Demokratien geraten zunehmend unter Druck. Dabei wird die Bedeutung von Demokratie selbst zum Gegenstand der Auseinandersetzung. Diese Auseinandersetzungen nimmt der vorliegende Band zum Anlass, die Bedeutung von Demokratie grundsätzlich zu untersuchen. Mit dem Begriff der Konstituenzien sind dabei jene wesentlichen Bedingungen gemeint, die Demokratie ausmachen. Die meisten dieser Bedingungen sind normativ. Was Demokratie ist, wird auch und gerade dadurch bestimmt, was Demokratie sein sollte. Damit geht es um jene Normen, deren Verwirklichung politische Praktiken zu demokratischen Praktiken macht. Sind diese Normen (...) nur eingeschränkt verwirklicht, mindert sich der demokratische Gehalt von Politik. Inwieweit ist dann nun aber eigentlich der Fall? Und was können wir dagegen tun? Antworten auf diese Fragen geben einschlägige Vertreterinnen und Vertreter aus Philosophie, Politik- und Rechtswissenschaft. (shrink)

After the emergence of a popular resistance movement to direct rule by an absolutist monarchy, and several years of civil war, King Gyanendra of Nepal yielded power to an elected Congress in 2006. Within one year, Nepali citizens saw the signing of a Comprehensive Peace Accord, the establishment of a Constituent Assembly, the declaration of the Nepali state, and the declaration of the Nepali Republic a year after that. An Interim Constitution was adopted by 2007, which endowed the Constituent Assembly (...) with the authority to draft Nepal’s permanent Constitution, and established the limitations under which the Assembly must operate — all apparently legitimate steps in establishing a Constitutional order. What initially appeared to adhere to an established model of post-sovereign constitution-making failed in its first attempt. Indeed, the drafting and ratification of a permanent constitution is no easy task. Why did the first Constituent Assembly fail? Where did the constitution-making process divert from the post-sovereign model, and what caused it? I examine the process from the establishment of Nepal’s first Constituent Assembly to the short-lived deliberations of the Assembly, followed by the dissolution of the Assembly for failing to achieve its mandate. I also trace Nepal’s constitution-making process along the post-sovereign model, and assess whether they adhered to or diverted from the model. It is understood that no political models are fixed in the sense that adherence or divergence is necessarily incompatible with success or failure. However, I use Andrew Arato’s post-sovereign model as a guide for identifying the stages in the constitution-making process, and for a background to the discussion on where the first Assembly failed. (shrink)

ABSTRACTIt is often held that the legitimacy of a democratic constitution depends on its production by constituent power. This paper argues that the notion of legitimation by constituent power face...

Abstract: This article examines the uses of official apologies for massive human rights abuses in the context of democratic transitions. It sketches a normative model of apologies, highlighting how they serve to provide some moral and practical redress for past wrongs. It discusses a number of contributions apologies can make, including publicly confirming the status of victims as moral agents, fostering public reexamination and deliberation about social norms, and promoting critical understandings of history that undermine apologist historical accounts. The article (...) then presents certain normative criteria that any official apology must satisfy, and concludes with a discussion of several theoretical and practical challenges that apologies face in transitional contexts. It draws on Chilean President Patricio Aylwin's apology for his predecessor's crimes as an illustration of some of the promises and challenges that apologies face. (shrink)

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by (...) constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism. (shrink)

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by (...) constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism. (shrink)

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by (...) constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 3, Page 361-385, March 2022. Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source (...) in some idea of ‘the people’, whose authority is never exhausted by constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism. (shrink)

ABSTRACTPolitical theorists recently focused their attention on the history of the idea of constituent power. This, they claim, shows that the notion of pouvoir constituant expressed the radical and absolute power of the sovereign people. In other words, constituent power pointed at the democratic and irresistible core of popular sovereignty. In this paper, I argue that the analysis of nineteenth-century French political thought offers a different account of constituent power’s history. Relying upon archival resources, I show that in the aftermath (...) of the French Revolution politicians and legal scholars used constituent power to tame the very idea of sovereignty and the powers from it derived. First, during the Restoration constituent power was used to pose a limit to the power of the monarch. Second, throughout the July Monarchy scholars resorted to constituent power to oppose the Parliament's claim to be the sovereign power and the only legitimate author of the constitution. Moreover, they also used it to claim that claim that, even if the people was sovereign, its power was restricted to authorizing the constitution. Third, during the Second Republic, jurists and politicians addressed the people’s sovereign power in terms of constituent and constituted power. While the first was meant to disappear after the constitution’s approval, the second was a second-order power limited by the hierarchy of norms and the rigidity of the constitution. (shrink)

