Constituent Power and the Limits of Adjudication: Kosovo and Quebec

Abstract

Law, and therefore courts, can only make sense of collective agency in terms of constituted power that is power exercised in conformity with law. However, constituent power, insofar as it purports to create a new legal order, cannot act in conformity with the existing legal order. Constituent power can only be understood as lawful, therefore, if it is understood retroactively, from the perspective of the new legal order. This article considers the ICJ's treatment of the constituent power of ‘the People’ in the Kosovan declaration of independence, and the Supreme Court of Canada's consideration of the Quebecois legal right to secede. Considering the literature on constituent power and the ontology of ‘the People’, this article suggests that democracy and the rule of law offer a partial solution to the paradox of constituent power. It introduces John Searle's ontology of ‘institutional facts’, arguing that the nature of the constituent entity can be understood as a ‘status function’ created by a ‘Declaration’. It concludes by considering the limits to the justiciability of constituent power and the corollary necessity for recognition, or what Derrida calls a ‘last instance’.