(aspect six, theses 3 and 4).
As we know from the history of imperialism, such practical attempts to
democratize constitutional democracy will be met with official opposition and
force. However, this response further exposes the false and anti-democratic
premise of imperial constitutional democracy. In the section on the imperial right
we saw that the premise has always been that the non-Western other is uncivil
and so untrustworthy because they are not already subject to a structure of civil
law and the civilizing effects of subjection. Therefore, before democratic dialogue
and negotiation over legal and political arrangements can begin a structure of
For this history, see J. Tully, Democracy and Globalization in R. Beiner and W. Norman (eds.),
Canadian Political Philosophy (Toronto: Oxford University Press, 2000), 3662.
This turn to concrete constituent practices of freedom within and against imperial relations of
power was introduced after decolonization by Frantz Fanon, Partha Chaterjee, Edward Said, and
Michel Foucault. For a fuller theoretical account, see M. Simpson, The Creative Insurgence of
Subjugated Practices: Non-Capitalist practices and the interstices of capitalist modernity (MA
Dissertation, University of Victoria, 2006).
See, e.g., M. Chossudovsky, The Globalization of Poverty and the New World Order (Toronto:
Global Outlook, 2nd edn., 2003); N. Chomsky, Hegemony or Survival: Americas quest for global
dominance (New York: Metropolitan Books, 2003).
Western law has to be imposed. Constitutionalism precedes democracy. This is

the juridical containment thesis. But this premise is false and the cause of endless
imperial wars.
Non-Western peoples have always been subject to their own nomoi and demoi
and civilized by them in their different ways. There is thus no reason why demo-
cratic dialogue and negotiation cannot precede and ground the negotiation of
shared constitutionalism. The willingness to enter into dialogue with others in
this disarmed, open, and trusting way generates trust, as Gandhi and Hans-Georg
Gadamer have shown in practice and theory, whereas the coercive imposition of
the law of one over the other, backed up by the ever-present threat of more
military intervention, destroys trust and generates ressentiment, as the young
Nietzsche saw. It is rather the imperial powers that cannot be trusted to respect
the others laws and ways, but to misrecognize and delegitimate themas mere
customs, uncivilized, savage, the lawless state of nature, terra nullius, the Wild
West, terrorist regimes, or rogue statesand then intervene and subvert them.
This has been the structure of argument and practice of the imperial right since
the sixteenth century.
What can be done? Despite the destructiveness of imperialism, non-Western
customary legal and political normative orders have not been completely
destroyed or superseded, as the Western meta-narratives confidently continue to
predict. Western expansion has not been as total as its defenders and critics
assume. In section two it was noted that imperial rule is always parasitic on the
persistence of non-Western customary legal and political practices for its daily
operation because it has to rely on the indirect and informal collaboration of the
subaltern, that is, the majority of the worlds population. This practical room to
manoeuvre has enabled the diverse peoples of the world to act otherwise to some
limited extent: that is, to live creatively in accord with their own ever-changing
customary constitutional forms and constituent powers within the interstices of
imperial constitutional formations to vastly varying degrees. Even the most
For Gandhi and his immense influence, see T. Weber, Gandhi as Disciple and Mentor
(Cambridge: Cambridge University Press, 2004). For Gadamers argument that this is the only genu-
ine (non-imperial) form of dialogue, see H.-G. Gadamer, Truth and Method, J. Weinsheimer and
D.G. Marshall, trans. (New York: Crossroad, 1999), 34162. For Friedrich Nietzsche, see Nietzsche,
The Means to Real Peace in his Human all too Human, R.J. Hollingdale, trans. (Cambridge:
Anghie, above n. 33, 1331.
The limit case is where a colonized people have been so totally assimilated that they take on the
customary practices, habitus, and forms of subjectivity that undergird formal constitutional
democracy in the Western world. This is much less common that is supposed by modernization
theories, and the space for living alternative civilizations within it, which often go unnoticed by
Western observers, is much greater than is supposed. Even within the West culturally diverse peoples
act in culturally different ways to a very large extent within shared legal and political orders, and
constantly negotiate the boundaries. See A. Wiener, The Invisible Constitution (forthcoming), on
diversity of rule-negotiating in the European Union, and Tully, Introduction to A.-G. Gagnon and
J. Tully (eds.), Multinational Democracies (Cambridge: Cambridge University Press, 2001), 1.
relentlessly imperialized peoplethe indigenous peoples of the Americashave

