Constituent Power: A History 9781108485432, 9781108757119, 2019052993, 2019052994

Table of contents :
Frontmatter
Introduction
1 Sieyès and the French Revolution
2 Constitutional Politics in Nineteenth-Century France
3 The Weimar Republic
4 Constitutional Politics in Post-World War II Europe
5 Arendt and the French Revolution
Conclusion
Bibliography
Index

Citation preview

CONSTITUENT P OWER

From the French Revolution onward, constituent power has been a key concept for thinking about the principle of popular power and how it should be realised through the state and its institutions. Tracing the history of constituent power across five key moments – the French Revolution, nineteenth-century French politics, the Weimar Republic, post-World War II constitutionalism and political philosophy in the 1960s – Lucia Rubinelli reconstructs and examines the history of the idea. She argues that, at any given time, constituent power offered an alternative understanding of the power of the people to those offered by ideas of sovereignty. Constituent Power: A History also examines how these competing understandings of popular power resulted in different institutional structures and reflects on why contemporary political thought is prone to conflating constituent power with sovereignty. lucia rubinelli is Junior Research Fellow in the History of Political Thought at Robinson College, University of Cambridge.

ideas in context Edited by David Armitage, Richard Bourke, Jennifer Pitts and John Robertson

The books in this series will discuss the emergence of intellectual traditions and of related new disciplines. The procedures, aims and vocabularies that were generated will be set in the context of the alternatives available within the contemporary frameworks of ideas and institutions. Through detailed studies of the evolution of such traditions, and their modification by different audiences, it is hoped that a new picture will form of the development of ideas in their concrete contexts. By this means, artificial distinctions between the history of philosophy, of the various sciences, of society and politics, and of literature may be seen to dissolve. The series is published with the support of the Exxon Foundation. A list of books in the series can be found at the end of the volume.

CONSTITUENT POWER A History

LUCIA RUBINELLI University of Cambridge

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108485432 doi: 10.1017/9781108757119 © Lucia Rubinelli 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Rubinelli, Lucia, 1989– author. title: Constituent power : a history / Lucia Rubinelli, University of Cambridge. description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University press, 2020. | Series: Ideas in context | Based on author’s thesis (doctoral – University of Cambridge, 2017) issued under title: Constituent power and the modern state : a history of the theory and practice of popular power. | Includes bibliographical references and index. identifiers: lccn 2019052993 (print) | lccn 2019052994 (ebook) | isbn 9781108485432 (hardback) | isbn 9781108757119 (ebook) subjects: lcsh: Constituent power – Europe. classification: lcc kjc5262 .r83 2020 (print) | lcc kjc5262 (ebook) | ddc 342.408/5–dc23 LC record available at https://lccn.loc.gov/2019052993 LC ebook record available at https://lccn.loc.gov/2019052994 isbn 978-1-108-48543-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

a Leopoldo Conforti

Contents

Acknowledgements

page ix

Introduction

1

Constituent Power History Political Projects

3 16 28

1 Sieyès and the French Revolution Languages of the Revolution Emmanuel Sieyès Constitution-Making Diverging Institutional Projects Conclusion

33 34 44 49 61 73

2 Constitutional Politics in Nineteenth-Century France Abuses of Sovereignty Regime Changes The Success of Constituent Power Conclusion

75 76 84 95 100

3 The Weimar Republic

103

France in Germany Carl Schmitt Popular and Parliamentary Sovereignty Dictatorship Conclusion

4 Constitutional Politics in Post–World War II Europe Sovereignty and Positivism Political Goals Social Forces Institutions Conclusion

104 109 118 129 135

141 142 151 157 162 174

vii

viii

Contents

5 Arendt and the French Revolution

176

Solipsism, Sovereignty and the Nation France in America The Practice of Constituent Power Institutions of Popular Participation Conclusion

177 185 192 196 203

Conclusion New Questions, Old Answers History Constituent Power as Institutional Politics

Bibliography Index

206 208 222 226

230 246

Acknowledgements

If English were my mother tongue, I would express my gratitude in rhyming couplets. It would be a good compromise between thanking the many people who helped me and avoiding taking myself too seriously. Indeed, the process of writing this book has not been particularly remarkable: almost no sleepless nights and no caffeine addiction. I even managed to avoid getting irremediably lost in the Cambridge University Library – though some might consider this quite exceptional. By contrast, the presence, help and support of colleagues and friends have been truly remarkable. Many people in France, Britain and Italy contributed to making the time I spent on the manuscript pleasant, fruitful and lighthearted. Besides being a wonderful supervisor and mentor, Duncan Kelly patiently dealt with my obsession for symmetry. If there still is too much in the book, it is entirely my fault. David Runciman believed in this project more than I did and gracefully invited me to rewrite the same page four times at least. Pasquale Pasquino might not like how this book eventually ended but has largely inspired how it started. Since my arrival in London, Richard Bourke has provided me with an excellent mix of criticism, social commentary and inspiration. For enduring long and extenuating conversations while panting up various peaks in the Dolomites, Tobias Müller, Jakob Huber and Rui Pereira should be thanked – I wish Arthur Ghins had joined us, but his intellectual support is not compatible with sporting activities. In the past couple of years, I have greatly benefited from the scholarship and friendship of Greg Conti and Will Selinger who have wisely tried to censor these very acknowledgments and of Sam Zeitlin, who scrutinised the book more thoroughly than I did. Friends and colleagues at the LSE, Cambridge, Paris and elsewhere, among them Signy GutnickAllen, Duncan Bell, Carla Bertin, Chris Bickerton, Christopher Brooke, Alessandro Campi, Paolo Carta, Hugo Drochon, John Dunn, Katrin Flikschuh, Luc Foisneau, Lorena Gazzotti, Lilia Giugni, Marco Goldoni, Adela Halo, Colin Hay, Leigh Jenco, Chandran Kukathas, Adam Lebovitz, ix

x

Acknowledgements

Amnon Lev, Christian List, Martin Loughlin, Bernard Manin, Christoph Möllers, Peter Niesen, Giulia Oskian, Markus Patberg, Anne Phillips, Tom Poole, Kaveh Pourvand, Ryan Rafaty, David Ragazzoni, Paola Romero, Mike Sonenscher, Richard Tuck, Nadia Urbinati, Laura Valentini, Lars Vinx, Anahi Wiedenbrug and Lea Ypi, have generously fed my mind and, in some crucial instances, my belly too. My sister modestly quantified the extent of her and my parents’ support in terms of tomato sauces they sent overseas – although I would have liked more, I must admit that it was quite impressive. Last, and amongst many more important things, Federico ‘convinced’ me to engage in dubious sporting activities. These certainly opened me to ridicule but effectively aired my brain.

Introduction

The modern state is built upon the principle that political power belongs to the people. Yet this principle has no uniform meaning. The very institutional structure of the modern state testifies to the plurality of understandings about the meaning, extent and implications of popular power. A quick look at modern European states reveals how each of their institutions is based upon a specific way of understanding and framing the power of the people. More strikingly, even within a single institution different conceptions of the people’s power play out simultaneously. As an example, it may suffice to think about how different the principle of popular power looks when invoked to justify the role of legislative assemblies and that of constitutional courts. The first institution is considered the forum where popular concerns and interests are elaborated, compromised upon and transformed into law by representatives. The second, by contrast, is thought of as the ultimate guarantee of the respect of the people’s founding will as expressed in the constitution against the legislative assembly. Both refer directly to the people as the ultimate source of authority, but they frame their power in very different ways. One is the power to make laws through representatives; the other is the power to trump laws made by representatives in the name of a higher expression of the people’s will. Another example is the coexistence of multiple conceptions of popular power within a single institution, such as an electoral law. Electoral laws often are a mix of proportional and majoritarian systems. Although this combination normally responds to the need to guarantee stability and governability, the two elements enshrine different understandings of what the power of the people is and how it is to be identified. On the one hand, it is considered to be mirrored in the exact collection of individual preferences. This corresponds to strictly proportional electoral systems.1 1

On the logic and history of proportional representation, see G. Conti, Parliament the Mirror of the Nation (Cambridge: Cambridge University Press, 2019).

1

2

Introduction

On the other hand, majoritarian systems conceive of popular power as an aggregate which is equivalent to the opinion to the majority. When the two systems are combined, as in most European electoral laws, two understandings of popular power coexist. As for the previous example, these are not necessarily mutually exclusive. Often, they have a common rationale and are organised in such a way as to form a coherent institutional structure. But when taken singularly, they point toward the multiplicity of understandings of popular power underpinning the state and its institutions. Yet there are cases in which these multiple conceptualisations of popular power clash at both practical and theoretical levels. This happens when different institutions put forward competing claims to embody the will of the people, as in the case of constitutional courts judging the legitimacy of a referendum’s result. Or when a system in which the parliament is the privileged forum for the elaboration of the popular will calls for a referendum. What is to be considered the faithful expression of the power of the people in these cases – the decision expressed in the constitution, that taken by the parliament or the people’s answer to a yes or no question? The first two options suggest that popular power is never immediately present but is formed through the mediation of either a constitutional text or a representative assembly. By contrast, the second option is based on the idea that popular will coincides with the people’s direct expression of their individual preferences. This tension not only plays out at an institutional level but also is reflected in theoretical and intellectual debates. Very often we find ourselves invoking the principle of popular power through different concepts at the same time, such as, the different variations of sovereignty – national, popular and parliamentary, to name just a few. As in the previous examples, the use of these ideas to account for the content and implications of the principle of popular power is not always consistent. It happens that the idea of popular sovereignty is mobilised to defend the result of a parliamentary decision as well as that of a referendum. At the same time, we often have recourse to the idea of national sovereignty to defend the supremacy of the parliament as well as to uphold the independence of the people’s will in the international arena. Alongside these expressions of popular authority, the idea of constituent power is invoked to justify constitutional courts as well as to point at the power of the people to overthrow the entire constitutional structure in revolutionary moments. How are we to make sense of this multiplicity of conceptualisations of the principle of popular power? How do they structure, explain and justify the institutional systems in which we live? Does

Constituent Power

3

their coexistence tell us something about the way in which we negotiate the form, role and extent of popular power in the modern state? This book is an attempt to contribute an answer to some of these questions. It aims to shed light on the role that constituent power plays in articulating the meaning and implications of the principle of popular power. To do so, the book analyses some key moments in the history of the idea. These moments demonstrate that no single meaning can be attached to the notion of constituent power, rather its sense has changed over time in relation to given historical circumstances. The latter in turn, suggest that any time the language of constituent power has been theorised it was to offer a conceptualisation of popular power alternative to contemporary understandings of sovereignty. The result is a story that portrays constituent power as one amongst other ways of framing the principle of popular power over time. As such, it was – and still is – used to make sense of the people’s relationship to their political power and to the institutions meant to embody it.

Constituent Power In mid-2000s, Martin Loughlin and Neil Walker, invited scholars from different disciplines, national cultures and ideological orientations to contribute to the debate about the origins and relevance of the idea of constituent power for modern constitutional politics.2 Together they influentially asserted that the main interest in studying constituent power lies in its capacity to solve the paradox of constitutionalism. The paradox touches upon the very possibility of the exercise of popular power. The idea that the modern state is based upon a paradox derives from the fact that ‘the power [the people] possess, it would appear, can only be exercised through constitutional forms already established or in the process of being established’.3 This paradox captures a widespread concern for the actual sense of the principle of popular power, raising the question of how, if at all, it can factually be realised. The tension between what might look like an aspirational principle and its realisation is indeed the motivation behind most of the thinking about constituent power, both historical

2 3

M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2008). Ibid., p. 1.

4

Introduction

and contemporary. Thinkers as distant as the Abbé Sieyès during the French Revolution and Antonio Negri today rely on the notion of constituent power to think about who the people are, what their power entails and how it can be institutionally exercised. Constituent power is thus mobilised to question the role played by the people in the foundation of the modern state, the working of the legal-political system and the criteria to assess its legitimacy over time, as well as the eventuality of its overthrowing in revolutionary events. What changes is the answer that constituent power is meant to offer to this series of questions and hence the type of solution to the paradox that it supposedly provides. Currently, three main types of answer appear to have gained traction. They bring with themselves not only different approaches to the paradox but also different ways of engaging with the idea and its history. One answer completely rejects the paradox, arguing that it arises from a series of mistaken assumptions about the theory and practice of constitutionmaking. Another tends to see in constituent power an instrument to reinvigorate the democratic meaning of the principle of popular sovereignty within the constitutional state. The last set of answers sees in constituent power a way to frame sovereignty in terms of the power the people have to act beyond and against the state. Yet all answers tend to present the idea of constituent power as the correct interpretation of the phenomenon ‘popular power’. To ground this claim, they rely on the history of the idea, as this is supposed to offer evidence of both the meaning and the practice of constituent power. In addition, they often strengthen their point by discussing their understanding of constituent power in relation to given interpretations of sovereignty. As the following paragraphs will demonstrate, these similarities among otherwise different accounts of constituent power mark what distinguishes my book from current scholarship on the subject. While contemporary debates focus on the possibility of finding the correct meaning and use of the idea, I ask what is the distinct contribution that the notion of constituent power brings to the negotiation and systematisation of the principle of popular power. The first answer to the paradox has mostly been developed by Andrew Arato, who has devoted much of his career to distinguishing the idea of constituent power from ‘a unitary, embodied popular sovereignty’.4 According to his view, the paradox of constitutionalism derives from the systematic misinterpretation of a constellation of concepts connected to the idea of constituent power. These are the 4

A. Arato, The Adventures of the Constituent Power (Cambridge: Cambridge University Press, 2017), p. 1.

Constituent Power

5

concepts of constitution, when understood as a merely formal legal text; legitimacy, when considered to be independent from the procedures of constitution-making; and sovereignty, any time this is taken to be embodied in a single unified decision maker. The result of this series of misinterpretations is what Arato calls the model of ‘sovereign constitution-making’.5 In this model, constituent power is ‘a constitutionally unbound, sovereign constituent power, institutionalised in an organ of government, that at the time of this making unites in itself all of the formal powers of the state, a process that is legitimated by reference to supposedly unified, pre-existing popular sovereignty’.6 This vision of constituent power is, in Arato’s view, problematic on many different levels. To start with, it is dangerous. Constituent power is indeed presented as unlimited, in that it is able to ‘create any logically and empirically possible form of government and system of laws’.7 In addition, it is always exercised by an organ that claims to embody the totality of the people. The combination of the unlimited nature of the sovereign constituent power and its association to the people as a whole is likely to result, in Arato’s view, in dictatorship. This is because it makes the self-perpetuation of the organ representing the totality of the people possible both theoretically and empirically.8 Second, the sovereign theory of constitution-making is logically impossible and, as such, leads to the paradox mentioned by Loughlin. This is because it posits the people as the antecedent source of sovereign power and authority, thus falling into the trap of postulating the existence of an already formed and organised people before a constitution comes into place to organise it. Sovereign constitution-making is thus a theory aimed at disguising the unlimited power exercised by the constitutionmaking organ through the appeal to ‘the people’, which, for Arato, is but an instrumental fiction. To buy into the idea of a paradox is thus to fall prey to this ideological construct, which portrays constituent power as the normless, unlimited and unified source of all constitutions. By contrast, Arato suggests an alternative: this is called post-sovereign constitution-making and requires adopting a different account of constituent power, one that is separate from the sovereign paradigm. According to Arato, post-sovereign constituent power has a long and distinguished history. Its traces can be found in the political practices of the English, French and American Revolutions, as well as in the political thought of Sieyès, some nineteenth-century French theorists of the state 5

Cf. ibid., chapter 1.

6

Ibid., p. 31.

7

Ibid., p. 34.

8

Ibid., p. 35.

6

Introduction

and Arendt.9 Its fundamental pillars are the rejection of unitary understandings of sovereignty in favour of a multi-level concept of constituent power and a multi-stage practice of constitution-making. This only takes place when the plurality of groups comprising ‘the people’ is invited to write the constitution by participating in a variety of settings, including round tables and other formats of collective constitution-making. The necessary consequence of this approach is that no single organ of the state can be said to embody the totality of the constituent power and that the exercise of the latter is necessarily limited by a set of procedures ‘justified by reference to their own discursively justifiable principles’.10 In this way, Arato reintroduces norms and procedures into the process of constitution-making which, in turn, offer what he believes to be a vision of constituent power that is both empirically closer to reality and normatively more desirable than the sovereign paradigm. It is closer to the reality of popular power because all empirical evidence of its practice demonstrates it to be bound by some sorts of procedures. In addition, this is also a normatively preferable account of constituent power in that it avoids attributing it to a unified organ and endowing it with an unlimited power. In Arato’s terms, post-sovereign constituent power escapes the paradox of constitutionalism while offering a truly democratic theory of legitimate constitution-making.11

9

10 11

Arato repeatedly discusses the history of the idea; see for instance chapters 1 and 2 of A. Arato, The Adventures of Constituent Power, and A. Arato, ‘Forms of constitution-making and theories of democracy’, Cardozo Law Review (17) (1995), pp. 191–230. Also see part I of A. Arato, Post-sovereign Constitution Making (Oxford: Oxford University Press, 2016). Ibid., p. 36. Building on the work of Arato, Melissa Williams also argues that constituent power has been associated with sovereignty for too long. The latter, she claims, is inextricably bound to a territorial conception of the state which is, in itself, problematic. It is thus the task of the democratic theorist to retrieve ‘the normative core of the idea of popular sovereignty’ (p. 8). And this is constituent power. To do so, it is necessary to reconstruct the history of the idea which, she claims, dates further back than the French Revolution. Like Arato, Williams suggests that constituent power needs to be considered as different from current ideas of sovereignty. And like him, she grounds her claim by reconstructing the history of the idea. The resulting definition of the concept is also similar to Arato’s. Yet, differently from him, she is not entirely clear as to whether constituent power is conceptually different from sovereignty tout court or simply different from the statist paradigm of sovereignty. If the second is the case, then she is closer to theorists like Loughlin and Kalyvas, who are both discussed in the next paragraphs. See M. S. Williams, ‘Deterritorializing Democratic Legitimacy’, in Archon Fung, Sean W. D. Gray and Tomer Perry (eds.), Democratic Inclusion in a Globalized World: The Principle of Affected Interests (Cambridge: Cambridge University Press, forthcoming). No less, Pettit distinguishes between constituent power and sovereignty in his reconstruction of popular power in the republican tradition, cf. P. Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2012), pp. 285–8.

Constituent Power

7

Among the exponents of the second view of constituent power – let’s call it the constitutional view – are thinkers who believe that the idea, if correctly interpreted, will solve the paradox of constitutionalism. This is because it reveals the democratic essence of popular sovereignty and points at how it should be institutionalised in day-to-day political practices of popular participation inside the constitutional state. Within this framework, different interpretations of constituent power’s democratic meaning are offered. Loughlin suggests that the core of the idea is its relational character.12 This is because constituent power describes popular power as the process through which the people’s will is transformed into institutional structures without being either absorbed or neutralised in their ordinary working. Constituent power construes the people’s power as consubstantial with the institutions it constitutes. Differently from other understandings of popular power, that treat it ‘as an existential unity preceding the formation of the constitution’, the idea of constituent power thus ‘expresses a dialectical relation between the nation posited for the purpose of self-constitution and the constitutional form through which it can speak authoritatively’.13 This, in Loughlin’s view, reveals that constituent power amounts, de facto, to the essence and true meaning of sovereignty. Yet no definition is offered as to what the essence and true meaning of sovereignty is, if not through a circular reference to the idea of constituent power. In his words, ‘real or political sovereignty . . . is synonymous with what Sieyès called the “constituent power”’,14 which is ‘the repository of sovereignty’.15 The result is that constituent power is defined in terms of sovereignty, and sovereignty in terms of constituent power; the two ideas are seemingly equivalent. To justify why constituent power enshrines the real meaning of sovereignty, Loughlin mobilises the history of the idea. Overlooking whether the term ‘constituent power’ was used or not, he identifies its origins in Bodin’s concept of real sovereignty.16 In other passages, he suggests that the first theorisation of constituent power is in fact Machiavelli’s theory of the balance between social forces, power and freedom, and virtù and 12

13 14 15 16

This idea was first introduced by Hans Lindhal. See H. Lindhal, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’, in M. Loughlin and N. Walker, The Paradox of Constitutionalism, pp. 9–24. M. Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010), p. 227. Ibid., p. 85. M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2004), p. 90. M. Loughlin, ‘The Concept of Constituent Power’, European Journal of Political Theory 13(2) (2014), pp. 218–37, p. 220.

8

Introduction

fortuna.17 Successively, constituent power appears also in Hobbes’ and Rousseau’s theories of sovereignty. They both recognise the people’s constituent power – what they call sovereignty – but then constrain it in favour of the constituted order in Hobbes’ case or of the abstract notion of general will in Rousseau’s.18 The idea found a completely satisfactory theorisation only in the reflections of the American founding fathers, the revolutionary thought of Sieyès and, to a lesser extent, Condorcet in France. These are the theorisations of constituent power able to solve the paradox mentioned earlier. Yet their meaning is defined once more in terms of sovereignty. Constituent power and sovereignty both are ‘the essence of the modern state . . . the name given to express the quality of the political relationship that is formed between the state and the people’.19 It is not just Loughlin who presents the two ideas, constituent power and sovereignty, as synonyms. Andreas Kalyvas too deploys them in pair but uses constituent power to distinguish the ‘good’ understanding of sovereignty from other biased interpretations of the same idea. These coincide with the theory of sovereignty as command.20 The latter comes from Bodin’s doctrine of sovereignty as ‘the highest power of command’21 and is structured around a vertical relation between the ruler and the ruled, where the power to command is absolute, personified and unitary.22 As influential as this theory has been, it can and should be contrasted by relying on alternative accounts of sovereignty, such as those channelled through the idea of constituent power. This idea illustrates a completely different way of thinking about popular sovereignty, one that puts the emphasis on the people’s collective authority. In his words: [T]he conceptual history of constituent power speaks directly against this grand narrative of command and subjection. It illuminates important but 17

18

19 20 21

Loughlin, The Idea of Public Law, ch. 6. Miguel Vatter also argues that the most important theorisation of constituent power is to be found in Machiavelli and especially in his ideas of originary repetition and of democracy as resistance to sovereign rule. Cf. Miguel Vatter, ‘Legality and resistance: Arendt and Negri on constituent power’, Kairos (20) (2002), pp. 191–230. This resonates with arguments put forward by Antonio Negri, on which more will be said in the following paragraphs. Loughlin offers different versions of constituent power’s history, but they all follow the same general path. See M. Loughlin, The Idea of Public Law, ch. 6, and M. Loughlin and N. Walker, The Paradox of Constitutionalism, ch. 2. M. Loughlin, The Idea of Public Law, p. 83. A. Kalyvas, ‘Popular Sovereignty, Democracy and the Constituent Power’, Constellations 12(2) (2005), pp. 223–44, p. 225. A. Kalyvas, ‘Constituent power’, Political Concepts Issue 3 (2012), p. 2. 22 Ibid., p. 1.

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neglected dimensions of the democratic experience and discloses another understanding of sovereignty . . . not only historically prior but also analytically distinct from the regal paradigm, opposed and antagonistic to it: the power of the people to constitute.23

The history of this alternative sovereignty-as-constituent power is found in the Roman republican tradition, in the thought of Marsilius of Padua and of the Monarchomachs, the American founding fathers and Sieyès, Lafayette and Condorcet, to eventually arrive at twentieth-century anticolonial independence movements. Kalyvas’ story of sovereignty-asconstituent power is tightly connected to theories of direct democracy, resistance and revolution. It is the modern version of ancient practices of direct sovereignty, ‘a more sophisticated restatement of the old, fundamental democratic principle of self-government and self-determination’.24 As such, constituent power allows Kalyvas to solve the paradox of constitutionalism by rejecting wrong understandings of sovereignty as command and substituting for them accounts of sovereignty as collective selfgovernment. Once more, constituent power is presented as historically and conceptually paired with the idea of sovereignty, in its more democratic iterations. This is evident in that, for Kalyvas, the birth of ‘the modern doctrine of popular sovereignty coincides with the conceptual advent of constituent power’, and ‘constituent power and modern democracy are associated from the beginning with the idiom of popular sovereignty’.25 Loughlin and Kalyvas are but two examples of a much wider trend that spans well beyond academia to also embrace the world of radical public intellectuals and activists. It is indeed not uncommon to find thinkers associated with social movements claim that constituent power is the only truly revolutionary understanding of the sovereignty of the people. Yet the pay-off of this claim is substantially different from the one offered by Loughlin and Kalyvas, or even by Arato, and, as a consequence, is here presented as a distinct set of answers to the paradox of constitutionalism. Granted the relevant differences, Arato, Loughlin and Kalyvas conceive of constituent power as a force active within and alongside the state. By contrast, radical theorists and public intellectuals tend to see in constituent power a conceptualisation of popular power that should not and cannot be institutionalised within the strictures of the constitutional state. This position adds up to what I’ve called the third answer to the paradox of 23 25

Ibid., p. 2. Ibid.

24

A. Kalyvas, ‘Popular sovereignty, democracy and the constituent power’, p. 238.

10

Introduction

constitutionalism. It is largely inspired by Antonio Negri’s depiction of constituent power as pure politics irreducible to any constituted order. In Negri’s terms, before being a concept, constituent power is an immanent reality, a praxis. Its defining features are its being selffounding, unlimited in both time and space and expressing pure strength, as opposed to institutionalised power. These features of constituent power make it the ‘true sense of democracy’,26 insofar as democracy is understood as a form of absolute government. Like constituent power, democracy cannot be created from the outside, it is self-founding, its temporality cannot be limited or constrained, and it expresses itself spontaneously, through strength as opposed to power. It thus is absolute and, as such, it is in a relation of necessary tension with the constitutional state. While the latter is founded on the principle of the limitation and institutionalisation of power, democracy is the pure, unlimited and immanent expression of the constituent power. It is a form of absolute government that, however, never becomes totalitarian.27 It seems to follow, for Negri, that constituent power is the revolution itself, in that – like democracy – it resists not only the constitutional state but also all forms of constituted politics. It thus becomes clear why, for Negri, the concept of constituent power cannot be but ‘the concept of a crisis’.28 This is because, by conceiving of popular power through the language of constituent power, key concepts of the liberal constitutional states are necessarily challenged. These are constitutionalism, the organisation of the constituted order, political representation and sovereignty.29 In opposition to all these concepts, constituent power opens ‘the door through which the multitude’s democratic will (and consequently the social question) has entered the political system – destroying constitutionalism or in any case significantly weakening it’.30 This, Negri maintains, is evident in the history of both the theory and praxis of constituent power. The first runs through the works of Machiavelli, Spinoza and Marx; the second is best evident in the English, American, French and Russian Revolutions, passing through the fundamental experience of the Paris Commune. What both the theory and the praxis of constituent power reveal is thus the key to the realisation of democracy in modernity: the shattering of all attempts to constitutionalise the multitude’s will through sovereignty and to annihilate strength by transforming it into power. Hence, Negri’s response to the paradox of 26 27 29

M. Vatter, ‘Legality and resistance: Arendt and Negri on constituent power’, p. 209. 28 Cf. Negri, Insurgencies: Constituent Power and the Modern State, p. 2 and p. 21. Ibid., p. 2. 30 Ibid., p. 22. Ibid., p. 21.

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11

constitutionalism is to advocate for the permanence and immanence of the constituent power of the people. Negri’s understanding of constituent power influenced contemporary radical theorists as well as activists, who rely on constituent power to negotiate the multitude’s direct and unlimited involvement in politics. Yet, differently from Negri, they conceptualise constituent power as the essence of popular sovereignty, which needs to be rescued from traditional accounts of state sovereignty. These are indeed to be rejected because they rely on sharp distinctions between politics and law, sovereignty and its exercise, ordinary and extraordinary politics. These rigid distinctions are the backbone of the modern state and, as such, should be abolished. They not only restrain popular power but also are part of an attempt to sanitise society from conflict, plurality and, ultimately, politics.31 By contrast, constituent power offers a language to frame the sovereign power of the people that avoids reducing it to voting practices and to their institutionalisation within the constitutional state. In Del Lucchese’s account, this new language is best exemplified in Machiavelli’s and Spinoza’s theories of constituent power. They conceived of the people’s power as ‘a never-ending process of auto-organisation of the multitude against the Hobbesian idea of the people’.32 Other theorists argue that the multitude is ‘an “unformed constituent power” capable of bringing back the condition of possibility of the modern idea of popular sovereignty’.33 This, it is claimed, is importantly different from the Hobbesian interpretation of popular power. In fact, it ‘arose in opposition to sovereignty in [the] Hobbesian sense and continues to be in a gaming relationship to it’.34 These radical and activist accounts of constituent power are thus meant to offer an immanent conceptualisation of the principle of popular power. More than an instituting power, the revolutionary constituent power is the spontaneous capacity to resist and subvert existing legal political orders at both the national and international level. Yet, as much as in Kalyvas’s and Loughlin’s cases, this revolutionary constituent power is equated to a given historical account of sovereignty and dissociated from other understandings of the same idea, variably defined but all ascribed to the Hobbesian 31 32 33 34

Cf. F. Del Lucchese, ‘Machiavelli and constituent power: the revolutionary foundation of modern political thought’, European Journal of Political Theory 16(1) (2014), pp. 1–21. Ibid., p. 5. U. Mattei and S. Bailey, ‘Social movements as constituent power: the Italian struggle for the commons’, Indiana Journal of Global Legal Studies 20(2) (2013), pp. 965–1013, p. 974. J. Tully, ‘The imperialism of modern constitutional democracy’, in M. Loughlin and N. Walker, The Paradox of Constitutionalism, p. 322.

12

Introduction

tradition. The result is that constituent power is associated with a certain definition of sovereignty and is distinguished from others via the use of the history, but it is unclear what constituent power specifically means, besides an alternative and non-mainstream understanding of sovereignty.35 The reliance on the notion of constituent power to define the people’s political power is thus common to all approaches. They use it to redefine popular power in different ways, but, interestingly, each account of constituent power is presented as the correct conceptualisation of the power of the people. This is worth considering further for three reasons. First, in most cases the language of constituent power is collapsed into the language of sovereignty. With the notable exceptions of Negri and Arato, the previous paragraphs have shown that, regardless of whether constituent power is taken to express the power the people have within the state or the power to overthrow it, it is used to give meaning to each thinker’s preferred account of sovereignty. Constituent power is then used to identify the divide between a correct definition of sovereignty and other mistaken accounts of the same idea. Although the conceptual function of 35

This quest to find the meaning of sovereignty through reference to the idea of constituent power is not only common to the theorists analysed here but also evident in the work of other legal and social theorists such as Jurgen Habermas, Ulrich Preuss and Jon Elster. See U. Preuss, ‘Constitutional powermaking for the new polity: some deliberations on the relations between constituent power and the constitution’, Cardozo Law Review (14) (1992–3), pp. 639–60; J. Elster, Securities against Misrule (Cambridge: Cambridge University Press, 2013), pp. 218–9; J. Elster, ‘Forces and mechanisms in the constitution-making process’, Duke Law Journal 2(45) (1995), pp. 364–96; J. Elster, ‘Arguing and bargaining in two constituent assemblies’, University of Pennsylvania Journal of Constitutional Law 2(2) (2000), pp. 345–421. In his The Crisis of the European Union: A Response, Habermas discusses how to transnationalise popular sovereignty and points to the need to create a pouvoir constituant mixte, according to which the people share their constituent power with the state. This, Habermas argues, would result in the creation of a mixed sovereignty. Yet what the ‘sovereignty’ and ‘constituent power’ elements in the ‘mixed sovereignty’ model are remains unclear because the idea of sovereignty is defined through reference to constituent power and vice versa. We know that both are mixed because they are shared between the people and the state, but we do not exactly know what belongs to sovereignty and what to constituent power. See J. Habermas, The Crisis of the European Union: A Response (Cambridge: Polity Press, 2012). This idea has then been picked up and elaborated upon by Markus Patberg and Peter Niesen, both of whom are preoccupied with constituent power as a way of reframing sovereignty within the European Union. See M. Patberg, ‘Challenging the masters of the treaties: emerging narratives of constituent power in the European Union’, Global Constitutionalism, 7(2) (2018), pp. 263–93; M. Patberg, ‘A systematic justification for the EU’s pouvoir constituant mixte: principles of constitutional politics in supranational polities’, European Law Journal 23(6) (2017), pp. 441–53, M. Patberg, ‘Constituent power: a discourse-theoretical solution to the conflict between openness and containment’, Constellations 24(1) (2017), pp. 51–62; P. Niesen, ‘Resistance, disobedience, or constituent power? Emerging narratives of transnational protest’, Journal of International Political Theory 15(1) (2019); P. Niesen, ‘Reframing civil disobedience: constituent power as a language of transnational protest’, Journal of Common Market Studies 55(2) (2017), pp. 183–92.

Constituent Power

13

this association is clear, the discrete meaning of each term remains vague and underdetermined. Not only that: once identified, the correct interpretation of sovereignty is often depicted as interchangeable with constituent power. They are considered two expressions of the same form of popular power. But the circular way in which constituent power and sovereignty are defined does not help clarify the terms of the relationship between the two ideas either. In other words, it is not clear how and why constituent power would allow any given theorist to identify the correct definition of sovereignty and distinguish it from other mistaken accounts of the same idea. By contrast, the question of constituent power’s distinctive contribution to the negotiation of the meaning and the implications of the principle of popular power is left open. Second, contemporary theorists present their interpretation of constituent power as the result of an investigation into the history of the idea. This is normally proved by reference to a variable number of historical figures, be they Machiavelli, Sieyès or the Founding Fathers, and organised in often-linear genealogies. Yet these genealogies presuppose that constituent power has only one meaning and that it remained consistent throughout history. In fact, contemporary theorists tend to arrange their genealogies working backward: they start with their own definition of constituent power and then retrace all historical instances that fit with the predefined reality of constituent power.36 The result is often a linear story that limits the history of constituent power to the history of just one interpretation of the idea, which corresponds to its initially postulated definition. As the latter is different for every scholar, so are the genealogies that follow. In addition, to build these genealogies, contemporary theorists assume that it is possible to find evidence of constituent power even when not explicitly invoked. As long as there is evidence of, for instance, a modern theory of direct democracy, Kalyvas considers it a theory of constituent power, regardless of whether the canonical author in question called it popular sovereignty, pouvoir constituant or hegemony.37 This disregard for the language of constituent power results in anachronistic histories. As in the cases discussed earlier, often the idea of constituent power is retraced in the political thought of Machiavelli, Marsilius of Padua or even Aristotle. Yet none of these thinkers ever used the term 36

37

The degree to which this happens varies depending on the scholar. Some, most evidently Arato, are willing to concede that the idea has also been interpreted in different ways but tend to dismiss these alternative interpretations as either invalid or normatively undesirable. This is a possibility Kalyvas discusses: see A. Kalyvas, ‘Hegemonic sovereignty: Carl Schmitt, Antonio Gramsci and the constituent prince’, Journal of Political Ideologies 5(3) (2000), pp. 343–76.

14

Introduction

‘constituent power’, and it is only after several centuries that this term made its appearance in the political vocabulary. Because these genealogies trace the evolution of a given way of thinking about constituent power posited ex ante, they exclude all instances in which the language of constituent power was used but its meaning did not correspond to the one looked for. In a similar way, they include instances of the meaning even though this was not channelled through the language of constituent power. As a result, these genealogies end up tracing the historical evolution of, for instance, direct democracy but not necessarily of constituent power. Per se, this is not a problem. Yet it becomes problematic in the moment in which this is taken to prove the correct meaning of constituent power. This is because the words ‘constituent power’ should be the fixed variable in this type of investigations, and what needs to be proven is that the meaning attached to them was consistent (or, indeed, inconsistent) in history. Yet contemporary theorists tend to do the opposite: if they want to prove that the historical meaning of constituent power is direct democracy, they do so by listing most theories of direct democracy as theories of constituent power. The genealogy ends up proving its own premise. Or, in other words, it presupposes the result that the historical investigation is supposed to demonstrate: Kalyvas wants to prove that the historically correct meaning of constituent power is direct democracy and does so by retracing all the occurrences in which direct democracy has been theorised, regardless of the words used to do so. This genealogy certainly proves that direct democracy has a history, but it says little about the relation between the language of constituent power and its uses to theorise popular power. The result is that, when contemporary theorists build genealogies for constituent power, they tend to overlook the selectivity of their histories. In order to prove their interpretations of the idea, they exclude instances in which a different meaning was attached to the language of constituent power. Yet, far from proving the historical validity of any given interpretation, this exclusion demonstrates that these genealogies are but partial histories of only one specific meaning attributed to the language of constituent power. Third, each contemporary theorist presents his account of constituent power as the correct interpretation of the idea. Although they are aware of the existence of competing definitions of constituent power, they are not willing to concede that each can be equally valid. Conceding this would lead to admit that constituent power is but a language, to which different meanings can be attached. By contrast, most contemporary debates on constituent power are presented as attempts to find the correct definition

Constituent Power

15

of constituent power, among the different interpretations available. The reason why these debates are framed as quests for the correct meaning of constituent power is that it is perceived to be, first and foremost, a reality that exists out there in the world, a series of political practices to be observed and described. Surely, if it refers to a discrete and observable political phenomenon, the idea of constituent power cannot be defined in just any way. On the contrary, any meaning associated to constituent power needs to be proved right, in the sense of being confronted with the reality it refers to. And this is precisely where the third problem comes in, because, to prove their account of constituent power right, theorists variously refer to two types of reality of constituent power: the history of political thought and actual political practices. On the one hand, claims about the validity of given accounts of constituent power are advanced by arguing that they are consistent with how the idea was theorised in the history of political thought. As seen in the previous paragraphs, almost all contemporary theorists support this claim by reference to partial and selective genealogies.38 The underlying assumption is that the existence of a given interpretation of the idea in the history of political thought can prove the interpretation to be a valid description of the phenomenon it refers to. This assumption is derived from the confusion between two different levels of the ‘reality’ of constituent power: one as an idea within the historical canon; and the other as a practice that can supposedly be observed empirically. It follows that, if the idea is proven to exist within the historical canon, this proves its validity as a description of the political practice. The historical meaning of constituent power thus becomes the correct theorisation of the reality of popular power. This is problematic because, as discussed, there is no single meaning of constituent power to be detected in history. Further, it is dubious whether the existence of an idea in the historical canon can tell us anything about the existence of the corresponding sociopolitical practices. On the other hand, the validity of contemporary accounts of constituent power is also defended by reference to actual political practices, supposedly manifesting the reality of the popular exercise of constituent power. Yet this is often done circularly. Any given account of constituent power is proved right by showing that it fits with a given observable political practice, but whether what people do at the political level is the expression 38

A partial exception to this is Arato, who does create genealogies for what he takes to be the correct definition of the idea but who is also willing to discuss alternative interpretations, albeit dismissing them as misinterpretations.

16

Introduction

of their constituent power is not a conclusion one can self-evidently draw from the mere observation of their acts. The latter, per se, are ambiguous and can be interpreted in manifold ways. The storming of the Bastille, for instance, can be and has been interpreted as an instance of constituent power but also of popular and national sovereignty, to name just a few options. The variety of accounts of popular power that one can attach to a single phenomenon suggests that the latter does not self-evidently point to one or the other. Even more so, it cannot point to one specific definition of constituent power. By contrast, whether an empirical case of popular exercise of power is described as an instance of constituent power or not depends on the definition of constituent power one works with. Constituent power is, in other words, in the eyes of the beholder and not, as some seem to believe, a positive reality from which one can straightforwardly abstract a concept. This is the reason why proving an account of constituent power right by reference to the alleged reality of the practice of constituent power is circular: what counts as a real political practice of constituent power is selected according to the intuitions we have about the meaning of the idea of constituent power. In other words, the fact that, as Kalyvas claims, the meaning of constituent power is direct democracy because when people assemble they exercise constituent power is not a proof of the validity of his definition of constituent power as direct democracy. From the discussion of the three issues incurred by most contemporary theories, it follows that they struggle to offer a clear conceptual account of what constituent power means – or many insights into its history. And, more importantly, they leave the original question of constituent power’s distinctive contribution to our thinking about the meaning and implications of the principle of popular power open.

History At the beginning of this Introduction, I argued that the main goal of the book is to help contribute some clarity to the way in which we negotiate the role and the power the people have – or should have – in the state. Essential to this enterprise is the possibility of saying something about the conceptual apparatus and the language we use to carry on this negotiation. To do so, I adopt a historical approach, that distinguishes itself from the histories discussed earlier in several regards. To start, it is not a history of the idea but a history of uses of the language of constituent power. It does not posit a definition of the term and retrace

History

17

its occurrences in history but starts with the first uses of the very words ‘constituent power’ and follows their historical trajectories. The pay-off of this approach is that it is only by looking at the language of constituent power, as opposed to the idea, that it is possible to retrace the changing meaning, role and implications that different thinkers, at different times, have attributed to the notion of the people’s constituent power. It is precisely because I do not presuppose a given meaning intrinsic to the idea that I will be in the condition to analyse how constituent power has been used, in different moments, to advance different interpretations of the principle of popular power. This, in turn, implies that mine is not a consistent, teleological interpretation of the idea’s development. Rather, it highlights moments of rupture, when the meaning of constituent power has been contested and redefined.39 Moreover, I emphasise the contextual dimension behind the shifting meaning of constituent power. To understand its transformations, I analyse the specific contexts in which the sense of the idea was negotiated and the implications it had in political and institutional terms. In so doing, I put the language of constituent power in relation to the notion of sovereignty but do not collapse them into a single understanding of the power of the people. Sovereignty and constituent power being two distinct languages, I take any aspect of their relationship to be an element in the wider process of making sense of the principle of popular power and in the assessment of its implications in terms of political practices and institutional structures. Hence, the various definitions of sovereignty certainly play an important role in this history of constituent power, yet this is not in virtue of their being synonyms of constituent power. Rather, they are analysed as contextual elements to which theorists of constituent power have been relating and responding and which they have approved, emulated or rejected. This history of constituent power is structured in five moments. As such, it is a selective history, and the five moments have been chosen according to 39

As just mentioned, I think of this book as retracing the history of the language, as opposed to the idea, of constituent power. Hence, in this context, the difference between language and idea rests on the fact that the latter entails a predefined meaning attached to the words ‘constituent power’, something I want to avoid. Yet, as will become clear later on, I do use the expression ‘idea of constituent power’ in the book. When I do so, it is because I am presenting or discussing how a given theorist conceived of constituent power. Because the theorists analysed in the book appear to have thought of constituent power as having a single meaning, they treated it as an idea, not as a language. By contrast, when I use the expression ‘language of constituent power’ in the book, it is because I am using my authorial voice and emphasising the contingency of meanings attached to the expression ‘constituent power’.

18

Introduction

the following criterion: they all represent some of the most significant shifts in the meaning attributed to constituent power and, in parallel, they also entail shifts in the institutional implications derived from any given way of conceptualising it. Moreover, each of these five moments introduces a partially new definition of constituent power that, even when radically different from previous ones, is built in relation to understandings of constituent power put forward in the previous moments. The five moments coincide with the theory of constituent power developed by the Abbé Sieyès during the French Revolution; the re-elaboration of the idea by French jurists and politicians in the nineteenth century; the political thought of Carl Schmitt in the Weimar period; the theories of the state of mid twentieth-century jurists Ernst Böckenförde, Costantino Mortati and Georges Vedel; and the model of council democracy discussed by Hannah Arendt.40 Sieyès and the French Revolution The unfolding of this history of the language of constituent power starts with Sieyès’s theory of pouvoir constituant.41 I argue that Sieyès theorised it to introduce an understanding of popular power that is opposed to the 40

41

This story will not directly discuss the Founding Fathers’ reliance on the notion of constituent power during the American Revolution. Claude Klein has maintained that the American contribution to the development of constituent power has unjustly been overlooked and that, by contrast, it should be considered the first fully fledged instantiation of constituent power See C. Klein, Théorie et pratique du pouvoir constituant (Paris: Presses Universitaires de France, 1994). Yet the justification of this claim is that, for the first time in history, the American states organised themselves through practices of constituent power. It seems to be more the practice of constitution-making and less the theory of constituent power that is key to arguments for the primacy of the American case. Although the relation between the theory and practice of constitution-making should not be lightly dismissed, in this book I aim to reconstruct, in the first place, a history of the theory of constituent power, as opposed to a history of the practice of constitution-making. The two are obviously related, and it is difficult to separate the theoretical development of the idea from the political practices through which it was realised. However, reasons of space constrain the breadth of the book and impose limits on the amount of arguments, theories and historical cases it can discuss. Moreover, this book mainly narrates a European story. Not only are all the theorists of constituent power studied in the book Europeans, but also, with the partial exception of Arendt, they only refer to European theories of constituent power. Hence, the scarcity of references to the American case as well as its practiceoriented character underpin the choice to exclude it from the present book. For an overview of constituent power in the American case, see B. Ackermann, We the People: Foundations (Cambridge, MA: Harvard University Press, 1993); B. Ackermann, We the People: Transformations (Cambridge, MA: Harvard University Press: 2000); J. Frank, Constituent Moments: Enacting the People in Postrevolutionary America (Durham, NC: Duke University Press, 2010); R. Tuck, The Sleeping Sovereign (Cambridge: Cambridge University Press, 2016), ch. 4. As mentioned, scholars in political theory tend to locate the first theories of constituent power much earlier than the French Revolution. While I mostly find this approach anachronistic, there certainly is evidence of earlier mentions of a distinction between a power to constitute and a constituted power. One

History

19

absolute conception of power he ascribed to the notion of sovereignty. Although Sieyès has traditionally been considered a theorist of national sovereignty, I suggest that this is misleading. He certainly argued that only the nation, as a collective entity brought together by elected representatives, could act in the political sphere, but he did not endow it with sovereign power. Accordingly, I set out to demonstrate that constituent power, although attributed to the nation and exercised via representatives, was a conceptualisation of political power which stood as an alternative to the idea of sovereignty. To prove it, I first reconstruct how in 1789 the National Constituent Assembly discussed the principle of popular power and its implications. I present the views expressed by the supporters of the idea of national sovereignty, who opposed the imperative mandate and promoted the king’s veto to concentrate power in the hands of the representative assembly and the monarch. I also contrast this view with the opinions of the opposite side of the Assembly, which defended the imperative mandate, district democracy and popular referenda as the only consistent mechanisms of implementation of popular sovereignty. The stark opposition between the understandings of popular power entailed in the ideas of national and popular sovereignty shows how far the principle of popular power and its implications were open for discussion during the Revolution. In this context, Sieyès purported to put forward a third understanding of popular power able to overcome the threats that he believed derived from both uses of the idea of sovereignty. To make sense of Sieyès’s theory of constituent power, I take a detour to present his broader philosophy and, specifically, the idea of liberty that underpinned his theories of representation, social division of labour and, ultimately, the people’s role in the political system. This shows that, for Sieyès, individual liberty was inconsistent with theories of both national and popular sovereignty and explains why Sieyès introduced the language of constituent power instead. Differently from both theories of sovereignty, this allowed him to claim that political power lay with the people such case is to be found in an anonymous pamphlet, probably written by Allan Ramsay, titled An Essay on the Constitution of England and published in London in 1765 (but then republished in French in 1789), which might have influenced Sieyès. See M. Sonenscher, Sans-culottes: An Eighteenth-century Emblem in the French Revolution (Princeton, NJ: Princeton University Press, 2008), pp. 308–9. Similarly, Daniel Lee reconstructs early modern theories of constituent power and finds their origins in Donellus and in the political thought of the Monarchomachs. Yet in this book I am less concerned with a specific meaning or interpretation of the power to create political orders than with the contrasting uses of the language of constituent power to frame popular power. See D. Lee, Popular Sovereignty in Early Modern Constitutional Thought (Oxford: Oxford University Press: 2016).

