Destituent power in the European Union: On the limits of a negativistic logic of constitutional politics

Abstract

Since the euro crisis, protest movements present the European Union as a neoliberal hegemony that undermines democracy and prevents progressive reforms. They call for acts of resistance and partial disintegration to force a renegotiation of the treaties. In this article, I ask whether these ‘disruptive’ political strategies can be defended as a democratic practice of constitutional politics. To that end, I turn to the notion of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. I systematise the emerging debate on destituent power and discuss the plausibility of competing approaches. I argue that destituent power is best understood as grounded in popular sovereignty. It denotes the right to dismantle constitutional orders without the intention to construct new ones. While this idea supports some of the acts of contestation proposed by European protest movements, it faces a lure towards the jurisgenerative dimension of constituent power. Ultimately, the potential of a purely negativistic logic of constitutional politics is limited.

Potentiality, political protest and constituent power: A response to the special issue

“…While destituent power receives passing mentions in Lorey’s (2019) article and Niesen’s (2019a) introduction, only in Markus Patberg’s (2019) contribution do we find a systematic treatment of the concept. Moving beyond his extensive prior work on supranational constitutionalism and constituent power at that higher level (Patberg, 2014, 2016, 2017a, 2017b, 2018), his discussion of destituent power lays out a series of definitional categories ultimately interested in the abilities (1) of states to exercise civil disobedience within supranational institutions and (2) of popular sovereignty movements to articulate themselves in a non-constituent manner.…”

“…Moving beyond his extensive prior work on supranational constitutionalism and constituent power at that higher level (Patberg, 2014, 2016, 2017a, 2017b, 2018), his discussion of destituent power lays out a series of definitional categories ultimately interested in the abilities (1) of states to exercise civil disobedience within supranational institutions and (2) of popular sovereignty movements to articulate themselves in a non-constituent manner. In an effort to treat destituent power as an umbrella for multiple concepts, Patberg (2019) defines it broadly as ‘a category according to which opposition to or withdrawal from the regulatory grasp of public authority can function as a legitimate trigger for constitutional change’ (2019: 83). The first conceptual distinction proposed is between anti-juridical and juridical approaches.…”

“…The first conceptual distinction proposed is between anti-juridical and juridical approaches. Anti-juridical destituent power (which we see includes Agamben’s formulation) represents the strongest claim of the system, ‘reject(ing) even radical-democratic formulations of constituent power because of their implicit commitment to the goal of establishing a new constitutional order’ (Patberg, 2019: 86). These approaches fundamentally ‘reject any ambition to engage in higher lawmaking’ and thus ‘to reorganize political life in forms that do not rely on legal and institutional mechanisms’ (Patberg, 2019: 88).…”

“…Anti-juridical destituent power (which we see includes Agamben’s formulation) represents the strongest claim of the system, ‘reject(ing) even radical-democratic formulations of constituent power because of their implicit commitment to the goal of establishing a new constitutional order’ (Patberg, 2019: 86). These approaches fundamentally ‘reject any ambition to engage in higher lawmaking’ and thus ‘to reorganize political life in forms that do not rely on legal and institutional mechanisms’ (Patberg, 2019: 88). Characteristically, these discussions are scant on details, as any attempt to formulate what the destituent future might look like would entail describing a new system to be instituted – a direct conflict with the mission of destituent power!…”

“…Juridical forms of destituent power occur along two more precise lines: at the individual level through movements seeking to reassert popular sovereignty and institutionally through a state undermining supranational or confederal arrangements that impinges on constituents’ freedoms. What the juridical approaches to destituent power share is the assumption that ‘structures of public authority can be transformed through acts of opposition and withdrawal’ (Patberg, 2019: 89) – a markedly less radical claim than found in the anti-juridical form. The first juridical form is described with reference to pouvoir irritant , a power to irritate, and understands the purpose of destituent power as a discursively formidable tool of protest that challenges, opposes and withdraws from institutions ‘ in the name of the constituent power’ (Patberg, 2019: 90).…”