Weak Constitutionalism

Colón‐Ríos, Joel I.

doi:10.4324/9780203120132

Cited by 69 publications

(8 citation statements)

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“…Having outlined this view, I argue that it is consistent with another theorist who famously (though less explicitly) advanced a view of constituent power: Jean-Jacques Rousseau. 8 My view of constituent power confirms Bonnie Honig's thesis that the paradox of politics faced by Rousseau in chapter 7 of book II of The Social Contract 9 is constitutive of politics itself, 10 adding that it is in fact simultaneously constitutive of the people and its constituent power. Finally, I conclude by showing how my alternative account manages to avoid the pitfalls of totalitarianism by demonstrating its congruence with Claude Lefort's opposition between democracy and totalitarianism.…”

Section: Introductionsupporting

confidence: 63%

Who, the people? Rethinking constituent power as praxis

Asseldonk

2021

Philosophy & Social Criticism

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Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism.

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Section: Introductionsupporting

confidence: 63%

Who, the people? Rethinking constituent power as praxis

Asseldonk

2021

Philosophy & Social Criticism

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“…Yet, such authority exists, also because it derives from a form of political morality that is expressed emblematically inter alia by a strict cooperation between the CJEU and national courts. These courts, acting jointly, are able to alter the meaning of both the national constitutions and the EU legal framework 92 . In order for the EU judiciary's authority to be strengthened, two steps are necessary.…”

Section: The Features Of Discursive Constituent Power In the Eumentioning

confidence: 99%

The Idea of Discursive Constituent Power

Fichera

2021

Jus Cogens

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The question addressed by this article is whether a form of constituent power exists at the EU level. It is argued that European integration has not suppressed the idea of people as constituent power. Instead, the idea of ‘people’ has been constructed through the discourses of security and rights. Ever since the early stages of European integration, the security and rights discourses have consisted in the articulation of a meta-constitutional rationale, which is here called the ‘security of the European project’, i.e. a form of political morality that is pursued by the EU as a polity over time and aims at its own survival. Security and rights discourses have contributed to constructing two ideas of ‘people-as-constituent-power’. The first idea is that of ‘mobile people’, i.e. people exercising EU free movement rights. The second idea is that of ‘peoples’ in the plural, conceived as States and citizens at the same time. Nevertheless, these discourses are characterised by a certain degree of ambiguity and have been unrolling as if the development of the EU polity was a mere technical, neutral matter. This state of affairs cannot continue: the European project has always been a political project, and, as integration reaches its more advanced stages, the time has come to disclose its political nature and address conflict openly.

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“…19 For the purposes of this analysis, it should be enough to recognise, first, that at least in the Social Contract, Rousseau maintained that in his discussions about "law" he only had in mind the rules that "determine the structure of government". 20 This is why he refers, for example, to the people's creation of the "constitution of the State by giving its sanction to a body of law", 21 wrote that some nations were not ready to have laws, and that as a matter of fact very few nations had any laws at all. 22…”

mentioning

confidence: 99%