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

Abstract

AbstractThe 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.