Constituent Power and Sovereignty

In the Sixteenth Century Jean Bodin (1955, 53) says in his book De la Republique «(l)a souverainete est la puissance absolue et perpetuelle d’une Republique. ».^[287] These two characteristics, absolute and perpetual, were thought as fixed conditions for the exercise of power.

One century later, Hobbes (1997, 129) affirms that “(t)he final cause, end, or design of men, who naturally love liberty, and dominion over others, in the introduc­tion of that restraint upon themselves, in which we see them live in commonwealths, is the foresight of their own preservation, and of a more contented life thereby; that is to say, of getting them out of that miserable condition of war”. This miserable condition of war of everyone against everyone is the consequence of men natural passions, precisely when there is no power to keep them in peace “and tie them by fear of punishment to the performance of their covenants, and observation of those laws of nature...” And he adds: “covenants, without the sword, are but words, and of no strength to secure a man at all.”

For Hobbes (1997, 132), the origin of this coercive power is the will. Initially, the will of every man to concede to one person or to a group of people his or her own will, that is, “to reduce all their wills, by plurality of voices, unto one will’ The will is a prior condition for constituting the political community and whose struc­ture is paradoxical and without which the State -the great Leviathan or mortal god- would not exist.

Hobbes and Bodin identify the sovereign power in its site, which is occupied by the figure of the king. Nevertheless, even Bodin was careful in defining sovereignty abstractly and impersonally. In this sense, one could abstract the figure of the sov­ereign either form the government or the parliament or still the people.

Late modern thought about sovereignty - I mean, from the end of nineteenth to the twentieth century- has reacted to abstract definitions and formal analysis of sovereignty. That is, the foundation of most part of sovereign States was due to a situation one might call revolutionary. And even considering that such revolution­ary situations are not necessarily spectacular genocides, expulsions or deportations that often go with the foundation of States (Derrida 1990, 991), they are invariably terrible, as far as they are in themselves and in their very violence uninterpretable and indecipherable. This violence is not strange to law; instead it is in the law and suspends the law. It interrupts the established order to found another one.

The force and the Law are the aims of sovereignty. At this point I dare saying that violence and the law do not differentiate them within sovereignty. Sovereignty

is, then, a zone of indistinction. This is even more visible when one relates sover­eign power to constituent power.

For legal science, the constituent power is traditionally the source from where it springs the new constitutional order. It is the power to make a (new) Constitution from which the remaining (constituted) powers of the State get their structure.

If constituent power does not emanate from any constituted power, if it is not an institution of the constituted power then it is an political act of choice, the radical determination that unfolds a horizon or yet the radical device of something that still does not exist and whose conditions of existence presuppose that the creating act does not loose its characteristics in the creation.

Constituent power opposes constitutionalism as the government constrained by law. The limitation of power by the law and, accordingly, the control over govern­ment do not fit in a constituent movement (present time) but is, precisely, the oppo­site, the constituted thing (past time). We are dealing here with times (in the plural). A time in the present (continuous) that in constituting a new time not just redeems the old time but reverses it. In its relation to time, the constituent power accelerates

it, breaking with the past and instituting a new time.

Does the concept of sovereignty work as a criterion of truth to the constituent power? At this point, it is worth recalling the arguments I have just presented on sovereignty and to perceive that once we understand the locus of sovereignty as a zone of indistinction, that is, as a zone of an ineradicable tension between that which is outside and inside, one can think it in terms of constituent power without any mutual sacrifice. This interpretation stresses the paradox of sovereignty.

The rule of law as a representation of constituted powers opposes constituent power to sovereignty and it is against this opposition that I claim. My point is that the Constitution - as the result of constituent power - cannot become an obstacle to political action in terms of democratic politics. On the contrary, it must mediate it.

One has to rescue this idea and this practice that sovereign people create and establish its Constitution (constitutes themselves as such) by means of all radical impulse that is in such constituent act and for this very reason they (the people) impose to themselves the norms/rules which will regulate their constituted powers.

In the Metaphysics, in the very beginning of book Theta, Aristotle (1984, 181) power (SuvapiZ), working (evepyeta) and fulfillment (eoreXe/eta) belong to the realm of being. Then, power is not a mere category but it is essential to understand being as such what means that a question on power is also a question on being; it is an ontological question.

Aristotle (1984, 182) affirms that there is a primary kind of power to which genuine powers are really related (1046a9). This primary power “which is the source of change in another thing or in another aspect of the same thing” (1046a11-12) is dynamis, and cannot be confounded with that which changes -the fixed entity. Then, power is primarily active - power of acting- or passive - power of being acted upon and either one has to be though in relation to the other. For, power is one yet in an active or passive mode. Lack or privation of power is as essential as the (active or passive) presence of power. Then, lack or privation is not a negation of power but essentially constitutes it.