20

Introduction

but was limited to the authorisation of the constitution-writing process, as carried out by elected representatives. Once the constitution has entered into force, the people’s constituent power gives way to the constituted order, run by representative institutions. Yet these only have a limited power, as they can only act within the limits imposed by the people when authorising the constitution. The outcome of this theoretical construction is a constitutional representative government where the people who hold the original constituent power exercise it only indirectly, while the delegates who hold a derived constituted power exercise it only within limits. I then demonstrate that, by relying on the language of constituent power, Sieyès theorised a form of popular power able to avoid the threats he considered inherent to ideas of national and popular sovereignty. The first risked concentrating power in the hands of few representatives or paralysing the country by separating power among too many competing institutions. By contrast, popular sovereignty entailed either practices of direct popular power, such as district democracy, legislative vetoes and referenda, or the creation of a re-totale, as it happened during the Terror. Both risks were inherent in the very term ‘sovereignty’, and, consequently, the language of constituent power was the antidote to both. The very first phase in the history of constituent power is thus marked by the distance that, during the French Revolution, separated ideas of sovereignty, both national and popular, from Sieyès’s pouvoir constituant: the two notions are indeed presented by Sieyès as radically opposite. And the analysis of this opposition lies at the foundations of the entire book. It shows how far revolutionary debates about languages of sovereignty and constituent power amounted to a series of negotiations about the role the people should play in the newly established French state. The concrete institutional elements of this negotiation, such as the bicameral structure of the legislative power, the imperative mandate, referenda, federalism and practices of council democracy, among others, will come up again in subsequent discussions of constituent power. Alongside them, Sieyès’s theory of pouvoir constituant will also be an unavoidable reference for all other theorists of constituent power. Regardless of whether they use it, as Sieyès did, to limit the people’s exercise of power or to expand its meaning and scope, they all engaged with his account of pouvoir constituant. Nineteenth-Century French Politics The second phase of the story demonstrates that, in the nineteenth century, French jurists such as Jean-Denis Lanjuinais, Firmin Laferrière,

History

21

Felix Berriat-Saint-Prix and Édouard Laboulaye used the language of constituent power in a way that was similar to Sieyès’s but for a less radical purpose. Throughout the post-revolutionary period in France, historical events suggested that whoever held sovereignty could use it in an unlimited, absolute and arbitrary way. Theorists close to the liberal tradition perceived this as a threat. However, they did not reject the idea of sovereignty tout court but rather aimed to tame it by reducing it to a symbolic depiction of political power. The language of constituent power served precisely this purpose. Specifically, it was used by jurists and politicians to argue that the supreme expression of sovereignty consisted in the process through which the sovereign people authorises the entry into force of the constitution. On three different occasions, this definition of constituent power played a role in taming sovereignty. First, during the Restoration it was used to claim that the king could not exercise power unlimitedly. Since the people had the supreme constituent power, the monarch only had a delegated sovereignty, whose limits were set in the constitution and could only be changed by the people. Second, during the July Monarchy, constituent power was used to oppose the Parliament’s claim to be the sovereign power and the only legitimate author of the constitution. Since constituent power belonged to the citizens, only the people could legitimately exercise the sovereign right to authorise the entry into force of the constitution. This could be done either via referendum or through the election of an extraordinary constituent assembly. Moreover, after the Trois Glorieuses, constituent power also indicated that the people’s exercise of revolutionary power could be neither unlimited nor spontaneous. Rather, it had to be circumscribed to electing the constituent assembly and sanctioning its work by voting for the constitution. Last, during the Second Republic, the association of constituent power with sovereignty channelled the unlimited power entailed in the idea of popular sovereignty into the safe and limited frame of the liberal constitutional state; the power of the republican sovereign amounted to authorising the creation of the legal system. Beyond that, all powers were second-order powers, submitted to the hierarchy of norms and to the rigidity of the constitution. Once more, constituent power was used as a way of negotiating an understanding of popular power different from that implicit in contemporary accounts of sovereignty. Although in nineteenth century France the two ideas were no longer in an either/or relationship (as in Sieyès’s complete rejection of sovereignty), they were still used to account for different ways of framing and institutionalising popular power. While

22

Introduction

sovereignty was perceived as allowing uncontrolled and unlimited exercise of power, pouvoir constituant was used to argue that the supreme authority ultimately consisted in the people’s capacity to establish a constitutional order. Schmitt and the Weimar Republic The third moment of this story corresponds to Carl Schmitt’s theory of sovereignty as constituent power. Differently from the previous two moments, Schmitt explicitly collapsed sovereignty and pouvoir constituant. This might appear like a radical departure from previous theories, as the two languages are not separated but are meant to serve the same conceptual and political purpose. Yet, even in this case, the relationship between the two terms is more complex than it might intuitively appear to be. As I set to demonstrate, Schmitt did not simply associate one notion with the other. Although he surely moved away from nineteenth-century uses of constituent power as a mechanism to tame sovereignty, he did not do so to straightforwardly embrace existing theories of sovereignty either. Rather, he aimed to negotiate a new meaning for the notion of sovereignty in the context of the Weimar Republic. This new meaning had to differ from its traditional interpretation in terms of parliamentary or popular sovereignty and, to do so, needed a new definition: this was offered by the language of constituent power. On Schmitt’s account, the reliance on the democratic principle of popular power during the French Revolution challenged the traditional idea of sovereignty on several grounds. These challenges were evident in political regimes based upon concepts of parliamentary and popular sovereignty. In Schmitt’s view, the first gave birth to liberal parliamentarianism, which he accused of dissolving the essence of sovereignty – its capacity to take authoritative decisions. It jeopardised the unity of the state through the liberal principles of division of power, secret ballots and open discussions. By contrast, history had proven that popular sovereignty, whenever invoked as a principle of political organisation, encouraged the creation of institutions fostering direct or local democracy. These too contradicted the core of sovereignty because collective decision-making prevented the realisation of the nation’s political unity through the unitary expression of its will. Neither of the two options satisfactorily met Schmitt’s peculiar understanding of sovereignty as the power to take unitary decisions in exceptional moments. The solution Schmitt came up with was to rely on the political thought of Sieyès in general, and on his theory of constituent

History

23

power in particular, to apply the extraordinary character of his understanding of sovereignty to the democratic principle of popular power. To do so, he relied on a highly creative interpretation of the political thought of the French Revolution. Specifically, he perfectly understood that Sieyès’s theory of constituent power could be used to build an alternative to accounts of popular and parliamentary sovereignty. He thus decided to associate his conception of sovereignty as decision with Sieyès’s idea of the people’s constituent power. The latter, to be exercised, needed to be represented by a unitary figure, legitimised through acclamation and able to embody the unity of the nation acting as a unitary instance of decision: the sovereign dictator. The result is a complete overthrowing of Sieyès’s theory. Although used by both Sieyès and Schmitt to conceptualise the principle of popular power without resorting to problematic notions of sovereignty, Schmitt’s interpretation of constituent power could not be further from Sieyès’s. While the latter imagined constituent power as an alternative to the absolute power entailed in the idea of sovereignty, Schmitt identified in it the core of sovereignty’s personal and unbounded decisional power. This difference, however, passed almost unnoticed in the history of legal and political thought, and subsequent theorists of constituent power read Sieyès’s thought through Schmitt’s interpretation. This interpretative twist explains, to a great extent, subsequent developments in the history of constituent power, when it stopped being used as an instrument to tame the people’s exercise of power and started being deployed as a tool to argue in favour of the people’s direct participation in politics. Post–World War II Constitutionalism in Europe After Schmitt’s conceptual collapsing of sovereignty with constituent power, the post–World War II period saw the relationship between the two notions diverge again but on opposite terms. At that time, restrictive interpretations of sovereignty became mainstream ways to protect the democratic state from degeneration into arbitrary rule. Far from representing the people’s absolute and unbounded power, sovereignty came to be seen as primarily a legal concept. The most famous example is Hans Kelsen’s theory of law, where sovereignty is substituted for by a hypothetical basic norm grounding the entire structure of the state, without any connection to the people’s actual expression of political will or exercise of power. Directly responding to this interpretation of sovereignty, legal theorists Costantino Mortati, Georges Vedel and Ernst-Wolfgang Böckenförde resorted to the idea of constituent

24

Introduction

power to claim a wider role for the people in the modern state. After World War II, constituent power is thus used as a tool to promote people’s direct involvement into politics. Mortati, Vedel and Böckenförde were eminent legal scholars and public figures in, respectively, Italy, France and Germany and are relevant to this story because they contributed to redefining the meaning of constituent power in their national legal and political cultures. They not only are considered among the fathers of their respective state’s post-war legal discipline but also set the terms of the discussion on the people’s constituent power in continental Europe. The starting point of their analyses was a certain uneasiness with how sovereignty was conceived by their contemporaries. When addressed as the traditional French idea of national sovereignty, it wrongly attributed power to the nation, which after World War II appeared like a dangerously arbitrary entity. When addressed, as was common at the time, in positivist terms, it consistently explained the working of the legal system but did not take into account its political origins and, by consequence, the role the people have in its creation and ordinary working. The contemporary language of sovereignty thus proved to be rather problematic for anybody who was committed to the principle of popular power but resisted its attribution to the nation. The question thus arose of how to make sense of the principle without falling into the traps implied by ideas of sovereignty. Once more, the answer was found via the language of constituent power. For the three jurists, pouvoir constituant indicated the people’s power to establish the fundamental ‘political ideal’ at the origins of the entire legal and political system. Although each of the three legal scholars defined ‘the people’ in different ways, they all shared a realist view of how individuals contribute to the identification of this ‘political ideal’. Far from being the result of representative techniques or of plebiscitary decisions, it arises out of the varying relationships established among competing social forces. Once equilibrium is reached, society posits the principles ruling its ordering as well as the rationale of the legal system. Hence, through the idea of constituent power, the three jurists indicated that the state and its legal system ultimately depend on what the social forces define as their ‘political ideal’. In claiming this, they variably referred to Sieyès, Laboulaye and Schmitt. But, differently from them, they thought that constituent power should not and could not be realised through political representation and the centralisation of power. Moreover, they also agreed in claiming that constituent power did not have to disappear with the approval of the constitution but had to remain present and visible underneath and

History

25

alongside the ordinary working of the constitutional system. Hence, they promoted practices of direct or semi-direct democracy, such as referenda and constitutional revisions, as well as decentralised or federal structures of power. Mortati, Vedel and Böckenförde similarly worried about the formalism implied in contemporary ideas of sovereignty. To counterbalance this problematic aspect, they introduced an interpretation of constituent power, which helped them defend and increase the direct participation of the people in the constitutional state. In this phase, the language of constituent power is thus not opposed to sovereignty but serves a different and, to a certain extent, opposite function. While sovereignty depicts the self-referential working of the legal system, constituent power creates room for its democratic legitimation through mechanisms of popular participation. Arendt and Council Democracy A new, starker, opposition between constituent power and sovereignty is offered by the last figure in this story, Hannah Arendt. In this phase, constituent power is presented again as a conceptualisation of popular power opposed to ideas of sovereignty.42 As Arendt repeatedly made clear, she thoroughly disapproved of all conceptualisations of popular power in terms of sovereignty in general and national sovereignty in particular and she therefore introduced the language of constituent power as an alternative way of making sense of democratic politics. Arendt’s hatred for sovereignty had multiple sources. On the one hand, from the French Revolution to the post-war international order, passing through the Second World War and the creation of the state of Israel, she consistently identified sovereignty with the Schmittian power to emit absolute commands. On the other hand, she retraced the philosophical origins of this understanding of power in the Western idea of liberty as absence of constraints on the individual, liberum arbitrium. The combination of this understanding of freedom with sovereignty as command resulted, in Arendt’s terms, in the abolition of human plurality. All conceptualisations of popular power in terms of sovereignty thus represent the 42

Arendt’s work is, broadly speaking, contemporary to that of the twentieth century constitutional theorists discussed in chapter four. Yet Arendt is discussed as the last figure of the book. This is not to suggest any chronological sequencing. Rather, it is a conceptual separation motivated by the fact that, differently from the constitutionalists, Arendt conceived of constituent power as the opposite of sovereignty. It follows that chapters four and five track two conceptual and interpretative changes in the meaning attributed to constituent power that took place at around the same time.

26

Introduction

people as a unitary body, having a unitary will. This, in Arendt's view, is a completely abstract understanding of the power of the people that remains dangerously disconnected from the actual practice of politics. As such, the language of sovereignty needed to be expunged from all negotiations of the meaning and practice of popular power. A radical alternative was introduced through constituent power. In Arendt’s view, this was not a conceptualisation of popular power but its practical instantiation. It did not find its origins in the canon of Western philosophy but in the historical practice of people promising and acting together in the public space. Specifically, she recognised the presence and action of the people’s constituent power in the Ancient Greek practice of isonomia, the Roman affirmation of the potestas in populo, early attempts to establish popular councils during the French Revolution, the American founding experience, the Kibbutz experiment in Israel and the Hungarian experiments with council democracy. The underlying element common to all these historical experiences is that they were based upon a moment of popular foundation. Moreover, they also testify that popular power does not have to disappear once the new political order is created but has to be continuously exercised through the very institutional structure of the state. This, in Arendt’s view, had to be republican, as only republics allow for the people’s direct involvement into politics. They decentralise power and devolve its exercise, via federal structures, to local assemblies. In addition, the popular constituent power is also kept alive by the constant possibility of augmenting the state’s foundation through procedures of collective constitutional revision and adaptation. Arendt’s reliance on the language of constituent power is interestingly at odds with Sieyès’s. She is the first theorist to explicitly reject Sieyès’s interpretation of constituent power. In her view, Sieyès misconceived the idea, as he allegedly equated it with the French understanding of national sovereignty, thus associating it with political representation, centralisation of power and national unity. Yet Arendt not only misunderstood Sieyès; she also unknowingly ended up reproducing the same opposition between sovereignty and constituent power he had introduced during the French Revolution, even though on inverted terms. While both conceived of constituent power as the opposite of sovereignty, Sieyès relied on it to contain and constrain popular rule, while Arendt used it to endorse frequent and direct popular involvement in politics against the unitary representation of the nation entailed in the idea of sovereignty. The five moments of this story demonstrate not only that the meaning attributed to constituent power changed over time but also that the context

History

27

in which it was negotiated varied substantially. The first two moments are tightly intertwined with the political events of the French Revolution and the turbulent nineteenth century. Therefore, their analysis necessarily refers to those contexts. This is because the language of constituent power was deployed first and foremost in the French political arena as a conceptual and rhetorical instrument to advance certain visions of politics against others. By contrast, in the subsequent three moments, discussions of constituent power are progressively detached from political events. Although European politics remains present in the background, in the twentieth century constituent power is discussed primarily by intellectuals and academics as a matter of philosophical and theoretical investigation. When treating the last three moments, the focus is on the authors and their theories rather than on legislative assemblies and revolutions. This shift in object, from political history to political and legal philosophy, also explains the change in geographical focus. Until the beginning of the twentieth century, constituent power is mainly theorised by French political actors. Hence, this book deals primarily with French sources. However, when it becomes an object of philosophical and academic debate in the twentieth century, constituent power is discussed by theorists inside and outside France, more precisely in Germany, Italy and – in Arendt’s case – the United States. However, they all discuss constituent power, referring not only to French philosophy and legal theory but also to French political history. This shift in historical and intellectual contexts coincides also with a series of shifts in the meaning attributed to constituent power. Initially, it was used to conceptualise popular power in terms of the capacity to authorise the foundation of the political order. This was meant to offer an alternative to the unlimited understanding of power entailed in notions of sovereignty. Later, however, the meaning and role of constituent power radically changed. It became a conceptual tool to promote different degrees of popular involvement in politics, against legalistic and nationalist understandings of popular power offered by theories of sovereignty. Hence, far from having always been subsumed under given theories of sovereignty, the language of constituent power played a distinctive role in articulating the principle of popular power over time. At the same time, however, the changing meanings attributed to the notion of constituent power can only be understood if assessed against the conceptualisations of popular power that, at any given moment, were put forward through the notion of sovereignty. More specifically, this story demonstrates that in some of the key moments of constituent power’s

28

Introduction

history, the latter has been theorised in response to what were perceived as the problematic aspects of one or more contemporary understandings of sovereignty. These could be organised in, at least, four categories. To start, sovereignty has been opposed by theorists of constituent power as a word, as a linguistic term. Sieyès, for instance, refused to describe the power of the people with the term ‘sovereignty’ because this was used to depict royal authority. Second, the opposition between constituent power and sovereignty corresponded to the opposition between different political groupings. Among others, Sieyès opposed Jacobin leaders who identified themselves as supporters of popular sovereignty, and Berriat-Saint-Prix criticised the French counterrevolutionaries who, in the nineteenth century, presented themselves as theorists of the sovereignty of the parliament. More generally, sovereignty has been opposed for the political projects it entailed. For instance, Schmitt chose to rely on the notion of constituent power to reject the liberal parliamentary state underpinned by the idea of parliamentary sovereignty and the federal democratic project he, in some passages, identified with the notion of popular sovereignty. Finally, sovereignty has clearly been opposed, in all the cases analysed, for the specific institutional implications it entailed. This is clearly the case in Sieyès’s opposition to council deliberation and bicameralism, Lanjuinais’ battle against parliamentary modifications of the constitution, Schmitt’s antipathy towards majoritarian electoral laws, Vedel’s opposition to centralised government and Arendt’s hatred of political representation. To different extents and in different measures, all these aspects of sovereignty have been taken into account, evaluated and criticised by the theorists of constituent power analysed in the book. The definitions of constituent power they put forward were all attempts to counter one or more of these problematic dimensions of sovereignty. But precisely because constituent power gained meaning through its polemical relationship with different versions of sovereignty, the accounts of the latter provided in this book should not be read as faithful depictions of how sovereignty was theorised at any given time. Rather, the book reconstructs how theorists of constituent power conceived of sovereignty. It analyses how they assessed the conceptualisations of popular power implied by any given version of the idea, how they evaluated their implications, and what they liked and did not like about them.

Political Projects As already outlined, this book retraces a history of constituent power by reconstructing how its language has been used in five key historical

Political Projects

29

moments. The extent to which the content, purpose and implication of its use have changed over time demonstrates that, at least historically, constituent power had never straightforwardly been a synonym for sovereignty. The two languages certainly related to each other, and thinkers often discussed them in pair. Yet this is no evidence of one having the same meaning as the other. Rather, it proves that the languages of sovereignty and constituent power have been part of an ongoing process of negotiation of the meaning and implications of the principle of popular power. More specifically, the history I retrace shows how the language of constituent power has systematically been relied upon to expand the debate about the principle of popular power beyond and against its framing in terms of sovereignty. Constituent power’s contribution to the realisation of popular power in the modern state thus lies not in its capacity to enshrine the correct meaning of sovereignty but in the fact that it offered a language through which to assess and challenge existing conceptualisations of popular power and put forward new ones. History, moreover, proves that constituent power’s contribution to this negotiation did not depend on any special insight into the reality of popular power. At least in the context of this book, popular power is not an empirical object to be observed, an actual attribute of the people or a fact immanent to our political communities about whose theorisation we can discuss and disagree but that eventually exists beyond, and independently from, our attempts to rationalise it. There is no reality of popular power that the language of constituent power described throughout history. Rather, historical uses of constituent power are all attempts to make sense of the principle – as opposed to the reality – of popular power and to translate it into institutional structures. In a way, history shows that instead of describing the reality of popular power, constituent power has been used to bring it into existence. And the way in which it did so changed over time, as much as its content, details and implications changed in relation to the context in which the principle of popular power was supposed to operate. As such, the language of constituent power can be associated to no fixed meaning or practice of popular power. Rather, it needs to be seen as a language used to make sense of and act upon democratic politics. And since the latter is necessarily contingent and contextual, so are the meanings and implications associated with constituent power. It thus follows that when contemporary theorists claim that history reveals the correct meaning of constituent power and associate it with sovereignty, they are mistaken. For, notwithstanding how creative their

30

Introduction

genealogies can be, history only offers insights into the contingency of constituent power’s sense and relationship to sovereignty. When seen as attempts to explain the meaning, history and implications of the notion of constituent power, contemporary theories appear to fall short of conceptual and historical insight. Yet, this book would itself fall short of insight if it were to overlook one important detail. When contemporary theorists argue about the correct meaning of constituent power, they are in fact arguing about how we should think of constituent power. The fact that some of them present constituent power as the correct description of popular power should not be taken at face value: it is not a descriptive statement but a normative one. They are actually arguing not about what constituent power is but about what constituent power ought to be.43 The reason why they choose to present their account of constituent power as a description (an is) as opposed to a normative claim (an ought) is likely to be because the description naturalises their account of constituent power, thus presenting it as the obvious meaning of the idea. This preference for avoiding normative argumentation is, on the one hand, non-transparent. On the other hand, however, it also suggests that contemporary theorists are fully part of the process of negotiation of the meaning and implications of the principle of popular power that is the object of this book. As much as the figures of my history, they too are engaged in bringing their preferred understanding of popular power into existence via the language of constituent power. The fact that they do not always acknowledge their normative enterprise and create partial histories to present their account of constituent power as an incontrovertible historical fact is no proof of the contrary. Rather, it points out that they are not the first to have done so. Most of the historical figures discussed in the book presented their accounts of constituent power as descriptions of the alleged reality of popular power. This was, for instance, the case of Arendt, who argued that her account of constituent power was derived from historical evidence of its practice in ancient Greece, Israeli kibbutzim and council systems in Hungary. Moreover, contemporary theorists’ reliance on misleading interpretations of the history of ideas is no different from what previous thinkers did in the past. It reproduces the same attitude and methodology adopted by Arendt towards Sieyès and 43

Arato is by far the clearest theorist in this sense, as he is explicit about his normative intentions, i.e. he aims to offer a convincing theory of constitutional legitimacy which, in turn, entails a limited and procedure-bound account of constituent power. Yet, even when doing so, he sometimes falls back on presenting his normative theory of constituent power as a description of its reality.

Political Projects

31

Schmitt, twentieth-century jurists in relation to Schmitt, Laboulaye and Sieyès, Schmitt vis-à-vis Sieyès, etc. Similarly, the association of constituent power with ideas of sovereignty that characterises current debates is conceptually confusing, but it is also unmistakably similar to what theorists have done before. Today, theorists use constituent power to move beyond the problematic aspects of current definitions of sovereignty. Granted the necessary historical distinctions, this is the same type of problem that the figures of the book had to face in their own historical context. While most contemporary theorists as much as Schmitt, rely on constituent power to distinguish their understanding of sovereignty from competing but unsatisfactory accounts of the same idea, for Sieyès, Arendt, Negri and Arato the best solution is to avoid the language of sovereignty tout court. Once more, constituent power is used to avoid the shortcomings of the understandings of popular power entailed in given accounts of sovereignty. When seen in these terms, it becomes clear that current theories of constituent power should not be read as objective investigations into the history of constituent power. Rather, they are part of the history recounted in this book and should be read as such. In fact, they constitute a proper and distinct moment in the process of negotiation, reassessment and redefinition of the meaning and extension of popular power here discussed. As much as Laboulaye, Schmitt, Vedel and several thinkers who took part in the process of defining popular power in the past two centuries, contemporary theorists take an active role in this same process today. They share with their predecessors the goal of defining and institutionalising the principle of popular power through the language of pouvoir constituant. And, as was the case for them, this process of redefinition directly responds to the need of reassessing the role and extent of popular power under given political circumstances. What for Sieyès was the French Revolution, and for Schmitt the Weimar Republic, could be globalisation for contemporary theorists: a relatively new social and political configuration that raises questions about the appropriateness of existing ways of conceiving of popular power. While the similarities between old and new theories of constituent power prove that the latter are part of an ongoing historical process, it also allows me to distinguish the intellectual enterprise of contemporary theorists from my own. If their goal is to redefine the principle at the basis of modern democracy through the idea of constituent power, mine is to understand the distinctive contribution this language has

32

Introduction

brought to negotiations of the principle of popular power: a conceptualisation of the meaning and implications of the power-ofthe-people alternative to those put forward by theories of sovereignty. On the other hand, it hopefully demonstrates the interest of looking at constituent power through the lenses proposed by this book. Proving that contemporary theorists are not only in line with, but fundamentally part of, the history here recounted helps to shed light on what is at stake, both politically and theoretically, in contemporary debates about constituent power. This is neither its correct meaning nor its conceptual relation to sovereignty but yet another attempt to translate the abstract principle of popular power into concrete political and institutional realities.

chapter 1

Sieyès and the French Revolution*

When in July 1788 Louis XVI decided to summon the Estates General to face the financial crisis hitting the country, a number of political pamphlets started to circulate, obtaining a progressively more significant political influence. One in particular made history for the substantial contribution it brought to initiating the Revolution. This is Qu’est-ce que le Tiers-État?, written by Emmanuel Joseph Sieyès during the last months of 1788 and published in early January 1789. In the pamphlet, Sieyès called for the abolition of the Ancien Régime and promoted the idea of constituent power to be the founding principle of a completely new political order. Sieyès’s account of constituent power has often been confused with the notion of sovereignty. Not only was the notion of sovereignty the currency used in revolutionary debates to argue about the principle of popular power, but members of the National Assembly also disagreed about whether it belonged to the nation or to the people. Sieyès rejected both options and condemned the use of the idea of sovereignty tout court. Instead, Sieyès relied on the notion of constituent power to introduce an alternative way of framing the principle of popular power. This fitted with philosophical accounts of modern liberty, as well as with Sieyès’s institutional plans for the French state, and allowed him to substantially limit the direct exercise of power by the people. Specifically, the idea of constituent power served to reduce the people’s exercise of power to the election of ordinary and extraordinary representatives in the Assembly. As such, constituent power helped Sieyès to put forward a model of political organisation alternative to the concurrent projects upheld by the appeal to national or popular sovereignty.

*

I wish to thank the editors of the European Journal of Political Theory for allowing me to reproduce in this book large parts of my article ‘How to think beyond sovereignty: on Sieyes and constituent power’, European Journal of Political Theory, 18(1): 46–67.

33

34

Sieyès and the French Revolution

Languages of the Revolution Summoned to Versailles for the meeting of the Estates General, on 17 June 1789, the Assembly of the Third Estate passed a motion declaring itself a National Assembly. This transformation epitomises the radical affirmation of a completely new political principle. Following the wording put forward by the Abbé Sieyès, the deputies declared that the only suitable denomination for the Assembly is that of National Assembly, both because its members are the only legitimately and publicly verified representatives and because they have been directly sent by almost the totality of the nation. Last, also because political representation is one and indivisible, and no deputy, whatever the order he belongs to, can exercise its functions separately from the rest of the Assembly.1

In affirming the above, the representatives of the Third Estate theorised, declared and enacted a radically new paradigm of political organisation. They claimed that political authority lay not in the hands of the monarch, who consulted the Estates as a merely deliberative body, but in the will of the people.2 Comprising equal, free individuals, the people ultimately held political power, the exercise of which no longer consisted in negotiations between the three orders of society but enshrined the expression of the popular will. The transfer of political power from the monarch and the Estates to the people, as represented in the National Assembly, marked an unprecedented moment in Europe’s political history and called for a general elaboration of its form and substance. As Furet concisely highlights, since ‘1789 has no precedent’,3 the members of the Assembly found themselves required to answer a completely new series of questions, starting with the definition of what this popular power was and how it had to be conceptualised. Consequently, after having established the National Assembly, the representatives devoted their energies to the drafting of a declaration of rights. When the time came to 1

2

3

J. Madival, E. Laurent et al., Archives Parlementaires de 1789 à 1860: recueil complet des débats législatifs & politiques des Chambres françaises (Paris, 1862), vol. 8, p. 127. From here on: AP. Unless otherwise stated, all translations from French to English are mine. In political philosophy, the concept of power is generally distinguished from authority because the first points at the factual political power the people have while the second points at an entitlement or a right. However, I here use these two concepts interchangeably. This is for two reasons. First, as the quotes in all chapters demonstrate, the theorists themselves did speak interchangeably of popular power and popular authority. Second, when discussed as abstract political principles, popular authority and popular power amount to the same thing: the entitlement the people have (or, in some cases, should have) to lay the foundation of the political system. When, as in the cases here analysed, the power of the people is discussed as a political principle, it amounts to the same thing as authority: it is an entitlement, not the de facto capacity of exercising political power. F. Furet, Penser la Révolution française (Paris: Gallimard, 1978), p. 82.

Languages of the Revolution

35

discuss its third article, they had to find a way to define the newly affirmed principle according to which power belonged to the people. The vocabulary used by the revolutionaries to conceptualise their most important political achievement was somewhat confused and imprecise. On the one hand, experienced orators put forward their own ideas with force and passion, as in the case of the motion proposed by General Lafayette on 11 July. On this occasion, he affirmed that all men are equal and free and that they have the right to participate in the creation of the law. This new political principle, he asserted, had to be called ‘sovereignty’ and had to be attributed to the nation as a whole. In Lafayette’s formulation, ‘the principle of sovereignty resides in the nation. No body nor individual can have any authority that does not explicitly derive from it.’4 This account of popular power was soon embraced and backed by other influential members of the Assembly, such as, for example, the royalist representative of the Third Estate, Jean-Joseph Mounier.5 On 28 July, he stated that ‘government exists in the interest of those who are governed and not of those who govern; because no public function can be considered as the private property of those who exercise it; because the principle of all sovereignty resides in the nation’.6 On the other hand, some members of the Assembly embraced their new role as representatives of the nation before having found the categories through which to address and assess the novelty of the event. This is evident when reading the timid and confused declarations they released, which often looked like copies of Lafayette’s motion. Good examples are the statement of deputy Gallot, who argued that ‘the legislative authority and sovereignty reside in it [the nation]’,7 as well as the declaration of the constituent Sillery, according to whom ‘the principle of sovereignty belongs essentially to the nation. The National Assembly declares that all authority must be submitted to the law’,8 or another deputy’s claim that ‘sovereignty resides in all members of society collectively considered . . . If a people is too numerous, and occupies too much space, it must reduce itself to delegate the different 4

5 6 7 8

‘Motion de M. le Marquis de Lafayette relativement à la Déclaration des droits de l’homme (11 juillet 89)’, AP, 8, p. 221, and C. Fauré, Les Déclarations des droits de l’homme de 1789 (Paris: Payot, 1988), p. 87. On Mounier’s life and political theory, see A. Crăiuțu, A Virtue for Courageous Minds (Princeton, NJ: Princeton University Press, 2012), ch. 3. J. J. Mounier, ‘Projet des premiers articles de la Constitution, 28 juillet 1789’, AP, 8, p. 289, and C. Fauré, Les Déclarations des droits de l’homme de 1789, p. 109. D. M. Gallot, ‘Vues sur les bases de la constitution et la déclaration des droits de l’homme et du citoyen’, in C. Fauré, Les déclarations des droits de l’homme de 1789, p. 165. M. Sillery, ‘Opinion de M. le Marquis de Sillery relative à la déclaration des droits de l’homme, 4 août 1789’, AP, 8, p. 340, and C. Fauré, Les Déclarations des droits de l’homme de 1789, p. 183.

36

Sieyès and the French Revolution

powers that comprise its sovereignty.’9 As interesting as these statements may be, each was pronounced more to assert the speaker’s adherence to the new political situation than to provide an actual contribution to the debate. This created an initial consensus around Lafayette’s proposal to conceptualise the power of the people in terms of what used to be the supreme authority of the monarch, his sovereignty.10 However, once the Déclaration des droits de l’homme et du citoyen had been approved, references to the idea of popular power became gradually more problematic. By the end of August 1789, the Assembly had stopped discussing abstract principles and moved on to more concrete organisational issues. This called for the translation of the new political principles into actual institutions. Further, it raised the question of how to define, articulate and implement the principle of popular power. Touching on the concrete distribution of power, this proved to be an extremely divisive issue. Although almost all constituents identified the essence of popular political power with the lawmaking function, no consensus could be built around any definition of the newly established popular authority nor around the institutional mechanisms through which it was to be expressed and implemented.11 In late August and early September 1789, the Assembly debated the imperative mandate and the royal veto.12 On both occasions, the issues at stake went far beyond the simple discussion of the proposed measures, giving rise to one of the most problematic, enduring and relevant debates in the history of the Revolution. Some of the frictions that remained unaddressed during the preceding debates came to the fore when the Assembly examined the question of the imperative mandate. The latter was mainly concerned with defining the role of the elected deputies in the Assembly. More specifically, the notion of the imperative mandate refers to the 9 10

11

12

A. R. Gouget-Cartou, ‘Projet de déclaration des droits, 12 août 1789’, AP, 8, p. 429, and C. Fauré, Les déclarations des droits de l’homme de 1789, p. 203. The way in which the king’s authority was passed down to the nation through the idea of sovereignty has also been noticed and remarked upon by Sieyès, Vedel, Böckenförde, Mortati and Arendt. Their interpretations of this event will be discussed later on. It is important to stress that during the Revolution there was no debate as to what power – legislative, executive or other – was to be considered the core of political authority. All members of the Assembly agreed that the people would effectively have political authority only once they were able to participate in making the law. This was the essence of popular authority. The mechanisms and institutions regulating this popular lawmaking power, by contrast, were widely discussed and form the object of this chapter. Pétion de Villeneuve and Marat started raising the question of the imperative mandate in early July 1789; a short debate followed on 7 July.

Languages of the Revolution

37

age-old practice whereby the delegates of the three Estates, once reunited in the Estates General, could only vote according to what had already been decided in their constituency, without leaving room for any further deliberation or mediation. Far from being in charge of shaping political decisions, the delegates were simply meant to indicate the already-formed will of their Estate by casting their vote. Although this political principle remained uncontested for several centuries, it started to be challenged at the very moment the members of the Estates General found themselves required to discuss issues that went beyond those already decided by the constituencies. The transformation of the Estates General into the National Assembly and the following debate over the declaration of rights raised the question of the delegates’ authority to take decisions that were not pre-authorised. As the minutes of the Assembly show, the delegates responded in different and often inconsistent ways. While some of them actively spoke up in favour of the delegates’ independence,13 others emphasised the imperative character of their mandates to deny the legitimacy of vote par tête and avoid joining their fellow delegates in the National Assembly.14 However, by August 1789 almost all deputies, including the members of the First and Second Estates, decided to contradict their cahiers and joined the National Assembly.15 At this point, the question of the imperative mandate was no longer merely a procedural debate, aimed at defining the relevance of the recommendations expressed in the cahiers for the proceeding of the Assembly, but had turned into a tense discussion on the foundations of the new political order. Asked to decide once and for all on the relation connecting the delegates to their electors, the Assembly started debating the locus of sovereignty and its relation to the principle of the power of the people.

13 14

15

On 6 and 7 July 1789, Lally-Tollendal and Dupont claimed that the practice of the imperative mandate had to be abolished in order to effectively write a constitution. See AP, 8, pp. 200–5. These were mainly deputies belonging to the First Estate, the nobility. A good example of this attitude is the protestation made by the delegation of the nobles of Poitou on 30 June 1789, affirming that ‘the deputies of the nobility of Poitou, forced by their imperative mandates not to depart from deliberation per order, declare that they cannot take part to the deliberations of this Assembly’. See AP, 8, p. 172. For instance, on 28 July 1789 the president of the Assembly presented ‘a declaration taken by the nobility of the district of Châlon-sur-Saône, on the 22nd of this month, according to which it revokes, puts an end to and annuls the imperative and limited powers that it had given to the deputies and gives them new powers, sufficient, general and unlimited, to advise, show, consent to the common good, keep the unity of the three orders, vote per head to the National Assembly, and do all that they can do for the good of the kingdom and the happiness of the nation’. See AP, 8, p. 290.

38

Sieyès and the French Revolution

Two main positions can be detected.16 A large number of deputies strongly opposed the practice of the imperative mandate in the name of the indivisible character of national sovereignty. This group was mainly formed by deputies who defended the institutional role of the monarchy while trying to adapt it to the new political principles.17 A particularly active figure in this group was Trophime-Gérard de Lally-Tollendal, a lawyer elected by the nobility at the Estates General who, before fleeing to England, actively supported the installation of a constitutional monarchy.18 Another influential actor in the moderate field was JeanJacques Mounier, who was elected by the Third Estate of Dauphiné and forcefully argued in favour of the creation of a political system à la anglaise, with a strong monarchical executive and a bicameral legislature.19 Similarly, Malouet played an important role in the moderate coalition. After having served as a diplomat in Santo Domingo, he was elected deputy to the Estates General by the constituency of Riom. As a member of the Assembly, he fought for the protection of aristocratic privileges and founded the short-lived club monarchique before being forced to move to England in 1790.20 Beyond the defence of monarchical government, these moderate deputies shared widespread concerns about the excessive concentration of power in the hands of the people.21 To respond to this threat, they developed a complex critique of the imperative mandate, which was aimed at 16

17

18 19 20 21

Not all scholars agree that there was such a sharp divide between the two parts of the Assembly. Although I think there is enough evidence to claim that the question of the imperative mandate did indeed divide the deputies, it is true that the corresponding accounts of sovereignty were not necessarily clear to all the members of the Assembly. See P. Rosanvallon, La Démocratie inachevée (Paris: Gallimard, 2000), p. 51. This group was referred to as the ‘Monarchiens’. According to Crăiuțu, the main feature defining their approach to the Revolution was moderation. Their moderate agenda, he maintains, has often been underplayed and was the object of continuous scorn and attack during the Revolution. This could be explained in relation to the unsystematic character of their political philosophy and by the general mistrust towards appeals to moderation during the Revolution. See A. Crăiuțu, A Virtue for Courageous Minds, pp. 69–72. For his biography see M. M. A. Robert, E. Bourloton and G. Cougny, Dictionnaire des parlementaires français: depuis le 1er mai 1789 jusqu’au 1er mai 1889 (Paris: 1889), Vol. III, pp. 549–50. Cf. AP, 33, p. 56. L. Gallois, Biographie de tous les ministres, depuis la Constitution de 1791 jusqu’à nos jours (Paris: 1825), pp. 376–8. Mounier, for instance, distinguished between actual and potential sovereignty precisely in order to avoid attributing any actual power to the population. He said: ‘Being the principle of sovereignty and exercising sovereignty are two very different things . . . I confidently maintain that a nation would be very unwise and unfortunate if it retained the exercise of sovereignty. One must understand by this last word an indefinite and absolute power.’ J. J. Mounier, ‘Sur la sanction royale’, in F. Furet and R. Halévi, Orateurs de la Révolution française, I: Les Constituants (Paris: Gallimard, 1989), p. 895. See also A. Crăiuțu, A Virtue for Courageous Minds, p. 75.

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reducing the people’s influence upon the Assembly. In doing so, they also elaborated an influential account of the location of sovereignty in the newly established political system. This was meant to formally recognise the principle of popular power while constraining its exercise through representation and very tight requirements to access the right to vote. Specifically, they maintained that sovereignty belonged to the nation and consequently could only be exercised by the Assembly, which was the nation’s only and true representative. All powers were thus to be delegated to the members of the Assembly who would have exercised them on behalf of the people. As Lally-Tollendal argued on 7 July 1789, ‘sovereignty resides only in the reunited whole of all powers; I say whole because the legislative power does not belong to a part of the whole; I say reunited because the nation cannot exercise legislative power while divided, and it can only deliberate collectively’.22 This political principle was in obvious contrast to the idea of imperative mandate. First, the latter would have attributed to a minority of citizens the power to stand against the will of the rest of the nation. As LallyTollendal clearly stated: ‘If there was a part of the whole that wanted to rise above and against the nation, I would only see a subject that wants to be stronger than all others . . . [I]t is an attack against the power of the majority.’23 Or, in Talleyrand-Périgord’s words, ‘even more plainly, it is an attempt to subordinate the general will to the particular will of a district or province’.24 Secondly, the imperative mandate would have taken the legislative power – which at the time was considered the essence of sovereignty – away from the Assembly and attributed it to the citizens. According to Mounier, this would have represented a danger for the newly established political system: ‘If you want to let the electors give imperative mandates, are you not afraid of exposing the kingdom to all the uncertainties, to all the problems that will be caused by the coexistence of directly contrary wills? Are you not afraid of the most tumultuous multitude?’25 In a similar vein, 22

23 24 25

G. Lally-Tollendal, 7 juillet 1789, AP, 8, p. 204. They believed so to the point that ClermontTonnerre, another well-known monarchist, criticised the third article of the Declarations des droits on the grounds that it did not explicitly mention ‘the absolute necessity to defend this sovereignty from the usurpation of individuals and bodies’ since ‘liberty is destroyed when sovereignty entirely resides in one single individual or a single group’. M. Clermont-Tonnere, ‘Analyse raisonnée de la Constitution française’, in A. Crăiuțu, A Virtue for Courageous Minds, p. 90. G. Lally-Tollendal, 7 juillet 1789, AP, 8, p. 204. C. M. Talleyrand-Périgord, 7 juillet 1789, AP, 8, p. 202. Talleyrand-Périgord was a member of the Second Estate. J. J. Mounier, 4 septembre 1789, AP, 8, p. 560.

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Mounier had earlier claimed that ‘with no doubt, today we do not want a tempestuous liberty . . . We do not want a liberty without rules, that places the arbitrary authority within the multitude and pushes it into mistakes, haste, that appeals to anarchy and that will immediately after open up space for despotism.’26 Sovereignty, as much as the legislative power, had to be exercised only by the elected representatives. Thirdly, the imperative mandate would have implied the fragmentation of sovereignty in a plurality of entities, the French local districts. These would have been the primary assemblies in which the mandates were formed and issued and, consequently, would be entrusted with the direct exercise of the sovereign function. As, once more, Mounier explained, a numerous people could divide itself and form several sovereignties that would fight against each other, as the Swiss cantons, [but] it is never suitable for a people, and particularly for a numerous people, to retain the legislative power. I will even add that it would be worse to exercise it [sovereignty] partially and to transport sovereignty in all districts around the territory. It would divide the social body, which will soon be destroyed.27

Consequently, the moderates’ opposition to the imperative mandate started off as an intuitive answer to a contingent organisational problem but turned out to be an occasion to theorise sovereignty as the indivisible power of the nation. Arguing that sovereignty, instead of being attributed to an ensemble of individuals able to control the representatives, had to be associated with the nation qua superior collective body, moderate deputies sought to keep the country compact and united under the national will freely interpreted by members of the Assembly. In doing so, they aimed to restrain the implications of the principle of popular power and confine the people’s direct exercise of power to the election of the representatives to the Assembly. In the words of Mounier: [I]t is incontestably true that the principle of sovereignty resides in the nation, that all authority derives from it; but the nation cannot govern itself. No people in history has ever reserved for itself the exercise of all powers. All peoples, in order to be free and happy, had to entrust some delegates, had to create a public force to make sure laws are respected and had to place it in the hands of one or more delegates . . . because sovereignty can only belong to the entire nation or to the reunion of its delegates; and I have never even been able to conceive of a form of sovereignty divided in more than forty thousand fractions.28 26 28

J. J. Mounier, 9 juillet 1789, AP, 8, p. 215. 27 J. J. Mounier, 12 août 1789, AP, 8, pp. 411–20. J. J. Mounier, 4 septembre 1789, AP, 8, pp. 555–60.

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By contrast, radical members of the Assembly defended the practice of the imperative mandate in the name of a completely different understanding of sovereignty. This radical grouping was initially scattered but included eminent figures who would then move on and form the Girondin and the Jacobin groups. Among the most active promoters of these radical views, Jean-Baptiste Salle occupies a special position. He was a physician in the small village of Véselize and was elected to the ranks of the Third Estate of Nancy, in the Lorraine region. After having led the battle in favour of the imperative mandate and against the royal veto, he moved to more moderate positions and strongly defended the inviolability of the king. He took an active part in the Girondins’ club and was eventually guillotined in 1794.29 Jérôme Pétion de Villeneuve experienced a similar trajectory. A lawyer elected by the Third Estate of Chartres, he served as president of the Constituent Assembly and almost seduced the King’s sister during their return trip from Varennes.30 In 1791 he was elected mayor of Paris, a position he retained until his election at the National Convention, when he broke all ties to Robespierre and moved towards the Girondins. Forced to flee after an arrest warrant, he committed suicide in 1793. Together with Maximilien de Robespierre, these deputies played an extremely influential role in the first months of the Revolution.31 They instantiated a conception of sovereignty that was completely alien to the moderate version just mentioned. Particularly, they claimed that la souveraineté, far from belonging to the abstract nation, consisted in the citizens’ natural right to actively and directly participate in the creation of the law. On 1 September, Salle stated: I maintain that the people can and should use their sovereignty; I also conclude that, in a representative government, the people should not delegate to representatives, whatever their qualities and skills, the articles of the constitution that grant them its use [of sovereignty]. Because it is true that a free nation should neither chain future generations nor turn itself into a slave; the first duty

29 30

31

AP, 33, p. 62, and A. Robert, E. Bourloton and G. Cougny, Dictionnaire des parlementaires français, depuis le 1er mai 1789 jusqu’au 1er mai 1889 (Paris: Bourloton, 1891), Vol. V, p. 570. Once the king’s attempted escape was discovered in Varennes, Pétion de Villeneuve was in charge of escorting the royal family back to Paris. In this context, he is famously reported to have said the following words about the king’s sister: ‘If we had been alone, she would have surrendered herself into my arms, to the movements of nature.’ M. Dorigny, ‘Pétion, Jérôme, dit de Villeneuve’, in A. Soboul, Dictionnaire historique de la Révolution française (Paris: Press Universitaire de France, 2005), pp. 838–40. For the life of Robespierre, see R. Scurr, Fatal Purity (London: Vintage, 2007).