preserved their normative legal and political and civilizational practices and are
now enacting a renaissance or resurgence of them within and against continuing
internal colonization. Hence, as legal pluralists show, there are subjugated and
overlooked alternative worlds of customary law and democracy that exist in the
day-to-day practices of millions of people, despite the overarching hegemony
and seeming inescapability of the particular western form of constitutional
democracy. As Boaventura de Sousa Santos argues, existing legal and political
pluralism is neither to be rejected as uncivilized nor accepted uncritically, but
brought into critical dialogues within and over different forms of organizing
shared authority non-imperially both locally and globallydialogues which
include the non-imperial aspects of Western constitutional democracy. And
these experiments are the growing basis of non-imperial forms global networking
that seek to provide a living democracy alternative to the current constitutional
form of the World Bank, IMF, and WTO.
Analogous spaces of democratic freedom exist in Western countries. Millions of
Westerners refuse to support the imperial dimensions of constitutional democ-
racy and strive to create non-imperial legal and political ways of interacting with
partners in the rest of the world, gradually de-imperializing constitutional democ-
racy from within. Following the examples of Gandhi, Vandana Shiva, Johan
Galtung, Fritz Schumacher, Arne Naess, Kofi Annan, Thich Nhat Hanh, and
countless other mentors, they are building networks of globalization in which the
constitutional form of the network is based on the ongoing democratic and non-
violent exercise of the constituent powers of the partners who subject themselves
to it. These experiments in democratic constitutionalism include cooperatives
rather than corporations, fair trade rather free trade, local democracy, non-violent
See Borrows and Napoleon, both above n. 11, for references to the reassertion of legal and polit-
ical pluralism.
L. Benton, Law and Colonial Cultures 14001900 (Cambridge: Cambridge University Press,
2001); De Sousa Santos, above n. 7, 85154.
De Sousa Santos, above n. 24. Santos sees the World Social Forum as a space for this kind of
critical dialogue.
J. Mander and V. Tauli-Corpuz (ed.), Paradigm Wars: Indigenous Peoples Resistance to Economic
Globalization (San Francisco: International Forum on Globalization, 2005).
J. Tully, A New Kind of Europe: Democratic Integration in the European Union (2007) vol. 7
no. 1 Critical Review of International Social and Political Philosophy 16.
For Gandhis influence on most of these mentors, see Weber, above n. 55. Thich Nhat Hanh,
Keeping the Peace (Berkeley: Parallax Press, 2005) describes the non-violent dialogical way to peace in
contrast to the imperial way of war and force: When the Israelis and Palestinians have listened to each
and communicated in Plum Village (a non-violent retreat in France), they return to the Middle East
and establish communities of practice, and invite other people to join. We are able to make change on
a small scale. But it has proven to be effective. If our governments apply the techniques, creating an
