From constituent to destituent power beyond the state

Abstract

This article engages with the concept of constituent power and its viability in times of transnational constitutionalism. After discussing systems-theoretical, procedural and sovereignist approaches, it argues that constituent power in transnational contexts has to be reframed as negative device and countervailing power. The article resurrects a line of constitutional thought which can be traced back to Machiavelli and the young Karl Marx. Here, constituent power is primarily a matter of revocatory scenarios which open up avenues for a re-negotiation of existing orders. In our contemporary world, the question resurfaces what kind of legal and political communications articulate such revocatory scenarios and exert destituent effects on existing hegemonies within transnational constitutionalism.

Why does global democracy not inspire explanatory research? Removing conceptual obstacles toward a new research agenda

“…The term constituent power must then be defined without reference to any given people, suggestively as a power which challenges the legitimacy of existing political orders constituted already, or which seeks to create new political orders with new basic rules, new political procedures, and/or new borders and membership criteria. In line with this understanding, Möller (2018) emphasizes that constituent power may exist in the form of destituent power. That is, constituent powers need not achieve, or even aim to achieve, a new political order.…”

“…In broader social and political theory, however, the term has also been used by scholars who reject the assumption that a relevant people simply exist and who argue—to the contrary—that peoples and political communities are created and delimited through political contestation (e.g. Agné, 2012; Lindahl, 2007; Loughlin, 2014; Möller, 2018; Näsström, 2003; Niesen, 2017; Patberg, 2016, 2018). The term constituent power must then be defined without reference to any given people, suggestively as a power which challenges the legitimacy of existing political orders constituted already, or which seeks to create new political orders with new basic rules, new political procedures, and/or new borders and membership criteria.…”

The Politics of Rule of Law Reform: From Delegation to Autonomy

“…For these scholars, 'it is an open question how to conceive of [administrative] power beyond the state while [this] inherited point of reference is absent'. 39 Thus Martin Shapiro, reflecting on administrative law at the end of history (at least in fin-de-siecle America), expressed his concern that the 'networks and epistemic communities of experts and enthusiasts' increasingly central to the complex system of national and transnational governance needed to be held accountable to a vision of 'the public interest' -by implication a constituted source of and check on administrative power. 40 It is in the light of the impulse to find a constitutive source that we might understand Ladeur's efforts to describe postmodern administrative law in reflexive or autoconstitutive terms.…”

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

“…According to Kolja Möller, constituent power is incapable of acting at the supra-state level because international law has been used to constitutionalise ‘hegemonic projects’. He claims that international agreements have ‘dignified’ particularistic goals such as free trade or the protection of specific property rights ‘as higher-ranking commitments’ and in this way put them beyond the reach of democratic majorities (Möller, 2018: 34). Against this background, both authors argue that in the context of constitutional orders beyond the state, the pouvoir constituant can merely operate as a pouvoir irritant , as Krisch puts it, or as a pouvoir destituant , as Möller prefers to say.…”