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Sieyès and the French Revolution of a free people is to delegate its freedom to nobody [from which it follows that] this right as well as all other rights are imprescriptible and inalienable.32

Having defined the notion of sovereignty as the people’s inalienable right to make use of the legislative power, it naturally followed that its main instrument of realisation was the imperative mandate.33 This depended on a series of reasons. Radical deputies extensively presented and discussed them in the sessions between 1 and 5 September. First, the imperative mandate would have guaranteed the principle at the basis of the idea of popular sovereignty, notably the people’s active and meaningful participation in the creation of the law. As Pétion de Villeneuve argued on 5 September, ‘all individuals that compose the association have the inalienable and sacred right to take part to the creation of the law’,34 which they can exercise expressing their mandate in the elementary assemblies. In Pétion de Villeneuve’s project, this could be achieved choosing a determined object, known and analysed through public discussion, on which the elementary assembly would decide by pronouncing the precise formulation of yes or no; or, if they prefer: I adopt this decision or I reject it. All the nation, divided in large sections, would thus be able to express its will without troubles. We could even guarantee the suffrage of each single voter.35

Secondly, and admitting that some sort of delegation of power was necessary in a country as large as France, the imperative mandate would have guaranteed the sovereignty of the people – which, again, meant exercise of legislative power – in the National Assembly by securing their direct control of the representatives. Once more, Pétion de Villeneuve made his point clear, stating that only where the imperative mandate is implemented is the representative responsible for his behaviour . . . [H]e is submitted to his constituency, which can approve or disapprove it. The members of the legislative body are the agents; the citizens that chose them are the principals: hence, these representatives are subjected to the will of those from which they obtained their mission and powers.36 32

33

34

J. B. Salle, 1 septembre 1789, AP, 8, pp. 530–3. It must be recalled that, in all these discussions, the members of the Assembly referred to sovereignty in order to indicate the legislative power. Consequently, the executive power, or government, is to be considered as different and excluded from the discourse on sovereignty and as a power that could be delegated to representatives. See J. B. Salle, 1 septembre 1789, AP, 8, p. 530. Italics mine. The speech of Salle quoted above goes on with these exact words: ‘from which it follows that, at least for these articles, any time the constitution will be examined it will be necessary to have imperative mandates’. Ibid. 36 J. Pétion de Villeneuve, 5 septembre 1789, AP, 8, p. 582. 35 Ibid. Ibid.

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On the contrary, where there is no imperative mandate, popular sovereignty is usurped by the representatives, as it is ‘the agent who becomes the chief and the principal ends up being the subordinate’.37 Thirdly, by securing popular participation in the lawmaking process, the imperative mandate would guarantee the prescription according to which ‘law must be the expression of the general will’.38 In Salle’s words: ‘[T]he general will cannot be wrong when it is the nation that makes the law, but the assemblies to which the latter delegates power can make mistakes . . ., they can be corrupted and abuse their power.’39 Consequently, in the view of the radical members of the Assembly, the general will could not be found in the actions of a legislative assembly comprised of free delegates, as suggested by the theorists of national sovereignty, because this would necessarily be corrupt. Instead, the general will lay only in the aggregation of individual wills.40 This aggregation not only was made possible by the imperative mandate but also is the core of the radical idea of the people’s inalienable sovereignty. As much as the moderate members of the Assembly, radical deputies took advantage of the debate on the imperative mandate to reflect upon the relation connecting the people’s political power to the institutional structure of the state. They argued that the attribution of sovereignty to the nation (and thus to the Assembly, as in the monarchists’ view) prevented the people from actually exercising their political power. Consequently, they defended the imperative mandate as an instrument to privilege the people’s will over that of the representatives and relied on the notion of popular sovereignty to defend the fundamentally inalienable character of the people’s political authority.41 In their terms: ‘Whenever the people do not exercise their authority or manifest their will by themselves but through their representatives and when the representative body is not pure and almost identical to the people, liberty is dead.’42 As these paragraphs have shown, the question of the imperative mandate was the first moment in which the initially consensual notion of sovereignty started to be contested and debated. Those who defended the unitary power of the Assembly redefined it in terms of its indivisible and national character, whereas those who claimed the people’s right to constantly participate in the 37 40

41 42

38 39 Ibid. Ibid. J. B. Salle, 1 septembre 1789, AP, 8, p. 533. Pétion de Villeneuve said that ‘if everyone had the chance to express his particular will, the reunion of all these wills would truly give shape to the general will. This would be the highest degree of political perfection.’ J. Pétion de Villeneuve, 5 septembre 1789, AP, 8, p. 582. For a discussion of the inalienable character of popular sovereignty, see L. Jaume, Le discours jacobin et la démocratie (Paris: Fayard, 1989). M. Robespierre, ‘Discours du 18 mai 1791’, AP, 23. See also L. Jaume, Le discours jacobin et la démocratie, p. 282.

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creation of the law stressed its popular and inalienable features.43 Far from being just a minor distinction, the distance that separates these two positions progressively crystallised and divided the Assembly into opposed arrays.44 These have traditionally been identified with the ideas of national and popular sovereignty and have been considered to correspond to the two main alternative political projects available at the time. Yet, although these political and conceptual poles played a fundamental role throughout the Revolution, the interplay between the different conceptualisations of popular power and its implementation went beyond this dichotomous understanding of sovereignty. At least another account of the power of the people existed, and it was based on the rejection of the very notion of sovereignty. This was Emmanuel Sieyès’s idea of constituent power.45

Emmanuel Sieyès Born in 1748 in the south of France, Sieyès was soon directed towards the religious profession. While studying to become an Abbé, he began reflecting on the people’s political authority. He gained notoriety in 1788–9 due to a series of pamphlets, including the most famous of all, Qu’est-ce que le Tiers-État?, in which he claimed that political authority, far from belonging to the monarch, lay with the productive portion of society, the Third Estate. Once elected to the ranks of 43 44

45

Cf. L. Jaume, Le discours jacobin et la démocratie, pp. 296–300. Although the opposition between supporters of national and popular sovereignty has been widely studied and documented, Rosanvallon remains sceptical. Specifically, he maintains that the two positions never distinguished themselves clearly and that the differences between supporters of national or popular sovereignty remained blurred. See P. Rosanvallon, La Démocratie inachevée (Paris: Gallimard, 2000), p. 25. Yet, at least for the period considered in this chapter, this does not seem to be entirely correct. On the relevance of this distinction see also I. Hont, ‘The permanent crisis of a divided mankind: nation state and nationalism in historical perspective’, Political Studies, XLII, 2004, pp. 166–231; P. Pasquino, Sieyès et l’invention de la constitution en France, pp. 31–52; L. Jaume, Le discours jacobin et la démocratie, pp. 296–300. Naturally, Sieyès was not the only person to use the term ‘constituent power’ during the Revolution. Brissot and Condorcet, for instance, also used this term more than once. However, they mainly did so to put forward a specific interpretation of the idea of sovereignty, one in which the people’s constituent power was meant to be a mechanism for the exercise of sovereignty (intended here as direct popular vote on some fundamental laws, such as the constitution). See R. Tuck, The Sleeping Sovereign (Cambridge: Cambridge University Press, 2016), ch. 3; P. Rosanvallon, ‘The history of the word democracy in France’, The Journal of Democracy 3(4) (1995), pp. 140–54. As interesting as Condorcet and Brissot’s positions can be, they are not addressed in this book. The focus of the chapter is indeed on examining how Sieyès put forward the idea of constituent power as a way of conceptualising the people’s power, alternative and opposed to sovereignty. Michael Sonenscher has pointed out to me that Sieyès probably first found out about the very words ‘constituent and constituted powers’ from an anonymous pamphlet titled ‘An essay on the constitution of England’, published in 1765 in London and republished translated in French in 1789. Cf. note 41 of the Introduction.

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the Third Estate in 1789, he urged the abolition of the division of society into social orders and of the vote per Estate, and argued in favour of the transformation of the Estates General into the National Constituent Assembly. Soon after his re-election to the National Convention, he was forced to flee Paris to avoid execution.46 Recalled after the Terror, he contributed to drafting the constitution of the Year III and was appointed to the Directoire, where he probably helped to organise the coup d’état of 18 Brumaire. He lived the last years of his life in Brussels before eventually returning to Paris just before his death, in 1836.47 One of the most active figures in the revolutionary decade, Sieyès had been an object of analysis and debate during his lifetime as well as afterwards. His political theory significantly influenced the birth and early developments of French constitutional thought and, after a temporary eclipse in the nineteenth century, attracted the attention of legal scholars, political theorists and intellectual historians alike.48 Notwithstanding Sieyès’s numerous contributions to the course of the Revolution, his most important innovation was arguably the 46

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Although there is no clear evidence of whether and where Sieyès found refuge during the Terror, it is thought that he escaped to the south of France, where some of his relatives lived. No record has been found of him living in Paris during the last period of Jacobin rule, and most of his early manuscripts were hidden for decades in his native region, where he himself might have taken them, escaping the Terror. In his autobiographical ‘Notice sur la vie de Sieyès’, no mention is made of where he lived during the Terror, but on pages 50 and 51 Sieyès provides a detailed description of how he felt threatened and how he was considered by both deputies and public opinion as a dangerous counterrevolutionary. He also clearly says that he contributed to the best of his ability to the work of the Assembly until 1793 but that, after his exclusion from the Comité d’instruction publique, he disappeared from public view. E. Sieyès, ‘Notice sur la vie de Sieyès, membre de la première Assemblée nationale et de la Convention. Ecrite à Paris, en messidor, deuxième année de l’ère républicaine’, in E. Sieyès, Œuvres de Sieyès, Vol. III, ed. M. Dorigny (Paris: EDHIS, 1989). For a detailed reconstruction of Sieyès’s life, see P. Bastid, Sieyès et sa pensée, (Paris: Hachette, 1939), and E. Sieyès, Notice sur la vie de Sieyès. See also J. D. Bredin, Sieyès la clé de la Révolution Française (Paris: Editions de Fallois, 1988), and M. Forsyth, Reason and Revolution: The Political Thought of the Abbé Sieyes (Leicester: Leicester University Press, 1987). Sieyès had a strong influence on French legal and political thought in the early decades of the nineteenth century. He played an important role in the development of Constant’s political reflections. See B. Constant, ‘Fragments des mémoires de madame Récamier’ in B. Constant, Œuvres (Paris: Gallimard, 1957), pp. 965–6, as well as N. King and E. Hofmann, ‘Les lettres de Benjamin Constant à Sieyès avec une lettre de Constant à Pictet-Diodati’, Annales Benjamin Constant 3 (1988), pp. 89–110. The role Sieyès played in the creation of French and, to a lesser extent, modern constitutionalism is emphasised by P. Pasquino, Sieyès et l’invention de la constitution en France (Paris: Odile Jacob, 1998), pp. 9-14 and by M. Goldoni, ‘At the origins of the constitutional review: Sieyès’ Constitutional Jury and the taming of constituent power’, Oxford Journal of Legal Studies 2 (2012): 211–34; M. Goldoni, La dottrina costituzionale di Sieyès (Florence: Firenze University Press, 2009), pp. 9–18. Recently Tuck has questioned this interpretation. See R. Tuck, The Sleeping Sovereign, ch. 2 where he reconstructs the extent to which Sieyès’s idea of constituent power survived the Revolution and became relevant in France in the nineteenth century.

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theoretical and practical distinction between the people’s pouvoir constituant, the popular power to authorise a constitution, and the pouvoirs constitués, the constitutionally limited authority of the representatives sitting in both the executive and legislative branches. This dichotomy, having been elaborated well before the inception of the Revolution and presenting an unusual degree of theoretical complexity, has fascinated authors who, across two centuries, have been interested in thinking about the principle of popular power and its institutional implications. Yet it has also been widely misread, misunderstood and overlooked by both the constituents in 1789 and later thinkers. A series of interventions to the constituent debate reveal the extent to which the theoretical complexity of Sieyès’s positions discouraged many deputies, who preferred referring to more intuitive intellectual and political references instead. An example is Champion de Cicé’s declaration of 27 July 1789. In this occasion, he argued that the choice between Sieyès’s notion of constituent power and Mounier’s sovereignty had no reasons to subsist, as ‘in its own perfection, the particular genius who elaborated it [the idea of constituent power] greatly overestimated the capacities of the universality of those who have to read and understand it, and everybody should be able to read and understand it’.49 Similarly, Lally-Tollendal reportedly said that Sieyès’s theory was ‘enigmatic and perfidious’ or, in another constituent’s view, ‘an entirely useless catechism of metaphysics’.50 The deputies’ rejection of Sieyès’s idea not only obfuscated its relevance but also contributed to downplaying its autonomy vis-à-vis other conceptualisations of the power of the people. Together with the moderate and anti-Jacobin character of his writings, this led later thinkers to consider Sieyès as one of the most sophisticated theorists of the sovereignty of the nation. For instance, in his Contribution à la Théorie générale de l’État, the French jurist Carré de Malberg viewed Sieyès’s political theory as key in the struggle of moderate deputies to affirm the national interpretation of sovereignty during the course of the Revolution.51 According to Carré de Malberg by introducing the notion of constituent power, Sieyès adapted the exercise of sovereignty to the structure of the 49 50

51

M. Champion de Cicé, 27 juillet 1789, AP, 8, p. 282. A. Crăiuțu, A Virtue for Courageous Minds, p. 88. The second comment is by Landon, quoted in J. Egret, La Révolution des Notables: Mounier et les Monarchiens, 1789 (Paris: Armand Colin, 1950), p. 114. Cf. R. Carré de Malberg, Contribution à la Théorie générale de l’État (Paris: Dalloz, 2004), pp. 506–7.

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constitutional state.52 Like Carré de Malberg other thinkers have associated Sieyès’s understanding of the principle of popular power with the idea of national sovereignty. The effect of the association has been to downplay the role of the idea of constituent power in Sieyès’s political theory and reduce it to a specific instrument for the implementation of national sovereignty. As the book will demonstrate, Carl Schmitt, Hannah Arendt and several other theorists interpreted Sieyès’s theory of constituent power as an account of sovereignty. These misinterpretations will be discussed at length in the following chapters. For now, it suffices to say that, as numerous and diverse as these interpretations may be, almost all of them consider Sieyès a theorist of 52

Slightly differently, for the 200th anniversary of the Revolution, historians discussed Sieyès’s idea of constituent power in connection with Rousseau. Building on an interpretation first put forward by Paul Bastid, they claimed that Sieyès used the notion of constituent power to rationalise and moderate Rousseau’s account of sovereignty. The result was to avoid direct democracy while establishing a unitary sovereign body with a unified political will. Similarly, Baker and Backzo saw Sieyès’s idea of constituent power as an attempt to solve the problem of Rousseau’s proclamation of men’s equality, i.e. how the concrete exercise of power should be structured in a politically equal society. The solution was provided by the way Sieyès replaced Rousseau’s abstract notions of volonté generale and legislator with the much more concrete ideas of pouvoir constituant and the Constituent Assembly. See, for example, B. Backzo, ‘The Social Contract of the French: Sieyès and Rousseau’, The Journal of Modern History, Vol. 60, (Sep., 1988), pp. 98–125. Rejecting these Rousseau-based and Rousseau-biased interpretations of Sieyès, Fauré, Pasquino and Hont affirmed the autonomous and original character of his account of popular power. However, this has often been associated with the idea of national sovereignty. The originality of Sieyès’s thinking, Hont and Fauré seem to claim, lies in the fact that he created a limited model of sovereignty by attributing it to the nation alone, comprising the productive part of society and hence the entirety of the body politic, ‘one and indivisible’. Consequently, political power was not to be exercised by individual citizens but by a unified central body able to represent the national will. This representative body was then successfully absorbed into the workings of the constitutional state through Sieyès’s reliance on the idea of constituent power. See I. Hont, ‘The permanent crisis of a divided mankind: nation state and nationalism in historical perspective’; C. Fauré, ‘Sieyès, Rousseau et la théorie du contrat’, in Y. Quiviger (ed.), Figures de Sieyès (Paris: Publications de la Sorbonne, 2008), pp. 213–26; M. Troper, ‘Sieyès et la hiérarchie des normes’, in Y. Quiviger (ed.), Figures de Sieyès, pp. 25–42. This was meant to give substance to the principle of national sovereignty by making its exercise concrete through the process of writing the constitution. After the constituent founding, the sovereign pouvoir constituant would retreat and make room for the ordinary exercise of power through the legal and political system, which, having no sovereign will of its own, was necessarily constrained in both scope and nature by the limits established in the constitution. In Pasquino’s view, this inaugurated a rigid constitutional system and highlights the liberal concerns behind Sieyès’s political project. See P. Pasquino, Sieyès et l’invention de la constitution en France, pp. 147–56. For a further analysis of Sieyès’s liberal preoccupations, see M. Goldoni, ‘At the origins of the constitutional review: Sieyès’s Constitutional Jury and the taming of constituent power’; M. Goldoni, La dottrina costituzionale di Sieyès. For an investigation of Sieyès’s use of constituent power as a response to the public debt crisis, see M. Sonenscher, Before the Deluge: Public Debt, Inequality, and the Intellectual Origins of the French Revolution (Princeton, NJ: Princeton University Press, 2009), p. 76–7. See also M. Sonenscher, Sans-Culottes: An Eighteenth-Century Emblem in the French Revolution, p. 42; M. Sonenscher, Sieyès: Political Writings: Including the Debate between Sieyès and Tom Paine (London: Hackett, 2003), xxiv–xxv.

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national sovereignty and associate his political positions with those upheld by the moderate group in the Assembly, to the extent of considering him one of its most eminent spokespersons.53 By focusing the attention on Sieyès’s understanding of the nation, the notion of constituent power has often been addressed as an instrument for implementing the nation’s sovereignty. However, a detailed analysis of both the revolutionary archives and Sieyès’s manuscripts casts doubt on the historical and theoretical pertinence of this traditional interpretation. The discussions of the constituents show that Sieyès shared the position of moderate deputies less often than is usually thought. Not only, as it will later be shown, did he oppose their stance when debating fundamental issues such as the royal veto and the bicameral system, but he also frequently questioned their understanding of sovereignty and criticised their political project as dangerously short-sighted. In addition, Sieyès’s manuscripts clearly show that he never relied on the notion of sovereignty to describe the principle of popular power. In the whole of his published and unpublished writings, he mentioned the term ‘sovereignty’ around twenty times, always critically and mostly with reference to other deputies’ theories of political authority.54 From his very first political writings and in all of his public speeches, Sieyès referred to the political authority of the people through one expression alone: constituent power. Scholars have ignored or minimised these elements as marginal inconsistencies, but I propose taking them seriously as they lead to a different interpretation of Sieyès’s understanding of popular power.55 Far from depicting him as the theorist of national sovereignty, I will argue that Sieyès’s political theory is informed 53

54

55

Hont, for instance, has argued that Sieyès’s view of sovereignty was the most complete and consistent theory of how the moderate faction understood popular power. He even entitled a paragraph of his essay ‘Two models of French popular sovereignty: the nation of Sieyès and the people of the Jacobins’. See I. Hont, ‘The permanent crisis of a divided mankind: nation state and nationalism in historical perspective’, p. 192. Similarly, Lucien Jaume discusses the Jacobin conceptualisation of popular power in opposition to the moderates’ understanding of sovereignty. When presenting details of the latter, he focuses on Sieyès’s political thought, as this represents, in his opinion, a very sophisticated account of national sovereignty. See L. Jaume, Le discours jacobin et la démocratie, pp. 157–75 and L. Jaume, ‘Constituent Power in France: the Revolution and its Consequences’, in M. Loughlin and N. Walker, The Paradox of Constitutionalism (Oxford: Oxford University Press, 2008), pp. 67–85. Pasquino did demonstrate that Sieyès used the word ‘sovereignty’ only in negative terms and ascribed it to Sieyès’s broader hostility to Rousseau. Pasquino has also been the first to publish an important text in which Sieyès explicitly criticises the idea of popular sovereignty. See P. Pasquino, Sieyès et l’invention de la constitution en France, pp. 66–7. Also Tuck discusses Sieyès’s opposition to the idea of sovereignty. See R. Tuck, The Sleeping Sovereign, p. 176. Sonenscher discusses Sieyès’s choice to never use the word ‘sovereignty’ in the following terms: ‘Although Sieyès never used the word, it amounted to a straightforward assertion of sovereignty. The term he used instead was “constituting power”’. M. Sonenscher, Sieyès: Political Writings, p. XXIV.

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by the conscious refusal to conceptualise the principle of popular power in terms of sovereignty, turning to the alternative idea of pouvoir constituant instead. This is to be understood as Sieyès’s fully fledged, independent conceptualisation of the people’s newly acquired political authority. It is an account of popular power, according to which the supreme political authority, the constituent power, entails exclusively the power to authorise the creation of the political order through the election of representatives entrusted with the task of writing the constitution. Once the constituted order is created, the people’s constituent power is present only indirectly, as expressed and enforced through the rules established in the constitution.

Constitution-Making Guilhaumou explains that, throughout his life, Sieyès showed a keen interest in the role of language and its social and political relevance.56 Evidence of this is provided by a fragment in his manuscripts, in which he complained about the use of everyday language in addressing political issues: Each science has its own language . . . If you think you have identified one in the array of ordinary linguistic forms, you are wrong. You are hitting the water, moving and shaking, without any clear and steady ideas, chaotically . . . How many mistakes, how many eternal ambiguities we could have avoided, if the common people who take themselves for philosophers had had the opportunity to address these ideas in the proper language.57

Since Sieyès believed politics to be a form of scientific knowledge, he was convinced that it deserved its own specific language. The fact that he insisted on avoiding the term sovereignty and called the political authority of the people pouvoir constituant should thus not pass unnoticed. As Sieyès modestly argued to the Assembly: ‘A sound and useful idea was invented in 1789; the separation of the constituent power from constituted powers. It will go down in history as a discovery that advances science, for which the French can be thanked.’58 This not only highlights how Sieyès’s idea of 56

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J. Guilhaumou, Sieyès et l’ordre de la langue: L’invention de la politique moderne (Paris: Kliné, 2002); J. Guilhaumou, L’avènement des porte-parole de la République (1789–1792): essai de synthèse sur les langages de la Révolution française (Paris: Presses Universitaires Septentrion, 1998),ch. VIII; J. Guilhaumou, La langue politique et la Révolution française: de l’événement à la raison linguistique (Paris: Méridiens Klincksieck, 1989). E. Sieyès, Des Manuscrits de Sieyès, Vol. I, ed. C. Fauré (Paris: Honoré Champion, 1999), p. 454. E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV et V du projet de constitution, prononcé à la Convention le 9 thermidor de l’an troisième de la République’, in E. Sieyès, Œuvres de Sieyès, Vol. III, p. 11.

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constituent power differed from other accounts of popular power and was, for him, a scientific concept; it also shows the fundamental role he assigned to it in the development of his broader political theory. The following sections analyse this development in Sieyès’s manuscripts and conceptual writings. Despite the fact that Sieyès neither wrote nor published a complete theory of politics, taken together his reflections were systematic and remained coherent over the years.59 The main pillar of his political theory was the principle according to which all men are free. His understanding of human liberty changed very little, informing his revolutionary claims for the Third Estate and establishing the grounds for his refusal to conceptualise the people’s power in terms of sovereignty, in favour of the idea of constituent power. Far from being rooted in natural law, liberty is presented by Sieyès as a self-evident reality derived from his study of the functioning of the human being in relation to his sensations and perceptions. A person first experiences liberty by interrogating sensations, examining their effects and deciding whether to experience them again or not. In Sieyès’s words: Its examination [of the sensation], its deliberation and its final determination are acts of liberty: a proof that the volonté or the nolonté are not the passive consequence of agreeable or disagreeable sensations . . . Liberty, which is to say the actions of man, are perfectible through experience. The choice of sensations is active.60

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Although Sieyès certainly changed his political positions and adapted them to what he saw as the most urgent needs of the time, his manuscripts show that he remained faithful to his dual account of liberty and to the theoretical apparatus he developed during the revolutionary years. Counselling Napoleon, he changed language and to some extent hid his intentions, but it can be argued that, within the limits of the political possibilities, he was still seeking to implement his constitutional plans in line with his earlier theoretical positions. Proof is Boulay de la Meurthe’s description of a particularly tense meeting between Napoleon and Sieyès. Addressing Napoleon, Boulay said: ‘You [Napoleon] and Sieyès are like the executive and the legislative power, which cannot live but with difficulty together’, B. de la Meurthe, Thèorie constitutionnelle de Sieyès, Constitution de l’an VIII (Paris: Paul Renouard, 1836), p. 51. Justifying this statement, Boulay explained that Napoleon could not tolerate Sieyès’s constitutional project which, in his opinion, was ‘aristocratic and violated the liberty and the sovereignty of the people’, B. de la Meurthe, Thèorie constitutionnelle de Sieyès, Constitution de l’an VIII (Paris: Paul Renouard, 1836), pp. 49–50. While Napoleon tried to concentrate power in his hands by invoking the people’s sovereignty, Sieyès sought to limit his power. Although not discussed in these terms with Napoleon, it amounted to an attempt to counter the Emperor’s idea of absolute popular sovereignty – which he was to incarnate – with institutions derived from the idea of constituent power. E. Sieyès, ‘Grand Cahier Métaphysique’, in E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 81. See also J. Guilhaumou, ‘Sieyès, lecteur critique de l’article « Évidence » de l’Encyclopédie (1773)’, in Recherches sur Diderot et sur l’Encyclopédie 14 (1993): 125–43.

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Moreover, if liberty is to be understood as an individual’s capacity to act in relation to his sensations, Sieyès noted that it is greatly augmented when individuals share their experiences with each other. This is because an isolated person can only choose between the limited amount of sensations that can be experienced individually. On the contrary, when individuals enter into relation with each other, they acquire knowledge and experience of a plurality of other possible sensations and obtain a much larger pool of options among which to choose. Consequently, if the ultimate end is the exercise of the largest freedom or, otherwise said, the achievement of the most pleasant sensations, the best way to pursue it is to enter in society. The institution of the latter, putting men in relation to each other, grants everyone the possibility of using experiences and competences developed by others as means to reach their own personal ends and happiness. Having outlined the reason why it is rational, from the perspective of the individual, to enter into social and political relation with other individuals, Sieyès went on to examine the status of liberty in society. According to him, the protection and expansion of individual freedom is the ultimate aim of every social and political arrangement. In his words, ‘The liberty of a citizen is the ultimate end of all laws. They all must refer to it, either immediately, and in this case they form civil law, or through some forms of mediation, as in the case of the laws of government.’61 Specifically, liberty was understood only in terms of individual freedom, comprising two different but complementary aspects.62 First, Sieyès saw it as independence, the capacity to act according to one’s will without subjection to any form of domination. It is therefore in this sense that Sieyès, answering an imaginary man who asked what it means to be free, stated that liberty is when an individual ‘who desires to act feels that he can do so and sees no obstacles to his actions’.63 This means that ‘a free man is he who obeys only his own will. In order to be binding, his commitments must have been free, must have been the consequence of his own decisions.’64 Consequently, Sieyès provided a first definition of liberty as absence of impediments to the achievement of personal goals and as absence of domination from other individuals. 61 62 63

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E. Sieyès, ‘Vues sur les moyens d’exécution dont les représentants de la France pourront disposer en 1789’, in E. Sieyès, Œuvres de Sieyès, Vol. I, p. 12. ‘We eventually always go back to the idea of individual liberty, for the fulfilment of which everything is done’, E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 467. E. Sieyès, ‘Volonté-Liberté’, AP, dossier 3, p. 284, reprinted in J. Guilhaumou and J. P. Heurtin (eds), ‘Sieyès, Volonté-Liberté’, Revue française d’histoire des idées politiques (33) (2011), pp. 163–82, p. 172. E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 473.

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Second, Sieyès realised that liberty as mere independence does not itself guarantee the fulfilment of personal wills. As he put it, the desire to eat cannot be satisfied without means – for instance, the help of a stick to shake an apple hanging from a tree. Consequently, Sieyès argued that liberty has a second, more poignant, meaning, which is to empower men to overcome the obstacles they face in order to obtain what they have independently set as their goals: ‘Man needs to be free not to be fruitlessly free, but to exercise or employ his power and to progressively increase it.’65 Considering that ‘power’ in this context indicates the individual capacity to act according to personal goals, it follows that liberty is only guaranteed when individuals have the time and resources necessary to pursue their goals. Sieyès’s double conception of liberty in society is perfectly summarised in this extract from his Journal d’instruction sociale, where he asked: ‘Does liberty alone create the social state? Consider it in its developments in terms of power and independence and, unless you want to betray your interests, agree with me that the answer is: yes.’66 Liberty, both as power and as independence, is not only perfectly consistent with society but also fundamentally improved and augmented by it. This is for at least two reasons. First, Sieyès did not see any contradiction between the exercise of liberty and the authoritative character of law. On the contrary, he argued that ‘submission to the laws, far from attacking or limiting liberty, becomes its most powerful instrument of realisation, its surest guarantee’.67 Law protects the citizens and their properties from any unauthorised violation and, in doing so, guarantees their independence. In Sieyès’s words, ‘Liberty alone encompasses all that does not belong to others, law is only there to prevent it from getting lost: it is only a protective institution, created by this liberty that precedes everything, and for which everything exists in society.’68 In addition, law is the most powerful means through which to empower people’s freedom, to augment their capacity to act and to overcome the obstacles they may face. This is because ‘a good law adds to your liberty the support of public powers which you would not have the right to invoke

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E. Sieyès, ‘Des intérêts de la Liberté dans l’état social et dans le système représentatif. Par Em. Sieyès. Extrait du Journal d’instruction sociale par les citoyens Condorcet, Sieyès et Duhamel, 8 juin 1793’, in E. Sieyès, Œuvres de Sieyès, Vol. III, p. 35. Ibid., 48. 67 Ibid., 47. E. Sieyès, ‘Projet de loi contre les Délits qui peuvent se commettre par la voi de l’impression et par la publication des Écrits et des Gravures, etc. ’, in E. Sieyès, Oeuvres de Sieyès, 1989, Vol. II, p. 2.

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without it [the good law]. Law multiplies the strengths of the individual: it adds to their power, to their liberty.’69 Moreover, this definition of liberty, stressing the lack of domination by anyone but oneself, means that citizens are bound to the legal and political system only as long as they have freely agreed to commit and submit to its rules. In order to be legitimate, law requires authorisation; in other words, it must be ‘the manifest will of he who has to obey the law’, of each individual citizen.70 In relation to this basic principle, Sieyès argued, before the National Assembly, that since all citizens ‘like all of you are bound to obey the law, they must also, like you, participate in its formation. This contribution must be equal.’71 This is a concise, clear expression of one of the basic principles of modern politics and the cornerstone of Sieyès’s account of the people’s relationship with the authority of the state. The state and its laws are legitimised only through the explicit authorisation of citizens. Secondly, and going back to the reasons behind the above-mentioned claim that liberty is perfectly consistent with society, Sieyès argued that only the social principle of representation allows a truly effective empowerment of men’s liberty.72 This consideration finds its basis in the sociological analysis of the division of labour in modern societies.73 Developing an argument already outlined by Adam Smith, Sieyès claimed that the specialisation and differentiation of competences entails the concrete impossibility of taking care of all the necessities of life in person.74 Modern men lack not only the time but also the necessary knowledge and competences to deal with them. This leads to the devolution of a vast 69 70 71 72

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E. Sieyès, ‘Fragments Politiques’, in E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 462. E. Sieyès, ‘Observations sur le rapport du comité de constitution, concernant la nouvelle organisation de la France’, in E. Sieyès, Oeuvres de Sieyès, Vol. II, p. 35. E. Sieyès, ‘Dire de l’abbé Sieyès sur la question du Veto royal, à la séance du 7 septembre 1789’, in Sieyès, E., Œuvres de Sieyès, Vol. II, pp. 13–14. On Sieyes and representation, see also C. Clavreul, ‘Sieyès et la genèse de la représentation moderne’, Droits. Revue française de théorie juridique 6 (1986): 45–56. See also C. Clavreul, Influences de la thé orie d’Emmanuel-Joseph Sieyè s sur les origines de la repré sentation en droit public, thè se, Université de Paris 1-Panthé on-Sorbonne, 1982 and N. Urbinati, Representative Democracy: Principles and Genealogy (Chicago: University of Chicago Press, 2006), pp. 138–61. He claims that the division of labour follows from the evolution of ancient societies into what he calls the ‘modern commercial society’, which is defined as follows: ‘The European modern peoples very little resemble the ancient peoples. Among us, it’s all a matter of commerce, agriculture, industries etc.; the drive for wealth transforms all European states into large ateliers; we care more about consuming than we care about happiness.’ See AP, 8, p. 594, and P. Pasquino, Sieyès et l’invention de la constitution en France, p. 37. E. Sieyès, ‘Observations sur le rapport du Comité de constitution, concernant la nouvelle organisation de la France’, p. 35.

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amount of actions to specialized people, who act on behalf of the person who actually benefits from their implementation. According to Sieyès, the very fact of delegating a responsibility, of having someone else take care of a personal necessity, entails social representation. In his own words: ‘Wherever labour is divided, everything is representation,’75 which entails that representation ‘is everywhere in the private sphere as well as in the public order: it is the mother of productive industry and commerce, as well as of liberal and political progress. I can say even more, it is mixed up with the very essence of social life.’76 Having clarified that representation is at the very origins of modern society, that the two are co-substantial, he went on to claim that it is also perfectly consistent with liberty. Furthermore, representation enables men to take advantage of the expertise and knowledge of their fellow citizens so as to delegate the implementation of their will and projects to those who are the experts in the field. For instance, if an individual needs to send a letter to Bordeaux, he will not carry the letter himself for the entire journey but will rather delegate the implementation of his will to a specialised individual: the postman.77 Consequently, not only is representation a conditio sine qua non of social life, but it also increases individual liberty insofar as it frees the citizens from the impediment of having to deal with the necessities of life by themselves, thus augmenting their power to act, their liberty. In Sieyès’s terms, ‘It is clear that being represented in as many things as possible is a way to increase your liberty . . . Take a look at the private sphere, is not him, who has other people working for him, to be the freest man?’78 On the other hand, the principle of representation does not contradict Sieyès’s definition of liberty as independence because delegation of power does not mean its alienation. Accordingly, Sieyès argued that representation is not ‘alienation but, on the contrary, is always free, can be withdrawn and is limited in both time and matter’.79 Particularly, Sieyès stated that the people do not divest themselves of their power to act and decide independently, but that they simply delegate, or commit, the exercise of this power to their representatives for a specified period of time. Moreover, 75 76 77 78 79

E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 459. E. Sieyès, ‘Dire de l’abbé Sieyès sur la question du Veto royal, à la séance du 7 septembre 1789’, pp. 13–14. E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV et V du projet de constitution’, p. 5. E. Sieyès, ‘Dire de l’abbé Sieyès sur la question du Veto royal, à la séance du 7 septembre 1789’, p. 6. E. Sieyès, ‘Vues sur les moyens d’exécution dont les représentants de la France pourront disposer en 1789’, p. 21.

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the power of the delegates, different from that of the represented citizens, is always and necessarily limited by the commission they received at the moment of their investment, as no representative ‘can obtain this quality if he did not obtain the trust of his principals; nobody can maintain this quality when losing this trust’.80 Having proved that representation is consistent with his double conception of liberty, Sieyès could affirm that it is preferable for the individual to ‘make others do’,81 to delegate power, including political power, to representatives. In fact, ‘to have things done by others is to have them done as you wish, is to have them done better, is to stop doing them whenever you want . . . [T]o make others act is to commit to action, it is to choose the most expert.’82 Accordingly, as Hont points out, Sieyès ‘saw representation as a fundamental fact of modern society, as something indelibly inscribed in the division of labour and commercial sociability, and [he saw] political representation as a permanent necessity in any large and populous country in which it was virtually impossible to unite the voice of the people directly’.83 Consequently, Sieyès established the second fundamental principle at the basis of the relationship tying the people to the state: although citizens are the ultimate holders of political power, they exercise it only indirectly, through temporarily elected representatives. However, when the time came for the Assembly to articulate the principle of popular power, Sieyès struggled to find a way to remain consistent with his twofold understanding of freedom. All conceptualisations of the power of the people at the time relied on the notion of sovereignty, which for Sieyès brought to the fore a conceptual as well as an organisational problem. Since sovereignty was originally used to describe the monarch’s absolute power, it implicitly entailed an absolute and unlimited understanding of political authority. As Sieyès proclaimed in one of his speeches, the idea upon which the conceptualisations of popular power put forward in the Assembly are based ‘resembles one of the exaggerated ideas that have been used to adorn what they call sovereignty’ and went on to specify that this word [sovereignty] now sounds so colossal to our imagination because the French spirit, still filled with royal superstitions, has equipped it with the heritage of the pompous attributes and absolute powers which used to shine 80 81 83

E. Sieyès, ‘Quelques idées de constitution applicables à la Ville de Paris. En juillet 1789’, in E. Sieyès, Œuvres de Sieyès, Vol. I, p 3. 82 E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 460. Ibid. I. Hont, ‘The permanent crisis of a divided mankind: nation state and nationalism in historical perspective’, Political Studies (XLII) (2004), p. 198.

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Sieyès and the French Revolution on usurped sovereignties. We have even seen the public spirit, in its immense generosity, getting nervous about not having received more; we said, with patriotic pride, that if the sovereignty of the great kings was so powerful and terrible, the sovereignty of a great people should be even more so.84

Consequently, in Sieyès’s view, the revolutionary choice to conceptualise the newly affirmed popular authority in terms of sovereignty necessarily undermined his own understanding of liberty as authorisation and delegation of the exercise of power. When attributed to the people, the absolute element entailed in the idea of sovereignty would have given rise to the confused and dangerous practice of popular despotism as well as to people’s constant, uncontrolled and unlimited exercise of power. Alternatively, if attributed to representatives, sovereignty would somehow justify the delegates’ abusive expropriation of popular power and would induce them to fail in their commitment towards the citizens’ authorising will. Hence, Sieyès attempted to avoid these institutional and conceptual problems by putting forward an alternative account of the people’s political authority, what he called pouvoir constituant. In particular, Sieyès used the idea of constituent power to provide a conceptual instrument able to translate the principles discussed earlier into a consistent model of political organisation without relying on the idea of sovereignty. By using the notion of constituent power, Sieyès conceptualised popular power as the original authority to constitute the state.85 It entailed the citizens’ ability to freely decide the form of government they wished to establish for themselves, their fundamental law. In Sieyès’s words, ‘Constituent power can do everything . . . The nation that thus exercises the largest, the most important of its powers, must be, in the exercise of this function, free from all constraints and forms, other than those it freely chooses to adopt.’86 The idea of constituent power entails first and foremost the popular institution of the political order and is consistent with Sieyès’s first definition of liberty as independence. 84 85

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E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV et V du projet de constitution’, p. 7. In Sieyès’s view, the nation existed before and could not be created by the exercise of constituent power. However, the state, intended as the set of institutions organising the nation’s political life, did not exist before the nation’s constituent power; the state was created through its exercise. ‘It is not the nation that is constituted, it is the public establishment. The Nation is the reunion of all associates, all governed and submitted to the Law that their wills have created, all equal in rights and free in their communication and personal engagements. The rulers, on the contrary, form in a unique relationship a political Body created by society. Now, all Bodies need to be organised, limited etc. and thus they also need to be constituted.’ E. Sieyès, Préliminaire de la constitution Françoise – Reconnaissance et exposition raisonnée des droits de l’homme et du citoyen, in E. Sieyès, Œuvres de Sieyès, Vol. II, pp. 34–5. Ibid., p. 35.

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However, in line with Sieyès’s second understanding of liberty, the people, as holders of constituent power, do not create the constitution themselves but delegate the writing process to extraordinarily elected representatives. Hence, the exercise of constituent power does not coincide with the actual concrete process of writing the constitution, which is carried out by representatives, but with the people’s authorisation. As Pasquino has shown, this may occur ex ante, and in this case it is a delegation, or ex post, and is called ratification.87 Sieyès was initially open, or at least not opposed, to the idea of holding a popular referendum so as to allow the people’s direct ratification of the constitution.88 This would have entailed an authorisation ex-post. However, in a second edition to his Préliminaire de la Constitution, Sieyès clarified that the people’s exercise of constituent power should be considered fulfilled by the act of electing extraordinary representatives and committing them to the task of writing the constitution. Sieyès called the power of electing representatives, whether ordinary or extraordinary, pouvoir commettant.89 In addition, he explicitly criticised Condorcet’s and Brissot’s proposal of involving local assemblies in the process of ratification. Whether these modifications of the initial plan are enough to prove that he also rejected the initial idea of a referendum to authorise ex post the constitution is not clear.90 Yet it is certainly true that, in that same text, he 87

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P. Pasquino, ‘Classifying constitutions: preliminary conceptual analysis’, Cardozo Law Review 34 (2013), pp. 999–1019; P. Pasquino, ‘Constitution et pouvoir constituant: le double corps du peuple’, in Y. Quiviger, V. Denis and J. Salem (eds.), Figures de Sieyès, pp. 227–40. See the first version of his Préliminaire de la Constitution. After having affirmed the unlimited character of the nation’s constituent power, Sieyès went on to say that ‘it is not necessary for the members of the society to exercise the constituting Power individually; they can put their trust in representatives who would assemble only for that specific purpose, without being allowed to exercise any of the constituted powers’. E. Sieyès, Préliminaire de la constitution Françoise : reconnaissance et exposition raisonnée des droits de l’homme et du citoyen, (Paris: Bauduoin, 1789), p. 20. This passage suggests that, in Sieyès’s view, a referendum was not necessary but was, at least in principle, possible. For a similar reading of this passage leading to different conclusions, see R. Tuck, The Sleeping Sovereign, p. 167. See the second edition of the text, where he adds that, in states as large as France, it is necessary to delegate the task of writing the constitution to representatives. E. Sieyès, ‘Préliminaire de la constitution Françoise : reconnaissance et exposition raisonnée des droits de l’homme et du citoyen’, in E. Sieyès, Œuvres de Sieyès, pp. 35–6. It should also be noted that, in the Year III, Sieyès drafted a constitutional plan where he admitted the use of referenda to amend the constitution. These referenda would take place following the initiative of the Constitutional Jury, which, every ten years, would consider whether the constitution needed to be modified and ask the people whether they’d like to proceed with amending it via direct popular vote. Depending on the result of the vote, the Assembly would turn itself into a Constituent Assembly and amend the constitution. See E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV et V du projet de constitution’; E. Sieyès, ‘Opinion de Sieyès sur les attributions et l’organisation du jury constitutionnaire proposé le 2 Thermidor, prononcée à la Convention

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was happy to say that an authorisation ex ante of the constitution, via the election of extraordinary representatives, was enough to secure the people’s exercise of their constituent power. This is for two reasons. The first is that the initiative of creating a new constitution lies with the people, who directly manifest their will through the vote for the election of a constituent assembly. Regardless of who decides and writes the specific content of the constitution, the initial decision to create one is directly sanctioned by the people. As such, it is an explicit authorisation of the foundation of the political order. The second reason has to do with Sieyès’s theory of representation, according to which whatever is done by authorised representatives is done with the consent of the people. From the moment when the representatives take office to the moment at which the constitution enters into force, the action of the constituents is authorised by the people and is hence ascribable to it. By consequence, the elaboration and approval of the content of the constitution is to be ascribed to the people, even though carried out by representatives. Using an image very dear to Sieyès, it is not because a postman physically brings a letter to Bordeaux that he becomes the sender. The sender is and remains the person who chooses to send the letter to Bordeaux and commits the postman to do so. In very much the same way, it is not because the constituents write the constitution that they are the bearer of constituent power. This is because when hiring a postman or electing representatives, the people do not alienate their power but simply delegate it. Hence, in Sieyès’s view, the people’s election of extraordinary representatives entrusted with the delegated power to write the constitution amounts to the direct decision to create a constitution and to the authorisation ex ante of its content. The constituent power thus is and remains with the people who decide to write the constitution and commit the constituents to do so. However, it is important not to confuse the process of authorisation and delegation of power with the mere election of the representatives. In other words, it is important not to conflate the exercise of pouvoir constituant with the exercise of pouvoir commettant. The latter corresponds to the nation’s power to elect its representatives, whether ordinary or extraordinary. By contrast, the former indicates the nation’s power to authorise the nationale, le 18 du même mois, l’an III de la République’, in E. Sieyès, Œuvres de Sieyès, Vol, III. For an interesting overview of the role of the Jury and its appeal to the people, see Goldoni, ‘At the origins of the constitutional review’.

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creation of the political order, which expresses itself through the popular decision of writing the constitution and of delegating this task to a constituent assembly. Hence, even if the pouvoir commettant and the pouvoir constituant come together in the election of the constituents, they should not be conflated because they are not the same type of power. One expresses the nation’s will to give itself a constitution and thus authorises the creation of the state and its legal political structure; the other is a simple procedure through which the ‘experts’ in the field of writing constitutions are selected. This is key to understanding that, in Sieyès’s mind, although the constitution was effectively the oeuvre of the ‘political class’, it still resulted from the people’s original and fundamental power.91 Given that constituent power is understood by Sieyès as an authorising power, it is clear that the supreme political authority is only exercised in extraordinary founding moments. Once the people have authorised the writing of the constitution, a constituted order is created as the logical and 91

In his recent book, Tuck suggests that ‘given his emphasis on representation, it is fair to say that Sieyès’s theory of the pouvoirs constituant and constitué, unlike Rousseau’s theory of sovereignty and government, was really a theory of separation of powers or functions at what Rousseau would have regarded as the level of government . . . The unusual twist that Sieyès gave to the idea of the separation of powers was that one of them was the power to draft constitutions, but this did not in his eyes make it fundamental, nor lead him to think that it could be exercised directly by the people.’ R. Tuck, The Sleeping Sovereign, p. 175. Although I agree with the idea that the distinction between constituent and constituted powers amounts to a form of separation of powers, I think it is not so in the same way as the separation of powers has traditionally been conceived of. As it will later be shown, the two are different. Traditionally the separation of power plays out horizontally between equal powers. By contrast, Sieyès’s distinction between constituent and constituted powers creates a vertical separation, where the constituent power is hierarchically superior to all other powers because it creates them and because it belongs to the holder of political authority, the people. The constituted order, with the separation of legislative, executive and judiciary inside it, is inferior to the constituent power and depends on it. This vertical separation, in my view, is what makes constituent power fundamental. In a way, it is what Tuck defines in his book as sovereignty. Sieyès would reject this term but would defend the idea that it indicates the people’s fundamental political power. It shows the extent to which, for Sieyès, the will of the people – even if reduced to authorising the constitution ex ante – is the ground upon which the entire state structure depends. As such, it amounts to Rousseau’s sovereignty, in the sovereignty–government dichotomy. Even though the people’s direct exercise of power is reduced to a minimum, it remains present in the form of authorising the creation – and not the content – of the constitution. Furthermore, it seems difficult to argue that Sieyès’s constituent power is part of the government side of the sovereignty/government distinction. Although it does not express itself in a referendum, the vote on the election of a constituent assembly is an explicit and direct expression of the people’s will to create a constitution. As such, it would fit with Tuck’s definition of sovereignty as the people’s direct vote on fundamental issues, even though the scope of the direct vote is relatively smaller. Furthermore, the vote on the election of a constituent assembly is very clearly distinguished by Sieyès from the vote in normal political elections. This difference should be accounted for, and I believe it is a further proof of Sieyès’s intention to distinguish two levels of political authority, the people’s constituent power (or sovereignty in Tuck’s terms) and the representatives’ constituted powers (government in Tuck’s terms). One is initiated directly and carried out representatively (and is hence unlimited); the latter is only representative (and is thus limited).

