The Owl of Minerva: Constitutional Discourse Before its Conclusion
| Date | 01 May 2008 |
| Author | Alexander Somek |
| Published date | 01 May 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00702.x |
REVIEWARTICLE
The Owl of Minerva: Constitutional Discourse
Before its Conclusion
Alexander Somek
n
Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism.
Constituent Power and Constitutional Form,Oxford: Oxford University Press,
2007,vi ii þ375pp, hb d50.
The rational conception of popular sovereignty that we inherited from the bour-
geois revolutionary tradition introduces a mute principal. The people would
neither speak nor act if it were not for a legal structure th atal lowsfor th e adoption
of generaland individual legalacts. For its realisation, popular sovereignty, ration-
ally understood, presupposessuch a legally structured form. Itis called a constitu-
tion.The constitution’s legal structure is the product of a constituent power, which
can also only be exercised with the aid of legal constructs, such as conventions,
constituent assemblies or referenda. It is with the aid of such devices that people
have come to adopt constitutions.
1
The constituent power is for human practice what the activityof the thinking
subjectis for experience.Therefore, anyconstitutional doctrine that aspires to take
seriouslythe distinction between pouvoir constituant and pouvoir constitue
Łformulates
an equivalent of transcendental philosophy for the political realm.While the rele-
vant type of analysis, where knowledge is concerned, is about reconstructing
aprioriconditions under which something can be validly known,
2
constitutional
doctrine explores how it is possible that certain acts ^ judgements or instances of
coercion ^ canvalidly claimto bear the imprint of the people.
Nothing minor is at stake here. According to one of the most elementary pre-
cepts of political modernity, private autonomy is possible only if, and insofaras, it
is mediated by public autonomy. Accordingly, one is free only if one can regard
oneself as the author of the laws governing one’s life. We happen to share our
world with others.We need to concede, then, to every other inhabitant of this
space the same in herent right of self-legislation. In other words, the real isation of
private autonomy^ leading a free life ^ presupposes collectiveself-determination.
For its own realisation, such self-determination depends on drawing the line
between the constituted and what constitutes. A people need to establish rules
according to which they determine, by taking one step after another, what they
want collectively.This is not a necessary truth. But it is reasonable to assumethat,
were it not for this distinction, collective autonomy would materialize only
n
Universityof IowaCollege of Law.
1 See C. Schmitt,Verfassungslehre (Berlin: Duncker & Humblot, 4th ed., 1979) 84^87.
2SeeI.Kant,Kritik derreinenVernunft (ed. J.Timmermann, Hamburg:Mei ner1998) B25 (p.83).
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(3) 473^489
in episodes of collective e¡ervescence
3
or acts of narcissistic identi¢cation with
leaders.
4
We sense that, owing to the intervention of strong emotional energies
in both of these cases, self-determination is overwhelmed by some external force
and no longersusceptible, as itshould be, to reason. Autonomousbeings, though,
claim to be susceptible to reason.
Returning to a core question
With Ackerman’s theory of constitutional dualism being the noteworthy excep-
tion,
5
contemporary constitutional scholarship has been strangely oblivious to the
intellectual challenge posed by the constituent power. This is not a self-explana-
tory fact. Despite the recurrent and tiring debate over Europe’s lack of a demos
and even though the ‘convention method’ was celebrated as Europe’s path of con-
stitution-making,
6
the topic has lain dormant for decades. Part of the explanation
might be that ever since it made its appearance in Sieye
's’ legal-political tract on
theThird Estate,
7
the constituent power has been associated with the nation. Since
the nation encapsulates a commitment to self-conscious political particularity,
8
enthusiasts of European integration and of the European constitution are notor-
iously disinclined to express fondness for the proposition that the nation is the
origin of constitutional authority. Moreover, in an age of increasing international
interpenetration, national particularism is not likely to receivefavourable reviews.
In fact, it is alleged to be a stepping stone towards a type of social progress which
is believedto originate fromincreasing‘inclusion’. National boundaries invariably
exclude. They draw a line with regard to the much belaboured ‘Other’, both
within and beyond state boundaries. What is more, the association of the consti-
tuent power with the nation conjures up the image of excited masses trapped in
the schemes of evil demagogues. Consequently, transcendental political thought
does not elicit pleasurable sensations in an age where commerce has long taken
the place of politics and everyoneis enamoured with the valueof public tranquil-
lity.
9
Against this background, the essays collected in The Paradox of Constit utionalism
present us with an incredible recovery. It is all the more remarkable ^ at any rate,
from the perspective of a continental constitutional theorist ^ that the topic has
been taken upby two scholarsfrom the British constitutional tradition,where, as
Loughlin (42^48) explains, the doctrine of constituent power never really took
hold. Intriguingly, it made an early appearance in the political thought of the
3 See E. Durkheim,The Elementary Formsof Religious Life (New York: Free Press,1995).
4 See S. Freud,‘Group Psychologyand the Analysis of theEgo’ In CompletePsychologicalWorks,vol.18
(trans. J.Strachey,London: Hogarth Press,1955)67^143.
5 See B. Ackerman,We the People,vol. 1: Foundations (Cambridge, Mass.: HarvardUniversity Press,
199 1).
6 For a recent socio-linguistic analysis, see M. Krzyzanowski and F. Oberhuber, (Un)DoingEurope.
Discourses and Practicesof Negotiatingthe EU Constitution(Bruxelles: Lang Verlag, 2007).
7 See E. J. Sieye
's, What Is theThirdEstate? (trans. M. Blondel, ed. S.E. Finer, Westport: Praeger Inc.
Publishers,1964).
8 See Schmitt, n 1 above 79.
9 See A. de Tocqueville, Democracy in America (trans. H. C. Mans¢eld and D. Winthrop, Chicago:
Universityof Chicago Press, 2000) 672.
The Owl of Minerva
474 r2008The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(200 8) 71(3) 473^48 9
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