Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

Abstract

AbstractThis article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico‐political constitution’. Using the example of the World Health Organization's initial response to the COVID‐19 pandemic, a the article presents a two‐part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise‐steered global governance is further intensified as more crisis responses are expected from outside the state.