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necessary counterpart of the constituent power. It works according to the constituent power’s will – as outlined in the constitution – but is not its direct expression. In line with Sieyès’s account of liberty as empowerment, people have neither the time nor the necessary knowledge and skills to get involved in politics on a daily basis. After authorising the creation of the political system, they retreat into the private sphere and confer the ordinary working of politics onto ordinarily elected representatives who, unlike extraordinary representatives, are not required to submit their work to the people’s constituent power because they act within a legal and political framework that has already been authorised and constituted. The authorisation they receive through ordinary political elections is indeed of a different kind from that received by members of the constituent assembly. It is a second-order authorisation to act within the boundaries of their delegated powers – whose limits have already been sanctioned when the people authorised the creation of the constitution. Hence, ordinary representatives have limited delegated powers, acting only within the constitutional boundaries. The constitution, being hierarchically superior to ordinary laws, distinguishes between constituent and constituted politics and subjects ordinary representatives ‘to laws, to rules and to forms that they are not authorised to change’.92 Consequently, the constituted order derives its authority from the constituent power and can only exercise it within pre-established limits. The idea of constituent power, in its dichotomous relation with the constituted order, allowed Sieyès to integrate his own understanding of freedom with the principle of popular power. While freedom (from unauthorised powers) finds its inalienable expression in the constituent power, its exercise is delegated to the constituted order, leaving room for the implementation of the people’s free initiative without the impediment of having to deal with everyday politics (freedom as empowerment). Moreover, the hierarchical distinction between the constituent power and the constituted order prevents confusion between the two levels of political authority. The people who hold the original constituent power exercise it directly only when authorising the foundation of the state. The rest of the time, they exercise power only indirectly, while the delegates who hold a derived constituted power exercise it only within limits. The outcome of this theoretical construction is a constitutional representative system that derives its legitimacy from the people’s initial 92

E. Sieyès, ‘Préliminaire de la constitution Françoise – Reconnaissance et exposition raisonnée des droits de l’homme et du citoyen’, in E. Sieyès, Œuvres de Sieyès, p. 35.

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authorisation and is ultimately subject to the limits the constituent authority established for the representatives when authorising the constitution. Relying on the idea of constituent power, Sieyès theorised a form of popular power that not only avoided the dangers of despotism and direct popular rule he ascribed to the idea of sovereignty but also sanctioned the principle of popular power while remaining consistent with his dual conception of freedom.

Diverging Institutional Projects The autonomy of constituent power as a political idea is evident not only because Sieyès developed his entire political theory around it but also because he used it to propose an alternative to both the radical project underpinned by the notion of popular sovereignty and the moderate model of checks and balances, built on the idea of national sovereignty. This can be seen in the stance he took in two key moments of the Revolution. At the end of August and beginning of September 1789, the Assembly moved away from discussions of the imperative mandate to focus on a new organisational debate. Having won the battle against the mandate, moderate deputies further pressed their vision of sovereignty. The elimination of the imperative mandate was the perfect opportunity to claim that legislative power, belonging to the nation as a whole, could only be exercised by the representative Assembly. Identifying the only legitimate locus of sovereignty in the Assembly, delegates avoided the dangers of direct popular participation but, at the same time, engendered new reasons for anxiety. Specifically, unifying all sovereign functions in a single legislative body might have led to excessive, even unlimited power. In LallyTollendal’s words, ‘It is a general and undeniable truth, that in the hearts of all men there is an unbeatable drive towards domination, that all power is close to the abuse of power, and that it must be limited in order to prevent it from causing damage.’93 Particularly, moderate deputies feared the colonisation of the Assembly by either self-interested representatives or the tumultuous multitude. One of the most authoritative members of the moderate group, Mounier, explained: 93

G. Lally-Tollendal, 31 août 1789, AP 8, p. 515. Lally went on: ‘A single assembly perpetually runs the danger of being carried along by eloquence, of being seduced by sophisms, led astray by intrigues, enflamed by passions that one wants to share, carried away by sudden movements that are communicated to it, and stopped by the terror that inspires in it by a sort of public cry.’ in A. Crăiuțu, A Virtue for Courageous Minds, p. 92.

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Sieyès and the French Revolution [T]o entrust an Assembly with legislation may favour the creation of an aristocracy of representatives, as it provides them with the union of all powers, or it may favour the institution of a democratic tyranny, by exalting the ideas of the multitude; lastly, this form of government may even favour the despotism of a single man. Eventually, it will always be dangerous to the liberty of the nation.94

Consequently, moderate deputies put forward a complex system of power balances to oppose the excessive political power they attributed to the Assembly through the idea of national sovereignty. The discussion took place between 31 August and 14 September 1789.95 Following the project presented by the Constitutional Committee on 31 August, Lally-Tollendal argued in favour of ‘the necessity to weigh up power, the necessity to divide the legislative, and to divide it not in two, but in three parts’.96 This, he said, was because a single power would inevitably end by devouring everything standing in its way. Two powers would fight among themselves until one of them would destroy the other one. But three powers would maintain themselves in a perfect equilibrium, if combined in such a way that, when two of them fight with each other, the third power – equally interested in maintaining the other two – would join with the one that is oppressed against the one that oppresses, and would restore peace among them.97

This balance of powers, the moderates argued, would be guaranteed by two institutional mechanisms: on the one hand, the creation of a second chamber; and, on the other, the attribution of an absolute veto to the king. The first measure would secure a lengthier time for reflection before passing laws: ‘Two chambers deliberating in a separate way assure the quality of their respective decisions and restore the slow and majestic pace at which the legislative power should work.’98 The royal veto would protect legislative power from its own degeneration and from the risk of hijacking by the people; the royal sanction is thus ‘useful to the nation’s safety, needed by the king to direct the public body and important for the 94

95

96 97 98

J. J. Mounier, 12 août 1789, AP 8, p. 417. Also, Mounier added that ‘we have been quite imprudent in allowing an assembly to enjoy unlimited powers, there can be no limit to further innovation’, in A. Crăiuțu, A Virtue for Courageous Minds, p. 96. For a more detailed account of revolutionary debates about bicameralism, see my article, L. Rubinelli, ‘Sieyès versus bicameralism’, The Review of Politics, 81(2) (2019), pp. 255–79, and J. Appleby, ‘America as a model for the radical French reformers of 1789’, The William and Mary Quarterly 292 (1971): pp. 267–86. G. Lally-Tollendal, 31 août 1789, AP 8, p. 515. Ibid. Translated by A. Crăiuțu, A Virtue for Courageous Minds, p. 96. J. J. Mounier, 4 septembre 1789, AP 8, p. 555.

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security of the members of the Legislative itself’.99 The two measures together would limit legislative power by submitting its potentially unlimited sovereignty to a series of vetoes, whereby, in Tollendal’s words, ‘The two chambers must have the power to reject or veto each other, and . . . the king must have the right to veto both.’100 This system of balance was viewed favourably by the Assembly but was opposed most intransigently by Sieyès, who delivered a lengthy and nuanced critique of its main assumptions.101 First, he contested the idea of assigning a legislative veto to the monarch. After having affirmed that even if the king may be entitled to ‘advise on the law, he should not be entitled to make it’,102 he went on arguing that the royal sanction gave unequal power to the will of a single citizen, contradicting the principle of equality. Posing a rhetorical question, he asked: ‘Can a voter, whoever he is, in whatever assembly he votes, have more votes than any other elector?’103 And he replied, arguing that ‘the King, as first citizen and head of the nation . . . has the right to vote everywhere; he can chair whatever meeting; everywhere he is legally the first citizen, . . . but nowhere his vote can be worth two’.104 Sieyès also opposed the king’s veto on the ground that it would constitute an utterly arbitrary power. In his words: [T]he king will force deputies to support, and parties to uphold, all the laws he would like to see passed. If they pass, all will be done at his pleasure. If they are rejected, he will reject all contrary decisions. This should suffice to see that such a power would be enormous, and that he who exercises it would be the master of almost everything.105

The recognition of the royal sanction would therefore be a means to attribute to an unelected citizen the power to block the representative 99 100 101

102 104

M. Malouet, 1 septembre 1789, AP 8, p. 536. G. Lally-Tollendal, 31 août 1789, AP 8, p. 522. Most radical deputies accepted the basic principles outlined by the moderates. However, when the time came for the Assembly to vote on the Constitutional Committee’s proposal, the deputies could not agree on the details of the suggested measures. On the one hand, there was no consensus on whether the royal veto had to be temporary or absolute and, on the other, supporters of bicameralism disagreed on the composition and mode of election of the second chamber. Moreover, radical deputies accepted the idea of a temporary royal veto but did not want a second chamber, as it would have divided the popular sovereign will. By contrast, they proposed several mechanisms aimed at increasing popular participation, such as assigning a temporary instead of absolute veto to the king and the creation of mechanisms of district democracy via extensive appeal to the people through referendum. See Pétion de Villeneuve’s intervention to the Assembly on 5 September 1789. For a reconstruction of this debate, see A. Crăiuțu, A Virtue for Courageous Minds, ch. 3, and P. Pasquino, Sieyès et l’invention de la constitution en France, pp. 15–29. E. Sieyès, 7 septembre 1789, AP 8, p. 593. Italics in the original text. 103 Ibid., 592 105 Ibid., p. 593. Italics in the original text. Ibid.

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Assembly, bypassing the authority of the nation. It was, in Sieyès’s terms, a ‘lettre de cachet sent against the will of the nation’.106 Secondly, Sieyès opposed the bicameral system in the strongest rhetorical terms: ‘The institution of an aristocratic chamber or of a theocraticroyal chamber has something superstitious and shameful for the whole of humanity.’107 It ran counter to the revolutionary principle of the people’s liberty to participate on a level footing in the creation of the law. Bicameral systems rely on the division of society into orders, which in turn implies that the people do not express their will as part of a single body of equal citizens but as members of a specific order or Estate.108 In Sieyès’s words, ‘How can you desire to institute in France the same political edifice that they have in England? . . . [W]e cannot but see the latter as a monument of gothic superstition.’109 In addition, Sieyès maintained that the institution of a second chamber representing only a part of society, the most privileged, would have automatically implied the dismissal of the very idea of nation. The latter indicated the political unity of the French people above and beyond personal socioeconomic differences. The creation of a two-chamber system necessarily fragmented this unity and brought back a feudal-like system, where socioeconomic characteristics would have defined one’s status and political power in society. Hence, Sieyès deemed bicameralism a highly dangerous institution. Furthermore, Sieyès criticised the bicameral system on the grounds of its fundamental instability. He argued that as long as the nation is a unitary political body, it must express its political will in a unitary form (‘la volonté générale doit être une’).110 For this to be possible, the law should itself be unitary. Hence, Sieyès claimed in 1791, the body of representatives entrusted with the authority of making the law should also be unitary; it should be a single legislative body.111 As he explained in front of the Assembly: ‘Remember, Sirs, your decision of 17 June [1789] . . . when you declared the National Assembly to be one and indivisible. What 106 107 108

109 110 111

Ibid. E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles et titres IV et V du projet de constitution’, p. 8. As Gueniffey explains, not all moderate deputies wanted a second chamber representing the clergy and noblemen. Despite Brierre’s and Malouet’s support for the latter, leaders such as Mounier and LallyTollendal seemed to reject the idea. However, for Sieyès the division of the political order meant the division of the social order, meaning division into Estates. See P. Gueniffey, ‘Constitution et intérêts sociaux: le débat sur les deux chambres’, in M. Troper and L. Jaume, 1789 et l’invention de la Constitution en France (Paris: Librairie générale de droit et de jurisprudence, 1994), pp. 77–88. E. Sieyès, ‘Qu’est-ce que le Tiers-État?’, in E. Sieyès, Œuvres de Sieyès, Vol. I, p. 115. E. Sieyès, ‘Déclaration volontaire proposée aux Patriotes des 89 Départements, ce 17 juin 1791’, in E. Sieyès, Œuvres de Sieyès, Vol. II, p. 9. Ibid.

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constitutes the unity and indivisibility of an Assembly is the unity of decision.’112 This unity of decision was guaranteed only by the unitary character of the legislative Assembly. The price to pay for introducing a second chamber was the creation of two different wills, opposing each other. This is what he called ‘le pouvoir de veto’, the veto power of a chamber on the other. This mistake sprung from moderate deputies’ incapacity to distinguish ‘between the constituent and the petitionary wills as well as the execution of the legislative will’.113 From this confusion it followed that the introduction of a second chamber entailed first a legislative paralysis, which he called contre-action, and then an action unique, a single person imposing his will on both chambers. Starting with the former, Sieyès maintained that two chambers that are equally powerful and independent from each other would jeopardise legal certainty in the political sphere. One chamber would pass a law, and the second would block it, leaving the country in a legislative limbo where no law could be effective because no law could pass the double scrutiny of two equally powerful but opposed legislative bodies. In Sieyès’s terms: ‘If the two legislative bodies, entrusted with the same power, remain independent, there will be no certainty in public affairs: the two chambers are in opposition [contre-action].’114 On the other hand, however, Sieyès also warned his fellow deputies about the dangers coming from two chambers actually being able to pass laws. This, he claimed, was not a proof of the system having found a ‘chimerical equilibrium’.115 Rather, it indicated the collapse of a system based on contreaction and its degeneration into a despotic regime ruled by a single instance of decision and action.116 In a nutshell, Sieyès’s critique of the moderate project was this: moderate deputies, with their confused notion of national sovereignty, wanted to 112 113

114 116

AP 8, p. 597. Italics in the original text. The implications of this mistake were clear to Sieyès, who accused his fellow deputies of being ‘terrified by the immensity of the power they just accorded to the representatives’ and stated, ‘Instead of separating all these tasks and leaving between them only the smallest connection necessary to make them cooperate to the same end, they leave them united; but they imagine giving a second representative body the same amount of power; better still, they give to the two chambers the right to veto each other. They are then proud of having avoided the problem of the action unique, which would be the purest of despotisms. This is the system of balance of powers.’ E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles et titres IV et V du projet de Constitution’, p. 8. 115 Ibid., p. 9. Ibid. Trying to make his point clearer, Sieyès illustrated the two threats engendered by bicameralism with the help of two metaphors. First, creating two chambers with equal powers to limit and oppose each other – contre action – amounted to entrusting two different building companies with the task of building the same house. Those who defended this choice, ‘finding that they might have given too much power and responsibility to the first building company [. . .] suggest to the landlord that, once the first company has finished its job, he should hire a second building company which, being

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prevent despotism with a system of checks and balances that not only contradicted the principle of equality and perpetrated the division of society into orders but also subordinated the people’s power to a series of reciprocal vetoes. According to Sieyès, this could be avoided by abandoning the concept of national sovereignty in favour of the idea of constituent power. Sieyès believed the notion of sovereignty to be misleading and fundamentally wrong: And lastly, let’s dare to say it: what is sovereignty? . . . [S]overeignty understood as a supreme power which dominates/embraces everything does not exist. It cannot be found in the united mass of all public officers, and if the constitution separates the public powers, if each of them is limited to its special mission and cannot abandon it without usurpation and crime, where can this gigantic idea of sovereignty be placed?117

Sovereignty regarded the political authority of the nation as the undivided power of the Assembly and, in so doing, created an excessive concentration of power, which, to the moderate deputies’ mind, was to be counterbalanced with a series of vetoes. Different from the idea of sovereignty, the notion of constituent power allowed Sieyès to think in terms of vertical limits to power. It was not the horizontal duplication of sovereignty into two legislative chambers that constrained the exercise of power. Rather, it was the hierarchical differentiation between, first, the original and absolute constituent power of the nation and, second, the derived and bounded power of the constituted legislative order that constrained the latter inside the limits decided by the former in the constitution. In other words, it was the idea of constituent power, and not the division of the legislative into two chambers, that was the real guarantee of the separation of power. As Sieyès maintained before the Assembly, the ‘gigantic idea of sovereignty’, and with it the bicameral system and its mutual vetoes, should find no place in France because, unlike the English system which ‘has not yet distinguished the constituent from legislative powers, it [France] will have as its fundamental constitutional principle the provision according to which the ordinary legislature will exercise neither

117

equally qualified, will restart the construction of the house from scratch’. Second, Sieyès illustrated how the legislative blockage created by contre-action results in the establishment of action unique. He compared the two chambers to ‘two horses harnessed to the same carriage, which we would like to go in opposite directions, and so remain where they are, regardless of promptings to the yoke and the stamping of hooves, unless a royal coach is mounted at the front to give them direction; but we do not want a royal coach’. Ibid. For a detailed discussion of these passages, see Rubinelli, ‘Sieyès versus bicameralism’. E. Sieyès, ‘Bases de l’ordre social’, in P. Pasquino, Sieyès et l’invention de la constitution en France, p. 198.

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the constituent nor the executive power’.118 Amendable only by the constituent power, the limitation of the constituted order and, within it, of the National Assembly was guaranteed. In the Year III, Sieyès claimed that the mechanism could be strengthened by introducing a Constitutional Jury, an indirectly elected body independent of both the legislative and the executive, with the function of checking the consistency of the acts of the Assembly in relation to the people’s constituent will as expressed in the constitution.119 Anchoring the distinction between the constituent power and the constituted legislative order at the heart of his political system, Sieyès proposed an alternative to the idea of national sovereignty compatible with the people’s equal and unitary representation in the legislative Assembly. To understand Sieyès’s opposition to the idea of sovereignty, an account must also be taken of his enduring scepticism towards the radical project underpinned by the notion of popular sovereignty. Since some of its key elements were considered by Sieyès to have produced the Terror, it represented for him the concrete and final proof that his linguistic, conceptual and institutional refusal of sovereignty was fully justified. However, a direct debate like the stand-off between Sieyès and moderate deputies did not take place, because Sieyès was forced to escape from Paris during the time of the Jacobin Terror. The terms of debate can however be partially reconstructed from a variety of remaining documents, such as his interventions against the future Girondins Salle and Pétion de Villeneuve in the Constituent Assembly and various notes he scribbled before, during and after the Terror that are luckily conserved in his manuscripts. Far from fearing popular pressures on the legislative Assembly, the radical revolutionaries were concerned by the representatives’ possible usurpation of the inalienable sovereignty of the people. Arguing that ‘sovereignty resides in the people, in all the individuals comprising the people’,120 Robespierre claimed that all state institutions should directly depend on the people’s 118 119

120

E. Sieyès, 7 septembre 1789, AP 8, p. 95. For a detailed description of the status and functions of the Constitutional Jury, see E. Sieyès, ‘Opinion de Sieyès sur les attributions et l’organisation du jury constitutionnaire proposé le 2 Thermidor, prononcée à la Convention nationale, le 18 le 18 du même mois, l’an III de la République’. See also L. Jaume, ‘Sieyès et le sens du jury constitutionnaire: une réinterprétation’, Droits XVIII 2(36) (2002), pp. 115–34; P. Pasquino, Sieyès et l’invention de la constitution en France; P. Pasquino, ‘Constitution et pouvoir constituant: le double corps du peuple’; M. Fioravanti, ‘Sieyès et le jury constitutionnaire: perspectives historico-juridiques’, Annales historiques de la Révolution française 3(349)(2007), pp. 87–193; Goldoni, ‘At the origins of the constitutional review’. M. Robespierre, ‘Sur le droit de vote, 22 octobre 1789’, in Œuvres complètes de Robespierre (Paris: Presses Universitaires de France, 1910), Vol. I, p. 131.

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political will. How this principle was implemented over time varied according to the changing political circumstances and at times was even selfcontradictory. However, the main implications of the radical idea of popular sovereignty can be organised around three phases. Firstly, during the years of the constituent and legislative assemblies, the most radical members maintained that the political power of the people could not be delegated, not even to representatives. Robespierre believed that delegation would lead to the sacrifice of liberty. In his words, ‘Jean-Jacques Rousseau has said that legislative power constitutes the essence of sovereignty . . . and that when a nation delegates its power to its representatives, it ceases to be free, ceases to exist.’121 So most radical members of the Assembly rejected all forms of delegation of the legislative power but implicitly admitted the need to devolve some basic functions to a central assembly. In order to secure the people’s capacity to supervise the actions of the Assembly, future Girondins and Jacobins alike defended the imperative mandate as a principle of natural right ‘that subordinates the agent to his principal’.122 They upheld the ability of the king to suspend the legislative activities and appealed to the nation to make ‘it intervene as judge from the first session’.123 They also, pressed by the insistence of the Parisian Commune, argued in favour of the permanence of local districts as a means for exercising sovereignty directly, on the grounds that ‘each section of the nation can express its particular preference, and in this sense it obviously has a share in sovereignty’.124 121 122 123 124

M. Robespierre, ‘Discussion du projet de Constitution, 10 août 1791’, in Œuvres de Robespierre, p. 612. ‘Lettre du district des Prémontrés du 18 novembre 1789’, in L. Jaume, Le discours jacobin, p. 289. J. B. Salle, 1 septembre 1789, AP, 8, p. 529. Also Pétion de Villeneuve played an important role in this debate. See R. Tuck, The Sleeping Sovereign, pp. 150–5. M. Pétion de Villeneuve, 28 février 1791, AP 23, p. 560. See the declaration of the Commune of the 7th of August 1789, which reads, ‘The district assemblies are meant to reunite all true citizens, who can propose all the projects they believe valuable and helpful.’ J. M. Roberts and R. C. Cobb (eds), French Revolution Documents (Oxford: Oxford University Press, 1966), vol. 1, p. 156. District assemblies were not only the Jacobins’ project. Many other political groups, including the Cordeliers, defended the idea that sovereignty resided exclusively in the districts and their assemblies, where people would exercise power directly and control the actions of communal assemblies, kept in check by explicit instructions and the possibility of recall. Furthermore, the Girondins also defended, to some extent, the role that districts and direct popular consultation could play in the new state structure. Their project was based on the idea that, although the constituted order needed to be based according to the representative principle, people should have the possibility of exercising their original sovereignty at regular and close intervals of time. Brissot, among others, was a prominent proponent of this political model, which would have guaranteed the advantages of Sieyès’s representative system while undoubtedly leaving sovereignty in the hands of the people. For a discussion of Brissot’s project, see, among others, P. Rosanvallon, ‘The history of the word democracy in France’; P. Rosanvallon, La Démocratie inachevée, pp. 51–5; L. Disch, ‘How could Hannah Arendt glorify the American Revolution and revile the French? Placing On Revolution in the historiography of the French and American Revolutions’, European Journal of Political Theory 10(3) (2011), pp. 350–71; R. Tuck, The Sleeping Sovereign, ch. 3.

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During the first months of the Convention, the radical project changed and assumed a more distinctively Jacobin character. Popular sovereignty was no longer to be considered the sum of individual wills but was to be found in some pre-existing truth, transcending the will of the individual and simultaneously expressing the reality of the people’s sovereignty. In Saint-Just’s expression, ‘By reducing the general will to its true principle, it becomes the material will of the people, its simultaneous will.’125 Undermining the legitimacy of the Assembly, this entailed the gradual displacement of political authority into the hands of those who claimed to interpret the general will, i.e. the Jacobin club. Lastly, during the period of the Terror, the Jacobins argued that neither the permanence of districts nor the implementation of the general will by the Assembly were sufficient to guarantee the inalienability of the sovereignty of the people. The only way to secure the people’s power was to eliminate the distance separating their will from the Assembly. This was to be realised by establishing total identity between those in power and the people on the ground of their common adherence to the general will. Once this was achieved, when the government’s unity embraced what Saint-Just called the unity ‘of all the citizens’ interests and relations’,126 the people would be the true repositories of power. Despite Sieyès’s silence during the Terror, he strongly opposed the radical project upheld by theorists of popular sovereignty before, during and after the Jacobin rule. Specifically, Sieyès was quick to realise the dangers of the radicals’ initial rejection of representation. He thus set about criticising their main assumptions, disputing their conception of liberty and arguing that ‘they understand political freedom as a continuous exercise of their political rights, as an uninterrupted participation in public affairs. It is not so. Liberty always consists in achieving the largest result at the lowest cost, by making others act so as to encounter fewer troubles and more enjoyment.’127 This could only be achieved through representation, and consequently he criticised all three mechanisms that radical members of the Assembly had proposed to guarantee the people’s direct participation in the lawmaking process. In 1789, Sieyès opposed the imperative mandate, maintaining that ‘the National Assembly should not be comprised of simple vote carriers who have nothing to add, but of true representatives, which is to say, citizens entrusted by their principals with the power to propose, discuss, deliberate and decide’.128 A few weeks later, he refused the king’s power to submit the 125 126 128

Saint-Just, 24 Avril 1793, AP LXIII, pp. 200–4, quoted in L. Jaume, Le discours jacobin, p. 319. Ibid. 127 E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 460. E. Sieyès, ‘Instructions donnée par S. A. S. Monseigneur le Duc d’Orléans à ses représentants aux baillages. Suivie de délibérations à prendre dans les assemblées’, in Œuvres de Sieyès, Vol. I, p. 68.

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law to popular scrutiny, warning that ‘the vast majority of our fellow citizens has neither enough education, nor enough time, to be willing to directly engage with the laws that shall govern France’.129 And lastly, he heavily criticised the permanence of local districts on the grounds that France was not a ‘democratic’ federal state but a single unified nation. In his words: ‘France is not, and cannot be, a Democracy; it should not even become a federal State, made of a multitude of republics, united by a banal political tie. France is and should be un seul tout, submitted in all of its parts to a unique legislation and administration.’130 During the first months of the Convention, Sieyès attempted to participate in the political life of the Assembly but, by his own admission, without much success.131 He soon acknowledged the risks he would have exposed himself to by explicitly criticizing the Convention and thus decided to remain silent. However, after the fall of Robespierre, he maintained that the very idea of general will was inherently wrong. Pointing to the negative influence of Rousseau on the Jacobins, he accused them of understanding the general interest as an overarching universal truth encompassing all aspects of an individual’s life. This, according to Sieyès, was mistaken, as it collapsed the private interests of the individual into the necessarily limited interests put in common in the public sphere. In his words: when a political association is created, neither all the rights that each individual has in society nor the entire mass of individuals are put in common. Only the smallest possible amount is put in common under the name of public or 129

130

131

Ibid. Among others, this criticism also applied to the proposal put forward by various politicians, first of all Brissot and Condorcet, who defended the idea of having regular constitutional conventions, where people would be called to express their support to the constitution via a yes or no vote in a referendum. Although, as discussed, he initially did not oppose this possibility, he then opposed the very idea of having referenda on legislative issues and extensively explained why in his interventions on the debate on the king’s veto. As mentioned in note 91, later in the course of the Revolution, in the Year III, Sieyès put forward a proposal for the creation of a Constitutional Jury. One of its tasks was to regularly consider amending the constitution, and, to do so, it had to consult the population via referenda. See P. Pasquino, Sieyès et l’invention de la constitution en France. On the Jury, see M. Goldoni, La dottrina costituzionale di Sieyès, pp. 173–220 and M. Goldoni, ‘At the origins of the constitutional review’. To grasp Condorcet and Brissot’s positions, see N. Urbinati, Representative Democracy: Principles and Genealogy, pp. 176–222; N. Urbanati and S. Lukes, Condorcet: Political Writings (Cambridge, 2012);R. Tuck, The Sleeping Sovereign, ch. 3; P. Rosanvallon, La Démocratie inachevée, pp. 59-74. E. Sieyès, ‘Instructions donnée par S. A. S. Monseigneur le Duc d’Orléans à ses représentants aux baillages’, p. 68. Although this criticism of district democracy was probably meant to be a general one, it is reasonable to think he would have said the same to Brissot and other more moderate political figures who defended people’s direct involvement into politics through local assemblies. Italics in the original text. E. Sieyès, ‘Notice sur la vie de Sieyès’, p. 50.

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political power, and only that which is necessary to keep everybody within their limits and duties.132

Contesting the very idea that a common will could ever exist beyond the partial piecing together of individual preferences, Sieyès claimed that the Jacobins confused the true aim of the political order, the protection of individual freedom, with the affirmation of an arbitrary and irrational conception of the common good. As he wrote in his manuscripts, ‘[T]he aim of the political order is individual liberty, private ‘wealth’. Those who conceive it as an abstract thing, as public happiness belonging to no-one, are wrong . . . [T]he common ‘wealth’ is for them an abstract being, a superstition, an idol to which they offer sacrificial victims.’133 Once more affirming the primacy of the individual over the people, he rejected the idea of a general will as an extremely dangerous and potentially despotic mystification of the people’s political authority. Lastly, Sieyès criticised the Jacobin idea that the inalienable sovereignty of the people could only be secured by guaranteeing a complete identification of the people with the governing body. Rhetorically wondering whether ‘in order to avoid the inconvenience of having partial wills at different political levels it is preferable to reunite them all in a single abyss, to create a volonté totale’,134 he defended the need to abandon the idea of popular sovereignty and, instead, proposed to distinguish between the authorising power of individuals and the limited power of those in office. Repeating an argument he had already outlined several times, Sieyès claimed that the concentration of powers in the hands of a small group of people claiming to embody the popular sovereignty entailed the establishment of an unlimited power, which is ‘a monster in politics, and a great mistake for the French people’.135 It would have involved the monacalisation of society, the transformation of the public sphere into an allencompassing power subjugating the liberty of the individual. In Sieyès’s terms, organising the state according to the idea of popular sovereignty amounted to the institution of a re-totale, a ‘social construction . . . which, far from being a free association, is anything but the merging of parts subjected to a large, single, general association’.136 The consequence of such a political mistake was the ‘complete sacrifice of the individual to the common “wealth”, the sacrifice of the sensible being to its abstraction’.137 132 133 135 136

E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV e V du projet de Constitution’, p. 6. E. Sieyès, Des Manuscrits de Sieyès, Vol. I, p. 471. 134 Ibid., p. 398-399. E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV et V du projet de constitution’, p. 6 Ibid., p. 470. 137 Ibid.

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Pointing to the absurd consequences of the radical political project, Sieyès argued in 1795 that the elevation of popular sovereignty to a fundamental political principle led to the collapse of the private sphere into the public domain, from which the despotic regime called Terror naturally followed. This could have been avoided by replacing the notion of sovereignty with the idea of constituent power. As he wrote in 1795, in a political system inspired by the idea of popular sovereignty, ‘passions are too present . . . votes are not confined to a small sphere, through a limited task, the constituent power is confused with the constituted power’.138 Consequently, if the Jacobins feared the delegates’ improper exercise of the people’s original power, the solution did not consist in democratic districts, in the general will or in the unity of the people and the state, but in the hierarchical distinction between the constituent power and the constituted order. The latter would not only assure the representatives’ limited power but also guarantee the respect of the people’s original will while monitoring security in the private sphere. As shown earlier in this chapter, the intellectual and political differences between Sieyès and the moderate and radical members of the Assembly highlight his intransigent rejection of the conceptual premises and institutional consequences of both accounts of sovereignty. For Sieyès, what made these theories of politics unacceptable was their reliance upon an ambiguous definition of the relation tying the people to the authority of the state. While the moderate model of national sovereignty subordinated the people’s original power to a series of vetoes reflecting the division of society into Estates, the radical project of popular sovereignty merged the authority of the people with the powers of the state. Sieyès repeatedly argued that this theoretical confusion was due largely to his opponents’ reliance upon the idea of sovereignty as a way of conceptualising the newly affirmed popular authority. Sovereignty, be it national or popular, failed to allow any distinctions between the people’s authorising power and its actual exercise; in other words, it failed to recognise that ‘the most important division of powers is between constituent power and constituted powers’.139 Hence, the inability to distinguish 138

139

E. Sieyès, ‘Bases de l’ordre sociale’, in P. Pasquino, Sieyès et l’invention de la constitution en France, p. 185. This could be considered, in Tuck’s terms, a critique of the Jacobin collapse of the distinction between sovereignty and government which, on Sieyès’s terms, corresponded to a collapse of the distinction between constituent power and constituted order. See R. Tuck, The Sleeping Sovereign, p. 160. E. Sieyès, ‘Bases de l’ordre sociale’, p. 187.

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between the two hierarchical levels of political power signals the main, unbridgeable, gap between all conceptualisations of popular power in terms of sovereignty and Sieyès’s idea of constituent power.

Conclusion When reading the debates of the first French Constituent Assembly, it is striking to see the amount of time the deputies spent discussing major theoretical problems. Among many, the conceptualisation of popular power and the articulation of its institutional implications occupied a very peculiar place. While, in the very first months of the Revolution, everyone seemed to agree that the people should be the ultimate holder of political power, the issue became more complicated when this abstract principle had to be translated into actual institutional structures. At this point, three main definitions came to the fore. They upheld different and conflicting political projects. The moderate idea of national sovereignty relied on a system of checks and balances à la anglaise; the radical notion of popular sovereignty was initially used to devolve power to local assemblies, and Sieyès’s idea of constituent power envisaged the creation of a constitutionally limited representative government. In the theoretical and political confusion that characterised the debates of the Revolution, the subtle differences between these ideas have later been lost or assimilated into somehow simplified categorisations. Particularly, Sieyès’s conception of constituent power has been the object of a relevant series of misunderstandings; whether assimilated to the idea of national sovereignty or considered the founding principle of its popular version, it has not been recognised with any autonomous standing, as the next chapters will demonstrate. However, Sieyès’s idea of constituent power not only refers to a specific way of conceiving of popular power but also underpins a precisely defined political project – one in which popular authority is restrictively defined as an authorising power, exercised in two moments. The first is the moment of foundation. It enshrines the authority of the people to create the political order and expresses itself in the ex ante authorisation of a constitutional text written by extraordinarily elected representatives. The second corresponds to moments of ordinary politics and reduces popular power to the election of ordinary representatives entrusted with the authority to act within the limits set by the constitution.

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The institutions derived from this understanding of the power of the people are thus centred around the principle of political representation and structured along the vertical distinction between constituent power and constituted order and the rigid character of the constitution. They concur to create a centralised state, where local districts have only limited administrative roles and neither referenda nor imperative mandates nor local councils are envisaged. Direct popular participation is limited to extraordinary and ordinary elections, and legislative powers are concentrated in a centralised unicameral legislative assembly, whose action is kept in check by the Constitutional Jury.

chapter 2

Constitutional Politics in Nineteenth-Century France

The second phase of this history of constituent power focuses on nineteenthcentury France. It is during the succession of political events that characterised this period that the language of pouvoir constituant acquired a new meaning and started being associated to different political institutions. Most importantly, constituent power in the nineteenth century does not retain the oppositional character that Sieyès had assigned to it in relation to sovereignty. By contrast, it is used in combination with a variety of accounts of the sovereign power. During the post-revolutionary period, the idea of sovereignty was still perceived as entailing a potentially dangerous understanding of political power. Throughout the nineteenth century, historical events proved that whoever held sovereignty could use it in an unlimited, absolute and arbitrary way. However, sovereignty was the mainstream term used to describe political authority. As a consequence, jurists and politicians such as Lanjuinais, Laferrière, Berriat-Saint-Prix, Cormenin and Delarue came to accept it as the standard definition of the principle of popular power. Yet they were not satisfied with its implications, actual and potential. On the contrary, they perceived them as threats. They disapproved of the absolutist understanding of popular authority offered by the idea of sovereignty and its institutional implications. They thus resorted to the language of constituent power to counterbalance the problematic aspects of sovereignty. Arguing that constituent power indicated the supreme expression of sovereignty, they redefined the latter as the process through which the sovereign people authorise the entry into force of the constitution. In doing so, they tempered the absolutist implications of the idea and substantially reduced the extent of its exercise by the king, the parliament and the people. *

I wish to thank the editors of the History of European Ideas for allowing me to reproduce in this book large parts of my article ’Taming sovereignty: constituent power in nineteenth century French political thought’, History of European Ideas 44(1): 60–74.

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This proves that nineteenth-century jurists extensively engaged in the process of negotiating the meaning and institutional implications of the principle of popular power. Although their definition of constituent power is indebted to Sieyès’s theory, it departs from the latter insofar as it underpins a different relation to the idea of sovereignty. As a consequence, it results in a different set of institutional structures.

Abuses of Sovereignty None of the six constitutions written in France between 1799 and 1847 provides a definition of political authority or mentions where it lies, in whose hands it is held or how it is to be exercised.1 During the revolutionary years, one of the first articles of the constitution, or of the complementary declaration of rights, was usually consecrated to the definition and attribution of the supreme authority. In 1791, the third article of the Déclaration des droits de l’homme et du citoyen proclaimed that sovereignty resided in the nation, in 1793 the twenty-fifth article of the Constitution declared that it belonged to the people, and the seventeenth article of the 1795 Constitution said it pertained to all citizens. In explicit opposition to this revolutionary tradition, no subsequent constitution reproduced the same practice. Only the constitution of 1814 included a reference to the bearer of political authority. In the preamble it said, ‘For these reasons, We have voluntarily, and by the free exercise of our royal authority, accorded and do accord, grant and concede to our subjects, as well for us as for our successors forever, the constitutional charter.’2 In stating that the constitution was octroyée, the charter suggested that the bearer of political authority was the monarch. However, this principle was not only strongly contested by several deputies and jurists; it was also contradicted by the fact that it was eventually voted by Parliament, thus suggesting that the final sanction had to come from the representative body and that, by consequence, the people there represented were the actual bearer of political authority. As for subsequent constitutions, no agreement could be found on who held the supreme authority and on how this was defined. Hence, no mention of the source of political authority was included in any of the constitutional texts. As a result, the most 1

2

In forty-eight years France changed six constitutions: the Constitution of the Year VIII, the Constitution of the Year X, the Constitution of the Year XII, the Charte Constitutionnelle of 1814, the Acte additionnel aux constitutions de l’Empire of 1815 and the Charte of 1830. For a reconstruction of their history, see J. Godechot, Les Constitutions de la France depuis 1789(Paris: Flammarion, 1970). ‘A CES CAUSES-NOUS AVONS volontairement, et par le libre exercice de notre autorité royale, ACCORDÉ ET ACCORDONS, FAIT CONCESSION ET OCTROI à nos sujets, tant pour nous que pour nos successeurs, et à toujours, de la Charte constitutionnelle.’

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diverse and disparate theories of political authority flourished and played important, although often mutually undermining, roles in the organisation of state affairs. Engendering high levels of uncertainty as to who held the supreme power, this lack of official definitions posed a major challenge to politicians and jurists committed to defending the constitutional heritage of the 1789 Revolution. Not only was the main achievement of 1789, the principle according to which political power belongs to the people, at risk of being overthrown, but also the limited character of the state’s powers, with its guarantee of rights and liberties, was in danger. In the first half of the nineteenth century, jurists, politicians and intellectuals worried about the inconsistent attribution of sovereignty and its potential consequences. They feared that the confused ways in which sovereignty was defined could threaten the constitutional state with its system of division of power and protection of liberty. Moreover, the spectre of Rousseau’s theory of sovereignty and its use during the Terror daunted post-revolutionary reflections on political authority.3 In these regards, the works of key French liberal intellectuals are well known.4 Yet the analysis of legal and political treatises published in the first half of the nineteenth century reveals the existence of scattered individual figures who, in different moments and for different reasons, decided to rely upon the idea of constituent power to respond to the threats posed by the undefined character of sovereignty. Some of these authors were renowned politicians, and some were respected professors of public law. JeanDenis Lanjuinais was a jurist member of the Estates General and of the National Convention, a senator during the Empire and a peer during the Restoration5; Felix Berriat-Saint-Prix was a jurist and politician born in Grenoble who, before becoming a supporter of constitutional monarchy, was a fervent defender of Napoleon Bonaparte; François Delarue and Firmin Laferrière were both law professors and took part in the political debate writing 3

4

5

For a reflection on Rousseau’s legacy on post-revolutionary political thought, see J. Roussel, JeanJacques Rousseau en France après la Révolution: 1795–1830 (Paris: A. Collin, 1972), especially parts 1, 3 and 5. See also C. Merriam, History of the Theory of Sovereignty since Rousseau (New York: University of Columbia Press, 1900), pp. 17–21 and ch. V. B. Fontana, Benjamin Constant and the Post-revolutionary Mind (New Haven: Yale University Press, 1991), especially 81–97; L. Jaume, L’individu effacé (Paris: Fayard, 1997); A. Kelly and S. Grabaud, The Humane Comedy: Constant, Tocqueville, and French Liberalism (Cambridge: Cambridge University Press, 2007), especially pp. 6–16, pp. 39–86; A. Jardin, Histoire du libéralisme politique de la crise de l’absolutisme à la Constitution de 1875 (Paris: Hachette Littérature, 1985), especially pp. 226–238. On Lanjuinais’s intellectual trajectory, see Y.-A. Durelle-Marc, ‘Jean-Denis Lanjuinais, juriste et parlementaire (1753–1827): une biographie politique’, Parlement[s], Revue d’histoire politique 1(11) (2009), pp. 8–24.

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pamphlets and intervening on newspapers6; Louis Marie de Cormenin was an eminent politician of aristocratic origins, who sat on all post-revolutionary parliaments and served on the Second Republic’s Constituent Assembly.7 The analysis of their writings shows that they all feared unlimited power. They shared this fear with more well-known thinkers, such as the doctrinaire François Guizot, Joseph de Maistre and Benjamin Constant.8 The jurists’ critiques of sovereignty, for instance, largely overlapped with those elaborated by Constant who, in turn, reworked a great deal of Sieyès’s concerns for the unlimited power entailed in the notion of sovereignty. Yet it was not Sieyès’s friend Constant who came up with the peculiar idea of using constituent power to counterbalance and temper the excesses of sovereignty. It was Lanjuinais, Laferrière, Berriat-Saint-Prix, Cormenin and Delarue who introduced the idea and made it available for use by their fellow jurists and politicians. It seems thus worthwhile to analyse the jurists’ concerns for sovereignty in connection with those formulated by Guizot and Constant, among others, but on their own terms. It is only by engaging directly with the jurists’ discussions of sovereignty – as unoriginal as they may be – that it becomes possible to make sense of their – this time original – choice to resort to constituent power to limit the sovereign authority. Specifically, they articulated their fear for the unlimited character of sovereignty in four separate concerns: the confusion and plurality of definitions of sovereignty; the need to defend the principle of popular power; the limitation of monarchical and parliamentary powers; and the containment of popular rule. Starting with the first concern, there was a widespread fear that sovereignty, whoever it belonged to, could be conceived as an unlimited and absolute power. Since no constitutional attribution of sovereignty was available, any attempt to affirm a limited conception of sovereignty was difficult if not vain. Early nineteenth-century theories of sovereignty included the Napoleonic understanding of political authority, according to which sovereignty belonged to the people but was completely delegated to the leader via plebiscites.9 After the end 6 7

8

9

On Laferrière, see Y.-A. Durelle-Marc, ‘Le stoïcisme de Firmin Laferrière (1798–1861)’, Revue Française d’Histoire des Idées Politiques 41(2) (2015), pp. 161–84. On Cormenin, see P. Bastid, Un juriste pamphlétaire: Cormenin, précurseur et constituant de 1848 (Paris: Hachette, 1948). For a general overview of the political background against which most of these jurists were operating, see A. Jardin, Histoire du libéralisme politique: de la crise de l’absolutisme à la constitution de 1875. As examples, see B. Constant, Cours de politique constitutionnelle (Paris and Geneva: Slatkin, 1982 [1818–20]), vol. 1, pp. 155–65; J. De Maistre, Essai sur le principe générateur des constitutions politiques et des autres institutions humaines (Paris: Société Typographique, 1814); F. Guizot, ‘De la démocratie dans les sociétés modernes’, Revue française, November 1837, p. 224. Napoleon organised several plebiscites to legitimise his power. The first was on the Constitution of the Year VIII, 28 February 1800; the second on his election as consul for life, 2 August 1802; the third

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of the Empire, a group of deputies theorised the principle of parliamentary sovereignty. According to Flaugergues, ‘when considered in the reunion of its three branches, our Parliament is the sovereign [. . .] [I]t is the most extreme and superlative expression of power. Its authority is unlimited.’10 In addition, ultra-royalists and counter-revolutionary authors claimed that sovereignty belonged to the monarch who received it through God’s divine investment,11 through the authority of time as administered by God,12 or simply through the sanction coming from the divine order ruling human history.13 Echoing these ideas, Louis XVIII accepted his investment to the throne in Saint Ouen in 1814 and publicly declared that he was ‘by the grace of God, King of France and of Navarre’.14 Whether attributed to the monarch or to parliament, sovereignty appeared as an undeterminable set of powers. It not only was not constitutionally regulated but also derived from abstract sources, making it undefinable and illimitable. This appeared extremely dangerous to the group of jurists and politicians mentioned earlier. In the words of Laferrière: [R]egardless of whether sovereignty belongs to kings, to aristocratic bodies or to the people, whenever it is considered as absolute it negates truth and justice and destroys society. Precisely because it does not have any limits, any

10

11

12 13

14

for the institution of the Empire in May 1804; and in June 1815 he called the last plebiscite on the Additional Act on the Constitutions of the Empire. See Constant’s attack of Napoleon’s rhetorical use of the idea of popular sovereignty, B. Constant, Cours de politique constitutionnelle, vol. 1, p. 161. See also B. Garsten, ‘From popular sovereignty to civil society in post-revolutionary France’, in R. Bourke and Q. Skinner (eds), Popular Sovereignty in Historical Perspective (Cambridge: Cambridge University Press, 2016), pp. 236–69, p. 259. More generally on Napoleon, the Empire, his understanding of legitimacy and his legacy, see S. Hazareesingh, The Legend of Napoleon (London: Granta, 2004); P. Gueniffey, Bonaparte 1769–1802 (Cambridge: Harvard University Press, 2015); S. Hazareesingh, The Saint-Napoleon: Celebrations of Sovereignty in 19th Century France (Cambridge, MA: Harvard University Press, 2004). Quoted in J. D. Lanjuinais, Examen du système de M. Flaugergues établissant la dictature du roi et des chambres ou leur pouvoir de changer la constitution sans observer aucunes formes spéciales (Paris: Bauduoin Frères, 1820), p. 18. On Flaugergues, see G. Conti, ‘“L’â me gé né rale d’une assemblé e”: A Neglected Parliamentarian and the Restoration Theory of Representation’, Global Intellectual History, online first July 2019. L. Bonald, Mélanges littéraires, politiques et philosophiques (Paris: A. Leclère, 1819), pp. 529–87; L. Bonald, Démonstration philosophique du principe constitutif de la société (Paris: A. Leclère, 1820), pp. 147–78. J. de Maistre, Essai sur le principe générateur des constitutions politiques. This is a thesis presented by Lamennais, a fervent priest, in his book De la religion considérée dans ses rapports avec l’ordre politique et civil (Paris: Lachevardière Fils, 1826), pp. 15–47. He will later change his mind, abandon the church and become a supporter of popular sovereignty during the Second Republic. Déclaration de Saint Ouen in J. Godechot, Les Constitutions de la France depuis 1789, p. 9. Italics mine.