atmosphere of peace, helping people to calm down, helping them to sit down and listen to each other,
that is a much better way to remove terrorism and war than the war of war and force. In 2004, the
United States spent about four billion dollars a month in Iraq. Organizing a retreat costs much less.
(at 84).
dispute resolution rather than the recourse to arms, deep ecology, mutual aid
rather than aid tied to privatization and military bases, and ongoing dialogues
among the civilizations involved. Despite the horrors of present-day imperial-
ism, and perhaps partly because of them, there are arguably more practices of
creating non-imperial customary normative orders and of modifying the more
formal imperial normative orders from the inside than at any other time in the
long history of non-imperial and anti-imperial movements.
The growing movement for democratic constitutionalism and global justice in
Western legal and political research centres can play an important partnership role
in the growth of democratic constitutionalism in practice, for these practical
examples strive to manifest, in concrete forms, the pluralistic and egalitarian ideal
of genuinely democratic constitutionalization that critical scholarssuch as
Edward Said, Iris Marion Young, Thomas Pogge, Boaventura de Sousa Santos
are trying to articulate. Such a relationship of reciprocal elucidation between
de-imperializing practices of democratic constitutionalism and critical theoretical
and empirical research may help in time to make the irresolution thesis less
pessimistic than it is at the moment.
See, e.g., J. Cavanagh (ed.), Alternatives to Economic Globalization: A Report of the International
Forum on Globalization (San Francisco: Barrett-Koehler, 2002).
In memory of Iris Marion Young, whose spectacular work and personality inspired us and kept
our spirits aloft in these dark times. It is up to us to carry on under the gentle sway of her example.
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Index
Ackerman, B. Bourdieu, P. 321
constitutional change, theory of 5960, 200, Bratman, M. 15, 18
212 Braudel, F. 172n
Agamben, G. 7, 20n, 296n, 297n, 299 Brazil
Agnoletto, V. 17, 204, 205 COPAVI 3059
Allott, P. 274, 278n, 285 land reform and rural settlements in 3035
Altman, W. 289n Brett, A. 320n
Anghie, A. 330 Brewer, J. 42n
Annan, K. 337 Brownlie, I. 283n
Appiah, K. 291n Brubaker, R. 214n
Arendt, H. 14, 20, 199, 202, 220n, 221n,
296n, 310n Cairns, J.W. 43n
Augustine, 14, 15 Caldwell, P.C. 91n
authority Canetti, E. 180n
claim by law 133, 1356, 140, 1412 Canovan, M. 107n, 261n
founding moment, at the 3, 70, 131 Carozza, P. 7, 186n
global empire, as 1779, 1834 Cassese, A. 187n, 278
legitimate 147, 1501 Castoriadis, C. 14n
of the people see constituent power Chakrabarty, D. 327n
outside law 12931, 172 challenges to constitutional rights
authorship of constitution global governance 1656
collective or popular 78, 87, 211 pluralism 17980
individual 2, 15, 24, 745 politicization 1801
autonomy security concerns 148, 15964
private 153 Cavanagh, J. 338n
public 153 Chalmers, D. 8
Ayres, A. 325n Chirac, J. 83
Chomsky, N. 322, 335n
Bacevich, A. 330n Choper, J.H. 186n
Badinter, R. 75n Chossudovsky, M. 335n
Badiou, A. 194, 1968, 204, 312 Christodoulidis, E. 7, 18n, 326n
