Collective self-legislation as an Actus Impurus: a response to Heidegger’s critique of European nihilism

Abstract

Heidegger’s critique of European nihilism seeks to expose self-legislation as the governing principle of central manifestations of modernity such as science, technology, and the interpretation of art as aesthetics. Need we accept the conclusion that modern constitutional democracies are intrinsically nihilistic, insofar as they give political and legal form to the principle of collective self-legislation? An answer to this question turns on the concept of power implied in constituent and constituted power. A confrontation of the genealogies of modern subjectivity proposed by Heidegger and Blumenberg suggests that there is indeed a metaphysical core to the concept of constituent power developed by various political theorists, including Schmitt and Habermas. By contrast, closer consideration of the paradoxical relation between constituent and constituted power illuminates the ambiguity of collective self-legislation, which means both enactment of a legal order by a collective self and the enactment of a collective self by a legal order. To the extent that constitutional democracies are a way of preserving rather than dissolving this ambiguity, they imply an interpretation of power and human finitude that parries the charge of nihilism.