Strong popular sovereignty and constitutional legitimacy
| Author | George Duke |
| Published date | 01 July 2020 |
| Date | 01 July 2020 |
| DOI | http://doi.org/10.1177/1474885117701602 |
| Subject Matter | Articles |
European Journal of Political Theory
2020, Vol. 19(3) 354–374
!The Author(s) 2017
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DOI: 10.1177/1474885117701602
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Article
Strong popular sovereignty
and constitutional legitimacy
George Duke
Deakin University, Australia
Abstract
Recent critiques of attempts to ground constitutional legitimacy in the constituent power
of a strong popular sovereign have tended to focus upon the tension between strong
popular sovereignty and central assumptions of liberal constitutionalism. Foremost
among these assumptions are the need to reconcile disagreement regarding controversial
matters of common concern and the value of the rule of law. The weakness of such
critiques, however,is that they presuppose a commitment to liberal principles and values
that an advocate of strong popular sovereignty need not share. In this paper, I argue that
recourse to liberal assumptions is unnecessary in order to demonstrate the inability of
a theory of strong popular sovereignty to issue in a viable account of constitutional
legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty
and constituent power, I contend, simply lack the basic resourcesfor an adequate theor y
of constitutional legitimacy because they do not offer normative grounds for an assess-
ment of whether any particular constitution is or is not legitimate. The paper is struc-
tured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of
constitutional legitimacy – which remains the primary source of contemporary appeals
to strong popular sovereignty and constituent power – sustains a normative interpret-
ation. Section 2 then develops a minimal constraint on an adequate normative theory of
constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of
constitutional legitimacy based on strong popular sovereignty and constituent power is,
at least without supplementation from normative concepts derived from a weaker
conception of popular sovereignty, unable to meet this constraint.
Keywords
Constitutional legitimacy, Carl Schmitt, authority, constitutional theory, normativity
Corresponding author:
George Duke, School of Humanities and Social Sciences, Faculty of Arts and Education, Deakin University,
Melbourne Campus at Burwood, 221 Burwood Hwy, Burwood VIC 3125, Australia.
Email: george.duke@deakin.edu.au
Section 1
The work of Carl Schmitt casts a heavy shadow over contemporary attempts to
ground constitutional legitimacy in the constituent power of a strong popular sov-
ereign (Bo
¨ckenfo
¨rde, 2017; Grimm, 2015; Kahn, 2011; Kalyvas, 2008; Loughlin,
2013).
1
As Lars Vinx suggests, perhaps the main reason for this continued influence
is that Schmitt’s account of constituent power – despite Schmitt’s own political
misadventures – seems to provide the resources for a democratic theory of consti-
tutional legitimacy (2013: 103). In light of this influence it is instructive to return to
the source and examine Schmitt’s concepts of strong popular sovereignty and con-
stituent power in order to assess whether they are capable of supporting a plausible
normative theory of constitutional legitimacy. In this section, I set out the main
outlines of Schmitt’s theory and demonstrate that it sustains a normative interpret-
ation. As will become clear in the following two sections, however, the fact that
Schmitt’s theory sustains a normative interpretation does not entail that it provides
the resources for a cogent account of constitutional legitimacy.
In the introduction to Constitutional Theory (1928), Schmitt (2008, 2010)
emphasises that his intention is to elaborate a system and develop a theory of
the constitution. Consistent with this descriptive intention, the early sections of
Constitutional Theory are structured around an analytic distinction between four
concepts of the constitution: absolute, relative, positive and ideal. Constitution in
the absolute sense refers to the constitution as a unified whole in contrast to a mere
aggregate of specially constituted statutes (Schmitt, 2008: 59). This absolute con-
cept of the constitution can itself be understood in two senses as either a concrete
condition of unity and order or as the ideal unity of a closed system of norms
(Schmitt, 2008: 59–66). The relative sense of the constitution refers to
constitutional laws in a formalistic sense that abstracts from the status of some
constitutional provisions as more fundamental in the determination of the political
identity of a community (Schmitt, 2008: 67). Such a formalistic concept of the
constitution culminates in the liberal bourgeois treatment of the constitution as a
statute or mere aggregate of statutes. Constitution in the positive sense refers to the
constitution as a complete decision over the type and form of the political unity
(Schmitt, 2008: 75). The constitution in this positive sense accordingly originates
from a concrete existential act of will by the constitution-making or constituent
power (Schmitt, 2008: 75). Finally, constitution in the ideal sense refers to a
constitution that is exemplary in containing a certain content (Schmitt, 2008:
89). An example of the constitution in the ideal sense is the bourgeois constitutional
form developed in the 19th century, which privileges individual freedom by pro-
tecting individual rights and liberties and establishing a division of powers
(Schmitt, 2008: 89–91).
Although it is presented as a descriptive and analytic theory of the different
senses of the constitution, Schmitt’s fourfold distinction contains clear normative
content. An obvious example of the normative import of Schmitt’s fourfold dis-
tinction is the association of the relative sense of the constitution with a type of
legal formalism which reflects the political interests of the bourgeoisie (Schmitt,
Duke 355
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