Barbera, A, 173n citizenship 13, 74
Barnett, R.E. 55n civil war
Basta, L. 227n American 59
Bastid, P. 76n English 27
Bauman, Z. 223n Clark, J.C.D. 43
Beck, U. 161n Clarkson, C. 201
Behrens, B. 41n cohabitation, practice of 83
Benjamin, W. 7 Colley, L. 45n, 46n
Bentham, J. 134 Collins, H. 200
Benton, L. 337n Condorcet, N. de 701, 745
Benveniste, E. 201 constituent power
Berghahn, V.R. 323n Central and Eastern Europe, in 2228
Bhabha, H. 191n early American conception 50
Blackstone, W. 434 early British conception 27, 3848
Bobbio, N. 179n early French conception 6779, 173
Bckenfrde, E.-W. ethnicity, and 2278
constituent power, theory of 989, 211n, generally 24750, 2568, 299300
226n international community basis 28690
Bodin, J. 148, 322 of the people 1, 5, 18, 21, 97, 198, 213,
Borrows, J. 320n 21619, 240, 3201
370 Index
constituent power (cont.) elections 356, 75, 77, 108, 110, 221
paradox of 8, 87, 147 legitimacy, and 2001
relationship to constituted power 1749, liberal 1, 9
2034, 2912, 2958, 31728 lottery, and the 11112, 114
relationship to legal order 132, 134 minorities, and 158
constituted power plebeian participation 11518
attribution, of 11, 19, 238, 239 presentation, as 1956
government, of 5, 18, 21, 24 reflexive 197
representation, of 11, 19 revolutionary moment 1967
constitutional secular theology, as 17, 22
actors 3256 unity, as 12, 196, 198200, 207
as representation 4, 68, 72, 173, 2956 democratic government 87
change 51, 5266, 1756, 2967 Denquin, J.-M. 78n
conflict 28, 87 Derrida, J. 193
conventions 3, 5, 49, 71, 73, 76 Descartes, R. 1617
form 1, 701, 75, 18991, 31820 Dinstein, Y. 283
imperialism 316 see also constitutional Dogliani, M. 1801
history Doyle, M. 329n
moment 99 Dunn, J. 256n
paradox 148, 14951, 170 Dupuy, P-M. 282
patriotism 6, 102 Dworkin, R. 144, 159n
rights and freedoms 14951 see also Dyzenhaus, D. 7, 134n, 200
challenges to constitutional rights
spaces or territory 1847, 297 Eagleton, T. 312
theory 2078, 249n Elazar, D. 71n
validity 13 Elkins, S. 53n
constitutional history Elster, J. 218n, 219n, 223n
American 4966, 109n, 119 Emden, C.S. 46n
British 5, 2747 Erzberger, M. 272
French 5, 6795, 21315 European
German 6, 88105 practice 14
imperialism 32834 Social Forum 17
international community 2703 European Union
republicanism see republicanism constituent power 2445, 2502, 2617
constitutions constitutional momentum 25861
higher law, as 179 Constitutional Treaty 85, 265, 266, 2745
language 2746 democratic basis 2535, 256
modern 1,3, 182 Enlargement 264n
post-modern 1847 political community, as 31314, 319
cosmopolitanism 2756 political origins 2523
counter-majoritarian principle 22 Ewing, K. 137
Cover, R. 301n, 302
Crisafulli, V. 181n Falk-Moore, S. 301n
Cromwell, O. 39 Farrand, M. 287n
Crown Fassbender, B. 272n, 278n, 281
body politic, as the 2830 Foucault, M. 206, 325
divine right 28, 301, 32 Federal Republic of Germany
in-Parliament 27 balancing constitutional values 967
restoration of 401 constitutional changes 174
royal prerogative 31 constitutional court 956
Currie, D.P. 54n federal system 945
Curtis, C. 14n Maastricht Treaty 1001
protection of individual rights 94
Dahl, R. 184n, 185 re-unification 99100
De Gaulle, C. 68, 801 system of judicial review 94
