Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism
| DOI | http://doi.org/10.1111/jols.12118 |
| Author | Jiří Přibáň |
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S30±S51
Constitutional Imaginaries and Legitimation: On Potentia,
Potestas, and Auctoritas in Societal Constitutionalism
Jir
í|
¨Pr
íiba
¨n
í*
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 constitu-
tionalization 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.
The concept of constitutionalism is another name for the transformation of
power into authority. It includes the constitution as a formal document
establishing institutions of power and specifying their operations. It also
defines both internal lega l and external societal limi tations of such
constituted power. Finally, it specifies a set of values, principles and ideals
which inform the meaning of constituted power. Constitutionalism thus
connects the internal aspect of the constitution as a normative instrument of
political power and its external aspect as both limitation and legitimation of
the same power by social environment.
In ancient Rome, the concept of potestas referred to the power as
enforcement and coercion. It was exercised by magistrates and directly
linked to the imperium as the ultimate form of power in hands of the highest
S30
*School of Law and Politics, Cardiff University, Law Building, Museum
Avenue, Cardiff CF10 3AX, Wales
priban@cardiff.ac.uk
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
magistrates, such as consuls and praetors. On the other hand, the Roman
Senate and jurists or prud entes exercised auctorit as based on legal
knowledge. This authority of law makers, experts, and agents was as
important for the Roman polity as its imperial power.
The potestas/auctoritas distinction subsequently informed the investiture
controversy between secular and religious powers in medieval Europe and
the historical emergence of modern constit utional politics.
1
Tensions
between general governing skills and specific entitlements to government
were formulated in medieval jurisprudence as the distinction between
gubernaculum and iurisdictio (government and jurisdiction).
2
The trans-
formation of political power into constitutional authority became a familiar
story of the rise of modern democratic constitutionalism which further
nurtured the constitutional imaginary of the self-ruled and self-governing
polity constituted by a legal document incorporating its common political
values, principles and ideals.
However, the sociological approach to constitutionalism must adopt
another distinction, namely, the potentia/potestas which which was philo-
sophically elaborated by Baruch Spinoza
3
and can be sociologically refor-
mulated as the difference between the multiplicity of societal power
(potentia) and the unity of institutionalized political power (potestas).
4
Potentia signifies a capacity in the most general sense and constitutes a
relationship to the whole society. It is a societal force or might. On the other
hand, potestas is already defined by specific institutions and constitutes a
relationship of political domination. It is identified with the political right to
legitimate rule and represents one of many societal manifestations and
realizations of potentia.Potentia is constituted by society while potestas is
already determined by the specific coupling between political enforcement
and legal authorization. If potentia is a general capacity for execution or the
execution itself, potestas can be defined as a potentia validated by politically
recognized criteria of legitimacy.
Sociological perspectives of power, political domination, its organization
and legitimation can be perceived as a modern reformulation of classical
political and legal concepts which draw on the general distinction between
societal power operating in different systems, sectors, and regimes of
modern society and political power as the specific medium of the political
S31
1 M. Oakeshott, Lectures in the History of Political Thought. Selected Writings, Vol. 2
(2006) lecture 12.
2 C. McIlwain, Constitutionalism: Ancient and Modern (1940) 86±7.
3 See, for instance, A.S. Campos, Spinoza's Revolutions in Natural Law (2012) ch. 3.
4 Unfortunately, unlike the French distinction between puissance and pouvoir, the two
Latin terms potentia and potestas do not have their English equivalents and the word
power includes both of them. For the translation difficulties and the central import-
ance of the potentia/pot estas distinction f or Spinoza's phil osophy including
philosophy of law, see, especially, M. Walther, `Natural Law, Civil Law, and
International Law in Spinoza' (2003±2004) 25 Cardozo Law Rev. 657.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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