Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism

Abstract

This article focuses on the presence of non‐political power in societal constitutions and their imaginaries. The theory of societal constitutions recontextualizes constitutionalism beyond public law, statehood, and polity. However, it also raises the question of legitimation and the authority of these non‐polity‐based constitutional regimes operating independently of public reasoning. Societal constitutions enhance power through specific knowledge regimes and imaginaries transform them into generally shared systems of rules and norms. This constitutionalization of the systemic facts of power as legitimizing values of the system can be identified in political as much as societal constitutions. The theory of societal constitutions, therefore, needs to use Foucault's analytics of power and Teubner's democratic proceduralization of dissent as well as Luhmann's ironies of autopoietic social systems to formulate a genealogy of legal normativity and its societal legitimation.