Dehousse, R. 264n welfare state dimension 1034
democracy Figgis, J.N. 31n
de-imperialization, and 3348 Fisch, J. 289n
Index 371
Fisher, L. 60n Heidegger, M.
Fisk, R. 330n Dasein 15, 20
Florence existence/selfhood 15
city republic 10922, 124n Heller, H. 92, 103, 180
Fraenkel, E. 93n, 131, 132n Henderson, A. 233n
Francis, E.K. 226n Hobbes, T.
Franck, T. 270, 282 conception of sovereignty 1401, 322
Frankenberg, G. 150n constitutional moment, theory of
Frankfurt, H. 311n 13940
Franklin, J.H. 40n, 42n rational individualism 138
Friedman, W. 270 role of judges in legal order 141
Fuller, L. 321 Schmitts critique 139
Hobsbawm, E. 180, 230n
Gadamer, H-G. 336 Hobson, J.A. 323
Gallagher, J. 315, 316 Hffe, O. 152n
Galtung, J. 337 Holmes, S. 222n
Gandhi, M. 336, 337 Honneth, A. 167n
Gardiner, S.R. 38n, 39n Hopkins, N. 310n
Garton-Ash, T. 223n Huber, E.R. 289
Gearty, C. 137, 144 human rights 135, 137, 142, 183, 217 see also
Glasman, M. 199n Habermasian
globalization Hunt, L. 107n
circumstances 1, 83, 84
impact of 170, 172, 176, 1901 identity
Glorious Revolution see Revolution collective 5, 9
Glover, S.D. 37n reflexive 5, 15
God sameness or idem- 9,13, 14
sovereign right of 27, 31 selfhood or ipse- 4, 15
Godechot, J. 71n, 76n, 78n territorial 182
Gong, G. 330, 331n indigenous peoples 320, 331, 333n
governance individual
global 31516 autonomy of 298
multi-level 169, 170, 1857, 275 protection of 9, 69
technique, as 325 International Committee of the World Social
Griffin, S. 5, 52n, 56n, 200 Forum 18
Griffith, J.A.G. 134 International Court of Justice (ICJ) 271,
Grimm, D. 224n, 255n, 259n, 276n 279
Guicciardini, F. 10814 International Law
Guignon, C. 311 fundamental principles 27681
Gnther, K. 166n International Law Commission 271, 279
Ipsen, H-P. 252n
Habermas, J. 6, 14n, 1013, 147, 185, 257n, Isensee, J. 161n
263n, 275, 282, 285, 295, 298 Italy
Habermasian constitutional theory 172n, 1746, 183n
communicative action 154 Ivison, D. 229n
constituent power 157
discourse theory 1534 Jaume, L. 5, 67n, 71n, 72n, 74n, 78n, 295
public sphere 102, 158 Jellinek, G. 90, 149n
system of human rights protection 1556, 158 Jennings, I. 231n
theory of legitimate law 1567 Joerges, C. 103n, 166n, 253n
Haltern, U. 265n judicial interpretation, role of 1425, 181
Hanh, T.N. 337 July Regime 77
Hardt, M. 171, 310, 320
Harvey, D. 325n Kaiserreich
Huler, R. 95n conflict with parliament 889
Havemann, P. 329n early constitutionalism 6, 88
Hegel, G.W.F. legitimacy 101
civil society 298 Kaldor, M. 177n
372 Index
Kalyvas, A. 14n, 20n, 250n, 296n Levellers
Kant, I. constitutional theory 358, 478
civil society 298, 331n Levi, E. 190
constitutional theory 152 liberalism
nationhood 294n account of the rule of law 129, 131
Karatani, K. 207n anti-liberalism of the common law 1348
Karl, W. 290n containment of political 22
Keene, E. 330 Lijphart, A. 236
Kelly, D. 294n, 295n Lindahl, H. 4, 202, 204, 248n
Kelsen, H. Lindseth, P. 255n
constituent power 10, 19, 98, 203, 219n Lintott, A. 107n
constituted power 238 Locke, J. 149n, 217, 323
grundnorm or basic norm 11, 19, 130 Loughlin, M. 5, 1356, 144, 148n, 192n,
international law 287 238, 256n, 286, 295n, 299, 317,
pure theory of law 9, 130 325, 326
Kemmerer, A. 270n Lowenstein, K. 214n