Power and act differ in the sense that “something may be capable of being with­out actually being, and capable of not being, yet be”. (1047a21-23)” In the antith­esis indicated by this assertion, there is potentiality in one pole and actuality in the other. Yet, Aristotle does not prefer one instead of the other, as both are two modes of primary being.). It would be a mistake to think that potentiality would disappear into actuality.

Dynamis is constitutively also a-dynamis. Both dynamis and a-dynamis refer to the same phenomenon: “...any power in a given object related to a given process has a corresponding incapacity.” (1046a32-33) Potentiality appears as potentiality to and potentiality not to. The relation between potentiality and actuality can be thought in terms of a suspension, that is, potentiality relates itself to actuality to the extent of its suspension: “ it is capable of the act in not realizing it, it is sovereignly capable of its own im-potentiality.” (Agamben 1998, 45) Potentiality and actuality are the two faces of the same phenomenon, namely the sovereign self-founding of being.

Aristotle’s considerations on being became paradigmatic for modern political philosophy especially for thinking the relation between constituent power and sov­ereignty. It is possible to associate the Aristotelian structure of potentiality and actu­ality to the structure of sovereignty and constituent power. To the same extent that potentiality does not pass over actuality, Agamben (1998, 47) advocates that sover­eign power does not pass over actuality and then it retains its potentiality or its constituting power in the form of a suspension.

The sovereign power as a constituted order keeps the radical impulse of constitu­ent power. This does not mean that the constituent power is ontologically reducible to the constituted order losing its autonomy and freedom but instead stresses the permanent tension that is present in these two concepts showing that there is no pos­sible Aufhebung between the two. There is no dialectics - in the strong Hegelian sense- between constituent power and constituted power.

At a first glance, constituting potentiality seems to be there in the constituted power in the form of its own opposite with which it is identical and whose contra­diction is reconciled in the idea of sovereignty that contains within itself the opposi­tion of the other two and yet it contains their unity. However, sovereignty does not appease or resolve the contradiction as it is supposed to do so by the fact that a rational structure cannot rest on what is self-contradictory. On the contrary, consti­tuting potentiality remains there, recalcitrant, as a radical impulse. For, one may think beyond any possible dialectical relation between constituent power and con­stituted power: first, by agreeing with the fact that sovereignty is not an exclusively political concept or an exclusively legal concept; second, by considering that sover­eign power is not opposed to constituent power as they are at a point of indistinc­tion; third, by assuming that there is no possible synthesis between the two and that on this impossibility that one has to remain and fourth because they are somehow incommensurable, therefore, one cannot be the dialectical opposite of the other.

Thus, I am back to my initial problem concerning the paradoxical relation between democracy and constitutionalism yet from the viewpoint of the relation between constituent power and constituted power(s). My point is that it is possible and desirable to conceive constitutionalism as that which exhibits and reaffirms - instead of annihilating- constituent power as far as it ensures and renews democratic politics and its commitments. This happens when constitutional rights are respected and enforced. If, on the one hand, constitutionalism leads to the past, on the other hand, it can happen in the present not as a mere repetition of the past but as the condition to the exercise of rights. That is, as a condition for political action, consti­tutionalism makes promises and compromises and then it opens itself to the future. This happens in moments of radial realization of democratic commitments.

Claude Lefort, in a essay written in the eighties talked about democracy as a constant process of reinventing rights (Lefort 1981). According to it, he defends a democratic revolution whose main trait is the daily fight for rights, the conflict, the agonistic perspective, which must not be eradicated form society.

It is necessary to think about conflict in terms of that which, at the same time, supposes the fact of power and search for a consideration for differences at Law (Lefort 1981, 62). Conflicts constitute more and more the specificities of modern democratic societies. So, democracy inaugurates the experience of an elusive and untamable society in which the people are sovereign but do not stop questioning their own identity (Lefort 1981, 118).

For instance, recent manifestations in Brazil and elsewhere put in evidence social, economic, cultural, religious and other kinds of conflicts. Generally speak­ing, most of the people in the street asked for a more just and equal society- in many aspects- reaffirming, then, the potentiality of constituent power as far as they claimed for the effectiveness of constitutional rights. By doing that they renew constitutionalism.

The tension between constituent power and constituted power or rather between potentiality and actuality plays a fundamental role for contemporary constitutional­ism and democracy.

In recent Brazilian constitutional history, constituent power (as potentiality) refers to a series of events carried out by the people, from the beginning of the eight­ies on, and not exactly to the National Constituent Assembly of 1987-1988. This potentiality reappears every time that someone or something (such as the current demand for a new constituent assembly) intends to hit the Brazilian Constitution.

In this sense, the relation between sovereignty and constituent power, constituent power and constituted powers makes room for (the notion of) a radical Constitution.

Looking from another perspective, this dynamis refers to the people’s capacity to rule themselves and to impose to themselves a Constitution. In doing so, people constitute themselves as a political community and because of that such Constitution must be respected and experienced. Yet, popular sovereign power has paradoxically to be restrained. This is the whole issue about democracy and constitutionalism.

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