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Constituent power and people-as-the-governed: About the ‘invisible’ people of political and legal theory

Published online by Cambridge University Press:  06 July 2015

GENEVIÈVE NOOTENS
GENEVIÈVE NOOTENS*
Affiliation:
Department of Humanities and Social Sciences, Université du Québec à Chicoutimi, 555 Boulevard de l’Université, Chicoutimi, Québec, G7H 2B1, Canada
*
*Email: [email protected]
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Abstract

The core promise of the modern concept of constituent power is to make the people-as-the-governed active participants in the shaping and ruling of political regimes. Its development was related to the consolidation of the modern state. Current circumstances, though, raise the issue of the possibility of a non-state based concept of constituent power, and of appropriate constituencies. The article argues that dominant views have made the people-as-the-governed capacity to act dependent upon state sovereignty, whereas the latter actually was informed by theses antithetical to popular sovereignty. In order to show how a non-state based concept of constituent power may be articulated, the article builds on a critique of Martin Loughlin’s attempt to capture the structure of beliefs that frames the idea of the state and the function of constituent power within that structure. The first part of the article focuses on the main elements of such a theory in order to situate its basic assumptions about constituent power. The second discusses the issues raised by such a conception, amongst other things as to the status granted to the structure of beliefs that frames the idea of the modern polity in Loughlin’s perspective; this discussion opens the way to an alternative conception of constituent power, one that stresses that the core fact of the political is that people are always already embedded in relations of power that are not restricted to the state, relations in the course of which they strive to achieve their civic freedom. Political power is not necessarily made public until the people-as-the-governed, in challenging the boundaries of the polity, claim it.

Keywords

civic freedomconstituent powerMartin Loughlinpolitical theory
Type
Research Article
Information
Global Constitutionalism , Volume 4 , Issue 2 , July 2015 , pp. 137 - 156
Copyright
Copyright © Cambridge University Press 2015 

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References

Bodin, Jean. 1962 [1576]. The Six Books of a Commonweale, translated by Knolles, R. and edited by McRae, K. D.. Cambridge, MA: Harvard University Press.Google Scholar
Carrozza, Paolo. 2007. “Constitutionalism’s Post-Modern Opening.” In The Paradox of Constitutionalism. Constituent Power and Constitutional Form, edited by Loughlin, Martin and Walker, Neil, 169–87. Oxford: Oxford University Press.Google Scholar
Christodoulidis, Emilio. 2007. “Against Substitution: The Constitutional Thinking of Dissensus.” In The Paradox of Constitutionalism. Constituent Power and Constitutional Form, edited by Loughlin, Martin and Walker, Neil, 189–208. Oxford: Oxford University Press.Google Scholar
Christodoulidis, Emilio and Tierney, Stephen. 2008. “Public Law and Politics: Rethinking the Debate”. In Public Law and Politics. The Scope and Limits of Constitutionalism, edited by Christodoulidis, Emilio and Tierney, Stephen, 1–12. Aldershot: Ashgate.Google Scholar
Dyzenhaus, David. 2007. “The Politics of the Question of Constituent Power”. In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Loughlin, Martin and Walker, Neil, 129–45. Oxford: Oxford University Press.Google Scholar
Dyzenhaus, David 2012. “Constitutionalism in an Old Key: Legality and Constituent Power.” Global Constitutionalism 1(2):229–60.Google Scholar
Grimm, Dieter. 2010. “The Achievement of Constitutionalism and Its Prospects in a Changed World.” In The Twilight of Constitutionalism?, edited by Dobner, Petra and Loughlin, Martin, 3–22. Oxford: Oxford University Press.Google Scholar
Hegel, Georg Wilhelm Friedrich. 1952 [1821]. Philosophy of Right, translated by Knox, T. M.. Oxford: Oxford University Press.Google Scholar
Hobbes, Thomas. 1996 [1651]. Leviathan, edited by Tuck, R.. Cambridge: Cambridge University Press.Google Scholar
Hobbes, Thomas 1998 [1647]. On the Citizen, edited by Tuck, R. and Silverthorne, M.. Cambridge: Cambridge University Press.Google Scholar
Kumm, Mattias. 2010. “The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia.” In The Twilight of Constitutionalism?, edited by Dobner, Petra and Loughlin, Martin, 201–19. Oxford: Oxford University Press.Google Scholar
Loughlin, Martin. 2003. The Idea of Public Law. Oxford: Oxford University Press.Google Scholar
Loughlin, Martin 2008. “Reflections on The Idea of Public Law.” In Public Law and Politics. The Scope and Limits of Constitutionalism, edited by Christodoulidis, Emilio and Tierney, Stephen, 47–65. Aldershot: Ashgate.Google Scholar
Loughlin, Martin 2010. “What is Constitutionalization?” In The Twilight of Constitutionalism?, edited by Dobner, Petra and Loughlin, Martin, 47–69. Oxford: Oxford University Press.Google Scholar
Loughlin, Martin 2014a. “Constitutional Pluralism: An Oxymoron?” Global Constitutionalism 3(1):9–30.Google Scholar
Loughlin, Martin 2014b. “The Concept of Constituent Power.” European Journal of Political Theory 13(2):218–37.Google Scholar
Loughlin, Martin and Walker, Neil. 2007. “Introduction.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Loughlin, Martin and Walker, Neil, 1–8. Oxford: Oxford University Press.Google Scholar
Macdonald, Terry. 2012. “Citizens or Stakeholders? Exclusion, Equality and Legitimacy in Global Stakeholder Democracy.” In Global Democracy: Normative and Empirical Perspectives, edited by Archibugi, Danieleet al., 47–68. Cambridge: Cambridge University Press.Google Scholar
McCormick, Neil. 1999. Questioning Sovereignty: Law, State and Nation in the European Commonwealth. Oxford: Oxford University Press.Google Scholar
Oklopcic, Zoran. 2014. “Three Arenas of Struggle: A Contextual Approach to the Constituent Power of ‘The People’.” Global Constitutionalism 3(2):200–35.Google Scholar
Preuss, Ulrich K. 2010. “Disconnecting Constitutions from Statehood: Is Global Constitutionalism a Viable Concept?” In The Twilight of Constitutionalism?, edited by Dobner, Petra and Loughlin, Martin, 23–47. Oxford: Oxford University Press.Google Scholar
Sassen, Saskia. 2006. Territory, Authority, Rights: From Medieval to Global Assemblages. Princeton, NJ: Princeton University Press.Google Scholar
Schmitt, Carl. 2008 [1928]. Constitutional Theory. Durham, NC and London: Duke University Press.Google Scholar
Tarrow, Sidney. 2012. Strangers at the Gates: Movements and States in Contentious Politics. Cambridge: Cambridge University Press.Google Scholar
Tierney, Stephen. 2008. “Sovereignty and the Idea of Public Law.” In Public Law and Politics: The Scope and Limits of Constitutionalism, edited by Christodoulidis, Emilio and Tierney, Stephen, 15–25. Aldershot: Ashgate.Google Scholar
Tully, James. 2007. “The Imperialism of Modern Constitutional Democracy.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Loughlin, Martin and Walker, Neil, 315–38. Oxford: Oxford University Press.Google Scholar
Tully, James 2008a. Public Philosophy in a New Key. Vol. I: Democracy and Civic Freedom. Cambridge: Cambridge University Press.Google Scholar
Tully, James 2008b. Public Philosophy in a New Key. Vol. II: Imperialism and Civic Freedom. Cambridge: Cambridge University Press.Google Scholar