Abstract
This article considers Baruch Spinoza’s contribution to a theory of constituent power. Modern theories of constituent power generally agree on its paradoxical essence: a power that comes before the law and founds the law is at the same time a power that, once the juridical sphere is established, has to be obliterated by the law. Spinoza’s ontology has been recognised as one of the early modern sources of constituent power, yet he argues for a strict equivalence between law and power. This article argues that by reading Spinoza’s political theory through the lens of a radical immanence between ontology and history, we can understand him as a source for a theory of constituent power. It also argues that, through this immanence, Spinoza’s thought offers a solution to the paradox of constituent power and enriches contemporary discussions on the origin of juridical sphere and the relationship between politics and law.
Highlights
Since the foundation of early modern sovereignty, juridical science has tackled the problem of establishing a solid ground for authority
Constituent power makes the foundation of law problematic because it makes the unresolved tension between the factual and political moment on one side and the normative and legal moment on the other visible
Once established and recognised, positive law cannot tolerate the existence of its source because it must remain the sole source of legitimacy: the creature must necessarily kill its creator
Summary
Since the foundation of early modern sovereignty, juridical science has tackled the problem of establishing a solid ground for authority. The people does not pre-date the space of politics from which it is, alone, entitled to include or exclude individuals or groups with their own claims and demands In this way, Näsström maintains, can theory help us avoid the pure factuality of history, which it does by keeping open a normative dimension that functions as a regulatory mechanism for a fairer definition of democracy. My second thesis is that Spinoza is able to accomplish this theoretical operation of fundamental importance at the dawn of modernity only by the originality of his conceptualisation of the relationship between ontology and history Interpreters such as Schmitt and Negri have recognised the presence of Spinoza in the genealogy of constituent power considering its modern definition. I will develop my argument following three major themes of this theory: the argument of the free will of the constituent subject, that of the relationship between the factual and political moment on one side and the normative and legal moment on the other, and that of the role and status of the conflict that precedes, accompanies and exceeds the foundation of the political community
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