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Second, Lanjuinais, Laferrière, Delaure and Berriat-Saint-Prix strove to rescue the revolutionary tradition and its animating principle, the idea that political power should belong to the people. They repeatedly intervened in the political debate to affirm the idea of popular sovereignty. This was not only consistent with men’s equal right to participate in the lawmaking process, but it also ran counter to all appropriations of power by the king, the parliament or any strong man. Disregarding the revolutionary distinction between national and popular sovereignty, they agreed with more eminent authors in claiming that sovereignty belonged to the French population, which they alternatively called le peuple or la nation.16 Francois Delarue, for instance, defined sovereignty as ‘inhabiting the generality of a nation’s individuals living in society’.17 Similarly, the jurist Henri Ahrens wrote in one of his textbooks that ‘the source and the origin of power is the nation, it is within the nation that the general political power inhabits; it is from the nation that all powers derive their origins’.18 This also resonates with Constant’s more famous defence of popular sovereignty. For him ‘the sovereignty of the people, which is the supremacy of the general will on all particular individual wills, is a principle that cannot be contested’.19 As these quotes demonstrate, the jurists did not avoid using the word ‘sovereignty’ when claiming the attribution of power to the people. Notwithstanding their concern for the potentially unlimited power the very term could entail, they relied on it to wage their political battle in favour of the principle of popular power. This shows that in the nineteenth century sovereignty was widely perceived as the only category apt to 15 16

17 18 19

M. F. Laferrière, Cours théorique et pratique de droit public et administratif (Paris: Cotillon Editeur, 1839), pp. 7–8. Cf. also Rosanvallon, La Démocratie inachevée, p. 246. In nineteenth-century France, the opposition between national and popular sovereignty that had been the object of long and vehement discussions during the Revolution became irrelevant. The two notions were considered almost equivalent. On this, see P. Rosanvallon, La Démocratie inachevée, pp. 246–7. F. Delarue, Du Pouvoir constituant et du principe souverain d’après M. de Cormenin au sujet de la Charte de 1830 (Paris: Levavasseur, 1831), p. 4. H. Ahrens, Cours de droit naturel ou de philosophie du droit (Bruxelles 1830), vol II, p. 369. B. Constant, Écrits politiques, ed. M. Gauchet (Paris: Gallimard, 1997), p. 311. See also Garsten’s discussion of Constant’s theory of popular sovereignty: B. Garsten, ‘From popular sovereignty to civil society in post-revolutionary France’. And A. Ghins, ‘Benjamin Constant and the politics of reason’, History of European Ideas, 44(2) (2018), pp. 224–43, and A. Ghins, ‘Benjamin Constant and public opinion in Post-Revolutionary France’, History of Political Thought, 40(3) (2019), pp. 484–514.

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describe political authority, whomever it belonged to. Even those who feared its implications had to use it. Third, the principle of popular authority had to be affirmed and defended against the king’s and the parliament’s attempts to appropriate and abuse their political power. The first half of the nineteenth century showed that those who exercised sovereignty, whether the representatives of the people or the king, tended to use it arbitrarily or to appropriate it. Above all, the fact that sovereignty was neither clearly attributed nor defined entailed that both the parliament and the king could claim to exercise sovereignty above and against the popular will.20 The theorists discussed in this chapter responded by arguing for the limitation of parliamentary and monarchical powers.21 Berriat-Saint-Prix, for instance, explained the exemplary value of the 1791 constitution, which secured the limitation of sovereignty as follows: ‘The legislative power is delegated to a legislative assembly, which is permanent, indissoluble and renewable without summon every two years’; the executive power ‘is delegated to the king, hereditary representative of the nation, and it is exercised by responsible ministers under his authority’; and the ‘judicial power is delegated to judges temporarily elected by the people’.22 Constant too set out to circumscribe the power of the king and the parliament by offering a very detailed constitutional project. In his view, two fundamental principles needed to be implemented in order to contain the delegates’ abuse of power. First, the limitation of the exercise of sovereignty ‘will be ensured firstly by the same force which legitimates all acknowledged truths: by public opinion’.23 Second, the limited authority of delegated powers ‘will be guaranteed more precisely by the distribution and balance of powers’.24 This combination of formal limits and continuous control by public opinion would have, in Constant’s view, not only guaranteed that those in power did not exceed their functions but also made sure that

20 21 22

23

On this specific point, see C. Merriam, History of the Theory of Sovereignty since Rousseau, ch. 5. As an example, see B. Constant, ‘Principles of politics’, in Political Writings (Cambridge: Cambridge University Press, 1988 [1915]), p. 183, and L. Jaume, L’Individu effacé, ch. 3, pp. 185–92. F. Berriat-Saint-Prix, Commentarie sur la Charte Constitutionnelle (Paris: Videcoq, 1836), p. 19. Cf. Rosanvallon, La Démocratie inachevée, p. 135. Taking a stand in the debate on the implementation of sovereignty after the July Revolution, and recalling Berriat-Saint-Prix’s fascination with the constitution of 1791, the pamphleteer Vergnaud presented an ideal constitutional draft in which he argued that sovereignty should belong to the nation but that the latter, being unable to directly exercise its power, is represented ‘by the reunion of three powers, legislative, executive and judiciary and cannot be represented by either one or the other of these powers separately’. A. D. Vergnaud, De la charte d’un peuple libre (Strasbourg, 1830), p. 6. B. Constant, ‘Principles of politics’, p. 183. 24 Ibid.

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sovereignty remained ‘circumscribed within the limits traced by justice and by the rights of individuals’.25 Lastly, the idea of popular sovereignty had to be protected from the mob and from its degeneration into direct democracy. The Terror was too close to memory to overlook the dangers coming from unbounded and absolute attributions of sovereignty to the people. Hence, it was necessary to displace the power of the bearer of sovereignty by indicating the people as the source of power but not its executor. An example is Berriat-Saint-Prix’s claim that sovereignty belonged to the people only in a negative sense, as the principle of popular sovereignty does not mean much when considered in the affirmative, as attributing a right or a faculty . . . It rather has a negative value, insofar as it excludes all contrary principles: for instance, the principle that grounds political authority in the grace of God, or in an immemorial possession, or even in the supposed knowledge and wisdom of those who exercise it.26

More concretely, Pinhero Ferreira, a Portuguese-born jurist sharing the same intellectual circles of the authors mentioned earlier, claimed that the expression some people use, that the people is sovereign, is true if it means that the origins of the sovereign power is in the people . . . but it is badly expressed, because it seems to suggest that the people is itself the sovereign, that it has the right to directly exercise the legislative and executive powers, which means that it has the right to do what it cannot do.27

From which it followed that ‘it would be absurd to imagine the people exercising the power of making or executing the law’,28 because it is ‘only very improperly that we say that the people is sovereign. Rather, what we mean and what we should say is that the people is the origin of sovereignty.’29 A similar tone was also used by Constant. When discussing the ‘incontestable’ sovereignty of the people, he admitted that ‘while we recognise the right of that will, that is the sovereignty of the people, it is necessary, indeed imperative, to understand its exact nature and to determine its precise extent. Without a precise and exact definition, the triumph of the theory could become a calamity on its application.’30 25 27 28 30

26 Ibid., p. 182. F. Berriat-Saint-Prix, Commentarie sur la Charte Constitutionnelle, pp. 34–5. S. Pinheiro-Ferreira, Cours de droit public interne et externe (Paris: Imprimerie de Casimir, 1830), pp. 165–6. 29 Ibid. Ibid., p. 167. B. Constant, ‘Principles of politics’, p. 183. And, in another passage that very much resonated with Sieyès’s concern for the unlimited power entailed by the idea of sovereignty, he added that ‘the abstract recognition of the sovereignty of the people does not in the least increase the amount of liberty given to individuals. If we attribute to that sovereignty an amplitude which it must not have,

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As these quotes suggest, the political debate of the first half of the nineteenth century revolved around contested claims of sovereignty. Those who defended the heritage of the 1791 constitution repeatedly challenged absolute conceptions of power, affirmed the principle of popular sovereignty and defended it against royal and parliamentary abuses as well as against practices of direct democracy. To do so, they wrote legal and political treatises and developed rhetorical strategies to confront their political opponents. Constant, for instance, not only resorted to institutional mechanisms to limit the sovereign authority, such as the pouvoir neutre and the protection of public opinion. He also tried to dismiss the notion of sovereignty philosophically. He explained that, although belonging to the people, ‘sovereignty exists only in a limited and relative manner’.31 In his view, contemporary problems raised by the idea of sovereignty derived from the way in which the latter had been interpreted and used during the Revolution, when the people revolted against the bearer of sovereignty but not against the idea. Sovereignty is not less dangerous when it lays in the hands of the people. By contrast, as much as Sieyès, Constant believed that the very idea of sovereignty was problematic. In his words: [I]t is the amount of strength and not its bearer that must be accused. It is against the weapon and not the arm that it is necessary to take action . . . but [during the Revolution] anger has been directed against the bearer of power, instead of against power itself. They should have destroyed it, but they simply replaced it. It was a plague, they misunderstood it for a victory.32

As evinced from this quote, Constant reacted to the problematic aspects of sovereignty by dismissing the idea and designing institutional mechanisms aimed at constraining its implications inside the structure of the constitutional state.33 Alternatively, a more radical answer to the threats posed by the idea of sovereignty was put forward by the doctrinaires Guizot and

31 32 33

liberty may be lost notwithstanding that principle, or even through it’, B. Constant, ‘Principles of representative government’, p. 175. Garsten points out that Constant was afraid of popular sovereignty and, specifically, of plebiscites as means of realising the exercise of the people’s sovereign power. He thus put forward the idea of public opinion and emphasised the role of civil society to present an alternative way of making sense and realising the principle of popular sovereignty. See B. Garsten, ‘From popular sovereignty to civil society in post-revolutionary France’. B. Constant, ‘Principles of politics’, p. 183. For a detailed discussion of Constant’s account of sovereignty, see P. Rosanvallon, La Démocratie inachevée, pp. 105–8. B. Constant, ‘Principles of politics’, p. 183. Late in his life, he got to the point of even suggesting to ‘remove the word sovereignty proprement dite from our vocabulary’. This passage is quoted by Rosanvallon, in La Démocratie inachevée, p. 106. B. Constant, ‘De la souveraineté’, in Le Temps, 1829–1830, republished in B. Constant, Positions de combat à la veille de juillet 1830. Articles publiés dans ‘le Temps’, 1829–1830 (Geneva: Slatkine, 1989), p. 102.

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Royer-Collard. They countered the potentially absolute power it entailed by refusing to attribute sovereignty to any specific subject. By contrast, they ascribed it to reason. Guizot explained this choice with the following words: I believe neither in divine law nor in the sovereignty of the people, as we usually understand them. In them, I cannot see but the usurpation of force. I believe in the sovereignty of reason, justice and law: this is the legitimate sovereignty the world is looking for . . . no man nor reunion of men detains it or can detain it without limits and shortcomings.34

As Rosanvallon explains, the doctrinaires adopted the term ‘sovereignty’ with the intent of emptying it from all its concrete implications. Since reason transcends all human understanding, its sovereignty will never be fully accessible to any individual, regardless of whether he is a king, a member of parliament or a simple citizen.35 Along with these strategies, other thinkers put forward other theoretical and institutional systems to counter the potential threats derived from the idea of sovereignty. Yet one is specifically relevant to the present book. It does not dismiss sovereignty but relies upon the idea of constituent power to temper its most troublesome features. Differently from other liberal authors, Lanjuinais, Laferrière, Berriat-Saint-Prix and Delarue decided, in different moments and for different reasons, to deploy the idea of constituent power to limit the understanding of political authority implied in the idea of sovereignty and constrain its institutional and political implications.

Regime Changes As discussed in the previous chapter, the language of constituent power was widely deployed during the Revolution. However, it almost disappeared from the political vocabulary around 1795. Until the second decade of the nineteenth century, the expression ‘constituent power’ is rarely mentioned in constitutional treatises and political debates.36 It slowly but steadily 34 35

36

F. Guizot, Du gouvernment de la France depuis la Restauration et du ministère actuel (Paris: 1820), p. 201. P. Rosanvallon, La Démocratie inachevée, pp. 108–12, P. Rosanvallon, ‘Guizot et la Révolution française’, in M. Valensise, F. Guizot et la culture politique de son temps: colloque de la fondation Guizot-Val Racher (Paris: EHESS, 1995), pp. 59–67. P. Rosanvallon, La monarchie impossible: les chartes de 1814 et 1830 (Paris: Fayard, 1994). It is difficult to explain why the idea of constituent power almost disappeared after 1795. It probably depended on the disappearance of its most sophisticated theorists and promoters: Sieyès, who progressively withdrew from the political scene, and Condorcet, who died during the Revolution.

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made its reappearance in the political vocabulary only in the late 1810s. The context and implications of its use varied over time, in relation to the specific historical circumstances in which the idea was deployed. Yet they all demonstrate that the idea of constituent power assumed, in the nineteenth century, a new role in contemporary debates on political authority. Sieyès had introduced it to put forward an understanding of the principle and implications of popular power opposite to that offered by theories of national and popular sovereignty. The idea of constituent power was meant to define the power of the people as the authority to sanction the entrance into force of the constitution. Although still relying on this definition of the people’s constituent power, nineteenth-century jurists and intellectuals did not use it in opposition to sovereignty. By contrast, they mobilised it in association and combination to the idea of sovereignty, differently conceived in relation to different historical circumstances. These can be divided into three phases, corresponding to the Restoration, the July Monarchy and the Second Republic. Each of these phases represents a peculiar usage of constituent power, as it corresponds to a way of countering and taming the threats that, at any given time, were considered entailed in the notion of sovereignty. During the first phase, the idea of constituent power had little influence upon the legal and political debates of the time. It was mobilised in relation to very precise and specific debates, all addressing abuses of sovereignty perpetrated by the monarch and the parliament through the violation of the constitution. Later on, from the mid-1840s onward, the notion of constituent power grew in generality and progressively became a well-known and widely mobilised instrument for the limitation of sovereignty in 1848. I. The Restoration During the Restoration constituent power developed into an instrument to oppose appropriation of sovereignty by Louis XVIII and his illicit use of governmental powers. Throughout the first decades of the nineteenth century, the king often took advantage of the ambiguity underpinning

Records testify of a debate between Sieyès and Napoleon on this issue, but no substantial discussion of constituent power ever seemed to occupy the political discourse during that period. See B. de la Meurthe, Théorie constitutionnelle de Sieyès et Constitution de l’an VIII. For a similar case, the disappearance of the word ‘democracy’ in France during the same period, see P. Rosanvallon, ‘The history of the word democracy in France’.

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the attribution of sovereignty to claim all powers in his hands and to entrust himself with the authority to arbitrarily change the constitution. An emblematic case is the debate that arose in 1819, after Louis XVIII’s repeated attempts to modify the Charte Constitutionnelle adopted in 1814. Although the constitution did not mention who was the bearer of sovereignty, the King argued that the charter was a constitution octroyée, a concession made by the monarch to his people. He then put forward several laws restricting the freedom of the press and reducing the composition of the electoral body, in explicit contrast with the Charte’s initial provisions. Against this intervened Lanjuinais. His aim was twofold: he wanted to reclaim sovereignty for the people and, in doing so, limit the power of the monarch. In order to achieve both aims, he resorted to the idea of constituent power and condemned what he saw as an illegitimate appropriation of power. First, he claimed that sovereignty belonged to the people because the political order was created through their exercise of the supreme sovereign function, the constituent power. In Lanjuinais’s mind, this expressed itself through the popular authorisation of the constitution and of the legal political order thereby created. Yet in 1814 no referendum was called on the new constitution, nor did the people have any chance to express their approval of the Charte. However, Lanjuinais maintained that the political order was legitimate precisely because the people tacitly approved the Charte’s entry into force. In so doing, they exercised their constituent power and affirmed their sovereignty. The proof was that, without people’s tacit sanction, the monarchical order would collapse.37 Consequently, the power of the King was not the source of the constitution. It was a delegated power, entrusted by the people, via the constitution, with the authority to act in its name inside the limits established by the Charte. The King had a constituted power and was himself part of the constituted order. His existence as an institutional power depended on the constitution, and he was not allowed to change the conditions of his constitutional delegation. The King’s attempts to modify the aforementioned constitutional provisions were not only abuses of his delegated power but also a direct attack on the people’s constituent power and sovereignty. Explaining how constituent power, being an expression of sovereignty, placed a limit upon the King’s exercise of power, Lanjuinais argued that 37

J. D. Lanjuinais, Constitutions de la nation française: avec un essai de traité historique et politique sur la charte, et un recueil de pièces corrélatives (Paris: Baoudouin Frères, 1819), vol. I, livre III, pp. 182–4.

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it is remarkable to notice how the word sovereign literally only means superior, and not superior in an absolute sense, without limits . . . The constituted sovereignty [of the monarch] has for its natural, and sometimes even official, superior the entire nation exercising the constituent authority either by itself or through its representatives.38

Lanjuinais used the language of pouvoir constituant to claim that sovereignty belonged to the people and not to the King. This imposed a clear and straightforward limit upon Louis XVIII’s pretensions over the sovereign power and clarified that political authority was ultimately vested in the people. Similarly, Lanjuinais reused the idea of constituent power in two other occasions. First, in 1824 the parliament tried to pass a law changing the way in which the legislative chamber was composed. While the constitutional charter provided for its annual and partial renovation, the law proposed to re-elect a new chamber every seven years. Second, in 1828 the King and several ultras deputies tried to force an anti-constitutional interpretation of article 14 of the Charte.39 This said that the monarch could independently make a law in case of absolute threats to the security of the nation.40 Louis XVIII claimed to legitimately deduce from this article the authorisation to autonomously change the constitution and its provisions. Lanjuinais offered arguments to oppose both these abuses of power, relying once again on the idea of the people’s constituent power. As he repeatedly claimed, every revision of the constitutional charter must respect ‘the salutary, natural and essential distinction between the exercise of the constituent power and the exercise of the constituted powers, the distinction between the constitution and secondary legislation’.41 Failing to do so will entail the arbitrary appropriation of sovereignty by delegated authorities and will result in ‘oppressive, anarchical and tyrannical projects’.42 Even though the constitution failed to identify the bearer of sovereignty, those who, like Lanjuinais, believed it belonged to the people used 38 39

40

41 42

Ibid., p. 13. The term ‘ultras’ was used to indicate a group of members of parliament active during the second restoration, the ‘ultra royalists’. They defended both aristocratic privileges and strong monarchical governments. Article 14 said, ‘The king is the supreme head of the state, commands the land and sea forces, declares war, makes treaties of peace, alliance and commerce, appoints to all places of public administration, and makes the necessary regulations and ordinances for the execution of the laws and the security of the state.’ See J. Godechot, Les Constitutions de la France depuis 1789, p. 219. J. D. Lanjuinais, Constitutions de la nation française: avec un essai de traité historique et politique sur la charte, et un recueil de pièces corrélatives, Vol. I, p. 184. Ibid.

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constituent power to claim that the King had a delegated – as opposed to sovereign – power and could not modify the constitution. II. The July Monarchy The second phase in this nineteenth-century history of constituent power coincides with the period starting during the July Revolution and ending in the first half of the 1840s. The Trois Glorieuses signalled an important moment in the debate on political authority. The role played by the people in overthrowing Charles X’s regime and imposing a new monarch gave room to the implicit affirmation of popular sovereignty. In the postrevolutionary regime that followed, the implementation of this principle was, however, neither consistent nor controlled. On the one hand, people felt entrusted with the supreme power and pretended to use it unlimitedly. On the other, popular sovereignty was not officially recognised in the constitution, and the Parliament tended to appropriate it far more often and extensively than it did during the Restoration.43 In this context, the notion of constituent power provided a progressively more relevant and widespread instrument to limit abuses of sovereignty. Its action was twofold. To begin with, it offered a consistent argument to claim that sovereignty, even if belonging to the people, did not give them absolute and unlimited powers but had to be implemented through a constitutionmaking process. This move allowed jurists and political actors to avoid the risk, already experimented with during the 1789 Revolution, of interpreting the principle of popular sovereignty as the absolute right to constantly and directly exercise political power. An example of constituent power’s limiting function vis-à-vis the principle of popular sovereignty is offered by Laferrière’s intervention in the Revue Wolowski.44 Presenting his newly published course of public law, he argued that popular sovereignty had for its unique aim the constitution of a social body. It decides on the types of organization to adopt, and has the power to create forms, authorities, institutions and 43

44

On the Restoration and July Monarchy, see E. Waresquiel, Histoire de la Restauration, 1814–1830. Naissance de la France moderne (Paris: Perrin, 2002) and M. Price, The Perilous Crown: France between Revolutions, 1814–1848 (London: Macmillan, 2007). M. F. Laferrière, ‘Cours de droit public et administratif, par M. F. Laferrière, Professeur à la faculté de droit de Rennes’, Revue de Legislation et de jurisprudence 9 (1838–9), p. 360. The Revue Wolowski, short name for the Revue de législation et de jurisprudence, was an academic journal printed in Paris and widely distributed among jurists and politicians.

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guarantees . . . This sovereignty, which is sometimes used among nations, is only relative and temporary, it is the constituent power. This power, which belongs to the entire nation, is exercised very rarely, at great historical conjunctures, to create or modify national constitutions, and disappears after having achieved its task, leaving the constituted powers to deal with social policies.45

In his university course of public law, Laferrière clearly stated that the people’s sovereign power exclusively entailed the authority to write the constitution. Once the sovereign established the constituted powers and framed the boundaries of the constitutional state, it had to disappear. Another argument to limit the sovereignty of the people came from a reinterpretation of Sieyès’s association of constituent power with representative politics. In 1789, Sieyès maintained that the people, as holders of constituent power, authorise the constitution but do not themselves create it. Rather, they elect extraordinary representatives who write the constitutional text and, in so doing, authorise its entrance into force. Hence, the exercise of constituent power does not coincide with the process of writing the constitution, which is delegated to representatives, but with its authorisation by the nation. As discussed in the previous chapter, this authorisation may occur ex ante or ex post but is not to be confused with the writing process.46 Rather, the core of Sieyès’s idea of pouvoir constituant rests on the power of the people to freely decide to authorise the creation of the political order and the laws by which it is to be ruled. Building on this idea, and taking inspiration from Cormenin, François Delarue explained that the sovereign constituent power ‘is not exercised directly, because it is impossible that a multitude of individuals, an entire nation, understands itself when reunited in a general assembly’.47 Rather, ‘it is natural that the general will or the will of the majority – which is the same thing – ends up delegating its decision-making power to the wisest citizens so as to entrust them with the mandate of making a founding contract in its name’.48 Hence, not only was the exercise of popular sovereignty circumscribed to the authorisation of the process of writing

45

46 47 48

M. F. Laferrière, ‘Cours de droit public et administratif, par M. F. Laferrière, Professeur à la faculté de droit de Rennes’, p. 361. See also M. F. Laferrière, Cours de droit public et administratif, (Paris: Joubert, 1839), pp. 2–6. P. Pasquino, ‘Constitution et pouvoir constituant: le double corps du peuple’, in Y. Quiviger (ed.), Figures de Sièyes (Paris: Publications de la Sorbonne, 2008), pp. 227–40. F. Delarue, Du pouvoir constituant et du principe souverain, d’après M. de Cormenin au sujet de la Charte du 1830 (Paris: Levavasseur, 1831), p. 5. Ibid.

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the constitution but also its implementation was delegated to the experts in the fields, to les plus sages. Throughout the 1830s and the first half of the 1840s, the notion of constituent power also played a second role: it was used to contrast the parliament’s abusive exercise of its delegated power. As Rosanvallon highlights, the constitution-writing process of August 1830 was marked by several tensions.49 The constitution was not submitted to referendum, as the July revolutionaries had requested, and was also drafted and voted by the pre-revolutionary parliament, against which the people revolted in July. As a consequence, a group of deputies, led by M. de Cormenin, relied on the notion of constituent power to criticise these measures and attack the authority of the parliament. First, Cormenin argued that only the sovereign could exercise (or delegate the exercise of) the constitution-making power. Hence, the new constitution was not to be considered legitimate. It was written neither by the bearer of the constituent power, the people, nor by those acting on its behalf. Rather, it had been written and approved by a parliament that was explicitly disapproved, disempowered and considered illegitimate by the people. As Francois Delarue outlined, expanding on Cormenin’s arguments, the sovereign people cannot be expropriated of their ‘original constituent right as, even if they wanted to, they cannot relinquish it, because this right is inalienable and is the real meaning of liberty, without which only the tyranny of privileges and usurpation will survive’.50 Following up on this, he argued that what happened in August 1830 was precisely an expropriation of the people’s constituent power. This resulted in an improper and abusive use of sovereignty by the parliament. Addressing the Assembly, Cormenin said: ‘The revolution was precisely made against this violation; the people recaptured its sovereignty and as a prize, you want to steal it again. Acting without the people’s participation, without its sanction, you appropriate the constituent power, which is inherent to the people’s sovereignty.’51 In addition, the notion of constituent power was used to claim that the constitution-making body, directly representing the sovereign authority, could only operate as an extraordinary assembly. Hence, it did not coincide 49 50

51

P. Rosanvallon, La monarchie impossible: les chartes de 1814 et 1830, ch. 3. F. Delarue, Du pouvoir constituant et du principe souverain, p. 5. See also M. de Cormenin, Cinq lettres de M. de Cormenin sur la Charte, la pairie et le pouvoir constituant (Paris: Setier, 1832), especially the first letter. On Cormenin and the usurpation of sovereignty, see also Rosanvallon, La Démocratie inachevée, p. 142. As reported in F. Delarue, Du pouvoir constituant et du principe souverain, p. 13.

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with the legislative Assembly, which was a normal constituted body. Since the 1830 constitution was written by a legislative chamber and not by a constituent assembly elected ad hoc, it could not be legitimate. During the 1830s, liberal jurists used the idea of constituent power to claim that the parliament was authorised neither to write nor to pass the constitution and demonstrated that in the last months of 1830 the representative chambers abused their delegated power and arbitrarily appropriated the sovereignty of the people. Moreover, they also relied on constituent power to channel the people’s potentially unlimited sovereignty into a constitution-authorising power. III. The Second Republic The last phase coincides with the establishment of the Second Republic in 1848 and marks the success of constituent power’s limiting function. By 1848, the idea of pouvoir constituant no longer embodied a minor conceptual strategy to limit monarchical and parliamentary abuses of sovereignty. It represented the main conceptual tool through which the very idea of popular sovereignty could be conceived and implemented. For the first time since 1792, France not only attributed sovereignty to the people but also proclaimed itself a republic in 1848. As the first article of the first chapter of the new constitution asserted, the ‘sovereign power rests in the entirety of French citizens. It is inalienable and eternal. No individual nor fraction of the people has the right to its exercise.’52 Contrary to previous regimes, political authority was now completely in the hands of the citizens. As the constitution recited, ‘All public powers, whichever they are, issue from the people. They cannot be delegated hereditarily.’53 This had two results, both welcomed by the jurists and politicians discussed in this chapter. First, it abolished all political distinctions among social orders and eliminated contending claims to the entitlement of sovereignty. Second, the people became the bearer of the sovereign power and its exclusive executor, as no hereditary body was there to act as a counter-power. However, this fully fledged attribution of sovereignty to the people required some elaboration in order to be applied to the republican context and avoid reproducing the Terror.54 Taking part in a wider debate on the subject, the lawyer at the Conseil d’État, Gabriel Dufour, directly addressed the problem by 52 53 54

Constitution of 1848, chapter I, art. 1; see J. Godechot, Les Constitutions de la France, p. 264. Constitution of 1848, chapter III, art. 18; see J. Godechot, Les Constitutions de la France, p. 266. The Terror was very present in the public discourse of the time. The revolutionaries and the constituents worked to avoid all associations of the republic to the Jacobin experience, as proved by

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arguing that, even if ‘in the 1848 constitution, sovereignty was evident and beyond any doubt, it was its exercise that needed regulation’.55 This regulation was needed because ‘a sovereignty that is immense, always present and always ready to act is the danger inherent to all republics’.56 Yet the terms and instruments of this regulation did not come from a long and thought-through process of constitutional engineering. Rather, they followed from the belief that sovereignty, being ‘the highest conceivable power . . . above which no other power can be placed’,57 could only be implemented, at a practical and institutional level, through the expression of the people’s constituent power. As Berriat-Saint-Prix maintained, ‘The most direct application of sovereignty consists in establishing a government. In other words, it consists in exercising the constituent power.’58 Differently from what had happened in 1789, the 1848 debate on the meaning and implications of popular sovereignty did not take place during the constitution-making process. On the contrary, arguments already present in the public discourse made it appear natural that popular sovereignty had to be realised through the people’s exercise of constituent power. The language to address the relationship between the two ideas was already present and accessible to the political class and to the public, and, in the months of the Revolution, republican jurists, scholars, politicians and journalists contributed to transforming the association of sovereignty to constituent power into a self-evident fact. The first and most relevant implication of the association of the two ideas expanded on a reasoning developed during the July Monarchy by Lanjuinais. It relied on a very simple conceptual mechanism: it argued that popular sovereignty could only be exercised through constituent power. Laferrière and Berriat-Saint-Prix recognised the people with the sovereign power to decide the form of their political existence but limited its expression to the foundation of the legal-political order. This entailed that, once the sovereign constituent power exercised its ‘right to write the constitution’,59 and the political order had been constituted, the absolute sovereignty of the people had to disappear and leave room for the regular

55 56 57

58

the abolition of the death penalty for political crimes and the effort to limit the meaning of sovereignty. See J. Godechot, Les Constitutions de la France depuis 1789, pp. 252–62. G. Dufour, ‘Du pouvoir executif’, Revue de législation et de jurisprudence, I (1848), p. 189. Ibid. F. Berriat-Saint-Prix, Théorie du droit constitutionnel français, esprit des constitutions de 1848 et de 1852 et des sénatus-consultes organiques précédé d’un essai sur le pouvoir constituant et d’un précis historique des constitutions françaises (Paris: Videcoq Fils, 1852–3), p. 186. Ibid. 59 Ibid., p. 2.

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exercise of power by the constituted order. Far from entailing a power ‘always present and always ready to act’,60 sovereignty was transformed into an abstract principle whose only implication was the affirmation of the people’s right to authorise the constitution. As Laferrière argued in one of his university lectures, ‘Popular sovereignty is, in our modern societies, the fundamental principle at the basis of both constituent and constituted powers; yet, itself it is not power.’61 Once associated with constituent power, sovereignty was emptied from any implications that its direct attribution to the people could have had. The articulation of popular sovereignty in terms of constituent power also offered a second limiting strategy. This touched upon the way in which the people exercised their sovereign power when writing the constitution. Although the public discourse, particularly during the 1848 Revolution, relied on an undifferentiated reference to the constituent power ‘of the people’, its direct popular expression was evaded by all possible means. Building on an argument introduced by Sieyès, asserted by Constant and used in the aftermath of the July Revolution, the notion of pouvoir constituant brought with itself the idea that in a modern society the exercise of power, including the sovereign constituent power, needed to be delegated to representatives. As Berriat-Saint-Prix clearly explained, ‘It is materially and morally impossible for several millions of individuals to deliberate and choose the best option among several complex combinations of possibilities.’62 The representatives received their mandate from the people, who maintained the right to seal the constitution’s entrance into force. The framing of popular sovereignty as the people’s constituent power not only had the effect of limiting the exercise of sovereignty to the constitution-making process, but it also delegated its execution to elected representatives, leaving the people with merely a sanctioning role. A third argument to limit the idea of sovereignty comes from the logical structure underpinning the notion of pouvoir constituant. This argument was first introduced by Sieyès, but its implications for the limitation of popular sovereignty were spelled out by Berriat-Saint-Prix and Laferrière. Being necessarily prior and superior to the constituted order, constituent power constrains the latter’s exercise of power inside the boundaries established by the constitution. The argument goes as follows: the sovereign people delegate the authority to create the constitution to the constituent assembly. The constitution, in Berriat-Saint-Prix’s terms, is ‘the 60 62

61 Ibid. M. F. Laferrière, Cours théorique et pratique de droit public et administratif, p. 1. F. Berriat-Saint-Prix, Théorie du droit constitutionnel français, p. 13.

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ensemble of rules determining a people’s form of government . . . [and] the law organizing the distribution of public powers’.63 Once the constitution is accepted, the constituent power disappears, and sovereignty is exercised according to the rules established by the constitution. Sovereignty thus passes from being a constituent sovereignty to being a constituted sovereignty. Being constituted, it is necessarily regulated by the constitution and constrained inside the limits the constituent power set to its exercise. It is divided among a plurality of different powers, and its expression is mediated through its delegated character. No constituted power, whether the executive, legislative or judiciary, can claim to embody the people’s original sovereignty as this does not exist, in its immediate and spontaneous character, in the constituted order. As Laferrière explained, the constituted powers only have ‘a delegation of sovereignty’, a sort of ‘secondary sovereignty’, whose exercise is limited to the competences the constitution entrusted it with.64 The notion of constituent power thus offered a powerful argument to distinguish the people’s original sovereignty from its day-to-day exercise. It applies Sieyès’s dichotomy between constituent and constituted powers to make clear that ‘secondary sovereignty’ is only a derivative power and thus prevents those ordinarily in charge of its running from exercising it unlimitedly. Furthermore, the ordinary working of the constituted sovereignty was limited by two other mechanisms, both derived from the idea of constituent power. These were first outlined by Sieyès, successively developed by Lanjuinais and became part of the constitutional ‘common sense’ after 1848. The first corresponds to what we now call the ‘rigid’ character of the constitution. It derives from the fact that constituent power is the only direct expression of the sovereign will. The latter being voiced in the constitution cannot be changed by anyone but the constituent power itself. No constituted institution has the authority to change its position in relation to other powers or to the constituent authority, let alone to modify the fundamental rights or the form of the political regime. This was made clear by Dufour, who claimed that ‘the constituent power . . . establishes immutable laws, it proclaims some rights as absolutely inviolable’.65 To protect their inviolable character, ‘it places them above and beyond the reach of the powers it creates, and makes them the foundation of our social edifice’.66 The best way to avoid attacks on the oeuvre of the constituent 63 64 65

Ibid., p. 1. M.F. Laferrière, Cours théorique et pratique de droit public et administratif, p. 11. G. Dufour, ‘Du pouvoir executif’, p. 134. 66 Ibid.

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power was thus to affirm the constitution’s rigid character. The decision of the constituent power was guaranteed insofar as only a constitutional law, written by the constituent power through special procedures, could change any other constitutional law. As Lanjuinais wrote in 1819, ‘Constitutional or fundamental laws sanction the elementary conditions underpinning the social compact: fortunately, the constituted authorities are unable to legitimately change these conditions, unless the nation authorised them to do so according to specific forms established in the constitution.’67 The other important mechanism introduced in 1848 to prevent the unlimited exercise of the constituted powers is the hierarchical organisation of legal norms. The legal order comprises both constitutional and secondary laws. The firsts are superior to the seconds and cannot be changed by them. The logic behind this hierarchical organisation was presented as follows: laws are defined as constitutional ‘if they cannot be made or changed without the general consent’.68 By contrast, laws passed by the parliament ‘as a constituted authority are just ordinary or secondary laws: they are modelled and ruled according to natural and constitutional law’.69 While ordinary laws can be changed by the legislative assembly as it pleases, constitutional laws can only be modified by the constituent power itself, thus preventing the appropriation of sovereignty by constituted powers. Being a mechanism to implement the rigidity of the constitution, the hierarchy of norms contributed to guaranteeing ‘the legislative power’s limitation by the constituent power’.70 To sum up, the 1848 association of sovereignty to constituent power was meant to conceptualise the principle of popular power in such a way as to avoid claims to direct, absolute or continuous exercise of power by the people and its representatives. Once coupled with pouvoir constituant, the principle of popular sovereignty was first transformed into a constitutionauthorising power and then, once the constitution was created, into a derivative constituted power. Its competences were necessarily limited by its constituted character and submitted to the hierarchy of norms and to the rigid character of the constitution.

The Success of Constituent Power The transformation of sovereignty into a constitution-making authority developed throughout the first half of the nineteenth century and gained 67 70

68 J. D. Lanjuinais, Constitution de la nation francaise, vol. I, p. 100. Ibid., p. 12. F. Berriat-Saint-Prix, Commentarie sur la Charte Constitutionnelle, p. 118.

69

Ibid.

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momentum in the aftermath of the 1848 Revolution. By May 1848, when the first session of the Constituent Assembly took place, it was common sense to consider the notions of popular sovereignty and constituent power complementary and mutually dependent. Taking their association for granted, the entire constitution-making process revolved around the assumption that sovereignty could only be expressed through the people’s exercise of constituent power. The temporary government not only decided that popular sovereignty would be voiced through a proper Constituent Assembly (as opposed to previous constitutional commissions) but also established that it would be elected by the universality of male French citizens, so as to make it representative of the sovereign will. In the months that followed, Cormenin, one of the most active theorists of sovereignty as constituent power during the July monarchy, was elected president of the Constituent Assembly. He oversaw the works of the Assembly and witnessed the implications of his theory being incorporated into the constitutional text.71 Differently from what happened in 1789 and 1792, the constituents did not linger on debating the forms and means through which the people’s power could be articulated. Rather, they focused on discussing the contested ‘droit au travail’ and the first article of the constitution was approved with almost no debate; they agreed that political authority belonged to the people who, expressing the constitution-making power, set the forms and conditions of its exercise by the constituted order. The most obvious consequence was the integration of constituent power’s superiority over the constituted order in the constitutional text. Reminded of past expropriations of sovereignty by constituted powers, the constituents agreed to draw an unequivocal normative definition of both the hierarchy of norms and the rigidity of the constitution. For the first time since 1795, the constituents decided to include a chapter entitled De la revision de la Constitution, where they outlined the special procedures needed to change the constitutional text: after three consequent deliberations by the legislative chamber, a special assembly – entrusted with the constituent power – was summoned and its decision was to be considered indisputable.72 Representing the sovereign people and implementing the separation between the constituent power and the constituted order, the work of the Constituent Assembly demonstrates the extent to which the 71 72

For a reconstruction of the working of the Constituent Assembly, see J. Godechot, Les Constitutions de la France depuis 1789, pp. 253–62. Ibid.

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principle of popular sovereignty was effectively limited by its association to constituent power. The association of sovereignty with constituent power did not remain the exclusive domain of the ‘experts in the field’. From 1848 onward, it entered the public debate and became the most popular way of addressing the principle of popular power. Jurists and members of Parliament relied on the language of pouvoir constituant to debate the concrete implications of sovereignty, and journalists from the entire political spectrum framed the public discourse in such a way as to suggest their necessary complementarity. In so doing, they made its implications understandable and accessible to the wider public.73 An emblematic case is offered by the newspaper directed by Hugues de Lamennais. A former priest elected to the Constituent Assembly, he created a daily newspaper whose aim was to publicise the summaries of the Assembly’s proceedings and a variety of political reflections. As stated in the first issue, the journal was committed to the affirmation of popular sovereignty and, tellingly, was named after what appeared to be its most appropriate formulation. It was called Le Peuple constituant.74 Similarly, the most important newspapers and journals of the time, such as La Tribune or National, extensively used the language of constituent power to indicate the concrete implementation of popular sovereignty. In addition, the theorisation of constituent power as a form of sovereignty entered the university. Until the mid-1830s only a few legal treatises addressed the question of sovereignty in terms of the people’s constituent power. By the mid-1840s, the situation had relevantly changed. Starting from 1848, important journals such as the Revue Wolowski and the Revue des Deux Mondes regularly published reviews of books addressing the notion of constituent power. Most of them focused on the working of constituent power and attempted to systematise the terms of its relationships with the principle of sovereignty. Others addressed more specific issues, such as the way in which the constituent assembly had to be elected in order to legitimately represent the people’s sovereign will. A further proof of the pervasiveness of the language of constituent power is the fact that almost all critiques of the political regime were framed in 73

74

Proof is the frequency with which electoral manifestos refer to popular power in terms of constituent power. See Recueil de documents relatifs à la campagne éléctorale pour les élections à l’Assemble constituante, available at http://gallica.bnf.fr/ark:/12148/bpt6k1019609.r=assemblée+constituante+1 848.langFR. Le peuple constituant, 27 février–11 juillet 1848. On Lamennais, see J. R. Derré, Lamennais, ses amis et le mouvement des idées à l’époque romantique, 1824–1834 (Paris: Librairie C. Klincksieck, 1962).

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terms of the people’s sovereign power to reactivate the constituent authority. In 1851, jurist and politician Édouard Laboulaye voiced his concerns for the stability of the republic in the following terms. Contesting the initial choice of instituting a single chamber, he criticised its excessively powerful legislative authority.75 He proposed to counterbalance its power by creating a strong presidential figure entrusted with the right to veto the decisions taken by the legislature. To put forward his proposed constitutional revision, Laboulaye directly invoked the people’s sovereign constituent power: ‘I demand that the nation, re-entrusted with its inalienable sovereignty, that is recognized by all republican constitutions and that none can chain, expresses itself over the constitution currently hindering and ruining it.’76 This, concretely, meant: ‘that the legislative assembly, without losing its powers, shortening the duration of its mandate or suspending the nation’s life, summons, for the year 1851, an extraordinary assembly to revise the constitution.’77 The legislative chamber paid no attention to Laboulaye’s claims and, a few months later, Louis Napoleon took advantage of the instability Laboulaye had identified and secured his personal ascent to power. The Second Empire temporary silenced most debates on popular sovereignty and constituent power. Re-proposing the same rhetorical strategies used by his uncle, Louis Napoleon justified his political authority via a plebiscite, held in 1852.78 Moreover, neither the people nor its representatives participated to the constitution-making process, as the 1852 constitution was written overnight by a single man, signed by Napoleon and straightforwardly published as France’s new constitution. However, the scarcity of political debates did not entail the end of intellectual and academic interest in the theme of constituent power. Ironically, during the Second Empire most of the above-mentioned jurists organised their reflections on sovereignty and constituent power into fully structured legal textbooks. This is the case not only of Berriat-Saint-Prix’s Théorie du droit constitutionnel français, published in 1856, but also of Laferrière’s complete transcription of his university courses, collected 75 76 77 78

On Laboulaye, see J. L. Halpérin, ‘Laboulaye, historien du droit et/ou comparatiste’, Revue internationale de droit comparé (2011): pp. 63–3, pp. 517–25. E. Laboulaye, La révision de la constitution: lettre à un ami (Paris: A. Durand, 1851), pp. 4–5. Ibid. On Louis Napoleon’s use of plebiscites and understanding of legitimacy, see S. Hazareesingh, From Subject to Citizen (Princeton, NJ: Princeton University Press, 1998),ch. 1; R. Tombs, France 1814–1914 (New York: Longman, 1996), pp. 200–10, pp. 395–425; P. Baehr, Caesar and the Fading of the Roman World: a Study in Republicanism and Caesarism (London: Transaction Publishers, 1997). See also T. Zeldin, The Political System of Napoleon III (London: Macmillan & Co, 1958).

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under the title of Cours de droit public et administratif.79 Moreover, under Louis Napoleon’s rule constitutional law was recognised as an autonomous field of intellectual enquiry. This transformation was marked by the publication of one of the most influential legal treatises of the time: Pellegrino Rossi’s Cours de droit constitutionnel.80 Definitively dropping the expression ‘public and administrative law’ from its title, this posthumous oeuvre presented, among other things, a systematisation of the juridical implications derived from the association of sovereignty to constituent power. It not only dealt with the difference between constituent power and constituted order but also established the canonical way of approaching the question of sovereignty. Furthermore, the association of sovereignty with constituent power became an object of study in its own right, as demonstrated by the flourishing of academic seminars and brochures directly addressing the people’s sovereign constituent power.81 Laboulaye himself presented a series of reflections on the historical development of the idea and its concrete implications throughout France’s recent history.82 Some years later, the association of constituent power and sovereignty was definitively and authoritatively sanctioned by one of the most influential jurists of the Third Republic, the Strasbourg-born constitutional theorist Raymond Carré de Malberg. In his Contribution à la Théorie générale de l’État, Carré de Malberg set out to assess what was the best conceptualisation of the people’s political authority. After having criticised Rousseau for proposing a unitary and all-encompassing idea of sovereignty, he argued that it was necessary to conceptualise political authority in such a way as to securely distinguish the sovereign domain from the ordinary exercise of power. This distinction, he argued, could only be guaranteed by the coupling of the idea of sovereignty with the notion of constituent power. The latter, in his view, was not only meant to indicate the way in which the nation, after having created the state, writes its own constitution, but it was also needed to limit the exercise of sovereignty by distinguishing it from the constituted order. This distinction was necessary to protect individual 79 80 81

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M. F. Laferrière, Cours de droit public et administratif. Although this book was first published in 1839, a second and more complete edition was published in Paris in 1860. The first professorship of constitutional law was established in the early 1830s by Guizot and assigned to Pellegrino Rossi. The book by Rossi is the first constitutional treatise called as such. Examples are J. Bonhomme, Ni Monarchie, ni république. Honnêteté. Dissolution. Pouvoir constituant. Suffrage universel (Paris: Lachaud Editeur, 1873); M. Block, Dictionnaire général de la Politique (Paris: O. Lorenz, 1873);and the course given by Chavegrin between 1899 and 1900 titled Le pouvoir constituant (Paris, 1900). E. Laboulaye, ‘Pouvoir Constituant’, La Revue des Deux Mondes (1 septembre 1871), pp. 792–1014.

