Constituent Power beyond the State: An Emerging Debate in International Political Theory (Millennium – Journal of International Studies) (original) (raw)
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I•CON – International Journal of Constitutional Law, 2016
The normative school of global constitutionalism lacks a convincing model of constitutional politics. As far as the democratic legitimacy of constitution-making at the supra-state level is addressed at all, scholars usually resort to democratic intergovernmentalism. According to this normative model, processes in which constitutional norms in the global realm are made or amended are democratically legitimate if they are organized as treaty-making among democratic executives, followed by parliamentary ratification. In this article, I argue that this model should be rejected because it puts the democratic legal domestication of public authority at risk. Specifically, democratic intergovernmentalism is characterized by five shortcomings: (a) it does not distinguish between norms of contractual and constitutional quality, (b) it undermines the separation of powers, (c) it breaches the division and hierarchi-zation of constituent and constituted power, (d) it disregards the deliberative dimension of democratic control and (e) it does neither provide the citizens nor their representatives with a capacity to begin. Ultimately, I suggest that a superior approach should build on the notion of constituent power.
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Constituent power is the base of modern democracy, for two main reasons, a historical and analytical one. First, the birth of the modern doctrine of popular sovereignty coincides with the conceptual advent of constituent power. From a historical point of view then, constituent power and modern democracy are intrinsically associated from their beginnings in the idiom of popular sovereignty. Secondly, there is a profound systematic and conceptual analogy between constituent power and democracy, insofar as they both describe collective acts of self-legislation and public events of self-alteration. From this elective affinity, democratic constituent politics evokes the principle of liberty as political autonomy, whereby the members of a collectivity deliberately constitute the political forms of authority in order to organize and institutionalize their common life. The addressees of the law become its authors. Hence, formulating popular sovereignty as constituent power is to affirm the ...
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International institutions have developed into a site of political authority of their own as can be seen by looking at a number of authority indicators. The concept of international authority however is intimately bound to the concept of legitimacy. The stronger the role that international institutions play in policy-making, the stronger demands for their legitimacy can be expected to arise. Against the background, we ask which of the state powers analysed in this special issue prefer which form of legitimation of international institutions, whether their general conceptions of legitimacy diverge or converge, and what this means for the future of global governance.
Tying Legitimacy to Political Power: Graded Legitimacy Standards for International Institutions.
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International institutions have become increasingly important not only in the relations between states, but also for individuals. When are these institutions legitimate? The legitimacy standards for international institutions are predominantly either minimal or democratic and cannot capture the large variety of international institutions. This paper develops an autonomy-based conception of legitimacy based on the justification of political power that is applicable to both international and domestic institutions. Political power as rule-setting is a particular normative threat to the personal and political autonomy of its subjects. The more political power an institution exercises, the more demanding the legitimacy standards it needs to fulfill in order to be legitimate. The paper argues that an increase in the four dimensions of political power (scope, domain sensitivity, applicability, and impact) raises the legitimacy burden for the institution. Finally, graded legitimacy standards are proposed. These are sensitive to the differences between international institutions in respect of their levels of political power, i.e. level of competences. In contrast to minimal or democratic legitimacy standards, the paper suggests that different standards of accountability, participation, and human rights have to be fulfilled according to the institution’s level of political power.
Constituent Power in the Modern World: A Brief Introduction
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'Throughout the modern era constituent power has been in conflict with constituted power, the fixed power of formal constitutions and central authority. Whereas constituent power opens each revolutionary process, throwing open the doors to the forces of change and the myriad desires of the multitude, constituted power closes down the revolution and brings it back to order. In each of the modern revolutions, the State rose up in opposition to the democratic and revolutionary forces and imposes a return to a constituted order, a new Thermidor, which either recuperated or repressed the constituent impulses. The conflict between active constituent power and reactive constituted power is what characterizes these revolutionary experiences.' - From the introduction to Antonio Negri's Insurgencies: Constituent Power and the Modern State (1999) We currently inhabit a moment of sustained popular political action in South Africa. This is also a moment where new forms of popular politics, sometimes insurgent, are appearing in many parts of the world. In South Africa some of these struggles have, particularly in their early phases, chosen self-presentation over authorised forms of representation. Some of these struggles have also organised direct appropriation, especially of urban land, and forms of disruption, such as road blockades, that exceed the limits of both the liberalism to which our society is formally committed and the various disciplinary discourses and practices (which also often operate beyond the limits of liberalism) available to the forms of nationalism that conflate the nation with the ruling party and the state. This escalating sequence of popular protest has reactionary aspects as well as aspects that are potentially emancipatory. For many years popular protest was largely ignored by elite actors. When it was engaged it was often presented, sometimes as a question that was essentially a matter of policing, as a backdrop to real politics. However although it has never been centrally organised, or formally networked, the scale and tenacity of popular protest over the last decade has increasingly brought it towards the centre of public life. Competing elites are now seeking to capture popular protest by presenting themselves as radical or even revolutionary vanguards. This course offers students an opportunity to think, in a community of inquiry, about a range of forms of insurgent forms of popular politics in the modern world - and to do so outside of the constraints of the liberal and statist paradigms that often constituent the common sense of the university. This course will run for one semester and so it cannot be comprehensive and has many striking omissions. Nonetheless its range across space and time is sufficient to make it an introduction to actual practices of constituent power that avoids both Eurocentricism and parochialism. It will offer useful resources to equip students to begin to engage the concept of constituent power outside of the old and often stolid dogmas that so often stifle the radical imagination in the South Africa.
Democratic Legitimacy and the Sources of International Law.doc
Samantha Besson and Jean d'Aspremont (eds), The Oxford Handbook on the Sources of International Law, 2017
The sources of international law have been widely debated by international law theorists. Whether these sources are legitimate, or not, is another question. Political philosophers in recent years are paying growing attention to the legitimacy of international law and international institutions and are asking who has the right to rule and adequate standing to create international laws, and how. This chapter attempts to contribute to this debate in normative political philosophy through the more specific lens of democratic legitimacy. After presenting certain conceptual clarifications, I identify three basic principles of democratic legitimacy: the principle of ultimate popular control, the principle of democratic equality, and the principle of deliberative contestability, which can be instantiated in six more concrete requirements. I continue by exploring the limitations of two influential views on the democratic legitimacy of international law, one that articulates the legitimate sources based on the principle of state consent, and another that replaces such principle with a focus on practices of deliberative contestability among state and non-state actors. Finally, I conclude by expressing some skepticism about the degree to which the current system of sources of international law is democratically legitimate.