This article asks whether we can identify a vitalistic undertow in Friedrich Nietzsche’s philosophy that would make sense for contemporary political and constitutional theory as well. The arguments are presented by contrasting Nietzsche’s philosophy with the social theory of Herbert Spencer. After an introduction, the first main part discusses Spencer and his so-called ‘organic analogy’ in which he draws parallels between natural organisms and the body politic. Spencer’s social theory is a paradigmatic example of vitalism and organic state theory and, (...) as a counterpoint, can help tease out Nietzsche’s vitalism as well. The article then examines Nietzsche’s admittedly fragmentary encounters with Spencer and his flirtations with vitalism and organic state theory. In the conclusions, the reconstructed narrative about Nietzsche’s vitalism is linked with Nietzsche’s main philosophical works in the hope of provisionally extracting a Nietzschean ‘constitutional theory’ from his notion of will to power. (shrink)

Michel Foucault has been presented as a unequivocal defender of civil society. He was particularly sensitive to diversity and marginality, aligned with local activism and bottom-up politics. This article re-assesses this view by demonstrating that despite his political militancy, Foucault never viewed civil society as an inherently progressive force. It traces Foucault’s struggle against his own enthusiasm for anti-institutional and anti-rationalist political movements. Inventing the notion of ‘transactional reality’, Foucault escaped the choice between naturalism and ideology critique, presenting civil society (...) as a ‘reality that does not exist’ but still has real effects. This new reality holds contradictory potentials. When articulated by political eschatology, civil society supports prophecies of the end of politics in a final accord where contradictions dissolve and the community absorbs the state. Neoliberal notions of civil society promise, on Foucault’s account, a more open-ended milieu of subject formation. (shrink)