Constituent Power and Constitutional Order: Above, Within and Beside the Constitution PDF
Preview Constituent Power and Constitutional Order: Above, Within and Beside the Constitution
Constituent Power and Constitutional Order This page intentionally left blank Constituent Power and Constitutional Order Above, Within and Beside the Constitution Mikael Spång Department of Global Political Studies, Malmö University, Sweden © Mikael Spång 2014 Softcover reprint of the hardcover 1st edition 2014 978-1-137-38299-3 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2014 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-48030-2 ISBN 978-1-137-38300-6 (eBook) DOI 10.1057/9781137383006 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. Typeset by MPS Limited, Chennai, India. For Anna and Adam This page intentionally left blank Contents Acknowledgements viii Introduction 1 1 The Constituent Power of the People in the Age of Revolutions 12 2 The Reflexive Constitution and Its Critics 45 3 People and State Form: Identity and Representation 76 4 Constituent Power, Sovereignty and Government 106 5 Constituent Power and Public Opinion 137 6 Dialectics of Constituent Power 162 Notes 178 References 182 Index 198 vii Acknowledgements Some people have been important in forming the approach to the ideas and conceptions discussed in this book. Dimosthenis Chatzoglakis is the most important; our friendship goes back twenty years and I have doubtless learnt more from him than I am aware of. Despina Tzimoula is another friend who has been highly important to me. More recently, I have come to know Berndt Clavier and have admired his attempts to get others to share the interest in strange and perplexing thoughts. Some of the material that appears here has been presented in seminars at Malmö University, Lund University and Bielefeld University. I would to like to thank the participants for their comments. In Bielefeld, I also had the opportunity to discuss some of the conceptions of constituent power during a course in 2012; I would like the participants for their input and Thomas Faist for the opportunity to hold this course. I would also like to thank the anonymous reviewer of Palgrave for comments and suggestions on a previous draft. Amber Stone-Galilee and Andrew Baird at Palgrave have provided valuable support in the process of preparing the manuscript. viii Introduction It is through politics, Machiavelli argued, that we can seize our destiny and tame Fortuna in such a way that we can direct the course of events, rather than being exposed to them. Rather than having destiny throw- ing us hither and thither, we can command and control our destiny. But this, Hegel (1830/31: 339) pointed out, in recounting what he claimed was a conversation between Goethe and Napoleon, also entails that politics becomes our destiny: politics not so much resolves destiny but becomes our destiny. The effect of politics becoming our destiny informs this study of constituent power ( pouvoir constituant; verfas- sunggebene Gewalt). I direct attention to the way in which the principle of the constituent power of the people has been considered central to liberation from destiny and establishing free forms of living, but also the way that it is part of politics becoming our destiny. The constituent power of the people belongs to a complex of concepts focused on constructing the political order in ways that make political freedom possible. Political freedom in modernity rests on ideas about self-legislation and self-government, that those who make up the pol- ity govern themselves. Self-legislation is not only a practice within an existing constitutional order, but extends to the shaping of this order itself. The legitimacy of the constitutional order is based on the power the people have in establishing the constitution. This is the basic idea of constituent power of the people. It was articulated in the early modern revolutions of the seventeenth and eighteenth centuries. Among the most important thinkers about constituent power in the age of revolu- tions was Emmanuel Joseph Sieyès (1789), who in his pamphlet on the third estate argued that the power to constitute the juridico-political order belong to the people (nation). The third estate is the nation and is as such the source of political power and the legal order. 1
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