Kennedy, E. 14n, 61n Luhmann, N. 102n, 194, 202, 276
King see Crown Lyotard, J-F. 14n
Klabbers, J. 255n, 275n
Klein, C. 88n MacCormick, N. 238n
Koskenniemi, M. 273, 327n, 330 MacDonald, R. 282
Kramer, L. 50n Machiavelli, N. 108, 11425, 322
Kristeva, J. 31112 MacMahon, A. 186n
Khne, J.-D. 88n Madison, J. 50
Kymlicka, W. 232n Maduro, M. 266n
Maistre, J. de 1
Lacan, J. 193 Majone, G. 253
Laclau, E. 87n, 88n Mander, J. 337n
Laforest, G. 241n Mann, M. 300n
Larmore, C. 157n, 160n Marx, K. 195, 319, 323
Laski, H.J. 199 Matthew, H.C.G. 46n
law Maus, I. 152n, 155n
attribution to the self 12, 19 McCormick, J. 6, 107n, 115n, 138n
criminal 161n McDough, M. 272
global 1656, 1702, 184n McNair, A.D. 283
labour 199 Mead, G.H. 218n
representation 19, 11 Merleau-Ponty, M. 19n
Roman 322 Mezzanotte, C. 181n
social integration of 153n, 170 Michelman, F.I. 211, 249n
system of norms a 12, 130 Mitterrand, F. 83
law, rule of see rule of law Mllers, C. 6, 200
Leclair, J. 239n Mommsen, W. 315, 316
Lefort, C. 193, 202 Montesquieu, C.L. 311
legal order Moravcsik, A. 255n
formalism 237 Moreno, L. 233n
system of rules, as 9 Morgan, E.S. 32n, 34
unity, as 12, 318n Morgenthau, H. 322
legal pluralism Morrow, J.H. 332n
emphasis on the individual 292, 3013, Mortati, C. 180, 181n, 260n
310n Mosler, H. 272
indigenous societies, and 337 multinational see plurinational sites
Leibholz, G. 180n
Leino, P. 255n Naess, A. 337
Lepsius, M.R. 94n Nancy, J-L. 201
Lepsius, O. 93n Napoleon, V. 320n
Lerner, H. 235n Narlikar, A. 321n
Index 373
nationalism Pitkin, H. 296n
British 45 Pizzorusso, A. 179n
French 76, 84 plurinational sites
Quebec 241 constitutional form of 2345, 236, 2401
Scottish 242 demos of 2314
state 190, 225, 31213 ethnos of 2324
sub-state 7, 190, 22931, 2356 meaning of 229
nationhood 69, 76, 292, 30912 Pocock, J.G.A. 214n
natural rights 72, 152 Pogge, T. 338
Nazi regime Polanyi, K. 208
constituent power 132 political
critical of legal form 93 abyssal, as 1935
dual state, as a 1312 double inscription, as 1915, 2026
Negri, A. elites 108, 10910, 11418, 123n, 125n
constitutional theory 6, 171, 1769, 184, exclusion 22
299, 310, 320 imaginary 300, 309
Nickel, R. 7 inclusion 22
Nietzsche, F. 23, 336 parties 55
Nipperdey, T. 89n pluralism 24, 198, 257
normativity reflexivity 192, 2067, 258, 297
constitutional order 12, 601, 130, 132, self-determination 206
1356, 1435, 156, 181 unity, as 18, 20, 22, 2013, 313
norms Pompidou, G. 83
creation of 10, 11, 60 post-communism 7
power
Offe, C. 226n governmental 1, 427, 3235
Ontology of the collective self see identity of kings 3031
(collective) Presidential
Open Method of Coordination (OMC) 254n impeachment in USA 589
Orren, K. 57 leadership ideology in Germany 133
Osterhammel, J. 315 power in France 814
Overton, R. 36n Preuss, U.K. 7, 212n
Pufendorf, S. 318
Pagden, A. 327n, 328n
Palmer, R.R. 49 Rancire, J. 295
Papacy 31, 1202 Rawls, J. 6, 206, 218
Parker, H. 334 Redslob, R. 90n
Parliament (UK) Rehfeld, A. 293n
conflict with the Crown 312 Reicher, S. 310n
governmental power, as 423, 47 Reisman, M. 272
highest court in England, as 32 Reisman, W. 301n
peoples voice in England, as the 334 Renan, E. 294n
Reform Act 46 republicanism
Rump 3840 modern 10725,
Patrician rulers 6, 1203 pre-modern 10723, 150