Historians and political theorists have long been interested in how the principle of people’s power was conceptualised during the French Revolution. Traditionally, two diverging accounts emerge, one of national and the other of popular sovereignty, the former associated with moderate monarchist deputies, including the Abbé Sieyes, and the latter with the Jacobins. This paper argues against this binary interpretation of the political thought of the French Revolution, in favour of a third account of people’s power, Sieyes’ idea of pouvoir constituant. (...) Traditionally, constituent power has been viewed as a variation of sovereignty, but I show it to be an independent conceptualisation of people’s power. Sieyes’ political theory led him to criticise and refuse contemporary theories of sovereignty in favour of what he understood as a fully modern account of people’s power. Based on extensive research in the archives, I show how Sieyes opposed the deployment of sovereignty by the revolutionary Assemblies and reco... (shrink)

Work occupies a central place in most people’s lives, yet a secondary one in most of political philosophy. This article attempts to show the negative theoretical consequences of this neglect by taking the example of the concept of constituent power as it appears in the writings of Emmanuel Joseph Sièyes and Karl Marx. Both authors conceived it as made up of the working classes. This, however, makes them both run into the same paradox: how to politically represent a class that (...) is characterised by a non-political activity – work? I argue that neither of them gives a satisfactory response since both rely on an implausible account of objective class interests based on fragile grounds. I conclude by showing that the political representation of workers is a theoretical and practical problem that the concept of constituent power is unable to resolve. (shrink)

Two of the dominant frameworks for criticizing capitalism and liberal democracy in contemporary political theory is Socialist republicanism, on the one hand, and radical democracy, on other hand. Whereas radical democratic thinkers have for decades criticized liberal democracy for being elitist, hierarchical and outright anti-popular, socialist republicans have for the last 10 years developed critiques of capitalism centred on the neo-republican idea of freedom as non-domination and proposed various arguments for workplace democracy and cooperative forms of ownership. Despite the common (...) ambition of uncovering hierarchical relations of economic, political and social power, and creating new egalitarian and participatory modes of political organization, no systematic comparison of socialist republicanism and radical democracy exists. This paper fills this gap by comparing the different understandings of institutions and political action and their diverging historical and political relations to socialism. (shrink)

Philosophy & Social Criticism, Ahead of Print. Two of the dominant frameworks for criticizing capitalism and liberal democracy in contemporary political theory is Socialist republicanism, on the one hand, and radical democracy, on other hand. Whereas radical democratic thinkers have for decades criticized liberal democracy for being elitist, hierarchical and outright anti-popular, socialist republicans have for the last 10 years developed critiques of capitalism centred on the neo-republican idea of freedom as non-domination and proposed various arguments for workplace democracy and (...) cooperative forms of ownership. Despite the common ambition of uncovering hierarchical relations of economic, political and social power, and creating new egalitarian and participatory modes of political organization, no systematic comparison of socialist republicanism and radical democracy exists. This paper fills this gap by comparing the different understandings of institutions and political action and their diverging historical and political relations to socialism. (shrink)

In The Crisis of the European Union Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term ‘rational reconstruction’ stands for. This article critically discusses the (...) current state of research on rational reconstruction, develops a new reading of Habermas’ method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte. (shrink)

This article outlines a critical systems theory approach to the study of populism by arguing that populism is an avenue of contestation which assumes a distinct role and function in the existing constitution of the political system. Most notably, it is characterised by the re-entry of a popular sovereignty dimension within regular political procedures. By taking up a critical systems theory perspective, it becomes possible to more precisely distinguish populism from other forms of politics, such as oppositional politics, social movement (...) politics or procedural constitutional politics. Further, populism’s oscillation between democratic and authoritarian dynamics can be elucidated as an inversion which operates from within its political form. Finally, it is argued that the critical systems theory approach provides a more nuanced understanding of populism’s inherent problems and, consequently, moves beyond a blunt defence or rejection of populism as such. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a constitutional nomos, the (...) matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (shrink)

Lenin’s State and Revolution is not only a project for imminent revolutionary policy and not only a legitimization argument for a revolutionary dictatorship, but also a theory of state and theory of democracy. Lenin points at the reduplication of state organs that is inherent in a democratic state. While the Russian revolutionary thinks of this reduplication as something transitory, we today increasingly see it as a durable condition coterminous with the late-modern democratic state. I use Lenin’s treatise as a point (...) of inspiration to briefly characterize my dialectical theory of state. (shrink)