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rights as well as to make clear that state organs were bound to the respect of the constitution.83 Consequently, Carré de Malberg offered a typical nineteenth-century theory of the relationship between sovereignty and constituent power. To a great extent reproducing Lanjuinais’s move, he argued that constituent power was a fundamental mechanism for the implementation and limitation of sovereignty.84 Together with the systematisations of constituent power’s relationship to sovereignty already mentioned, this proves that, far from being a minor mechanism to limit sovereignty, in the second half of the nineteenth century the idea of constituent power became one of the fundamental pillars of French constitutional theory.

Conclusion The political history of nineteenth-century France is an interesting laboratory for understanding the evolution of the language of constituent power. The interchange between different political regimes and the consequent attempts to justify their rule greatly modified the terms of the debate on political authority. The idea of constituent power as an independent conceptualisation of popular power disappeared, and the difference that separated popular and national sovereignty vanished in the wake of the Terror. Furthermore, whilst during the Revolution of 1789, there was no room for discussing the king’s sovereign power, the Napoleonic Empire and the two monarchical restorations reinserted it in the debate on political authority, thus inevitably changing its configuration as well as its boundaries. This general reshaping of the terms of the debate saw also the modification of the relationship connecting the idea of sovereignty to the notion of constituent power. Intellectuals that were committed to the founding principles of the constitutional state and to the heritage of the 1791 constitution feared that sovereignty could be understood as an unbounded power and improperly 83

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Interestingly, on this last point Carré de Malberg referred to and criticised Sieyès. He read his theory of representation as an attempt to convey the full exercise of power into the hands of a concretely detectable political body. As Chapter 4 will explain in more detail, this was exactly what Carré de Malberg wanted to avoid. His argument went as follows: on the one hand, Sieyès theorised the nation’s sovereignty; on the other, he also claimed that the nation in both its constituent and constituted functions needed to be made present through its representatives. This, for Carré de Malberg was a proof of Sieyès’s incapacity to grasp that the only way to limit the idea of sovereignty was to attribute it to an absent, abstract and ultimately not representable body. For, according to Carré de Malberg, Sieyès destroyed the very limiting function that his distinction between the constituent power and the constituted order meant to create. C. de Malberg, Contribution à la Théorie générale de l’État (Paris: Dalloz, 2004 [1920]), p. 499.

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used by the king, the parliament or the people. As a consequence, they tried to reshape the meaning and implications of the principle of popular power offered by the idea of sovereignty by associating it to the notion of constituent power. The political heritage and intellectual structure of this notion allowed them to affirm the principle of popular sovereignty whilst defining it as a necessarily limited and circumscribed power. On the one hand, the framing of sovereignty as the people’s power to authorise the constitution effectively transformed a potentially unbounded attribution of power into a merely sanctioning authority, with the people having the authority to create the constitution, delegate the writing process to elected representatives and keep for themselves the power to eventually sanction the constitution’s coming into force. On the other hand, the hierarchical distinction between the constituent power and the constituted order provided a persuading tool to conceive of the day-to-day exercise of sovereignty as a necessarily limited set of competences. Posing a clear-cut justification for the limited exercise of the sovereign power, the notion of constituent power provided Lanjuinais, Berriat-Saint-Prix, Laferrière, Delarue and Cormenin with exactly what they had been looking for: a logically rigorous argument to attack the king’s and the parliament’s appropriations of the people’s sovereignty and, from 1848 onward, to set clear boundaries to both the people’s and the representatives’ use of power. Yet the progressively stronger association of the idea of popular sovereignty to the notion of constituent power throughout the nineteenth century did not end up in their complete identification. Although the two ideas got closer than Sieyès had imagined them to be during the French Revolution, they still maintained their distinct identities. Sovereignty was no longer invoked to justify direct democracy, but its deployment could still entail ‘a degree of power which is too large itself and which is bound to constitute an evil, in whatever hands it is placed’.85 Similarly, the notion of constituent power lost its oppositional character in relation to sovereignty but maintained the limiting features with which Sieyes entrusted it. As Lanjuinais repeatedly explained, ‘the correct distinction between constituent power and constituted power, a distinction based on the nature of things’ is the only understanding of power ‘apt to guarantee the stability of the Charte, and to preserve us from dictatorship and from the parliamentary tyranny that have already caused enough hardship here and abroad’.86 85 86

B. Constant, ‘Principles of politics’, p. 176. J. D. Lanjuinais, Examen du système de M. Flaugergues, p. 21. On parliamentarism in France in the nineteenth century, see W. Selinger, Parliamentarism: from Burke to Weber (Cambridge: Cambridge University Press, 2019).

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As in the previous phase of constituent power’s history, the two ideas underpin different understandings of popular power. Yet, unlike from the previous case, they are used in combination to put forward an account of political authority limited by clear theoretical and institutional boundaries. The outcome of this association of ideas is the basic structure of the constitutional state, where the people’s sovereignty indicates the source of political authority but the exercise of power is delegated to representatives and constrained inside a rigid constitutional structure, organised according to the hierarchy of norms.

chapter 3

The Weimar Republic

The meaning and implications of constituent power underwent a significant change in the first decades of the twentieth century thanks to German legal theorist Carl Schmitt. During the short-lived Weimar Republic, the principle of popular power and its institutional implications were under extended scrutiny. Scholars not only looked at French political thought to find categories through which to address the German political experience but also emphasised the importance of Emmanuel Sieyès and his political thought for the institutional organisation of the new German Republic. Carl Schmitt actively engaged in these debates and resorted to the language of constituent power to deploy the principle of popular power against the very institutional structure of the Weimar republic. The use of constituent power to put forward a specific interpretation of the idea according to which power belongs to the people is not new. Sieyès and, to a lesser extent, nineteenth-century French jurists such as Firmin Laferrière and Édouard Laboulaye had relied on it to introduce their own specific understanding of popular authority before. However, Schmitt’s use of constituent power is different from those addressed in the previous chapters in at least one fundamental regard. Instead of opposing constituent power to sovereignty, Schmitt collapsed the two notions into a single definition of the fundamental political authority. Specifically, he used constituent power to redefine the meaning and implications of sovereignty in the context of Weimar Germany. This combination of constituent power and sovereignty was however meant to establish an understanding of the latter alternative to those offered by mainstream ideas of popular and parliamentary sovereignty as discussed at the time. These, on Schmitt’s account, entailed either the degeneration of sovereignty into popular direct rule or its annihilation in liberal parliamentary systems. To avoid both risks, Schmitt resorted to Sieyès’s theory of constituent power because he interpreted it as the sole conceptualisation 103

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of popular power apt to maintain the unitary and decisionist features of sovereignty while attributing it to a collective entity, the people. This new definition of sovereignty as constituent power allowed him to justify a very restrictive understanding of the democratic principle of popular power, whose exercise he reduced to voting in a plebiscitary election, attributing exceptional powers to a leader.

France in Germany The Weimar constitution, adopted in August 1919, stated in its first article that Germany was a republic and that ‘the state authority derives from the people’.1 It declared Germany to be a federal state, where the exercise of power was organised around the principle of parliamentary democracy, granting major powers to the Reichstag. The electoral system was proportional and the assumption was that governments had to be formed in coalition and enjoy the confidence of both the Reichstag and the president. The president of the Reich was directly elected by the people and had the power to recall the chancellor and the ministers, dissolve the government as well as parliament, interfere with federated states’ governments and suspend basic constitutional rights. Provisions for extensive use of referenda also added plebiscitary elements to the republican regime. To a great extent, this new constitution reflected a compromise between different political forces and visions of politics. In the first place, it was the result of Germany’s defeat during World War I, which gave rise to widespread social, political and economic crises. This in turn led to various efforts to bring back social and economic normality after the war, the demobilisation of soldiers, attempts to deal with inflation, the payment of war reparations and the occupation of the Ruhr.2 In addition, Weimar Germany was riddled with antagonistic political forces. Radical leftist groups within the USPD as well as the Indipendent socialists were pushing for elements of council democracy on the model of Soviet Russia and promoting almost daily strikes and uprisings in various parts of the country.3 At the same time, right-wing 1 2

3

In German it reads ‘Die Staatsgewalt geht vom Volke aus’. See A. Jacobson and B. Schlink, Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000), pp. 3–20. For an overview of the reasons for the instability of the compromise at the origins of the Weimar Republic, see H. Mommsen, The Rise and Fall of Weimar Democracy (Chapel Hill: University of North Carolina Press, 2007), pp. 191–2. See also D. J. K. Peukert, The Weimar Republic (London: Penguin, 1993), pp. 35–51, pp. 207–45, and I. Kershaw (ed.), Weimar: Why Did German Democracy Fail? (London: Weidenfeld and Nicolson, 1990), pp. 92–119, pp. 120–52. Mommsen notes that by spring 1919 only Revolutionary Shop Stewards thought that councils could be a viable form of government. See Mommsen, The Rise and Fall of Weimar Democracy, p. 24.

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forces, such as the National Socialist German Workers Party (NSDAP) and parts of the Reichswehr, were also engaging in destabilisation, as evident in the Kapp Putsch of 1920.4 The splintering of Weimar’s political scene into a myriad of parties, each obtaining some level of representation in Parliament thanks to the proportional electoral system, precipitated radical instability, in the midst of which a series of ‘president’s cabinets’ were sworn in but never lasted an entire term of office.5 This situation of quasipermanent crisis and instability brought to the fore some of the tensions enshrined in the constitutional text which, in turn, raised a series of issues about the possibilities of democratic politics. These questions preoccupied legal and political theorists throughout the Republic’s short life. In this context, thinkers and publicists engaged in a long-lasting debate over the meaning and implications of the principle of popular power. In doing so, they drew extensively on the political thought of the French Revolution. The debate focused on the intellectual premises and political consequences of the Revolution to illuminate the origins of the modern nation state and its fundamental institutions. Questions addressing the location and extension of sovereignty, its relationship to the legislative and executive branches as well as with the representative principle appeared particularly urgent. The historical and intellectual heritage of the French Revolution looked like the obvious point of reference for any scholar interested in finding answers before, during and after the institution of the Weimar Republic.6 Part of the reason why the political thought and history of the French Revolution appeared like such an obvious reference is that it had already been extensively studied in Germany in the nineteenth century, especially after 1848, and had become the object of numerous publications at the turn of the century. Among several, the Swiss-born legal theorist Kaspar Bluntschli extensively read and commented upon the political ideas of the French Revolution in the nineteenth century.7 He was determined to separate the theories of the state developed during the Revolution from the political practices that led to the Terror. The latter, Bluntschli argued, derived from Rousseau’s all-encompassing idea of the general will as well as from Hobbes-inspired contractualist understandings 4 5 6

7

Ibid. For an analysis of the effects of proportional representation on Weimar politics, see Mommsen, The Rise and Fall of Weimar Democracy, p. 61. D. Kelly, ‘Egon Zweig and the intellectual history of constituent power’, in K. L. Grotke and M. J. Prutsch (eds), Constitutionalism, Legitimacy and Power: Nineteenth-Century Experiences (Oxford: Oxford University Press), p. 334. Cf. J. K. Bluntschli, The Modern State (Oxford: Clarendon Press, 1895), pp. 50–8; J. K. Bluntschli, Lehre vom Modernen Staat (Stuttgart: J. C. Cotta, 1876), pp. 581–4.

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of politics.8 To avoid reproducing the evident negative effects of them both, Bluntschli pushed for a general reassessment of the theories proposed by moderate revolutionaries before, during and after the Terror, including Sieyès’s.9 A similar attack against Rousseau came from legal theorist Georg Jellinek, who played an important role in defending the relevance of the political thought of the French Revolution for German debates on state theory at the end of the nineteenth century. In 1895, he published an essay titled The Declaration of the Rights of Man and of the Citizen. This essay dealt with the intellectual origins of the French declaration of rights, which he traced back to Teutonic conceptions of the state, passing through the Reformation, the English declarations of rights and the Bills issued by the American states before their unification. Reworking an argument popular at the time, he refused to see any direct connection between the French idea of individual human rights and Rousseau’s theory of the social contract. 10 On the contrary, he argued that only theories that considered the individual as distinct and separate from the community could offer a truly modern understanding of sovereignty. This was the revolutionary heritage to be implemented in Germany, against all temptations to fall back onto Rousseau and his infamous interpretation by the Jacobins.11 Among the legal theorists who decided to further investigate the topic, Robert Redslob briefly but directly tackled Sieyès’s account of constituent power. This idea, Redslob argued, allowed Sieyès to proclaim the sovereignty of the nation while at the same time constraining its exercise inside clear institutional boundaries. Accordingly, Redslob maintained that, in Sieyès’s theory, the only way of expressing the nation’s sovereign will was through the representatives’ extraordinary creation of the constitution and their ordinary exercise of the constituted power.12 Consequently, neither of the two powers, the constituent or the constituted, could be the direct prerogative of the people. The interest these scholars demonstrated for the political thought of the French Revolution 8

J. K. Bluntschli, Lehre vom Modernen Staat (Stuttgart: J. C. Cotta, 1876), pp. 582–4. See also D. Kelly, ‘Egon Zweig and the intellectual history of constituent power’, 333–5. 9 For a discussion of Bluntschli’s and other theories of sovereignty in late nineteenth-century Germany, see D. Kelly, ‘Popular sovereignty as state theory in the nineteenth century’, in R. Bourke and Q. Skinner (eds.), Popular Sovereignty in Historical Perspective (Cambridge: Cambridge University Press, 2016), pp. 270–96. 10 G. Jellinek, The Declaration of the Rights of Man and of the Citizens (New York: Holt, 1901), pp. 8–12. 11 See also D. Kelly, ‘Revisiting the rights of man: Georg Jellinek on rights and the state’, Law and History Review 22(3) (2004): pp. 502–6. 12 R. Redslob, Die Staatstheorien der französischen Nationalversammlung von 1789 (Leipzig: Verlag von Veit & Comp, 1912), pp. 151–72; 215–20.

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in general, and for Sieyès in particular, suggests that the question of sovereignty and popular power, which developed in France and formed the object of the previous two chapters, gained a new momentum in Germany in the nineteenth century and travelled into the twentieth as a valuable set of conceptual and historical resources for understanding the present. Alongside legal and political efforts to make sense of the meaning and implications of the principle of popular authority, historians too had demonstrated interest for the idea of constituent power. This is the case, for instance, of Theodor Mommsen’s discussion of the origins of the idea at the time of the Roman Republic. In the third and fourth volumes of his Römisches Staatsrecht, he discussed how a specific type of political authority, the constituirende gewalt, was used by the Romans to establish legal and political orders anew.13 By Mommsen’s account, this was an extraordinary power and could be exercised in a plurality of different circumstances. Among others, he discussed the ‘constituent magistrates’ as well as the dictatorship legibus scribendis et rei publicae constituendae causa.14 He addressed the case of Sulla, who became dictator in 82 BC according to the procedures outlined in the law Valeria. Notwithstanding his lawful election to the role of dictator, he was endowed with the absolute and unlimited power of changing the Roman constitution, including the law that brought him to power. This authority, according to Mommsen’s reconstruction, could neither be constrained nor limited. On the contrary, it granted the dictator an unlimited power over all state institutions as well as over individual citizens. Its final aim was to reorganise the state as a whole, in all of its institutional relations and structures. Mommsen’s seminal work had great success, and his ideas circulated widely among intellectuals and academics, who could not avoid acknowledging the similarities between the Roman idea and eighteenth-century revolutionary interpretations of pouvoir constituant.15 The widespread interest for Sieyès’s theory of constituent power is also proved by a later historical analysis of its origins: Egon Zweig, a young Austrian student of Jellinek, dedicated an entire book to the reconstruction 13 14 15

T. Mommsen, The History of Rome (Cambridge: Cambridge University Press, 2010 [1871]), book 4, ch. X. Others were the decemvirat consultari imperio legibus scribendis, cura legum et forum maxima potentate, Triumvirato Rei publicae costituendae, magistrature rei publicae curandae. For a discussion of dictatorship in Roman law in relation to Sulla, see B. Straumann, Crisis and Constitutionalism (Oxford: Oxford University Press, 2016), pp. 74–85. On Mommsen and Schmitt, see K. Tuori, ‘Schmitt and the sovereignty of Roman dictators: from the actualisation of the past to the recycling of symbols’, History of European Ideas 42(1) (2016), pp. 95–106.

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of constituent power’s history and called it Die Lehre vom Pouvoir Constituant.16 Starting with its origins in Aristotle’s distinction between fundamental and ordinary laws, he went on to re-elaborate Mommsen’s theorisation of its development during the Roman Republic and then discuss the influence of the English and American Revolutions and eventually arrive to its full political deployment in 1789. According to Zweig, the French Revolution was the moment in which a long-discussed philosophical idea turned into a concrete instrument of politics. He attributed the merits of this transformation to Sieyès and, to a lesser extent, Condorcet. Proposing an argument similar to those offered by Bluntschli and Jellinek, Zweig claimed that the idea of constituent power was substantially different from Rousseau’s or Hobbes’s theories of the social contract.17 In fact, Sieyès’s merit consisted in having transformed the very idea of sovereignty, as theorised by Rousseau and Hobbes among others, into the foundation of a system based upon the French model of checks and balances theorised by Montesquieu. This transformation, Zweig argued, was made possible by Sieyès’s choice to resort to the notion of constituent power.18 It allowed him to distinguish what both Hobbes and Rousseau had collapsed, namely the difference between the national collective understood as a political whole and single individuals composing the nation. While the sovereign power of the first was made present and visible thanks to the constitution-writing process carried out by representatives, individuals did not need to engage directly with ordinary politics. This is because, Zweig argued, Sieyès’s sociological analysis of the division of labour allowed him to claim that they simply had to delegate the exercise of power to constituted representatives. These did not freely exercise power in the name of the community but had to act inside the limits established by the sovereign nation through the action of the constituent power. Hence, Zweig described Sieyès’s idea of constituent power as a successful attempt to transform the potentially totalising idea of sovereignty into a fully modern account of the power of the people inside a republic. This novel understanding of sovereignty, Zweig claimed, established the foundations of the modern state. It follows that Zweig, as much as Mommsen before him, presented constituent power as a historical idea from which to deduce political and 16 17 18

E. Zweig, Die Lehre vom Pouvoir Constituant: ein Beitrag zum Staatsrecht der französischen Revolution (Tü bingen: J. C. B. Mohr, 1909). In his view, Rousseau contributed to the debate only in his discussion of the constitution of Poland. Ibid., pp. 82–7. Ibid., p. 392.

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theoretical insights relevant to contemporary debates about the foundations of democratic legitimacy. In this sense, his Die Lehre vom Pouvoir Constituant became the reference point for thinkers interested in using the idea of constituent power to make sense of popular power in the Weimar state, including Carl Schmitt.19

Carl Schmitt To understand Schmitt’s use of constituent power, it is necessary to start by discussing his understanding of sovereignty, as well as the challenges that political modernity in general, and the Weimar Republic in particular, posed to its theorisation and realisation. It is the argument of this chapter that Schmitt deployed the notion of constituent power to apply his theory of sovereignty to the context of Weimar, in order to justify presidential dictatorship in democratic terms. The following paragraphs will outline what was, for Schmitt, a satisfactory definition of sovereignty, how it came under pressure during the Weimar Republic and how he found, in the political thought of the French Revolution in general and in Sieyès’s theory in particular, the language to associate it to the democratic principle of popular power while maintaining its dictatorial implications. To begin with, Schmitt’s most concise theorisation of sovereignty can be found in the 1922 pamphlet Political Theology, which famously begins with the words ‘Sovereign is he who decides on the exception’20 and goes on to claim that this is the only possible definition apt to do justice to as borderline a concept as sovereignty. The reason for this is that sovereignty does not manifest itself in the daily routine of politics but appears only when a truly political decision needs to be taken. This only happens in key historical moments when either the state is created or its existing legal structure is unable to deal with a situation of crisis and has to be suspended in favour of a state of exception. The sovereign, standing beyond and above the legal constitutional order, is therefore the political entity that can decide over the creation or the suspension of the constitution. Its decision interrupts the normality of the political routine and signals the irruption of the ‘power of real life [that] breaks through the crust of a mechanism that has become torpid with repetition’.21 It follows that all expressions of 19

20 21

On Carl Schmitt’s biography, see R. Mehring, Carl Schmitt: a Biography (Cambridge: Polity Press, 2014); J. W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton, NJ: Princeton University Press, 1983). C. Schmitt, Political Theology (Chicago: Chicago University Press, 2005 [1922]), p. 5. Ibid., p. 15.

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sovereignty are necessarily related to, but independent from, the legal system. They are related insofar as they entail its suppression and – exactly because they suspend or overthrow it in favour of a new legal system – they are also completely independent from its normative power. The expression of sovereignty is free from any pre-established constraints and is ‘a decision in the true sense of the word’.22 The sovereign political decision is a decision over what constitutes the ‘entirety of the political unity in regard to its peculiar form of existence’.23 This can only be brought about with reference to the ‘specific political distinction to which political actions and motives can be reduced to’.24 This is the distinction between the friend and the enemy. Once this fundamental distinction is drawn, the political unity is created. The latter is ‘always the decisive entity, and it is sovereign in the sense that the decision about the critical situation, even if in the exception, must necessarily reside here’.25 Sovereignty thus entailed the factual taking of the fundamental decision as well as the capacity to act, in exceptional cases, according to or against its content. Moreover, from the definition of the friend-enemy grouping descends and depends the totality of the legal constitutional order. As Schmitt repeatedly argued, the political decision is the foundation of all legal systems and is their ultimate rationale26: ‘Every legal order is based on a decision, and also the concept of the legal order, which is applied as something self-evident, contains within it the contrast between two distinct elements of the juristic – norm and decision. Like every other order, the legal order rests on a decision and not on a norm.’27 Consequently, sovereignty understood as the authority to take a decision over the content and form of the political unity expresses its full strength in the moment of founding the political order. Yet it does not disappear from the political scene once this is created. It remains active and present alongside it, in its ordinary working, as the ultimate justification and raison d’être of the 22 23 24 25 26

27

Ibid., p. 6. C. Schmitt, Constitutional Theory (Durham, NC: Duke University Press, 2008 [1928]), p. 75. C. Schmitt, The Concept of the Political (Chicago: Chicago University Press, 2007 [1927]), p. 26. Ibid., p. 38. As Sam Zeitlin pointed out to me, this was not the case in 1914 when Schmitt wrote his Habilitationsschrift. In that work, Schmitt maintains that the rationale of the state is the realisation of law (ius or Recht) in the world. See C. Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Tübingen: J. C. B. Mohr, 1914); L. Vinx and S. G. Zeitlin (eds and trans), Carl Schmitt’s Early Legal Theoretical Writings (Cambridge: Cambridge University Press, forthcoming). C. Schmitt, Political Theology, p. 5. Schmitt later discusses Rousseau also in C. Schmitt, ‘To the true Johann Jakob Rousseau, on the 28th of June 1962’, in C. Schmitt (ed.), The Tyranny of Values and Other Texts, translated R. A. Berman and S. G. Zeitlin, (Candor, NY: Telos Press, 2018), pp. 167–74.

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political order. As Schmitt explained in a later book Legality and Legitimacy, sovereignty can be discovered in every individual state action, an element of legislation as well as of administration and even of judicial decision. Specifically, all these elements and manifestations of state action are reunited in the sovereign. The sovereign is the highest legislator, judge, and commander simultaneously. He is also the final source of legality and the ultimate foundation of legitimacy.28

Once the supreme and exceptional character of sovereignty had been defined at a theoretical level, Schmitt analysed the historical occasions in which it had been embodied.29 As he argued in his 1921 book Die Diktatur, sovereignty was originally located in a theistic conception of God as the sole architect of the universe. Successively, the personalistic character of sovereignty was embodied in the physical unity of the king, as a direct transposition of God to Earth. However, in Political Theology (1922) he described the process through which the personalistic and deistic character of sovereignty faded away during the eighteenth and nineteenth centuries and a new political entity came to the fore as bearer of the sovereign power. This passage, he claimed, was accomplished by Rousseau who argued that the people’s general will was identical to the sovereign will. Rousseau’s equation inaugurated a new form of political legitimacy. The latter was no longer grounded on the necessary rightfulness of the monarch’s command but on the mere expression of the popular will, which, by definition, was always right.30 This new form of political legitimacy, Schmitt argued, 28 29

30

C. Schmitt, Legality and Legitimacy (Durham, NC: Duke University Press, 2004 [1932]), pp. 4–5. Schmitt’s first explicit discussion of sovereignty can be found in his early book on state theory, published in 1914. In this work, Schmitt discusses sovereignty as a necessary attribute of the state. See C. Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen; L. Vinx and S. G. Zeitlin (eds and trans), Carl Schmitt’s Early Legal Theoretical Writings. Yet it is in Schmitt’s 1921 book Die Dictatorship that he approaches the topic of sovereignty in relation to the distinction between the state of siege, the commissar and sovereign dictatorships. In the book, Schmitt defined the sovereign dictator as he who, in an already established political community, has the power to create a completely new legal order with the aim of solving a problematic situation. He illustrated this model of sovereignty by retracing its three-folded development in history. The first step corresponded to the French monarch’s decision to rule through an extraordinary dictator instead of via his ordinary commissars in the early eighteenth century. The second phase saw the spread, in the eighteenth century, of the association of sovereign dictatorship with reason, in the form of enlightened absolutism. And the last stage corresponded to the development of Rousseau’s theory of politics, where the sovereign had absolute power and was able to act beyond and against the established legal system. See C. Schmitt, Dictatorship (Cambridge: Polity Press, 2013 [1921]), pp. 1–20, pp. 80–111. It is interesting to note that here Schmitt seems to rephrase Sieyès when he writes that ‘the people are always virtuous’ and that ‘in whatever manner a nation expresses its wishes, it is enough that it wishes; all forms are good but its will is always the supreme law’. C. Schmitt, Political Theology, p. 48. Sieyès writes: ‘However a nation may will, it is enough for it to will’, cf. E. Sieyès, ‘What is the Third Estate?’ in E. Sieyès, Political Writings, pp. 138.

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attributed the sovereign power to a collective entity and therefore entailed the loss of the personalistic element inherent to the very idea of monarchical sovereignty. In states based upon the principle of popular power, the bearer of sovereignty was no longer a single, all-powerful figure but an entire population. How could fundamental political decisions be taken effectively and authoritatively by a collective body? In other words, was sovereignty doomed to disappear and dissolve in the long and chaotic process of democratic deliberation and collective decision-making? The answer to these questions, Schmitt believed, depended on how any given state would organise itself constitutionally, but the experience he had under his eyes, that of the Weimar Republic, seemed to offer only reasons for pessimism. Schmitt’s increasingly negative attitude vis-à-vis the Weimar constitution is well known, the main critique being that it jeopardised the possibility of taking fundamental decisions and the existence of the state as a unitary entity.31 His frustration with Weimar politics can be discussed in three steps. First, Schmitt explained that the Weimar constitution was a compromise between different visions of politics and their related political regimes, which resulted in a non-decision about the type of state Weimar was supposed to be.32 These were democracy, republicanism, federalism, parliamentarism and the bourgeois state. Among these five political principles, in Schmitt’s view, some were especially at odds with each other: democracy, parliamentarism and the bourgeois state.33 As will later be shown, Schmitt believed parliamentarism to be in tension with democracy. Although parliamentarism worked well in the nineteenth century as a counterweight to monarchical sovereignty, it was not suitable to the age of mass politics. This is because parliament was meant to be a place of deliberation and opposition, instead of decision. When coupled with the democratic principle, parliamentarism substituted the will of the people with a quest for relative truths, which amounted to a straightforward negation of sovereignty. If seen in this light, the instability characterising the Weimar state was not surprising: it directly 31

32

33

Scholars have extensively debated whether Schmitt has always been critical of the Weimar constitution or whether he started being so in the early 1930s, when governments could not control any majority in parliament. I adopt Vinx’s position here, who maintains that, although the specific focus of Schmitt’s critique of the constitution changed over time, the core of his criticism was already there in 1921. See L. Vinx (ed.), The Guardian of the Constitution (Cambridge: Cambridge University Press, 2015), p. 12. This argument echoed themes common to Weimar debates about the failures of the new constitution, in relation to both the compromise from which it derived and its connection to the terms of the treaty of Versailles. See, for example, Peukert, The Weimar Republic (London: Penguin, 1993), pp. 35–42. Cf. C. Schmitt, Constitutional Theory, pp. 238–9, p. 249.

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followed from the fact that the constitution was based on no definite sovereign decision but on a series of compromises between conflicting political principles. Second, the Weimar constitution was, in Schmitt’s view, the embodiment of the pluralism of values typical of disenchanted modernity. Elaborating on Weber’s discussion of modernity, he maintained that the Weimar constitution in general, and its proportional electoral system in particular, fractured the state into a plurality of competing truth claims, each corresponding to different partisan factions.34 What he had in mind was not only the conflict between socialist, communist, centrist and conservative parties but also that between socio-economic organisations such as unions, religious associations and interest-based groups, all of which could obtain representation in parliament thanks to the proportional electoral system. The result was not only the battle of gods described by Weber but also a permanent state of conflict among partisan groups. This, Schmitt claimed, was the result of the constituents’ decision to frame the constitution as a set of value neutral procedures, with no value of its own. This lack of commitment was evident in the wording of article 76 of the constitution, which allowed for constitutional amendments on any aspect of the constitution – including, ad absurdum, its republican nature – granted a majority of two-thirds in parliament. To Schmitt, this article encapsulated all that was wrong with Weimar: its ultimate refusal to commit to anything decisive, and the political instability and fragmentation that from it derived.35 Last, and following from the above, Schmitt accused the Weimar constitution of being too weak to protect itself. What he had in mind here was an attack against fellow legal theorists such as Gerhard Anschütz, Richard Thoma and Hans Kelsen who, in Schmitt’s view, exploited the openendedness of article 76 to advance a purely positivist reading of the constitution. Schmitt’s conflict with Weimar statuatory positivism is well known, and this is not the place to reiterate it.36 It suffices to point out that 34

35

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For an overview of Schmitt’s relationship to Weber’s account of the disenchantment of the world, see S. G. Zeitlin, ‘Propaganda and Critique: An Introduction to Land and Sea’, in C. Schmitt, Land and Sea: A World Historical Meditation, edited R. A. Berman and S. G. Zeitlin (Candor, NY: Telos Press, 2015), pp. xlvi–lii. Schmitt writes on the perpetual state of partisan conflict also in his post–World War II text ‘The tyranny of values’, in R. A. Berman and S. G. Zeitlin, The Tyranny of Values and other Texts, pp. 26–44. On the context of this work, see S.G. Zeitlin, “Indirection and the Rhetoric of Tyranny: Carl Schmitt’s The Tyranny of Values 1960–1967,” in Modern Intellectual History (forthcoming). Even though Schmitt criticised statuatory positivists for opening the constitution to endless possibilities of amendment, he also presented it as an opportunity to abolish constitutional democracy constitutionally, especially in his later writings. See C. Schmitt, State, Movement, People (Corvallis, OR: Plutarch Press, 2001), pp. 3–10.

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Schmitt accused legal positivists of committing to nothing but pure legality and of sacrificing the ‘absolute core of the constitution’, its fundamental content, in the name of legal procedures. This was because positivists believed law to be valid if it was arrived at following given procedures; they remained completely agnostic as to the content of the law as well as to its source. Schmitt, instead, believed in the difference between statutes, Gesetz, and law, Recht, and claimed that, while the first could be suspended or even sacrificed, the second had to be retained for the constitution to exist. The alternative would be opening the way for legal revolutions. This, in turn, would mean sacrificing the nation to the positivist worship of legal procedures. Having acknowledged the challenges that Weimar constitutionalism posed to the principle of sovereignty, as well as the threats that collective self-rule presented to its realisation, Schmitt was confronted with the need to reintroduce the possibility of taking political decisions in contemporary democratic states. Interestingly, he found in Sieyès’s theory of constituent power the solution he was looking for. Scholars have long investigated the reason why Schmitt decided to resort to the language of constituent power. Among others, Cristi suggested that he did so to tone down the language of sovereignty and make it acceptable to the liberal system and to its ideological premises.37 This, Kelly claims in developing Cristi’s argument, reflected also Schmitt’s broader commitment to elaborate an account of politics informed by contemporary events and the ability to hold a dialogue with the theoretical and political problems raised by the Weimar Republic.38 Schmitt himself justified his choice to describe modern sovereignty in terms of constituent power, arguing that Sieyès’s idea was the ‘intellectual prerequisite’39 of the French Revolution and of the modern 37

38

39

R. Cristi, ‘Carl Schmitt on sovereignty and constituent power’, Canadian Journal of Law and Jurisprudence 10(1) (1997), pp. 189–201, and R. Cristi, ‘Schmitt on constituent power and the monarchical principle’, Constellations 18(3) (2011), pp. 352–64. D. Kelly, ‘Carl Schmitt’s theory of political representation’, Journal of the History of Ideas 65(1) (2004), pp. 113–34. It should also be noted that Schmitt himself made this point, albeit in more general terms, in ‘Dialogue on new space’ in C. Schmitt, Dialogues on Power and Space (Cambridge: Polity, 2015), pp. 51–82, and in C. Schmitt, ‘The historical structure of the contemporary world: opposition between East and West’ in C. Schmitt, The Tyranny of Values and Other Texts, p. 134. On a slightly different note, Kennedy argues that Schmitt’s reliance upon the idea of constituent power did not spring only from Schmitt’s desire to turn his idea of sovereignty into a liberally acceptable theory of the political authority. Although not denying this possibility, she illustrates the extent to which Schmitt reflected on constituent power well before his engagement with liberal constitutionalism and deduces a more substantial theoretical dependence between the two ideas. E. Kennedy, ‘Hostis non inimicus: towards a theory of the public in the work of Carl Schmitt’, Canadian Journal of Law and Jurisprudence 10 (1) (1997), pp. 35–47. C. Schmitt, Constitutional Theory, p. 101.

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state that developed in its wake. Following up on these reflections, the next paragraphs will argue that Schmitt decided to rely on Sieyès’s theory of constituent power, because this allowed him to wage a powerful critique of the politics of Weimar as well as to sketch a solution for its multiple crises. Schmitt first approached the notion of constituent power in his discussion of dictatorship in Die Diktatur.40 Building upon Mommsen’s historical analysis, he claimed that what distinguished sovereign from commissarial forms of dictatorship was the fact that the first could fully exercise the constituent power. This, Schmitt acknowledged, originally appeared at the time of the Roman Republic but became a prominent feature of the state only in the eighteenth century, during the French Revolution, when the transition from monarchical to democratic sovereignty was finally accomplished. Accordingly, Schmitt argued that Sieyès’s idea of constituent power embodied the modern democratic model of sovereignty because it fully recognised the people as the only entity able to legitimately take the fundamental decision over the friend and enemy distinction. As he argued in Verfassungslehre, ‘According to this new theory [Sieyès’s theory of constituent power], the nation is the subject of the constitution-making authority [and this] word denotes, specifically, the people as a unity capable of political action with the consciousness of its political distinctiveness and with the will to political existence.’41 The actual exercise of sovereignty by the people became evident on 17 June 1789 when, Schmitt argued, the ‘French people constituted themselves as the bearer of the constitution-making power. The people became conscious of their capacity to act politically and to provide themselves a constitution.’42 In doing so, they took the fundamental decision over the form of their political existence and, as a result, created the nation as a superior unity. They thus asserted their sovereignty in the very act of exercising the constituent power. Here two elements are key for Schmitt’s narrative: the first is that Sieyès’s constituent power could effectively be read as the power to take the fundamental decision over the nature of the political unity. The second is that only the nation as a collective entity, superior and irreducible to the sum of private individuals, could be the 40

41

Schmitt not only does not seem to have used the concept of constituent power before 1921, but he also did not use it after the fall of the Weimar Republic. This seems to suggest that the idea had a strategic role for Schmitt, i.e. it served to associate his understanding of sovereignty to a democratic notion (constituent power) in order to justify the dictatorship of the president, according to an extensive interpretation of article 48 of the Weimar Constitution. This is also confirmed by the fact that Schmitt did not include Sieyès, or constituent power, in his overview of world history in Land and Sea. See C. Schmitt, Land and Sea: A World Historical Meditation. 42 C. Schmitt, Constitutional Theory, p. 127. Ibid.

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bearer of the constituent power. But before going into the details, let’s explore the first point, or how Schmitt read Sieyès’s constituent power as an understanding of popular authority able to incorporate and maintain the exceptional character of sovereignty. To do so, he devoted some very dense sections of Verfassungslehre to examining constituent power’s distinguishing features and related them directly to the elements he had previously described as characterising sovereignty’s exceptionality. The first feature was constituent power’s arbitrary character. Accordingly, Schmitt contested Zweig’s interpretation of Sieyès’s theory as a form of rationalistic politics. While, according to Zweig, constituent power was a testimony of the Enlightenment, for Schmitt it embodied the full arbitrariness of political decisions. This, he argued, was evident in Sieyès’s argument according to which the nation ‘can will arbitrarily. The content of its willing has always the same legal value like the content of a constitutional definition.’43 For Schmitt, this line showed that there was no underlying rationality to be found in the nation’s constituent power, as this could not be deduced from any a priori cause. On the contrary, it embodied a sheer, discretionary and arbitrary fact.44 As he had already made clear in Die Diktatur, ‘From the infinite, incomprehensible abyss of the force [Macht] of the pouvoir constituant, new forms emerge incessantly, which it can destroy at any time and in which its power is never limited for good. It can will arbitrarily.’45 The second element defining constituent power’s exceptional character is its omnipotence. Being fundamentally discretionary, it does not depend on any norm or value and, similarly, cannot be bound by any. Paraphrasing Sieyès, Schmitt claimed that ‘this constituent power is in principle unlimited and can do everything, because it is not subject to the constitution: it provides the foundation for the constitution itself’.46 Moreover, Schmitt interpreted Sieyès’s argument according to which the constituent power could constitute the political order but not the nation itself as a proof of the former’s shapelessness. Particularly, constituent power’s identity could not 43 44

45

Ibid., p. 171. ‘On the other hand, Sieyès’ theory can only be understood as the expression of an attempt to find the principle that may organise the unorganisable. The idea of the relationship between pouvoir constituant [constituent/constituting power] and pouvoir constitué [constituted power] finds its complete analogy, systematic and methodological, in the idea of a relation between natura naturans [nature nurturing/creating] and natura naturata [nature natured/created]. And even if this idea has been integrated into Spinoza’s rationalistic system, this demonstrates even more that this system is not exclusively rationalistic. The theory of the pouvoir constituant is incomprehensible simply as a form of mechanistic rationalism. The people, the nation, the primordial force of any state – these always constitute new organs.’ C. Schmitt, Constitutional Theory, p. 128. C. Schmitt, Dictatorship, p. 127. 46 C. Schmitt, Constitutional Theory, p. 101.

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be established according to pre-existing forms or rules. The nation as the holder of the constituent power was therefore ‘directly and genuinely present, not mediated by previously defined normative systems, validations and fictions . . . [T]he people in its essence persists as an entity that is unorganised and unformed.’47 Third, the constituent power of the people was, for Schmitt, inalienable. Once the sovereign decision is taken and the legal political system established, the nation’s constituent power does not disappear but remains present as an irreducible entity along and above the constituted order. As Schmitt explained, interpreting Sieyès, ‘The constitution-making power is not thereby expended or eliminated, because it was exercised once. The political decision, which essentially means the constitution, cannot have a reciprocal effect on its subject and eliminate its political existence.’48 On the contrary, the constituent power of the people ‘remains always present . . . [It] stands alongside and above every constitution derived from it and any valid constitutional provision of this constitution.’49 Lastly, Schmitt claimed that Sieyès’s idea of constituent power perfectly expressed the impossibility, in democratic political orders, of constraining sovereignty through the legal system. Sieyès himself argued that the nation was always in a state of nature, and its constituent power could not be submitted to any form of constituted rule. From this assertion, Schmitt deduced that the content of [constituent power’s] willing has always the same legal value like the content of a constitutional definition. Therefore, it can intervene arbitrarily – through legislation, through the administration of justice, or simply through concrete acts. It becomes the unlimited and illimitable bearer of the iura dominationis [rights/legal prerogatives of rulership], which do not even have to be restricted to cases of emergency.50

As this quote highlights, Schmitt described the supra legal character of Sieyès’s idea of constituent power, relying on almost the same words he used to describe the superiority of sovereignty over the legal order. This also applies to his depiction of constituent power as arbitrary, omnipotent, shapeless and inalienable. These similarities shed light on the extent to which Schmitt read Sieyès’s writings to establish a clear-cut identity between his account of sovereignty and Sieyès’s idea of constituent power. The latter thus became the conceptualisation of the exceptional character of sovereignty 47 48 49

Ibid., p. 271. Ibid., p. 125. Schmitt also writes that ‘Sieyès emphasised the inalienability of the pouvoir constituant of the people.’ Ibid., p. 140. Ibid. 50 Ibid., pp. 123–4.

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in the post-revolutionary democratic state. At the same time, Schmitt’s reliance on Sieyès’s notion of constituent power also gave him the tools to argue that this exceptional power belonged neither to the representatives nor to the multitude. Rather, it could only belong to the nation, as a superior existential unity, whose will pre-exists the formation of the state and whose unity is existential, as will become clear in the following paragraphs. In addition, intrinsic to Sieyès’s idea of constituent power is also the distinction between the power to decide on the foundation of the state (pouvoir constituant), which as already discussed is arbitrary, omnipotent, shapeless and inalienable, and the limited power attributed to the series of institutions that are created through the constituent decision (pouvoirs constitués). The latter are but delegated powers, whose exercise must be limited to enforcing the content of the constituent decision, as enshrined in the constitution. Schmitt adopted this distinction and used it to investigate what the implications of his theory of sovereignty as the nation’s constituent power could be when discussing the legitimacy of the Weimar constitution.

Popular and Parliamentary Sovereignty Schmitt’s reliance on Sieyès’s theory of constituent power gave him the language to contrast what he saw as the dissolution of sovereignty in Weimar. In Schmitt’s view, this process of dissolution had started during the French Revolution and became evident in two key moments: in 1791, when the revolutionaries laid the groundwork for the creation of the liberal parliamentary state, and when the Parisian masses took to the streets and got actively involved in politics, culminating in the Terror. The first moment enshrined the liberal tendency to rationalise politics by subordinating its expression to the mechanic and impersonal construction of the parliamentary state.51 The second embodied the essence of the democratic principle because it relied upon the people’s direct exercise of political authority. The influence of these two moments was still felt in early twentieth-century politics, as evinced by the ambiguity at the core of the Weimar constitution, where elements of direct democracy coexisted with liberal parliamentarism.52 Besides being inconsistent with each other, both 51

52

Schmitt makes this point in Dictatorship, p. 123. Also, the French Revolution ‘led to a bourgeois constitution of the Rechtsstaat variety, to one, more specifically, that controls and limits the exercise of state power, thereby giving the French state a new form of existence’. C. Schmitt, Constitutional Theory, p. 102. See also p. 261. See especially Schmitt’s text on direct democracy in Weimar and article 72 of the constitution, originally published in 1927. C. Schmitt, Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung

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direct democracy and parliamentarism fundamentally endangered the very premise of Schmitt’s account of constituent power: the idea of the nation as a distinctively unitary and existential political entity. Schmitt thus set out to denounce it as the most dangerous problem of post-war constitutionalism. His critiques of both direct democracy and parliamentarism were formulated partly as abstract criticisms of both as political forms and partly as a result of Schmitt’s direct engagement with the specificities of the Weimar republic, as a contingent political regime. Starting with democracy as a political form, he argued that its inspiring principle was a ‘principle of identity’, according to which decisions are valid only and exclusively for those who take them, which amounts to saying that the rulers should be identical to the ruled and that the law should directly correspond to the people’s will.53 This first relation of identity entailed a further string of identities such as those between ‘the governing and governed, sovereign and subject, subject and object of state authority, people and representatives in parliament, state and voting population, state and law, quantitative and qualitative’.54 The value underpinning the principle of democratic identity was therefore equality as opposed to liberty.55 For Schmitt, democratic equality meant that equals should be treated equally and unequals unequally.56 This necessarily implied that a decision was needed to determine who was to be considered as equal and who as unequal. The consequence of this decision was the creation of a political entity whose unity was determined by the equality of its members. All those who were considered unequal were therefore excluded as potential threats to the homogeneity of the democratic unity. As Schmitt explained: The democratic concept of equality is a political concept and, like every genuine political concept, includes the possibility of a distinction. Political democracy, therefore, cannot rest on the inability to distinguish among persons, but rather only on the quality of belonging to a particular people.57

53 54 55

56 57

der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie (Berlin: Duncker & Humblot, 2014). For Schmitt the ‘essence is the assertion of an identity between the law and the people’s will’. See C. Schmitt, The Crisis of Parliamentary Democracy, p. 25. Ibid., p. 26. Schmitt continues: ‘Equality and freedom are often termed compatible with one another, while in fact both these principles are different and often opposed to one another in their presuppositions, content and effects. In terms of domestic politics, only equality can count properly as a democratic principle. Domestic political freedom is the principle of the bourgeois Rechtsstaat.’ C. Schmitt, Constitutional Theory, p. 256. C. Schmitt, The Crisis of Parliamentary Democracy, p. 14. C. Schmitt, Constitutional Theory, p. 258.

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The principle of identity is thus essential to any state based upon the principle of popular power, as it grounds the distinction between friend and enemy. Yet, in Schmitt’s view, it could not be considered completely satisfied in what he called a system of ‘pure democracy, with the maximum possible degree of identity’.58 Pure democracy had existed in Ancient Greece and was tentatively brought back in some of its key features during the French Revolution by the Parisian mob, members of the Jacobin club, some Cordeliers and some Girondins. According to Schmitt, its basic assumption was the idea that, for the principle of identity to be realised, the people should always and genuinely be present and assembled and could not be represented when fundamental decisions needed to be taken. This, Schmitt argued in Verfassungslehre, had perfectly been expressed by Rousseau’s idea of popular sovereignty. Yet it could not be considered consistent with his own account of democratic sovereignty as the nation’s constituent power. Even its more modern and modest attempts at implementation – such as the use of referenda or legislative initiative by the people – were to be criticised. This had become particularly urgent for Schmitt in the second half of the 1920s, when a series of projects of popular legislation had been put forward, under article 73 of the constitution, to expropriate the property of the former ruling houses and to reevaluate debt after the 1924 currency reform.59 Relying on Sieyès’s critique of proposals for direct democracy put forward during the Revolution, he claimed that the numerical sum of the members of a nation did not add up to the nation. Even less so, the counting of their preferences could not correspond to the exercise the nation’s constituent power. This, for Schmitt, had multiple explanations. First, he maintained that it was impossible, in modern states, to rely on both the continuously active presence of the population and its strict homogeneity. Echoing Sieyès’s discussion of the nation as the bearer of the constituent power, he argued that while purely democratic regimes would require the entire population to be available, capable and willing to engage in politics, the modern nation was based upon the division of labour. This meant that the vast majority of the population was primarily concerned with ‘production and consumption, so that they simply become working machines’.60 Moreover, the working of a purely democratic 58 59 60

Ibid., p. 272. See Mommsen, The Rise and Fall of Weimar Democracy, pp. 239–40, p. 278, p. 281. C. Schmitt, Dictatorship, p. 124.