patriotism see constitutional Resina, J.R. 237
Pauly, W. 88n Revolution
people 1688, of 4, 257
consent of 1, 6, 502, 149 American 150, 216, 257, 284
subjects of legal order, as 15 Central and Eastern Europe 212, 225n
unity of 14, 72, 21112 constitutional order 2434
Pernice, I. 185n, French 6875, 150, 172, 21315,
Petersmann, E-U. 152n, 273 257, 284
Pettit, P. 107n, 257n revolutionary
Peukert, D. 93n discourse 5, 27, 35
Pinna, P. 180n moment 5, 172, 2202
374 Index
revolutionary (cont.) Simpson, G. 334n
systemic change 2234 Skinner, Q. 320n, 321, 322n
transformative change 2245 Skowronek, S. 57
Ricoeur, P. 14, 15, 194n Skubiszewski, K. 271, 272n
Riecken, J. 95n Smend, R. 180
rights Smith, A.D. 228n
priority of 7 society
Ritter, G.A. 70n nature of 3, 298
Roberts, C. 32n Sorel, G. 205n
Roberts, S. 302n Sousa-Santos, B. 301, 302, 337, 338
Robin, C. 298n sovereignty
Robinson, R. 315, 316 fragmented 169
Roermund, van B. 11n, 14, 15, 202 parliamentary (in France) 7980
Rokkan, S. 234n popular 27, 328, 51, 79, 157, 173
Rosenne, S. 271 relational 2389
Rossiter, C. 131 unbound 152
Roussseau, J-J. 149n, 320 Spadaro, A. 179n, 182
royal prerogative see Crown Spinoza, B. 148
Rudelle, O. 79n state
rule of law 9, 68, 137 see also liberalism cultural forms 3303
institutional forms 1, 5361
Said, E. 338 modern 1, 5, 331
Sartre, J.P. 197 post-state polities 8, 244
Scharpf, F. 256n sovereignty/authority 3212
Schermers, H.G. 270n sub-state see plurinational sites
Scheuner, U. 280 Strauss, L. 136n, 192n
Schlesinger, A.M. 63n Supreme Court of the USA
Schlink, B. 96n as interpreters of the constitution 50, 52, 54,
Schmitt, C. 58, 612
collective agency 13, 16 Swan, P. 334n
constituent power 12934, 203, 213, 219n,
299, 302 Tamanaha, B. 301n
constitutional theory 4, 9, 1304 Taylor, C. 14n, 321
democracy 2114 Teitel, R. 228n
denunciation of Rechtstaat 23, 1323 Teubner, G. 165n, 166n, 276n, 301n
fascism 133n, 291, 300 Thomas, K. 36n
rule of law 214 Tierney, S. 7, 230n, 236n, 241n
selfhood 16 Tomkins, A. 1356, 144
theory of the political 131, 133, 192 Tomuschat, C. 272, 277, 278n, 280n, 285n
Schnapper, D. 214n Tully, J. 8, 206, 263n, 265n, 317n, 322n,
Schneider, H. 95n 323n, 335n, 337n
Schnberger, C. 89n
Schpflin, G. 311n Unger, R. 198n
Schumacher, F. 337 United Nations (UN) 8, 271
Schumpeter, J. 47n, 185 United Nations Charter
Seabrook, J. 334n constitutional document 271, 273 , 28190,
Searle, J. 10, 14 319
security, global 15964 Urwin, D. 234n
Sen, A. 313n
September 11 Vassilev, R.V. 227n
constitutional changes 61, 62, 645, 137 Verdross, A. 272, 277
Shapiro, K. 302n Vinx, L. 138n
shared intentional activity 1516 Volpe, G. 184, 185n
Shiva, V. 337
Shrybman, S. 324n Waldenfelds, B. 21n, 202
Sieys, E-J. 689, 173n, 215, 293, 294, 299 Waldron, J. 148n, 164n
Index 375
Walker, N. 256n, 257n, 260n, 281, 286, 301n, Wittgenstein, L. 321n
317, 326 Wolfrum, R. 288n
Walter, C. 276n Wood, G. 49, 60
Weber, M. 226n, 274, 319, 323, 325 Woolrych, A. 31n, 37n
Wechsler, H. 186n Wootton, D. 37n
Weiler, J. 259n
Weimar Republic Young, I.M. 338
constitutional design 6, 91, 216
democratic legitimacy of 92 Zagrebelsky, G. 182
failure of 101 Zizek, S. 193
liberal system, as 93 Zumbansen, P. 319n
welfare dimensions 103 Zweig, E. 90n