The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative (...) problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself. (shrink)

This article presents Minobe Tatsukichi’s emperor organ theory as a novel understanding of the temporality of founding. In contrast to a conventional framework of founding which legitimizes the constitution by postulating the pre-constitutional power of “the people,” emperor organ theory invents “the people” out of the Meiji Constitution as a democratically empowered subject to-come. In so doing, emperor organ theory calls upon the transformation of shin-min (臣民), the presumed subject of the emperor, into koku-min (国民), the people of this constitutional (...) state. However, emperor organ theory also highlights the contingency of founding moments: though koku-min emerged through the Diet as a conceptually new political actor in Japan’s nascent constitutional state, it never solidified its sovereign status as “the people.”. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a constitutional nomos, the (...) matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (shrink)

This paper is concerned with the Convention’s “democracy clause,” that is Article 3 of Protocol No. 1, which provides for the right to free elections. Why should it be described as a “democracy clause” and what is its significance for today? The paper first sketches out the drafting history, which reveals that while the framers were keen to preserve their inherited domestic institutions, they also thought it crucial to promote democracy. The Convention invokes but does not define democracy. It is (...) within the Court’s competence to elucidate its meaning. The Court holds that pluralist democracy is the only system compatible with the Convention. This paper argues that Article 3 of Protocol No. 1 further presupposes a representative legislature. It does not require member states to introduce a specific system of elections and representation, but it obliges them to conform to parliamentary democracy. Thus, the Court’s model of democracy rests on two pillars: pluralism and parliamentarism. It subscribes to pluralist democracy theories but contradicts the monolithic conception endorsed by Carl Schmitt. The Court’s model has the potential to offer a robust account of democracy. Yet, Article 3 of Protocol No. 1 has never lived up to its potential. The Court’s relevant jurisprudence is inadequate to address the contemporary antidemocratic shifts that are underway in certain member states. Hence, the paper suggests that the Court’s power to apply this clause is not limited to general elections but also extends to presidential elections and referendums. (shrink)

Traditionally, transitional justice has referred to that field of theoretical scholarship that proffers recuperative strategies for political societies divided by a history of violence. Through the establishment of truth commissions, public confessionals and reparative measures, transitional justice regimes have sought to establish restorative conditions that might help reconcile historical antagonists both to each other and to the trauma of their shared past. Because of some of the theoretical lapses in this scholarship some have turned recently to the field of radical (...) democratic and ‘new pluralist’ thought – and especially to agonistic literature – to foreground a theory of post-conflict reconciliation based not on the principles of the sublimation of difference, but rather the perpetual deferral of accord. This essay works both to underscore that effort, as well as to problematize it. Through unorthodox readings of Giorgio Agamben, Jean Améry and Sheldon Wolin, the essay argues that an emphasis on messianicity as the temporal mode of political repair is ultimately less productive for what I call an agonistics of reconciliation than a more nuanced approach to what Wolin calls ‘fugitive democracy’. Where the former is allied with a problematic politics of mutual respect, the latter affirms a more germane politics of abiding resentment. In the end, a startling conclusion is drawn from reading agonistic reconciliation through Wolin: democracy may be a political experience reserved for scenes of transitional justice alone. (shrink)

Thomas Hobbes has been hailed as the philosopher of power par excellence; however, I demonstrate that Hobbes’s conceptualization of political power is not stable across his texts. Once the distinction is made between the authorized and the effective power of the sovereign, it is no longer sufficient simply to defend a doctrine of the authorized power of the sovereign; such a doctrine must be robustly complemented by an account of how the effective power commensurate to this authority might be achieved. (...) Nor is this straightforward: for effective political power can fluctuate, sometimes severely. In this light, the prevalent juridical reading of Hobbes’s political philosophy is inadequate. (shrink)

Negri celebrates a conception of democracy in which the concrete powers of individual humans are not alienated away, but rather are added together: this is a democracy of the multitude. But how can the multitude act without alienating anyone’s power? To answer this difficulty, Negri explicitly appeals to Spinoza. Nonetheless, in this paper, I argue that Spinoza’s philosophy does not support Negri’s project. I argue that the Spinozist multitude avoids internal hierarchy through the mediation of political institutions and not in (...) spite of them; nor do these institutions merely emanate from the multitude as it is, but rather they structure, restrain and channel its passions. In particular, the required institutions are not those of a simple direct democracy. There may be other non-Spinozist arguments on which Negri can ground his theory, but he cannot legitimately defend his conception of the democratic multitude by appeal to Spinoza. (shrink)

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and...