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system would necessarily request the ‘substantial similarity of the people’.61 For such a degree of identity to exist, society would need to be as homogeneous as possible to avoid any form of disagreement and opposition among the individuals comprising the people. It would entail that all people should agree on having the same will. This could not be achieved in actual societies and should rather ‘be viewed as only an ideal mental construct, not historical or political reality’.62 Hence, direct democracy was simply impossible. He argued that faith in direct democracy was based on the delusional view that there could be a state without magistracy. But, he maintained, this resulted in either of two options: anarchic statelessness or the people formalising their relationship in such a way as to become their own magistrates. The first option was nonsense for Schmitt; the second entailed the very abolition of the people as a collective subject, as by turning themselves into their own magistrates they would have lost their collective identity as superior existential entity.63 Second, even assuming that all the active citizens could meet and decide together, they would only be a part of the actual political community. The latter is indeed necessarily made of a wider range of people who do not count as active citizens (such as elders, children, migrants, etc.).64 This was particularly evident in the case of article 73, para. 3 of the Weimar constitution, according to which one-tenth of the electorate could sign a legislative proposal, which the government had to submit to the Reichstag. In case the Reichstag decided not to follow up on or amend the proposal, this had to be submitted to referendum.65 In Schmitt’s view, article 73, para. 3 clearly demonstrated the limits of direct democracy, as it 61 62

63 65

C. Schmitt, Constitutional Theory, p. 248. Ibid. He also argued that some models of pure democracy had existed in the Greek ecclesia, in the Roman forum and in the Swiss local governments. See also C. Schmitt, Constitutional Theory, p. 272. 64 C. Schmitt, Volksentscheid und Volksbegehren, pp. 75–6. Constitutional Theory, p. 240. Cf. Art. 73 of the Weimar constitution: ‘A law passed by the Reichstag shall, before its publication, be subject to a referendum if the President of the Reich, within a month, so decides. ‘A law, the publication of which has been deferred on the request of one-third of the members of the Reichstag shall be subject to a referendum upon the request of one-twentieth of the qualified voters. ‘A referendum shall also take place, if one-tenth of the qualified voters petition for the submission of a proposed law. Such petition must be based on a fully elaborated bill. The bill shall be submitted to the Reichstag by the Ministry accompanied by an expression of its views. The referendum shall not take place if the bill petitioned for is accepted by the Reichstag without amendment. ‘Only the President of the Reich may order a referendum concerning the budget, tax laws, and salary regulations. ‘Detailed regulations in respect to the referendum and initiative shall be prescribed by a national law.’

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revealed that what is considered to be the ‘people’, is but a fraction of the electorate which, in turn, is but a fraction of the population. As Schmitt extensively argued in Volksentscheid und Volksbegehren (1927), when we refer to the people taking part in practices of direct democracy, it is never to the collective nation that we refer but always to a negative ‘people’, i.e. whoever is not in government or parliament. Although this distinction finds its origins in the Roman opposition between the popolus and the magistrates, it demonstrates that the nation as a superior collective entity has nothing to do with such procedures.66 Further, and more generally, the direct exercise of power by all active citizens would have required instances of self-government, such as councils or districts regularly assembling and voting. But, in a way that very much resembles Sieyès’s argument against district democracy, Schmitt claimed that the division of the nation into locally based, self-governing districts would entail the fragmentation of the nation, which ‘as a homogeneous and closed entity is distinguished in a particular way from all other domestic political groupings and organisations’.67 In other words, the demands of direct democracy would have fragmented the nation in subentities and, in so doing, would have created alternative identities, threatening the political unity of the nation. It thus follows that, besides being unfeasible, direct democracy was based on the equivocation of the nation for the sum of individuals living in the same territory. This equivocation, far from being harmless, displaced the subject of constituent power from the nation to the multitude and, in so doing, jeopardised the legitimacy of the political order. Last, the typical instrument of direct democracy is the referendum, whose extensive use was made possible by the Weimar constitution and which Schmitt repeatedly addressed both in Verfassunsglehre and in his earlier Volksentscheid und Volksbegehren. Although Schmitt’s opinion about the referendum remained fundamentally ambiguous, he believed that it often lacked the necessary qualities required to embody the will of the nation. Specifically, he criticised art. 73 for allowing one-twentieth of the electorate to initiate a referendum. This not only misunderstood a fraction of the electorate for the nation but also assumed that it could be capable of action. The will of the nation, Schmitt argued quoting Sieyès, was in fact 66

67

C. Schmitt, Volksentscheid und Volksbegehren, p. 51. Here Schmitt argues that the legislative competence of the electorate to initiate legislation is limited, as it cannot extend to financial questions. This is an argument made in relation to Triepel’s interpretation of article 73, para. 4. See also C. Schmitt, Constitutional Theory, pp. 290–1. C. Schmitt, Constitutional Theory, p. 299.

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necessarily unclear and formless.68 Relying on Sieyès’s discussion of constituent power’s indefinite content, he claimed that the constituent will was not graspable by individual citizens, as it did not correspond to their immediately understandable interests. On the contrary, it was different from and superior to the citizens’ consciousness. On Schmitt’s account, it resembled the anti-rationalist idea of God as an ‘objective ambiguity’,69 a formless will that can never be grasped in its ultimate substance. Hence, being fundamentally superior to the individuals’ understanding, it could not be made clear through the multitude’s direct participation in the decision-making process. This applied to both the exercise of constituent power, which for Schmitt could not take place via a referendum of popular initiative, and to the regular law-making process. In other words, for Schmitt the will of the nation is non-reducible to the sum of individual preferences. Direct democracy as a regime type as well as popular legislative initiatives and most referenda – qua modern instantiations of direct democracy – were deemed inconsistent with Schmitt’s repackaging of sovereignty as the nation’s constituent power. They not only substituted the nation for the multitude, but they also reduced the constituent – as well as the legislative – will of the nation to the sum of individual preferences. The result was that Sieyès’s idea of constituent power had given Schmitt the language to conceive of democratic sovereignty without having to admit the people to the direct exercise of power. Differently from the notion of popular sovereignty, which still echoed with the revolutionary faith in direct democracy and had such a bad reputation among Schmitt’s contemporaries, Sieyès’s constituent power offered him a way to say that, if sovereignty in Weimar Germany had to be democratic, it could only belong to a transcendent, superior and non-visible nation.70 To seize the will of this invisible nation, it was therefore necessary to abandon the ideal of fully realising the identity principle. By contrast, Schmitt maintained that the latter had to be tempered through the principle of representation: ‘Even where the attempt is made to realise unconditionally an absolute identity, elements and methods of representation remain unavoidable, as on the contrary no representation without images of identity is possible.’71 Since the content of the nation’s will – as per Schmitt’s interpretation of Sieyès’s definition – was formless and 68 70 71

69 Ibid., p. 129. C. Schmitt, Dictatorship, p. 124. Most of the scholars discussed in section one of this chapter did indeed ascribe much of the failures of the French Revolution to Rousseau’s theory of popular sovereignty. C. Schmitt, Dictatorship, pp. 239–40.

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unclear, it could only be made visible and understandable through representation. Only the latter could ‘make an invisible being visible and present through a publicly present one’.72 This implies that for representation to be successful, it needs to establish an identity between the representative and the represented. In order to do so, the representative activity had to take place in the public sphere.73 Indeed, only when citizens face one another in the public domain do they act according to political categories and therefore make political decisions. Seemingly, only in the public sphere can the representatives abstract their individual interests to embody and create the unity of the nation. This implied that the delegates can act neither as representatives of a specific constituency nor as representatives of a specific interest or set of interests. On the contrary, Schmitt claimed that successful representation needed to be based upon Sieyès’s idea, according to which the delegates, in order to represent the nation, ‘should not be messengers delivering an already existing will: rather they have to “shape” it first’.74 For this to be possible, the representatives ‘must be persons who say, L’Etat c’est nous’.75 In so doing, they would shape the unity of the nation as a superior and transcendental entity, fundamentally irreducible to the sum of its composing parts. However, if the nation as a united political entity could only be brought to the fore through the intervention of the representative principle, it remained to be seen whether the type of representation typical of the Weimar Republic and, more generally, of modern democratic states was successful. Schmitt mainly addressed the question by engaging with a critique of how representation took place in Weimar and found it wanting. Not only did it fail to bring the nation into the existence as a homogeneous and unitary entity; in doing so, it also threatened the decision of the constituent power: i.e. the very unity of the German people as established in 1919. In the first place, as already mentioned, the Weimar constitution was based upon a peculiar mix of democratic and liberal principles. Its mixed character 72 73

74

Ibid., p. 243. It is interesting to note that, on this point, Schmitt differed from Sieyès, even though he relied on his understanding of representation to make his argument. While Schmitt claimed that representation was an essentially public act, Sieyès’s preferred strategy to justify political representation was to claim that it already existed in the private sphere. In this sense, Sieyès’s example of the postman representing the sender of a letter is telling. Schmitt silently glosses over this difference. For an account of Sieyès’s theory of representation, see Chapter 1 of this book and M. Sonenscher, ‘Introduction’ in E. Sieyès, Political Writings: Including the Debate between Sieyès and Tom Paine (London: Hackett, 2003), pp. xiv–xx. See also L. Rubinelli, ‘Of Postmen and Democracy’, in X. Marquez (ed.), Democratic Moments (London: Bloomsbury Academic, 2018), pp. 97–105. 75 C. Schmitt, Dictatorship, p. 124. C. Schmitt, Constitutional Theory, p. 241.

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derived from the fact that, from the French Revolution onward, the democratic value of equality had been mixed up with and transformed into a liberal universal principle valid beyond and against the specificities of historically situated political entities. This is what Schmitt called the idea of mankind’s equality, according to which men do not become equal as a consequence of being part of a political community but are considered as equal a priori, for the simple fact of being human beings. The consequence of this principle was that, in representative democracies, people faced each other not as members of a larger and superior community but as single individuals acting independently of their political belonging.76 This entailed that the very subject of the constituent power, the nation as a transcendental and superior whole, was dismissed. With it, the core of democratic sovereignty also got lost, as no political entity was there to decide over the distinction between friend and enemy. This was evident in the politics of Weimar. The first problem that Schmitt confronted was the liberal enforcement of representation through secret elections. These, for Schmitt, entailed the transformation of citizens’ decisions into mere private preferences. When voting secretly, the individual does not act as a citizen trying to foster the good of the political unity, but as a private person following his preferences, and therefore remains indifferent from and exterior to the political. The result of such an attitude is that ‘the sense of this peculiarity of political existence erodes and people give priority to other types of their existence’.77 In Schmitt’s words, ‘The method of individual secret ballot transforms the enfranchised citizen into an isolated private man and makes it possible for him to express his opinion without abandoning the private sphere.’78 This, in turn, results in the substitution of the individual private will for the will of the nation and, as such, does not bring about a truly existential type of representation. Secondly, the Weimar Republic had opted for a proportional electoral system. Schmitt attacked it repeatedly, but it is in Der Hüter der Verfassung (1931) that he presents it as fundamentally at odds with representation.79 76

77 79

‘People do not face each other as abstractions, but as politically interested and politically determined persons, as citizens, governors and governed, politically allied or opponents – in any case therefore in political categories . . . [I]n the sphere of the political one cannot abstract out what is political, leaving only universal human equality . . . [A]n absolute human equality, then, would be an equality understood only in terms of itself and without risk; it would be an equality without the necessary correlate of inequality, and as a result conceptually and practically meaningless, and indifferent equality’, C. Schmitt, The Crisis of Parliamentary Democracy, p. 11. 78 C. Schmitt, Constitutional Theory, p. 243. Ibid., p. 305. Article 17 says: ‘Every state must have a republican constitution. The representative body must be elected by universal, equal, direct, and secret suffrage of all German citizens of either sex, according to the principles of proportional representation. The state ministry must have the confidence of the representative body. The principles applicable to elections to the representative body shall apply also

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Proportional systems, especially in their pure forms, offer seats in parliament to all parties, thus mirroring the political preferences of society in the composition of the legislative assembly. While the authors of the Weimar constitution, chiefly Hugo Preuß, conceived of this proportional electoral law as a truly democratic measure, Schmitt forcefully disagreed.80 This is because it was not consistent with his own understanding of democracy as striving to establish some levels of identity between the rulers and the ruled. In fact, he believed proportional representation to be inconsistent with the establishment of any form of identity between the nation and its representatives, because it amounted to a system of ‘representation of minorities’.81 It thus failed to represent the nation as a whole. As a result, proportional representation only offered a ‘merely statistical determination of the pluralistic division of the state into several firmly organised social complexes’.82 This directly leads to the third point. Schmitt criticised Weimar parliamentarism because, in a typically liberal fashion, it was a ‘pluralistic party state’, where parties reflected only partial sections of society. This was an obvious result of proportional representation, and its effect was that parties, once in power, had no incentives to think about the general interest but would instead be driven by their own egotistical interests, which amounted to satisfying the demands of their constituency.83 This had fundamental implications for their representative activity, as they no longer made visible and present the nation’s political unity but rather acted as trustees of private individuals or groupings. In Schmitt’s words, the proportional electoral system transformed representation into a ‘pure formality’, in which ‘parliament can perhaps still exercise some useful functions, but it is just not any longer the representative of the political unity of the people’.84 In addition, the system of majority voting in parliament further prevented the very possibility of taking political decisions. Instead of expressing the unified will of the nation, the majority principle finds its rationale

80 81 83

84

to elections to municipal bodies. Nevertheless, by a state law the right of suffrage may be made to depend upon residence within the municipality for a period not exceeding one year.’ See what Schmitt had to say on this point in his text about the guardian of the constitution. Cf. L. Vinx (ed.), The Guardian of the Constitution, p. 140. 82 Ibid. Ibid., p. 141. It should be noted here that Schmitt was not the only one to be critical of parties. Several scholars – including the father of the constitution Preuß – feared that parties would act against the interest of the nation and in favour of factional interests. See H. Mommsen, The Rise and Fall of Weimar Democracy, p. 57, pp. 191–2. C. Schmitt, Constitutional Theory, p. 242.

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in the agreement between competing opinions. This agreement was mainly brought about through private meetings, secret committees and partisan deliberations. Schmitt argued that these ‘may be very meaningful and important, but they never have a representative character’.85 Further, the way of calculating the majority in parliament amounted to an algorithm that could not be made to correspond to a substantial and unitary political decision. Accordingly, the algorithm is indeed ‘a purely quantitative, arithmetic idea’.86 All parliamentary decisions were thus the result of compromises and negotiations between trustees of competing social forces. Parliament itself was reduced to an image of the pluralistic divisions of society, where loyalty is displaced away from the state towards social organisations and where parties never ascend to express the ‘responsible will of the state’.87 The obvious and, for Schmitt, troubling consequence of this was that the unity of the state was endangered, not only because parliament could not represent it but also because its fragmentation entailed the pluralisation of loyalty on the side of the citizens. Homogeneity was thus lost and, with it, the very nation that was the bearer of the constituent power. Last, Schmitt took issue with the principle of the balance of powers. The subdivision and reciprocal controlling between sections of the legislative, the executive and the judiciary, Schmitt claimed, were favoured over the representation of the nation’s unity. The system of balance of power was based on the assumption that any claim to embody the totality of the people was a threat to individual freedom that needed to be prevented by dividing and multiplying the instances of representation and deliberation. The latter had already been criticised, at least in some regards, by Sieyès, who accused the moderate project based upon the idea of national sovereignty of preventing the unitary representation of the nation by fragmenting it into a multiplicity of balanced powers.88 Following this line of argument, Schmitt claimed that the principle of balance of power challenged the very possibility of taking unitary decisions, as it ‘must contradict a democracy’s political logic, for democracy rests on the presupposition of the unified people’s similarity and identity’.89

85 88 89

Ibid. 86 Ibid., p. 280. 87 L. Vinx (ed.), The Guardian of the Constitution, p. 142. This directly contradicts Zweig’s interpretation of Sieyès as the revolutionary who succeeded at coupling popular sovereignty with Montesquieu’s balance of power. Ibid., p. 319. Here Schmitt’s critique of the principle of separation of power in general, and of bicameral systems in particular, is strikingly similar to Sieyès’s. For a discussion of the latter, see Chapter 1.

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To sum up, Schmitt believed that parliamentarism in general, and its instantiation in Weimar in particular, had displaced the representative principle from the political to the socio-economic domain, thus transforming an originally identity-based relationship into mere trusteeship.90 As a consequence, Schmitt criticised liberal parliamentarism for its incapacity to shape the will of the nation and act in the name of its unity, as demonstrated by its reliance on secret ballots, proportional electoral laws, majoritarian voting, party pluralism, balance of power, deliberation and political compromises. All this, Schmitt argued, made the Weimar model of parliamentarism be at odds with his own understanding of what representing the nation meant. By failing to represent the nation as a whole, it also threatened to endanger the nation’s exercise of constituent power in moments of crisis. In addition, Schmitt claimed that the very idea of parliamentary sovereignty, as used by advocates of parliamentarism, was unable to grasp the specificities of politics at a time of mass democracy. As he repeatedly made clear, the language of parliamentary sovereignty was reminiscent of a time when the political context was completely different and, as such, had no bearing on the contemporary reality of the constitutional state in general and of the Weimar Republic in particular. As a consequence, it needed to be abandoned and, once more, constituent power looked like a viable and desirable alternative.91 At this point, it is necessary to take pause and consider the role that the idea of constituent power, and the reference to Sieyès’s thinking during the Revolution, have played in Schmitt’s critique of pure democracy and parliamentarism in the context of Weimar. Indeed, not only has constituent power offered Schmitt a language to bend the principle of democratic legitimacy to his understanding of sovereignty. Constituent power has also given him the conceptual tools needed to criticise two possible instantiations of the democratic principle: direct democracy and parliamentarism. In a move that strikingly resembles Sieyès’s own during the Revolution, Schmitt dismissed both regimes as inconsistent with the affirmation of popular power as the source of state legitimacy. The conceptual core of this dismissal lies in the fact that neither satisfied the demands intrinsic to the concept of the nation’s constituent power. Indeed, it is only by relying on his definition of constituent power as the sovereign power of the nation to take fundamental decisions that Schmitt could 90

91

‘Parliament is no longer the place where the political decision occurs. The essential decisions are reached outside of parliament. The parliament thus functions as a bureau for a technical reconfiguration in the state apparatus of officials.’ Ibid., p. 342. See C. Schmitt, The Guardian of the Constitution, p. 140.

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criticise direct democracy. The latter gave power to the individuals, thus failing to bring into existence the nation, which is the only bearer of constituent power as well as what the constituted order is meant to preserve. Similarly, Schmitt’s critique of parliamentarism is also grounded in his account of the nation as the bearer of constituent power: if the nation could only exist via representation, then parliament failed to represent it because it only reflected the pluralism of society, thus emphasising what divides a people rather than what unites it. And if the nation disappears behind increasingly factional interests, or amidst the multitude, who is to take the fundamental decision in moments of emergency? Who can claim to authoritatively interpret the constituent will of the political community and act in its name? The next section will investigate how Schmitt’s reinterpretation of Sieyès set the stage for his proposed solution to the shortcomings of both pure democracy and parliamentarism: the dictatorship of the president. This would create the nation as the unitary subject, give shape to the will of the constituent power and enforce it in the form of a sovereign command.

Dictatorship Schmitt first discussed Sieyès in his 1921 book Die Diktatur. It is in this context that he introduced the idea of constituent power as both the meaning of sovereignty in states based upon the principle of popular power and as the source of legitimacy for two types of dictatorship. As mentioned, much of the inspiration comes from Mommsen’s study of Roman law, from which Schmitt derived the distinction between the sovereign and the commissarial dictator. What distinguishes the two is their different relationship to the constituent power of the nation.92 As discussed, Schmitt found all instantiations of the will of the people existing in Weimar Germany to be unsatisfactory. This is because they either reduced the nation to a multitude – pure democracy – or to an agglomeration of competing social interests – parliamentarism. What was needed, instead, was a form of representation that could be ‘existential’. By 92

Nippel offers a broader discussion of the intellectual origins of Schmitt’s distinction between sovereign and commissarial dictatorship in relation to the political thought of the French Revolution. See W. Nippel, ‘Carl Schmitts ‘kommissarische’ und ‘souveräne’ Diktatur: Französische Revolution und römische Vorbilder’, in H. Bluhm, et al. (eds), Ideenpolitik: Geschichtliche Konstellationen und gegenwärtige Konflikte (Berlin: Akademie Verlag, 2011), pp. 105–39.

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this expression, Schmitt meant that representation needed to transform the nation and its shapeless will into an existentially present entity, into a ‘type of being that is higher, further enhanced, and more intense in comparison to the natural existence of some human grouping living together’.93 As Kelly has demonstrated, this is an idea that Schmitt took from Sieyès and Hobbes.94 Sieyès spent the first months of the Revolution trying to convince his fellow deputies at the National Constituent Assembly that, since the nation was a type of unity qualitatively different from the sum of its members, it could only be represented through a unitary instance of representation.95 This could be achieved by concentrating the representative authority in a single legislative assembly, endowed with the power to shape, interpret and proclaim the nation’s will. Speaking with a single voice in the name of a single people, the representative assembly would bring the unity of the nation to the fore through the unity of its action, which Sieyès called unité d’action.96 And it was precisely this unity that, in Schmitt’s view, was missing in Weimar. Yet, differently from Sieyès, Schmitt believed that this unity would be better represented by a single figure, as opposed to Sieyès’s unitary assembly. This was because ‘only he who rules takes part in representation’.97 And, in order to represent the unity of the people, he who rules needs to be a single person. Directly quoting Hobbes’s argument according to which the multitude is united only in the person of the representative, Schmitt claimed that ‘the absolute prince is also the sole representative of the political unity of the people’98 because it is his personal individual character that gives direction and unity to the nation’s political life. This did not mean that it was necessary to return to monarchical regimes for representation to be successful. On the contrary, Schmitt argued that, in a state based upon the democratic principle of legitimacy, the political unity of the nation could be realised through a dictatorial model of representation. At a practical level, this meant two things. As Schmitt made clear in both Volksentscheid und Volksbegehren and Verfassungslehre, 93 94

95 96

97

C. Schmitt, Constitutional Theory, p. 243. Interpreters of Sieyès have long discussed whether his thought in general, and his views of representation in particular, are more indebted to Rousseau or to Hobbes. Schmitt clearly seemed to think the latter, but for examples of each positions see M. Sonenscher, Sieyès’ Political Writings, pp. lv–lvi, and P. Pasquino, Sieyès et l’invention de la Constitution en France, p. 63. This is something he also discusses in Qu’est-ce que le Tiers-État? It is as part of this argument that Sieyès criticises bicameralism and the principle of the balance of power. See Chapter 1 and L. Rubinelli, ‘Sieyès versus bicameralism’, The Review of Politics 81(2) (2019), 255–79. 98 C. Schmitt, Constitutional Theory, p. 245. Italics in the original. Ibid., p. 247.

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the constituent power expresses itself via acclamation. This is because acclamation is the only truly spontaneous expression of the national will: everyone can take part in it (as opposed to just the electorate), it is not counted, it is not voted on, it follows no procedures and it takes place outside the boundary of constitutional norms. The people ‘shouts viva or à bas, cries with joy or complaint, strikes shields with weapons, says “Amen” to a decision with any kind of words or avoids this acclamation with silence’.99 Yet, at the same time, acclamation only makes sense when it is directed towards the actions of the leader, as the unitary representative of the nation. Acclamation cannot happen in the void but needs to have a point of reference in the representative character and activities of the leader. As Schmitt makes clear in Voksentscheid und Volksbegehren: ‘The people as bearer of acclamation . . . trusts in its leader and approves a proposal because of its political awareness of belonging and being united to the leader. It expresses itself as the decisive bearer of the political life in a specifically political category and its decisions are always right insofar as it possesses solid political instincts and is capable of distinguishing between friend and enemy’.100 Hence, by establishing direct connections with the people, ‘dictatorial and caesaristic methods not only can produce the acclamation of the people but can also be a direct expression of democratic substance and power’.101 It follows that, although often dismissed as illiberal, dictatorship was not antidemocratic. In fact, it was seen as a democratic measure also by several contemporaries of Schmitt, amongst them Max Weber, who saw in caesaristic leadership an expression of charisma in mass democracy.102 For Schmitt, dictatorship was the political institution most apt to bring about the unity of the nation, through the unity of the action of its representative. Being the representative of the nation, the dictator was also the only figure truly capable of relating to the nation’s constituent power. Yet, as mentioned, the terms of this relationship changed depending on the type of dictatorship. The sovereign dictator is, by and large, the representative that grasps the existence of the unformed constituent will and gives it 99 101

102

100 C. Schmitt, Volksentscheid und Volksbegehren, p. 34. Ibid., p. 34. C. Schmitt, The Crisis of Parliamentary Democracy, pp. 16–17., pp. 16–17. On critiques of Schmitt as a Caesarist, see Samuel Garrett Zeitlin, “Interpretation and Critique: Jacob Taubes, Julien Fruend, and the Interpretation of Hobbes,” in Telos 181 (Winter 2017), pp. 9–39, at pp. 30–32. It should be noted that Schmitt was ambiguous about plebiscites: while he approved of them in the 1920s, he started being more critical in late 1933. Also, Schupmann suggests that Schmitt’s understanding of the role of the president is much closer to Weber’s idea of office charisma rather than revolutionary charisma. See B. Schupmann, Carl Schmitt’s Constitutional and State Theory, ch. 1. On debates about dictatorship in Weimar Germany, see H. Mommsen, The Rise and Fall of Weimar Democracy, p. 277.

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shape. In so doing, it makes the nation visible to itself and articulates its will in constitutional terms. It thus follows that, on Schmitt’s reading, the sovereign dictator is he who translates the fundamental decision about the existence of the political entity – the determination of who is friend and who is enemy – into a constitutional text. Schmitt maintains that the task of the sovereign dictator could be carried out by single individuals, as well as by national constituent assemblies, as it was the case in 1791 in France and in 1919 in Weimar. The commissarial dictator, by contrast, has a more limited role: it assumes office only when the constitution is already in force and, as such, it is a constituted power, whose competences are bound to the existence of a constitution. Its role is to oversee the realisation, enforcement and respect of the constitution and, in cases of necessity, suspend it. This suspension cannot be but oriented towards protecting the essence of the constitution, what Schmitt called the absolute part of the constitution or, in other words, the essential content of the decision taken by the constituent power. Hence, while the sovereign dictator relates directly to the constituent power, the commissarial dictator acts within the limits of the delegation received by the constituent power. Yet both forms of dictatorship are desirable for Schmitt insofar as they make visible the identity between ruler and ruled, as per the democratic principle of equality, by shaping or preserving the constituent will of the nation through their representative character. In other words, both types of dictatorship represent the super-legal character of the constituent power, its existence before, alongside and beyond positive law and constituted politics. Schmitt’s account of dictatorship as representing the nation’s constituent power had obvious resonance with the experience of the Weimar Republic. Two issues in particular became the target of Schmitt’s theory. The first was the question of who would be the guardian of the constitution. This was an issue widely debated in the final years of the Weimar Republic, one that had grabbed the attention of scholars of the calibre of Triepel and, most importantly for Schmitt, Kelsen. It is thus as an intervention in an already lively debate that Schmitt published, in 1931, Der Hüter der Verfassung, where he argued, against Kelsen, that the guardian of the constitution could only be the Reich president.103 This argument was intimately connected to the second issue preoccupying Schmitt: the 103

C. Schmitt, The Guardian of the Constitution, pp. 150–60. On the relationship between popular sovereignty, the preservation of the constitution and representation, see L. Vinx, ‘Carl Schmitt and the problem of constitutional guardianship’, in M. Arvidsson, L. Brännström and P. Minkkinen (eds), The Contemporary Relevance of Carl Schmitt: Law, Politics, Theology (Abingdon: Routledge, 2015), pp. 34–49.

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interpretation of article 48 of the Weimar constitution. This stated that the Reich president could take all the necessary measures (including the use of armed force and the suspension of parts of the constitution) to defend the nation in case of serious threats to public safety or in case of a federated state not fulfilling its constitutional duties. Although the president could do so on his own initiative, he had to inform the Parliament of his decisions and the Reichstag could demand, ex post, the suspension of the measures taken by the president.104 This created confusion as to where the political authority lay because it seemed to suggest that both the president and the Parliament were entitled to represent the people. Since the constitution did not establish clear hierarchies between the two powers, they could use their respective representative functions against each other. Schmitt’s solution to the problem was to argue that the president was the ultimate authority when it came to constitutional conflict. To make his case, Schmitt applied his theory of dictatorship to the Reich president and concluded that only the president was capable of representing the nation’s constituent will and, consequently, was the only institution legitimate enough to act in cases of emergency to protect the constitution and oversee its eventual modifications. In Schmitt’s words, that the president is the guardian of the constitution ‘conforms to the democratic principle on which the constitution is based. The president of the Reich is elected by the whole German people, and his political competences as against the legislative institutions (in particular the dissolution of the Reichstag and the initiation of a popular referendum) are, in substance, nothing but an “appeal to the people”.’105 The president is indeed at the centre of a plebiscitary system where his office is the only directly elected by the people and can, of its own initiative, appeal to the nation via plebiscites and referenda, as ruled by article 73 of the constitution. Although, as already mentioned, Schmitt was ambiguous about the value of referenda, he clearly approved of them when initiated by the president, as they were the most 104

105

See article 48: ‘If a state does not fulfil the obligations laid upon it by the Reich constitution or the Reich laws, the Reich President may use armed force to cause it to oblige. In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. In the pursuit of this aim he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124 and 154, partially or entirely. The Reich President has to inform the Reichstag immediately about all measures undertaken which are based on paragraphs 1 and 2 of this article. The measures have to be suspended immediately if Reichstag demands so. If danger is imminent, the state government may, for their specific territory, implement steps as described in paragraph 2. These steps have to be suspended if so demanded by the Reich President or the Reichstag. Further details are provided by Reich law.’ C. Schmitt, The Guardian of the Constitution, p. 172.

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straightforward way of directly appealing to the people, when acclamation was not possible. These are the main features that make the president – as opposed to the Reichstag or the government – the direct representative of the will of the nation and the only institution able to relate to the nation’s constituent power. This connection with the people then results in a series of competences exclusive to the president which are all, in Schmitt’s view, normatively desirable. The first is the president’s role as a pouvoir intermediaire between the Reichstag and the government. When, as happened in Weimar in 1930 and in June and September 1933, the elections did not express any majority, no government could be formed. It was thus the role of the president to intervene and dissolve the Reichstag. More interestingly, Schmitt maintained that the president could also solve conflicts between state institutions by appealing to the ‘higher third’: the nation. This could express its opinion via plebiscite and, as a result, solve the conflict. The fact that the president stood above both Reichstag and government and had this preferential channel to consult the nation made its office independent, in Schmitt’s view. The president’s independence rested on the non-partisan role of the office, which in turn derived from its capacity to represent the will of the nation as a whole, beyond partisan divisions. The second competence of the president was to remedy the pluralism afflicting the Weimar Republic which, as mentioned, was the direct consequence of its parliamentary structure and one of the problems Schmitt felt most strongly about.106 In Schmitt’s words, ‘By making the president of the Reich the focal point of a system of plebiscitary institutions and competences that are party-politically neutral, the current constitution of the Reich aims, precisely on the basis of democratic principles, to form a counterweight against the pluralism of social and economic powergroups and to preserve the unity of the people as a political whole.’107 Last, because the office of the president ‘presupposes the whole German people as a unity that is immediately capable of action’,108 it acts as representative of the nation’s constituent power. This means that it can act as commissarial dictator and suspend the constitution, as ruled by article 48, in 106

107

Schmitt was not the only thinker concerned with the excesses of party pluralism in Weimar. Alongside him, other thinkers such as Preuß and Anschütz argued for the attribution of extensive powers to the president. More to the point, arguments aimed at moving away from parliamentarism towards a plebiscitary presidential regime were already widely discussed in the mid-1920s, as was the case of debates about the attribution of dictatorial power to the president. See H. Mommsen, The Rise and Fall of Weimar Democracy, pp. 256–9, p. 362. 108 Ibid. Ibid.

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cases of emergency. It also means that it can finally put an end to the problem raised by positivist interpretations of the constitution, which were unwilling to distinguish between the absolute part of the constitutional text – the fundamental decision at its origins that could not be changed without completely overthrowing the decision of the constituent power – and the relative part of the constitution – the specific norms which by contrast could be changed while remaining within the limits of the constituted powers. The way in which the president avoided this problem was by offering himself as the representative and guardian of the initial decision of the constituent power and, in so doing, protecting the absolute constitution from all attempts to change it through legal revolutions.109 In other words, for Schmitt the president is the guardian of the intangible will of the nation as expressed through the constituent power, and this is in virtue of his capacity to represent the nation as a whole. From all the above, it follows that the president of the Reich is, for Schmitt, the dictatorial figure who, in the context of Weimar, represented and embodied the constituent will of the nation. As a result, the president had the task of interpreting the will of the constituent power. In so doing, the figure of the president was a constant reminder of the omnipotent and inalienable presence of the constituent power, behind and beyond the constitutional text, which, in turn, gave the president access to extraordinary powers. The reliance on the idea of constituent power is therefore what allows Schmitt to cut across lively debates in Weimar Germany and offer a consistent explanation for the attribution of dictatorial powers to the president of the Reich.

Conclusion The notion of pouvoir constituant played a strategic role in Schmitt’s Weimar writings: it offered him the language through which he could redefine the democratic principle of popular power to make it consistent with his understanding of sovereignty. Constituent power, like sovereignty, had a double function in Schmitt’s theory: on the one hand, it indicates the capacity to take the fundamental decision at the origins of any political system; on the other, it is the power that, although dormant during times of ordinary politics, should intervene any time the political community is confronted with exceptional situations. In very much the 109

For a criticism of this point, see L. Vinx, ‘Carl Schmitt’s defence of sovereignty’, in D. Dyzenhaus ed., Law, Liberty and Sovereignty (Cambridge: Cambridge University Press, 2015), p. 105.

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same way as royal or divine sovereignty, the popular constituent power is at the origins of state legitimacy. Yet the idea of constituent power was also used by Schmitt to directly intervene in debates about mass democracy and its constitutional organisation. It thus follows that Sieyès’s idea of the nation’s constituent power played a major role in Schmitt’s interventions in debates about the Weimar constitution. Yet, it is somehow difficult to pinpoint with absolute precision what exactly Schmitt took from Sieyès. As discussed in previous sections of this chapter, he explicitly engaged with Sieyès’s writings in his 1921 Die Diktatur, in his 1922 Politische Theologie and then again extensively in 1928 when he published Verfassungslehre. In these texts, he mainly quotes from Sieyès’s pamphlet Qu’est-ce que le Tiers-État?, but he also cites Préliminaire de la constitution Françoise – Reconnaissance et exposition raisonnée des droits de l’homme et du citoyen. When citing the latter, he refers to an early German collection of Sieyès’s writings, which included Vues sur les moyens d’exécution dont les représentants de la France pourront disposer en 1789 and a few other texts.110 Yet Schmitt makes no reference to any of these other texts. In addition, Schmitt certainly did not read some of Sieyès’s most enlightening writings, as these were part of his manuscripts, which were not yet available at the time when Schmitt was writing on constituent power.111 This is relevant information because it helps to shed light on the oddities of Schmitt’s use of Sieyès’s idea. As discussed, Schmitt heavily 110

111

When citing Sieyès, Schmitt only refers to two German publications of Sieyès’s writings. One is the 1796 edition by J. G. Ebel (ed. and trans), Sieyès: Politische Schriften (Leipzig: Gabler’sche Buchhandlung, 1796), which Schmitt cites in Political Theology, p. 102. The other is C. F. Cramer, Collection des écrits d’E. Sieyès à l’usage de l’Allemagne (Paris, 1796), which Schmitt cites in C. Schmitt, Dictatorship, ft. 15, p. 277. Interestingly, Paul Bastid discusses this collection of essays edited by Cramer at some length and says that, at the time he was writing (the early 1930s, hence a little after Schmitt himself wrote about Sieyès), copies of the book were extremely difficult to locate and access. Also, according to Bastid, Cramer’s edition contained only Vues sur les moyens d’execution; Les Principes; Qu’est-ce que le Tiers- État? and Instructions donnée par S. A. S. Monseigneur le Duc d’Orléans à ses représentants aux baillages. In Constitutional Theory, Schmitt also refers to Sieyès’s discussion of the Great Elector as reported by E. His, Geschichte des neueren schweizerischen Staatsrechts (Basel: Helbing & Lichtenhahn, 1920), p. 353, quoted by C. Schmitt, Constitutional Theory, p. 238. More translations of Sieyès were available in Germany when Schmitt was writing, among which the most important were C. F. Cramer, Sieyès Schriften: Versuch über die Vorrechte und Was ist der Bürgerstand? (Leipzig-Altona, 1794), and C.E. Oelsner, Sieyès Politische Schriften vollständig gesammelt von dem deutschen Übersetzer nebst zwei Vorreden über Sieyès Lebensgeschichte, seine politische Rolle, seinen Charakter, seine Schriften (s.l., 1796), but Schmitt does not cite any of these or any other translation. Also, Bastid reports that Oelsner’s collection was very incomplete, naive and often wrong. See P. Bastid, Sieyès et sa pensée, pp. 314–5. Sieyès’s private notes and manuscripts were only found in the south of France and acquired by the French Archives Nationales in 1967. See M. Sonenscher, ‘Introduction’ in E. Sieyès, Political Writings, p. ix.

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relied on Sieyès’s early revolutionary writings, from which he could easily deduce a definition of constituent power as unlimited and inalienable. Yet he was careful to read in Sieyès what interested him the most: that constituent power did not belong to the multitude but only to the nation which, being an abstract entity, could act only through representation and only in rare moments of constitutional founding. To put it in other terms, Schmitt correctly read Sieyès as depicting the democratic sovereign as one that acts very rarely and, when it does, expresses a will that can only be articulated through some form of representation (even though, very much like Sieyès, Schmitt did not deny the possibility of having constitutional referenda). Schmitt also took from Sieyès’s theory of constituent power the polemic force of the idea for contemporary politics. For Sieyès, pouvoir constituant was a conceptualisation of the principle of popular power different from and non-reducible to French revolutionary ideas of national and popular sovereignty and their respective institutional regimes: pure democracy and the system of the balance of power. The very fact that Sieyès attributed the constituent power to the nation, explicitly defined as a unitary political entity superior and non-reducible to the sum of its members, gave Schmitt the hook to say that, even if sovereignty in Weimar was to be democratic, it did not need to be exercised by the people. This formulation hence avoided the shortcomings of Weimar theorisations of the power of the people in terms of popular sovereignty. Similarly, Sieyès’s argument for bringing about the will of the nation through a unitary instance of representation allowed Schmitt to reject liberal parliamentarism its system of checks and balances, and its justification in the name of parliamentary sovereignty. As a consequence, his reading of Sieyès’s idea allowed him to reinsert, through the figure of the president as the representative dictator, the personalistic and decisionist elements of sovereignty he feared would be lost in modern democracy in general and in Weimar Germany in particular. Constituent power was thus the sole conceptualisation of popular power that could be adapted to the theological idea of sovereignty, as the only and true essence of political power, without running the risk of dispersing its unitary power in either the multitude or parliament. Using the language of constituent power to criticise existing political regimes and preparing the ground for a third option is thus a typically Sieyèsian move, which Schmitt fully embraced. In addition, very much like Sieyès did, Schmitt deployed the language of constituent to strategically act on contemporary politics: what for Sieyès was the Revolution, for Schmitt was the Weimar Republic.

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However, and notwithstanding these striking similarities, neither the intellectual premises nor the institutional consequences of Schmitt’s reasoning are consistent with Sieyès’s thought and intentions. Starting from the former, it should be noted that Sieyès introduced the language of constituent power as an alternative to sovereignty also, and most importantly, because he thought that, whatever the meaning attributed the latter, this was inherently dangerous and problematic. It was intrinsic to the very word ‘sovereignty’ that it entailed unlimited and absolute power and, as such, had to be avoided in regimes based upon the principle of popular power. It is true that Sieyès’s most explicit condemnations of sovereignty and most heartfelt preoccupations with theorising absolute and unlimited power only became available in the 1960s, when his manuscripts were found in the south of France. It thus follows that Schmitt could not have read them when writing about constituent power during the Weimar Republic. Yet these preoccupations could be grasped through an attentive reading of Sieyès’s public interventions and the texts available in the German early collection of his writings. Schmitt, however, carefully avoided mentioning them and subtly selected the elements that better served his theory. Schmitt’s misinterpretation of Sieyès’s intellectual premises in turn led to institutional consequences that were at odds with Sieyès’s thought. Schmitt’s disregard for Sieyès’s condemnation of sovereignty indeed explains how he turned Sieyès’s emphasis on unité d’action into a call for presidential dictatorship. While Sieyès’s argument against legislative blockages and checks and balances was motivated by an attempt to avoid their degeneration into what he called “despotism” (single-man rule), Schmitt reproduced Sieyès’s criticism of legislative fragmentation in parliament to justify the extension of the powers attributed to the Reich president. He used it to claim that for the nation’s power to be exercised it needed to be represented by a unitary figure, able to embody the unity of the nation and act as a unitary instance of decision. This figure could only be a plebiscitary dictator. In so doing, he turned the office of the president into what Sieyès was dreading: an all-powerful figure who could claim the exclusive capacity to represent the nation. This, under no circumstances, could be assimilated to Sieyès’s Great Elector. By contrast, it represented a threat to individual liberty that was possibly more serious than that entailed by the ideas of national and popular sovereignty Sieyès had fought against during the Revolution. Hence, it could not be further apart from Sieyès’s original idea. While the latter imagined constituent power as an alternative to the arbitrary,

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unlimited, despotic and personalistic character of sovereignty, Schmitt identified in constituent power the core of precisely that type of sovereignty and applied it to the Weimar Republic. It thus comes as no surprise that, when theorising the dictatorship of the president in 1931, Schmitt suddenly stopped citing Sieyès, even though he was clearly relying on his theory of constituent power. Interestingly, this difference between Sieyès’s and Schmitt’s accounts of constituent power passed almost unnoticed in the years that followed the end of the Weimar Republic and the Second World War. Although Schmitt was widely read, criticised and stigmatised, his peculiar and tendentious interpretation of Sieyès’s theory went barely acknowledged. By contrast, it was often taken to offer a reliable insight into the origins of the idea of constituent power, and it greatly contributed to shaping its subsequent historical developments. Two aspects of Schmitt’s theory of constituent power were particularly influential upon successive scholarship. The first is the emphasis he put on associating constituent power with the essence of the political, defined as the possibility of making direct and unbounded decisions. Although Schmitt drew his justification of dictatorial regimes from this association, the association itself passed into history as a depiction of the true meaning of democracy. As the next chapters will highlight, Schmitt’s theory of constituent power has been separated from the political regime with which he associated it to. It has been revamped and presented as a reliable depiction of the actual essence of the political: the power of the people to take decisions disregarding institutional, legal and moral constraints. Jurists such as Mortati and Böckenförde saw in it a realist account of popular power, and contemporary authors mobilise it – paradoxically – to put forward a more participatory account of democratic politics. To do so, they also rely on Schmitt’s account of plebiscites and of the importance of the public sphere. But there is another aspect of Schmitt’s theory that has played, and still plays, an important role in this process of purification of his account of constituent power: his critique of liberalism in general and of liberal parliamentarianism in particular. The element that seems to attract more attention is Schmitt’s argument according to which liberalism is somehow at odds with democracy and with the people’s exercise of power. Fascination with this argument is retraceable in the works of mid twentieth-century jurists discussed in Chapter 4 and also – paradoxically, given her contempt for Schmitt – in Arendt’s critique of representation and the liberal nation state.