M. Laughlin, N. Walker (Eds.) - The Paradox of Constitutionalism. Constituent Power and Constitutional Form (2007)

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M. Laughlin, N. Walker (Eds.) - The Paradox of Constitutionalism. Constituent Power and Constitutional Form (2007)

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THE PARADOX OF CONSTITUTIONALISM

ISBN 9780199204960 (Hbk.)

II. THE ARTICUL ATION OF CONSTITUENT

9. Constitutionalisms Post-Modern Opening 169

III. EXTENSION AND DIVERSIFICATION OF

Modern constitutionalism is underpinned by two fundamental though

The Paradox of Constitutionalism. Martin Loughlin and Neil Walker.

Modern constitutions invariably come into existence as a consequence of some

priority of the legal-normative and the political as exemplary of influential and

dismisses the possibility of isolating the radical potential of constituent power

whether and in what circumstances we might conceive of the relationship

The Paradox of Constitutionalism. Martin Loughlin and Neil Walker.

collective self-constitution means constitution both by and of a collective self. An

Kelsen and Schmitt on Collective Agency: A Conceptual Impasse

our theme is the political argument he marshals in its favour. If democracy, he

Identity as Sameness and as Selfhood

B. van Roermund, First-Person Plural Legislature: Political Reflexivity and Representation

course, the cornerstone of Heideggers Fundamental Ontology: Beings are a who

intentional activity is reflexive in a twofold sense. First, the members of a group

van Roermund, above n. 20, 2424.

The Equivocal Self-Constitution of Political Community

As noted earlier, Schmitt articulates his politico-theological reading of constituent

Heidegger, above n. 23, 212.

movements and member of the International Committee of the World Social

L. Caramel, Forum de Florence: offensive de la gauche radicale, Le Monde, 16 November

also on behalf of our movement . . .. Hence, Agnolettos assertion denies

acts by individuals. By exercising their constitutional rights, they retroactively

Democracy and the Rule of Law

Schmitt, above n. 31, 38.

For Schmitt, liberating democratic politics from its liberal containment

Schmitt, above n. 1, 87. Ibid. 21.

These considerations cast new light on Schmitts denunciation that the

order; it also always neutralizes strangeness, levelling down the extraordinary to a

Schmitt, above n. 1, 119.

The Paradox of Constitutionalism. Martin Loughlin and Neil Walker.

Constitutional Conflict in Early-Seventeenth Century England

The Crown and the Body Politic

The Divine Right of Kings

The Parliamentary Challenge

The Birth of Constituent Power

In his answer to the Nineteen Propositions made by parliament in 1642, and

See C. Roberts, The Growth of Responsible Government in Stuart England (Cambridge:

The Concept of Popular Sovereignty

government throughout this turbulent period until 1653, surviving losses of

Whatever their limitations as revolutionaries, the Levellers had at least been

The Subversion of Constituent Power

The English Republic

The Revolution of 1688

Parliamentary Government in the British State

This growth in the modern system of parliamentary government has been

place, he presented a Hobbesian account of law as an orderly arrangement

vested in the people as equal, rights-bearing citizens can be ceded to governmental

Modern constitutionalism involves a tension between the constituent power of

The Paradox of Constitutionalism. Martin Loughlin and Neil Walker.

constitute another constitutional convention. Thus, the conventional meaning

constitutional change. Indeed, the conventional view has been extensively

The Legalized Constitution

A constitution is legalized to the extent it is made cognizable by lawyers and

Constitutional Change and the Political Process

Constitutional change can occur through either a legal (formal) or non-legal

See Griffin, above n. 7, 1619.

Constitutional Change in the Early Republic

A self-enforcing constitution with a limited sphere of legalization creates both the

perceived as difficult, they might choose to represent what should count as