This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation, speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s thinking in (...) the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications for constitutional interpretation. (shrink)

The recently rising field of Critical Data Studies is still facing fundamental questions. Among these is the enigma of digital subjectivation. Who are the subjects of Big Data? A field where this question is particularly pressing is finance. Since the 1990s traders have been steadily integrated into computerized data assemblages, which calls for an ontology that eliminates the distinction between human sovereign subjects and non-human instrumental objects. The latter subjectivize traders in pre-conscious ways, because human consciousness runs too slow to (...) follow the volatility of the market. In response to this conundrum Social Studies of Finance has drawn on Actor-Network Theory to interpret financial markets as technically constructed networks of human and non-human actors. I argue that in order to develop an explicitly critical data study it might be advantageous to refer to Maurizio Lazzarato’s theory of machinic subjugation instead. Although both accounts describe financial digital subjectivation similarly, Lazzarato has the advantage of coupling his description to a clear critique of and resistance to finance. (shrink)

‘The deep state’ is a theme in a recent conspiracy theory according to which opaque segments of the public administration prevent the will of the people from being fully reflected in public policy...

‘The deep state’ is a theme in a recent conspiracy theory according to which opaque segments of the public administration prevent the will of the people from being fully reflected in public policy...

En el presente trabajo se aborda el estudio del concepto de ‘sujeto constituyente’ y, más precisamente, la identificación y análisis de sus tres propiedades definitorias: la propia condición ‘constituyente’ y no ‘constituida’ del sujeto; la no-sujeción a deberes ni a límites jurídicos; y la autoatribución de una competencia normativa ‘originaria’. Partiendo de la premisa de que este concepto mantiene una relación necesaria con el concepto de ‘poder constituyente’, cada una de esas propiedades es estudiada bajo una perspectiva de análisis centrada (...) en el fenómeno de producción normativa ocasionado por la manifestación de dicho poder. Asimismo, en relación con cada propiedad analizada se identifican posibles argumentos en sentido contrario que problematizarían su postulación, y se ofrecen las correspondientes respuestas de cara a una labor de clarificación conceptual. Finalmente, se indican las razones que dan cuenta del carácter políticamente no comprometido de este presupuesto subjetivo del poder constituyente, bajo un punto de vista valorativamente neutral. (shrink)

Spanish translation of Field, S. L. (2012). 'Democracy and the multitude: Spinoza against Negri'. Theoria: A Journal of Social and Political Theory, 59(131), 21-40. Translated by María Cecilia Padilla and Gonzalo Ricci Cernadas. Negri celebra una concepción de la democracia en la que los poderes concretos de los individuos humanos no se alienan sino que se agregan: una democracia de la multitud. Pero ¿cómo puede actuar la multitud sin alienar el poder de nadie? Para contestar esta dificultad, Negri explícitamente apela (...) a Spinoza. Sin embargo, en este trabajo, sostengo que la filosofía de Spinoza no respalda el proyecto de Negri. Por el contrario, argumento que la multitud spinozista evita la jerarquía interna por medio de la mediación de las instituciones políticas y no a pesar de ellas; de la misma manera, estas instituciones tampoco simplemente emanan de la multitud tal cual es, sino que estructuran, contienen y canalizan sus pasiones. En particular, las instituciones requeridas no son las de la democracia simple y directa. Puede ser que existan otros argumentos no spinozistas en los cuales Negri pueda basar su teoría, pero no puede defender legítimamente su concepción de la multitud democrática apelando a Spinoza. (shrink)

This paper provides a realist analysis of the EU's legitimacy. We propose a modification of Bernard Williams' theory of legitimacy, which we term critical responsiveness. For Williams, 'Basic Legitimation Demand + Modernity = Liberalism'. Drawing on that model, we make three claims. (i) The right side of the equation is insufficiently sensitive to popular sovereignty; (ii) The left side of the equation is best thought of as a 'legitimation story': a non-moralised normative account of how to shore up belief in (...) legitimacy while steering clear of both raw domination and ideological distortions. (iii) The EU's current legitimation story draws on a tradition of popular sovereignty that sits badly with the supranational delegation and pooling of sovereign powers. We conclude by suggesting that the EU's legitimation deficit may be best addressed demoicratically, by recovering the value of popular sovereignty at the expense of a degree of state sovereignty. (shrink)