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Lastly, Schmitt’s intellectual influence also casts its shadow on how Sieyès has been interpreted in the twentieth century as well as today. Since all subsequent theorists implicitly or explicitly relied on Schmitt’s reconstruction of Sieyès’s thought, their assessment of it depends on which of the two aspects of Schmitt’s theory influenced them most. As Chapter 4 will demonstrate, theorists who draw on Schmitt to find ways of realising the democratic essence of the political – popular participation – tend to set aside some of the most elitist features of Sieyès’s theory and see in his idea of constituent power an early account of the essence of the political. Alternately theorists such as Arendt and Kalyvas who share Schmitt’s critique of liberal parliamentarism tend to see in Sieyès a theorist of the modern nation. They consequently judge his interpretation of constituent power to be ill suited to democratic politics. Schmitt is thus a fundamental turning point in the history of constituent power. His interpretation of pouvoir constituant is both similar to and different from previous accounts of the idea. As much as these earlier accounts, it enshrines an attempt to negotiate the sense and implications of the principle of popular power against the institutional implications derived from mainstream accounts of sovereignty. Differently from them, Schmitt collapses constituent power into another account of sovereignty, more absolute and unlimited, to justify the rule of a single man. These differences and similarities represent a key juncture in the history of constituent power. From then onward, all theorists directly engaged with and relied upon Schmitt’s interpretation when putting forward their own accounts of constituent power.

chapter 4

Constitutional Politics in Post–World War II Europe

The 1930s and the Second World War had shown that the principle of popular power could easily be used to justify plebiscitary and dictatorial rule. The collapse of the Weimar Republic and the experiences of fascism and Nazism in Europe were the inescapable background against which most thinking and theorising about the principle of popular power had taken place in the aftermath of the war. Legal and political theorists thus focused on establishing strict legal limits to the exercise of power. In this context, legal positivism gained ground, and its fundamental postulates – the disregard of popular sovereignty and its focus on the legal system – became mainstream approaches to the study of political authority. However, this reduction of political authority to the study of legal norms was accused of failing to account for and enforce the democratic core of the constitutional state. As such, the positivist approach to sovereignty was considered an inadequate response to the threats that World War II presented to democracy and to its founding principle. By contrast, constituent power was put forward as a conceptual instrument to counterbalance the drawbacks of contemporary accounts of legal sovereignty and embed the democratic core of the constitutional state, while avoiding its degeneration into plebiscitary rule. This conceptual transition took place over an extended period of time, thanks to the contribution of several thinkers across Europe. Yet three thinkers, who situated themselves at the intersection between law and politics, contributed more than others to the elaboration of a new meaning for the language of constituent power. They are Costantino Mortati in Italy, Ernst-Wolfgang Böckenförde in Germany and Georges Vedel in France. Although they belonged to different national traditions, they shared many intellectual reference points and developed strikingly similar theories of constituent power. Positivist sovereignty, they maintained, raised two sets of problems. The first was methodological in scope, as positivist accounts of sovereignty failed to take into consideration the nonlegal origins of the legal and political system. If sovereignty was to be 141

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considered as an attribute of the legal order, how could the creation and validity of the latter be explained? The second set of issues was more directly political and pragmatic. It pointed out that legal definitions of sovereignty reduced all political issues to questions of jurisprudence and legal interpretation. As a consequence, they were unable to account for the involvement of the people in politics, and thus somehow prevented it. Without ever rejecting the language of sovereignty, the three jurists balanced out its abstract and juristic character with the language of constituent power. This allowed them to move the attention away from legal considerations and focus instead on the sociopolitical foundation of the legal system. Emphasising the role played by social forces in the creation of the state, they used constituent power to advocate for the people’s direct participation in its ordinary working. In doing so, they overturned previous interpretations of constituent power while relying on some of their fundamental insights. Lanjuinais and Schmitt, Mortati, Vedel and Böckenförde conceived of constituent power as the force at the origins of the political system as much as Sieyès did. Yet Schmitt used it to describe the unlimited and unifying power of the sovereign; Sieyès and nineteenthcentury jurists relied on it to oppose or limit the absolute authority attributed to the people (or the nation) through the idea of sovereignty. By contrast, mid twentieth-century European jurists resorted to constituent power to revitalise the role played by the bearer of political power, the people, in the rigid structure of the constitutional state. They used it to reinsert the voices of the people in the debate on the foundations of the state and on the ordinary exercise of power.1

Sovereignty and Positivism Costantino Mortati, Ernst-Wolfgang Böckenförde and Georges Vedel were renowned legal theorists and active public intellectuals, who participated in disciplinary debates as well as to the political life of their countries. Costantino Mortati was born in 1891 and lived through the twentieth century. In his early life, he studied law and became professor of constitutional theory under the fascist regime.2 Soon after the end of the war, he was elected member of the 1 2

For all titles given in Italian, French and German, the translations are my own. For quite some time, Italian scholars accused Mortati of connections to fascism. Specifically, his realist approach has often been mistaken for a normative defence of the fascist regime. Yet this does not seem to be accurate, as he rather aimed to describe the working of the legal political system, which did not necessarily entail approving or theorising it. The evidence offered is the enthusiasm with which he decided to collaborate to drafting the Italian republican constitution and his explicit

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Italian Constituent Assembly, among the ranks of the Christian Democrats. In this position, he deeply influenced the drafting of Italy’s republican constitution and extensively wrote about the constituent experience.3 Georges Vedel was a French constitutional jurist, born at the beginning of the twentieth century in the south of France. Early on in his career he moved to Paris, where he became a major figure in public law to the point of being nominated head of the country’s most important law faculty. He was a committed democrat who played an important role in negotiating France’s position in the European Union and served as a member of both the Constitutional Council and the Committee for Constitutional Reform in 1993.4 His treatises of constitutional theory became standard readings in most law courses and are still widely used today. Ernst-Wolfgang Böckenförde was also an influential constitutional theorist in his own country, Germany. He was born in 1930, worked as a professor of public law in several important universities and served as a member of the Council for Constitutional Reforms. Since his early years, he was close to Carl Schmitt. He was also a fervent Catholic, and throughout his intellectual career he aimed to reconcile religion with the liberal state and its constitutional organisation.5

3 4 5

endorsement of the democratic principle. This has extensively been discussed by Italian jurists in recent years and his figure completely rehabilitated, to the point of being considered one of the founding fathers of the Republic. For an overview, see G. Zagrebelski, ‘Premessa’, in C. Mortati, La costituzione in senso materiale (Milan: Giuffrè, 1998), pp. xvii–xxxviii, and also M. Fioravanti, ‘Dottrina dello Stato-persona e dottrina della costituzione-Costantino Mortati e la tradizione giuspubblicistica italiana’, in M. Galizia and P. Grossi (eds), Il pensiero giuridico di Costantino Mortati (Milan: Giuffrè, 1990), pp. 45–186; G. Della Cananea, ‘Mortati and the science of public law: a comment on La Torre’, in C. Joerges and N.S. Ghaleigh, Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford: Oxford University Press, 2003), pp. 305–20. Among those who still argue that Mortati’s work was fundamentally embedded in fascist legal thought, see M. La Torre, ‘The German impact on Fascist public law doctrine’, in C. Joerghes and N.S. Ghaleigh, Darker Legacies of Law in Europe, pp. 305–20. See also I. Staff, ‘Costantino Mortati: Verfassung im materiellen Sinn. Ein Beitrag zur Rechtsentwicklung im faschistischen Italien und im Deutschland der Weimarer Zeit und im Nationalsozialismus’, Quaderni fiorentini per la storia del pensiero giuridico moderno vol. xxiii (1994), pp. 265–364; I. Staff, Staatsdenken Im Italien des 20. Jahrhunderts Ein Beitrag Zur Carl SchmittRezeption (Baden-Baden: Nomos, 1991), where she accuses Mortati of being insufficiently committed to democracy. On this debate, see also my article, L. Rubinelli, ‘Costantino Mortati and the idea of material constitution’, History of Political Thought 40(3) (2019), pp. 515–46. For a concise overview of Mortati’s biography, see F. Lanchester, ‘Costantino Mortati’, Dizionario Biografico degli Italiani, vol. 77 (2012). For a concise reconstruction of Vedel’s biography, see Academie Française, ‘Georges Vedel’, www .academie-francaise.fr/les-immortels/georges-vedel. For a concise overview of Böckenförde’s biography, see M. Kunkler, T., Stein, ‘Introduction’, in EW. Böckenförde, Constitutional and Political Theory (Oxford: Oxford University Press, 2017), pp. 1–35. For Böckenförde’s connection to Schmitt, see E-W. Böckenförde, ‘The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory’, in D. Dyzenhaus (ed.),

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Although no record shows any formal interaction between the three thinkers, they are likely to have read each other and shared a great deal of references and theoretical ambitions. All three thoroughly criticised what at the time was the mainstream approach to studying the legal system: positivism. In addition, all three used ideas developed by Sieyès and Schmitt to move beyond the methodological and political shortcomings of positivist legal theory. In pursuing these goals, they became prominent voices in their own countries and played an important role in shaping the evolution of legal and, to a lesser extent, political theory in the years that followed. This influence also played out in the shift in role and meaning attributed to the language of constituent power. As mentioned, the main element associating these three thinkers was their scepticism towards certain implications derived from positivist accounts of sovereignty. Although more than one definition was available at the time, they all focused on what seemed to be the mainstream interpretation of sovereignty: the legal framing of the authority of the state. As Mortati reported in his commentary on the works of the Italian Constituent Assembly, in post– World War II Europe, sovereignty was mainly considered a legal entitlement of the state, conceived not merely as the ensemble of a people living in a determined territory but as an institutional machine, a constellation of legal structures.6 This positivist approach to sovereignty can be encountered in a number of national cultures, each with its own specificities and variations. Yet the most famous positivist treatment of sovereignty was certainly the canonical study offered by Austro-Hungarian jurist Hans Kelsen in his Reine Rechtslehre.7 This is a complex study of the working of the legal system, published in Germany in the mid-1930s.8 When writing it, Kelsen purported to explain how the legal system worked without resorting to factual considerations about its validity. In his view, the

6 7

8

Law as Politics: Carl Schmitt’s Critique of Liberalism (Durham: Duke University Press, 1998), pp. 37–55. See also E-W. Böckenförde, ‘Carl Schmitt Revisited’, Telos 109 (1996): pp. 81–6; M. Kunkler and T., Stein, ‘Carl Schmitt in Ernst-Wolfgang Böckenförde’s work: carrying Weimar constitutional theory into the Bonn Republic’, Constellations 25 (2018): pp. 225–41; J. W. Müller, A Dangerous Mind (New Haven: Yale University Press, 2003), especially pp. 166–8; S. G. Zeitlin, ‘Indirection and the Rhetoric of Tyranny: Carl Schmitt’s The Tyranny of Values (1960–1967)’; S.G. Zeitlin, ‘Interpretation and Critique: Jacob Taubes, Julien Freund, and the Interpretation of Hobbes’. C. Mortati, Studi sul potere costituente e sulla riforma costituzionale dello stato, pp. 3–10. An example of an Italian variation on the theme of legal sovereignty is the work of Vittorio Emanuele Orlando. Cf. V. E. Orlando, Principii di diritto costituzionale (Florence: G. Barbara, 1889), pp. 18–36; for an overview of Orlando’s work, see M. Gregorio, ‘V. E. Orlando costituente’, Nomos: le attualità nel diritto 3 (2017), pp. 1–12. For an overview of legal theories of sovereignty in France, see O. Beaud, La puissance de l’État (Paris: Presses Universitaires de France, 1994), especially pp. 203–20. H. Kelsen, Pure Theory of Law (Berkeley: University of California Press, 2005 [1934]).

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legal system could not be justified in relation to external – such as political or sociological – factors but had to rely exclusively on reasons internal to the legal system itself. Although he did not deny the importance of extra-juridical factors, he aimed to completely separate legal from political considerations, arguing that the latter should not be used to explain the internal working of the law.9 This could be understood only by admitting that the validity of legal norms depended on their legal character and not on their capacity to embody different degrees of moral or political good. In other words, he wanted to separate positive from natural law and delineate a methodology apt to investigate the functioning of the former. In Kelsen’s terms, the pure theory of law ‘wants to discover only what is in the law; not what ought to be’.10 This commitment is also reflected in a more specific issue, that of addressing the origins of the legal order and the state. According to Kelsen, this grey area should be ignored in legal reflections, as the solution to the problem of foundations had to be moved away from factual and historical investigations. More importantly, focus should be on the analytical reconstruction of the source of legal norms in the process governing their creation. This was carried out according to procedures set out in other norms, which in turn were valid because they had been created according to other hierarchically superior norms. In his words: ‘A norm is valid qua legal norm only because it was arrived at in a certain way – created according to a certain rule, issued or set according to a specific method.’11 At the top of the ladder there is a basic norm, which is a ‘hypothetical foundation’ whose validity is presupposed.12 In this norm, the ‘normative import of all the material facts constituting the legal system’ is rooted.13 Kelsen did not equate the basic norm with the idea of sovereignty. Yet he suggested that in democratic states the former corresponds to the delegation of the law-making authority to the people and its representatives.14 In 9

10

11

See H. Kelsen, Introduction to the Problems of Legal Theory (Oxford: Clarendon Press, 1997 [1934]), especially pp. 21–36. Cf. A. Jacobson and B. Schlink, ‘Introduction’, in A. Jacobson and B. Schlink (eds), Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000), pp. 1–39. ‘For it is the Pure Theory of Law itself that emphasizes – in relation to justice – the reality, that is, the positivity of law, regardless of the fact that this positive law – in relation to nature, that is, to the causally determined actual behaviour of people – is an “ought”. The opposition between “ought” and “is” is relative, given that for scientific knowledge there is no absolute reality. And the statement that law represents a reality says hardly anything; everything depends on determining what kind of reality, since it obviously cannot be the reality of nature. Only the Pure Theory of Law clearly recognizes the problem of the specific reality of law as the problem of the positivity of law and tries to solve it.’ H. Kelsen, Introduction to the Problems of Legal Theory, p. 56. 12 Ibid. Ibid., p. 58. 13 Ibid. 14 Ibid.

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saying so, he was read as suggesting that sovereignty could, in this positivist frame, coincide with the content of the basic law and, as a consequence, be considered a legal norm instead of a political principle.15 This position played an important role in twentieth-century debates on sovereignty. Interestingly, it contributed to moving the idea away from political and philosophical discussions towards legal debates. Among post– World War II constitutional theorists, the positivist definition of sovereignty was particularly successful. It helped the discipline to distance itself from the heritage of fascism and Nazism by offering a more limited and formalistic definition of the supreme authority. As such, it was well regarded by most scholars, including Mortati, Vedel and Böckenförde. Along with their peers, they extensively engaged with the positivist definition of sovereignty and accepted some of its characteristic features. Mortati, for example, repeatedly and consistently defined sovereignty as the legal organisation of the powers of the state. In his words, ‘The holding of sovereignty . . . is exclusively imputable to [the state entity].’16 Similarly, Vedel argued that sovereignty is a legal power . . . The power that exercises sovereignty is justified in relation to a certain idea of law, is recognised as valid and considered, by the mass of individuals, as having the capacity to create legal norms . . . It is the juridical organisation of the nation, or better, it is the nation insofar as it acts in the legal sphere.17

A few years later, Böckenförde also seemed to accept the positivist definition of sovereignty as a legal category. He said that sovereignty, in the modern state, is the ‘ultimate decision-making authority superior to the traditional legal constellation and with the formative legal power, an attribute in which supreme, self-affirming power and law are intertwined’.18 As exemplified in these quotes, the three legal theorists 15

16 17 18

As Dyzenhaus explains, Kelsen would have rather done away with the concept of sovereignty all together and put forward an argument in this sense in his 1920 work on sovereignty. See H. Kelsen, Das problem der souveränität und die theorie des völkerrechts (Tübingen: J. C. B. Mohr, 1920), p. 320. Yet Dyzenhaus explains that, when discussing his Pure Theory of Law, Kelsen discussed sovereignty as ‘a legally constituted property, pertaining to the identity of a particular legal system’. See D. Dyzenhaus, ‘Introduction: The Problem of Sovereignty’, in H. Heller, Sovereignty (Oxford: Oxford University Press, 2019), pp. 1–59, p. 8. C. Mortati, La costituzione in senso materiale, p. 204. For similar developments, see also C. Mortati, Istituzioni di diritto pubblico (Padua: Cedam, 1969 [1949]), p. 98. G. Vedel, Manuel élémentaire de Droit Constitutionnel (Paris: Sirey, 1984), p. 103. The book was first published in 1949. E-W. Böckenförde, Constitutional and Political Theory (Oxford: Oxford University Press, 2017), p. 155. See also Böckenförde’s reconstruction of the influence Gierke had on the success of the legal theory of sovereignty in Germany. Cf. E-W. Böckenförde, ‘Concepts and problems of the

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accepted the general idea that sovereignty was mainly a legal description of the competences of the state. Yet this reliance upon quasi-positivist definitions of sovereignty did not coincide with a fully-fledged acceptance of the account of the foundation of the legal order it provided. On the contrary, Mortati, Vedel and Böckenförde suggested that the legal definition of sovereignty was neither the best nor a sufficient way of embedding democracy and protecting it from its own degeneration. This was for two reasons. Starting with the first, the three legal thinkers questioned the methodological interest of separating the analysis of law from political and sociological considerations over the origins of the state’s constitutional system. Although they agreed that sovereignty had to be understood as a legal category, they doubted that the study of law merely as a positive system could explain the rationale governing the legal order and, consequently, the reasons for its normative validity. A version of this critique was offered during World War II by Mortati. He repeatedly worried that the reduction of sovereignty to a legal norm ‘constructs the unity of the legal order a posteriori, exclusively through a process of analysis, coordination and generalisation of norms . . . [As a consequence] it impedes any assessment of the guiding principles from which the existence of the legal order depends.’19 And again, a few years later, he argued that it is ‘unacceptable to identify the criterion at the basis of the legal order with a hypothetical norm, detached from the structure in which it is rooted and inaccessible to legal knowledge’.20 Similarly, Böckenförde maintained that Kelsen’s methodology was interesting and insightful when applied to ordinary norms. However, it failed to make sense of the origins of the constitution. The search for its foundations indeed shows ‘the problem of the missing link between normativity and facticity, [which] emerges irrefutably in the constitution’.21 The positivist approach was thus considered an insightful method to assess the ordinary working of law, but it was deemed inappropriate to explain the foundations of the legal system in general and of the state’s constitutional structure in particular. The second problem derived from the legal definition of sovereignty was more overtly political. Positivism was accused of purposefully concealing

19 20 21

constitutional state’, in E-W. Böckenförde, Constitutional and Political Theory, pp. 141–51. Müller discusses Böckenförde’s understanding of sovereignty in J. W. Müller, A Dangerous Mind, p. 67. C. Mortati, La costituzione in senso materiale, p. 25, see also p. 31. C. Mortati, ‘Costituzione dello stato’, in Enciclopedia del diritto (Milan: Giuffré, 1962), vol. XI, p. 11. E-W. Böckenförde, ‘The constituent power of the people: A liminal concept of constitutional law’, in E-W. Böckenförde, Constitutional and Political Theory, p. 170.

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the political values inherent to democratic states. At different times and in different ways, the three jurists suggested that the positivist emphasis on the legality of sovereignty systematically overlooked and denied the fundamental principle at the core of the constitutional state: the people’s exercise of political power. Vedel, for instance, repeatedly warned that, even if sovereignty was a legal power, it was nonetheless at the service of ‘an object that was both exterior and superior to it’.22 This object was the population and its political will. Similarly, Mortati warned that the positivist disregard for what lies at the core of democratic states might lead to the logical denial of the principle of popular power and end up in pure decisionism: ‘Kelsenian formalism releases the will of the superior entity from all substantial limits; it leaves it free to initiate any type of change of the constituted order, which can go in all directions, even the most radical ones. Hence, it somehow leads to “decisionism”.’23 A sounder definition of sovereignty should take into account ‘the capacity of the state to find the origins and reason of its existence in itself, in the social forces existing inside its structures’.24 The positivist idea of sovereignty thus lacked the capacity to account for the role of the people in the foundation of the legal system; second, it ignored and constrained popular participation in ordinary lawmaking. As such, it did not embed democracy but was perceived as being in tension with its realisation. Alongside these two implications of positivist accounts of sovereignty, Mortati and Vedel took issue with another dominant definition of the sovereign power. This was the idea of national sovereignty, which they considered a typically French understanding of political authority. Specifically, one of their main targets was the leading constitutional theorist Raymond Carré de Malberg, whose Contribution à la Théorie générale de l’État has been discussed in Chapter 2. Since its publication in 1920, the book became very important, and Carré de Malberg’s theorisation of national sovereignty became a standard definition for most of the twentieth century in France.25 In the book, Carré de Malberg argues that in 1789 three possible understandings of sovereignty came to the fore. The 22 23 25

G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 107. 24 C. Mortati, ‘Costituzione dello stato’, p. 18. C. Mortati, Istituzioni di diritto pubblico, p. 92. German scholars tended to interpret the idea of national sovereignty as being too peculiarly French. See M. Hewitson, National Identity and Political Thought in Germany: Wilhelmine Depictions of the French Third Republic 1890–1914 (Oxford: Clarendon Press, 2000), pp. 1–29. Yet they still relied on it to make sense of the process of formation of the German state. See D. Kelly, ‘Egon Zweig and the intellectual history of constituent power’, in K. L. Grotke and M. J. Prutsch (eds), Constitutionalism, Legitimacy and Power: Nineteenth-Century Experiences (Oxford: Oxford University Press, 2014), pp. 332–50.

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first was monarchical sovereignty, which was directly exercised by the king and found in his person its full embodiment. The second was popular sovereignty as derived from Rousseau’s theory of the social contract. Building on arguments similar to those used by Sieyès, Carré de Malberg described popular sovereignty as a simple transposition of the monarchical principle from the hands of the king to those of the people. Popular sovereignty was thus directly exercised by its bearer, the people. The third option was what he called national sovereignty. Different from the previous two senses, the attribution of sovereignty to the nation entailed an indirect and necessarily limited understanding of political authority. Carré de Malberg meant national sovereignty to be the abstract expression of a seemingly abstract political subject, which could not be embodied by any existing institution. The nation, being neither tangible nor countable, was necessarily different from the concretely existing people as well as from its representatives. Hence, the only way of guaranteeing a rational and limited exercise of the sovereign function rested on its attribution to the nation. In affirming this, Carré de Malberg chose to develop his theory through a direct dialogue with the political thought of the Abbé Sieyès who, he admitted, successfully introduced the idea of national sovereignty by recognising the superiority of the nation’s will over the people’s. Yet, according to Carré de Malberg’s own criteria, Sieyès failed his own intuition when he associated national sovereignty to political representation. By so doing, he conveyed the full exercise of power into the hands of a concretely detectable political body, the representative assembly. Therefore, he collapsed the abstract will of the nation into the concrete interests of the representative assembly and, even though indirectly, gave power to the electorate. This, from Carré de Malberg’s point of view, was mistaken and dangerous. Sovereignty needed to be distinguished from all concrete instances of power, because only in this way it allows the ‘rescue of the concept of state. It achieves this by affirming itself as a permanent and distinct subject, different from its organs, whatever they are, and from the individuals who compose it.’26 Vedel and Mortati fully understood the extent to which the French tradition in general, and Carré de Malberg in particular, attributed the sovereign power to an abstract and fictitious entity – the nation. This, in their view, was a move aimed at taking power away from actual social forces, the people, and attribute its exercise to a handful of bureaucrats running key 26

R. Carré de Malberg, Contribution à la Théorie générale de l’État, vol. II (Paris: Dalloz, 2004 [1920]), pp. 185–6. See also E. Maulin, ‘Carré de Malberg et le droit constitutionnel de la Révolution française’, Annales historiques de la Révolution française, 328 (2002), pp. 5–25.

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institutions. This, in Mortati’s view, was misleading and inconsistent with the democratic principle. It ‘represents the nation as a pre-formed entity already able to take decisions, while in fact it considers it completely unable to autonomously manifest its own will’.27 In doing so, supporters of national sovereignty end up making the same mistake the positivists had made: they disregard the actual forces creating and maintaining the legal system, and thus they overlook the democratic and material origins of the modern state. Vedel had an even more critical assessment of national sovereignty. In his view, the latter was a real threat to democracy. Instead of fostering government for the people and by the people, it only took seriously the first half of the equation. What is good for the people is decided not by the people itself but by the nation, which simply means the bureaucrats running the state. Hence the idea of the nation, far from embodying the preferences of society, is just an abstraction necessary to concentrate power in the hands of a few civil servants. This concern for the abstract character of national sovereignty added up to fear for the undemocratic or anti-democratic implications of legal sovereignty. It pushed Mortati and Vedel to look for ways of integrating means of popular participation in both their definitions of sovereignty and in the actual working of the constitutional state. To recapitulate, the three thinkers agreed that the legal definition of sovereignty made sense when analysed as part of the legal system. However, it did not succeed at explaining the foundations of the legal political order, and it downplayed the people’s role within the state. Hence, it was necessary to integrate the legal definition of sovereignty with an account of popular power, able to do justice to the political dimension underpinning the foundation and ordinary working of the state. To do so, they embraced, in varying degrees, sociological, realist and institutionalist approaches to sovereignty and the constitutional system. Interestingly, this led the three jurists to think that the political dimension at the origins of the state was suitably expressed through the notion of constituent power. Differently from sovereignty, constituent power appeared as the conceptual tool necessary to describe and defend the role played by politics in general – and popular participation in particular – in the formation and ordinary working of the state. More specifically, the reference to constituent power allowed each of the jurists to address, in his own terms, the two shortcomings derived from legal definitions of sovereignty. First, constituent power seemed to provide the missing link between the positive validity of constitutional and ordinary laws and their dependence 27

C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, p. 74.

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upon a higher norm. The foundation of the state and its constitutional structure, no longer being hypothetical, becomes the embodiment of the people’s fundamental decision over the form and structure of the political order. Second, by making clear that the constitutional order is the outcome of a popular decision, the idea of constituent power represents a constant reminder of where political authority lies, even during moments of ordinary politics. It hence becomes a tool to promote popular participation inside the constitutional state. In clarifying these two points, the idea of constituent power also offered the language to portray the French theory of national sovereignty as an anti-democratic and elitist approach to the principle of popular power.

Political Goals The interpretations of constituent power offered by Mortati, Vedel and Böckenförde differ slightly. The main differences will be outlined in what follows. Yet the three jurists similarly contributed to introducing a new meaning for constituent power. Far from reproducing the interpretations offered by Sieyès, nineteenth-century theorists or even Schmitt, each of them endowed constituent power with a new meaning. While it remained – as in the nineteenth century – a way of balancing out the drawbacks of sovereignty, it was aimed at accounting for and fostering popular participation in politics. Although in different ways, each of the three jurists used the idea of constituent power to make sure that their own theory of the state did not fall short of satisfactory explanations of the origins and working of state institutions. What follows will outline the four main features that the jurists’ accounts of constituent power have in common. These are constituent power’s factual and empirical reality; its capacity to express the decision at the origins of the state; its implementation in cases of constitutional change; and its embeddedness in pre-existing social structures. Defined as such, constituent power gave mid-twentiethcentury jurists the language to address the democratic origins of the state and thus respond to the first problem raised by theories of legal sovereignty. To start, constituent power is considered by all three as the concrete, factual instantiation of the people’s unbounded power to create the political system. The people’s constituent power is thus a reality, whose existence and working does not depend on whether it is recognised as such by legal and political theorists. It is an empirical phenomenon existing prior and beyond scholarly attempts to describe and rationalise it. Consequently, all theoretical constructions aimed at minimising or ignoring the people’s role in the creation of the state and its constitution, such as Kelsen’s theory of legal

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sovereignty, are factually wrong. At the origins of the state there is no legal norm or philosophical hypothesis. There is a spontaneous expression of the people’s will, whose functioning can be empirically observed. For Mortati, the creation of the state ‘is and can only be the manifestation of a pure fact, susceptible of an infinite number of variations, which are unpredictable because confided to the free choice of those who exercise it’.28 For Vedel, constituent power is an original power, which exists before the state and puts it into place. It most clearly manifests itself during revolutionary processes or when a new state emerges: ‘When it comes to creating a constitution after a revolution that has abolished the previous one or when creating a new state, constituent power is unconditional; by definition, it cannot submit to any pre-established rule, it really is an original power.’29 On the other hand, Böckenförde echoes Schmitt in saying that what determines the existence and form of the constitutional state is a political decision taken by the people.30 Hence, constituent power is primarily a fact, an event that cannot be reduced to a theoretical or speculative concept. This, in his view, is the essence of constituent power, which ‘cannot be defined either as a merely hypothetical or a purely natural law basic norm. It must be understood also as a real political entity that establishes the normative validity of the constitution.’31 As these quotes demonstrate, before being an intellectual category or a political principle, constituent power is considered an actual practice – an empirical fact – to be observed and studied. It is a sociopolitical phenomenon that all three jurists believed they had seen working in their empirical observations of the state and its legal system. Moreover, the emphasis they put on the real and factual existence of constituent power allowed them to discredit positivist scholars. The latter were indeed unable to explain and account for historical evidence of popular foundation of the state.32 Second, none of the three scholars contented himself with observing the practice of constituent power. They all rationalised their empirical observations in such a way as to transform them into a theory of the people’s 28 29 30 31

32

C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, p. 11. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 115. See E-W. Böckenförde, ‘The concept of the political: a key to understanding Carl Schmitt’s constitutional theory’, pp. 5–19. E-W. Böckenförde, ‘The Constituent Power of the People: A Liminal Concept of Constitutional Law’, p. 171. On the ‘factual reality’ of constituent power in Böckenförde, see also L. Vinx, ‘ErnstWolfgang Böckenförde and the politics of constituent power’, Jurisprudence 10(1) 2019, pp. 15–38, p. 19. The appeal to the ‘factual reality’ of constituent power to prove the validity of the theory of constituent power is also common to contemporary theorists, as discussed in the Introduction.

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constituent power. This was described as the people’s authority to establish the political goal upon which the constitutional system was to be based and whose fulfilment its institutions should strive for. As such, it became a theory of the missing link between the factual reality of politics and the normative character of the constitution, because it connected the latter to an explicit choice made by the people. Specifically, Mortati argued that the idea of constituent power allowed him to unveil what he called the ‘material constitution’. This consists in the ‘realisation of a specific political idea, whose working entails a certain degree of political homogeneity, able to create a superior unity comprising the majority and the minority of the population and able to give shape to all the prerequisites necessary for the existence of a consistent and harmonious state’s will’.33 Constituent power thus expresses the political idea behind the material constitution. Mortati called this political idea ‘fine politico’ (political goal). In theorising it, he explicitly coupled his theory of constituent power with Schmitt’s account of the sovereign’s political decision. Schmitt, he maintained, had ‘explain[ed], more concretely than any other author, the fundamental principle organising the state’.34 This is because he ‘identified the constitution in the absolute sense . . . with the fundamental political decision, the decision on the type and form of a people’s political unity’.35 This decision was equivalent to the ‘fine politico’. Yet, differently from Schmitt, it found expression through the people’s exercise of its constituent power and not through the decision of the representative. Similarly, Böckenförde stressed the need for an extra-legal concept to make sense of the popular origins of the state. He used the following words: ‘the constitution does not derive normative stabilization and regulating force from a legal norm that stands above it or from a special sanction, which does not exist. Instead, it derives it from an idea of order established once, sustained, and normatively solidified by a political decision, an idea born by the people or by the crucial groups and powers within society.’36 In looking for this decisional will, Böckenförde too did not conceal his 33 34

35 36

C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, p. 85. Ibid. On realism, Mortati argued that his ‘idea of the material constitution to some extent overlaps with the so-called political realism because it identifies the reality of the state with the system of social forces organised in such a way as to guarantee their supremacy’, C. Mortati, Istituzioni di diritto pubblico, p. 33. C. Mortati, La costituzione in senso materiale, p. 55. E-W. Böckenförde, ‘The Constituent Power of the People: A Liminal Concept of Constitutional Law’, p. 171. Böckenförde rejected natural law as well as the philosophy of values, in order to defend the social embeddedness of human values and their connection to the political will. Cf. Müller, A Dangerous Mind, p. 72. For the Schmittian background to Böckenförde’s discussion of the philosophy of values, see S. G. Zeitlin, ‘Indirection and the Rhetoric of Tyranny: Carl Schmitt’s The Tyranny of Values (1960–1967)’.

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intellectual proximity to Carl Schmitt. He maintained that the link between facts and norms was an authoritative decision, which he called ‘politischer Willensentschluß’ (political decisional will).37 This could only be expressed through the people’s exercise of constituent power. The latter thus plays the role of a Grenzbegriff, a borderline concept between normativity and facticity, between law and politics. It is the expression of the people’s fundamental decision over the creation and structure of the political order. Relying on a different language, Vedel argued that constituent power is what gives content and substance to the formal sovereignty of the state: ‘It is the constituent power which manifests, in the most visible way, the sovereignty of the state. By giving itself a constitution, the state affirms the original and supreme character of its own authority.’38 More specifically, constituent power instantiates the capacity of society in general, and of the forces acting within it in particular, to set an ‘idée d’entreprise’ (idea of venture). Taking inspiration from the French institutionalist tradition, whose main representative was Maurice Hauriou, Vedel maintained that the ‘idée d’entreprise’ is the political vision that allows the institutionalisation of power and legitimises the superiority of the government vis-à-vis other social bodies.39 As such, it was the content of the people’s constituent power. Whether expressing a ‘fine politico’ (political goal), an ‘idée d’entreprise’ (an idea of venture) or a ‘politischer Willensentschluß’ (a political decisional will), constituent power was considered by the three jurists the direct expression of the popular will. By relying on this language, they not only systematised their empirical observations but also argued that the creation of the state and its institutions depended upon the people’s exercise of its founding power. The third feature of mid-twentieth-century accounts of constituent power is the role assigned it in cases of constitutional change. Since the positivist idea of sovereignty did not entail popular involvement into 37

38 39

E-W. Böckenförde, ‘The Constituent Power of the People: A Liminal Concept of Constitutional Law’, p. 171. On Böckenförde’s debt to Carl Schmitt, besides what has already been cited, see also O. Jouanjan, ‘Between Carl Schmitt, the Catholic Church and Herman Heller: on the foundations of democratic theory in the work of Ernst-Wolfgang Böckenförde’, Constellations 25 (2018): pp. 184–95. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 104. Ibid., p. 101. Also Mortati discusses the methodological insights offered by the institutionalist tradition. Although stressing the need to complement this tradition, he readily accepts their basic premise: ‘the pre-existence beyond the normative system of a principle able to organise society, of a social substratum, itself juridical, which influences and promotes the first’. C. Mortati, La costituzione in senso materiale, p. 205.

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constitutional affairs – it rather constrained it – the three jurists relied on the language of constituent power to reclaim it back. They did so by explaining how the forces acting in society influence the development and modification of the law. In particular, they pointed out how the people’s constituent power is in a lasting relationship to the legal order. It constantly controls and challenges the latter’s consistency with the fundamental political ideal at the origins of the legal system. As Mortati maintained, constituent power is certainly active in moments of foundation but remains present even in times of ordinary politics. He stated, ‘The first phase [constituent] is temporary, the second [ordinary] is on the contrary permanent. They differ in terms of institutions to which they refer to, but remain connected in a form of unity.’40 This unity is evident insofar as both the creation and modification of the constitution follow the same rationale, which corresponds to the fundamental political idea. They share ‘the fundamental organisational principle, which is common to both because it is the . . . realisation of the same directive idea’.41 The two phases of constituent power thus explain the permanence of constituent power’s initial decision inside the constituted legal order and its modifications. Böckenförde took a similar position. He too saw in constituent power a force acting within the constitution and conceived of it as completely dependent upon the decision taken during the foundation of the legalpolitical order. In this sense, Böckenförde maintained, his conception of constituent power differs from Schmitt’s. The latter, in his view, extinguished itself in the decision. By contrast, he argued that constituent power remained present and active alongside the constitution, as it structured its existence and oversaw all its changes. Also Vedel theorised constituent power’s function in the constituted order. This is mainly evident in the process of revision of the constitution. Accordingly, all changes to the constitution are to be explained in relation to the initial ‘idée d’entreprise’ expressed by the constituent power. In his words: ‘When power is exercised to revise the constitution, the latter establishes, at least formally, the conditions according to which this constituent power is exercised . . . [I]n these cases, the constituent power of revision is no longer unconditioned, it is a derived power.’42 It derives from and depends upon the fundamental political ideal at the basis of the entire 40 41

42

C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello stato’, p. 18. Ibid. See also C. Mortati, ‘Brevi note sul rapporto fra costituzione e politica nel pensiero di Carl Schmitt’, in Quaderni fiorentini per la storia del pensiero politico moderno 2(1) (1977): pp. 511–32, p. 522. Here Mortati clearly distinguishes his account of constituent power from Schmitt’s. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 115.

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political order. To sum up, the three jurists resorted to the idea of constituent power to make sense of legal change inside the constitution. It allowed them to rationalise not only the connection between extraordinary and ordinary constitution-making but also the position of the people’s will, the political idea, inside the constituted order. The last feature of constituent power is its social embeddedness. Since it was conceived of as a political force arising from society, it was also considered as depending on it. Hence, it was neither arbitrary nor unlimited because it was deeply ingrained in the social order. Constituent power’s social embeddedness is key to understanding the idea’s new meaning. For the three scholars, all reflections on the people’s constituent power could not and ought not be separated from the social and political environment within which it acts. Although in its action it is not bound to respect previous legal provisions, constituent power does not act as an unlimited force. By contrast, it is necessarily limited and constrained by the very identity of the people, their vision of politics and the uncodified rules governing their social interactions. In other words, it is dependent upon the social context from which it arises. Mortati defends this position with a thought experiment. He says that in order to deny the existence of limits to constituent power, it would be necessary to imagine a source of power that remains always the same, unchanged and unchangeable.43 Yet this is only possible if one imagines the people as an abstract, unreal entity. As will later be shown, this is not what any of the three jurists assumed. Rather, they all empirically observed the people as an aggregate of social forces constantly struggling to affirm themselves against each other. Hence, constituent power depends upon the specific political ideas that a given society upholds at a given time. Böckenförde explained this with reference to Sieyès, who had already said that ‘a certain degree of constitutionality, which amounts to a demarcation against arbitrary power or pure despotism, is already part of and presupposed in the concept of the constituent power’.44 Constituent power is indeed a general will ‘in which the acknowledged principles for the shaping and conduct of public life find their expression’.45 Hence, it is not just any force and power that acts arbitrarily according to changing circumstances. This emphasis on constituent power’s social embeddedness can be explained in two ways. One suggests that Mortati and Böckenförde, but also Vedel, did not approve of Schmitt’s account of constituent power. It 43 44

C. Mortati, ‘Brevi note sul rapporto fra costituzione e politica nel pensiero di Carl Schmitt’, p. 517. E-W. Böckenförde, ‘The constituent power of the people’, p. 182. 45 Ibid.

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certainly fascinated and inspired them, but they made clear that it did not correspond to their own account of constituent power. It was both too decisionist and too existential, as it was completely detached from the social forces that enacted it. Moreover, Schmitt’s conception of the sovereign constituent power had also proved to be substantially undemocratic. By reducing its exercise to the decision, he necessarily concentrated it in the hands of a single all-powerful man. This, in the jurists’ view, was inconsistent both with the democratic principle – to which they all were committed – and to the actual reality of constituent power. Second, the jurists’ emphasis on constituent power’s social embeddedness could also derive from what some of them called their ‘realist’ approach to the study of politics and law. Far from offering a theoretical speculation over the defining features of constituent power, they derived them from the empirical observation of its working. This showed that there is no such a thing as an absolute moment of decision acting ex nihilo. By contrast, even the most extreme revolutionary exercise of constituent power finds its origins in dominant social visions and ideas. And it depends from their validity in society. It is from the empirical observation of constituent power’s working that the three jurists started building their theories of constituent power. These were meant to create an intellectual tool to make sense of the popular origins of the legal political order, to understand the relationship connecting ordinary law-making to the people’s will and to flesh out the socially bounded character of this power. As such, constituent power became a powerful counterbalance for legal definitions of sovereignty. While the latter disregarded popular authority and reduced the moment of foundation to a hypothetical norm, the language of constituent power offered a fully fledged theory of the origins of the state, of its legal system and of sovereignty within it.

Social Forces Any theory of constituent power would be incomplete without a discussion of its bearer. In addition, it was necessary for the jurists to explicitly address the composition and organisation of the subject of constituent power if they wanted to provide a valuable argument to counter the positivist disregard of the people’s role in the constitutional state. Although each of the jurists came up with a different description of the bearer of constituent power, Mortati and Vedel agreed that it could not be the nation. There are several reasons for this rejection. As hinted at before, the very idea of nation was perceived as an abstraction, a theoretical category, an

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attempt to dissolve the plurality of social forces into a unitary actor. This, to the theorists’ minds, was not only false from an empirical point of view but also politically dangerous. Mortati, for instance, argued this, since modernity, sovereignty and constituent power have been attributed to the nation. This was theorised mainly by French scholars, amongst whom he listed Sieyès. The nation is an unsatisfactory description of the bearer of constituent power because ‘it is impossible to find [in it] the minimum requirements necessary to create a subject able to act politically. The simple awareness of having common interests . . . is not enough to activate the entity [the bearer of constituent power] through which it should manifest itself, [and] it is not enough to give it any power, not even a factual one.’46 Building on a similar argument, Vedel criticises the French tradition for attributing constituent power – and sovereignty – to the nation. When faced with the reality of popular power, French theorists decided to avoid attributing it directly to the people. They thus created a fictive subject, the nation. As much as the absolute monarch, this new bearer of sovereignty was unitary and personified. As such, it was entrusted with the absolute power that used to belong to the king. Interestingly, this is an argument Sieyès himself had made when criticising the moderate deputies’ support for the idea of national sovereignty. However, his criticism was directed at the idea of sovereignty, rather than at the nation. And it was aimed at accusing the unlimited power that sovereignty attributed to the representatives of the people. On the contrary, Vedel used this argument to stress how the nation was just a ‘juridical person, distinct from the individuals composing it’.47 Hence, it was used to abstract from the actual people and strip them from the possibility of exercising power, including sovereignty. It was thus unable to ‘exhaust the content of the democratic principle’.48 Besides being inconsistent with the reality of constituent power, the traditional identification of its bearer with the nation also contributed to diminishing the people’s role in politics. It ‘left the real social forces in the shade, and these are the only forces able to assume, value and legitimise the authority from which the political order arises’.49 As a consequence, the jurists agreed in identifying the bearer of constituent power with the people. This, far from being considered a normative position, was presented as indisputable empirical evidence. 46 47 49

C. Mortati, ‘Costituzione dello Stato’, p. 14. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 130. C. Mortati, ‘Costituzione dello Stato’, p. 7.

48

Ibid.

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Yet Mortati, Vedel and Böckenförde did not content themselves with affirming the popular nature of constituent power. Each of them purported to describe exactly how any given people is structured and how this structure influences the exercise of constituent power. This was for two reasons. First, it followed from their realist and empirical take on law and politics. They did not want to present an abstractly valid account of the bearer of constituent power. Instead, they aimed to describe who sets the fundamental political ideal and how. To do so, they had to account for the conflictual relationships between social forces. Second, the more concrete and detailed their account of the bearer of constituent power was, the more convincing their argument against the positivist disregard of the people’s founding role would have sounded. They all thus accounted for the composition and working of the ‘people’. Mortati’s description of the bearer of constituent power remained substantially focused on the Italian case, but he adapted it to changing historical and sociological circumstances. The basic assumption was that any vague notion such as ‘society’ or ‘people’ – concepts he himself used – pointed at the flesh and blood of the material constitution. Yet they did not say who, effectively, exercised constituent power within society. This, by contrast, should be identified with the specific social forces that, in a given moment, succeed at imposing themselves onto the other forces present in society. Any one of these forces ‘ascends to a position of domination upon other forces and organises itself around ideal interests and political values which it authoritatively imposes as foundations for the state it creates’.50 Once established in this position of superiority, it organises a society into a unified entity and directs it towards the fundamental political ‘fine’. Yet the winning force cannot just impose its will or rule with violence. In order to give birth to a stable legal-political order, it must create solid social relationships. These are often already embedded in the composition of the winning social force, whose will can result from unitary social forces which present themselves as a unique subject, because they share the same interest and represent only one centre of political unity. Alternatively, it can result from a compromise between different forces, which agree, during the constituent phase, to establish a common ground where various interests able to create a solid political order meet, merge and secure their pacific coexistence.51

50 51

C. Mortati, Istituzioni di diritto pubblico, p. 31. C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, p. 37.

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In both cases, the defeated forces participate in the creation of the legal political order in a position of subordination. Yet when acting alongside the winners, they still maintain an antagonistic role, as they constantly fight to shift the political balance in their favour.52 This is Mortati’s account of the bearer of constituent power, and throughout his career he purported to identify who, at any given time, was the leading social force. The latter organised itself in a partisan structure. Yet by party he did not mean the political entity working inside parliamentary states. Rather, he meant the ‘total party’ which creates the state according to the preference of the dominant subject. This is larger than a normal party in both scope and dimension. In Italy during the 1920s and 1930s, it was the fascist party that structured the state around a specific political ‘fine’.53 This claim did not amount to a normative defence of fascism but was an empirical observation of the equilibrium reached between social forces during the fascist period in Italy. Soon after the war, the total party became the liberal one and created the state in such a way as to make room for other parties – which are subcategories of the total party – to dispute power inside the parliamentary system.54 Consequently, for Mortati constituent power is exercised by a specific configuration of social forces, organised in partisan structures, according to a specific ‘fine politico’. From this it follows that the identification of the bearer of constituent power . . . cannot be derived from a hypothetical original constitution, and cannot coincide with the people or the nation as politically undifferentiated entities. By contrast, it can be identified in relation to differently wide segments of the population, which are inspired by ideas that reflect and express a given structure and distribution of interests.55

Writing after the end of the Second World War, Böckenförde adopted a more clearly democratic approach to constituent power. Analysing historical instantiations of constituent power, he realised that their first manifestations coincided with practices of the popular exercise of power. Hence, constituent power and practices of direct democracy were not only 52 53 54

55

C. Mortati, La costituzione in senso materiale, pp. 76–8, and C. Mortati, ‘Appunti sul problema della fonte del potere costituente’, in Rassegna di diritto pubblico 1 (1946), pp. 26–53. C. Mortati, La costituzione in senso materiale, p. 138, p. 204. Ibid., p. 86. For a study of Mortati’s understanding of political parties and their role, see L. Rubinelli, ‘Parties, elites and democracy in the Italian Constituent Assembly, 1946–1947’, Constellations, forthcoming. C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, p. 26. It is interesting to note how Mortati criticised Schmitt for offering too sketchy a definition of the people, that was not able to account for its social organisation. See C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, p. 68–9.

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coeval but also mutually dependent. He stated, ‘[T]he concept of the constituent power is a democratic and revolutionary one that has a place only within the context of a democratic constitutional theory.’56 In Böckenförde’s view, the concept of constituent power was introduced for the first time by Sieyès to oppose monarchical institutions and transfer the original political power from the king over to the people: [W]ith the concept of the pouvoir constituant, Sieyès – himself a theologian – transferred to the people certain attributes of God as they had been developed in Christian theology: potestas constituens, norma normans, creatio ex nihilo. The purpose of this translation of theological into political concepts – a striking case of ‘political theology’ in the original sense – is clear: the people, as a human subject, is to be accorded full authority to shape the politico-social order, it is to become its originator in the true sense.57

Hence, for Böckenförde the people are the only legitimate bearer of constituent power, and the latter can only express themselves in a democratic system.58 By ‘people’, Böckenförde meant neither the active population nor the ethnic people. Rather, it was a political entity: in other words, ‘the group of individuals (politically uniting and demarcating themselves) that is conscious of itself as a political entity and as such enters into history as an actor’.59 Alternatively, a specific segment of the population can also become the bearer of constituent power, but only as long as it ‘can act successfully as the representative of the political people, the nation, and is recognized as such. In that case it stands for the people, which remains the real bearer of the pouvoir constituant. This was the status of the third estate (the commoners) in the French Revolution.’60 Whether the entire people or its representatives, the bearer of constituent power must nonetheless have some fundamental features. It must have a strong juridical awareness, ideas that could effectively act upon the political order and a creative ethicalpolitical will.61 If these features are present, then the ‘spirit’ of the people, its political will, can shape itself and the institutions of the state. Vedel’s description of the bearer of constituent power relies on insights offered by Maurice Hauriou’s institutionalism and is somehow in between 56 57 58 59

60

E-W. Böckenförde, ‘The constituent power of the people’, p. 172; italics in original. Ibid., italics in the original text. It is interesting to note that here Böckenförde is quoting Schmitt almost literally. See note 37 of this chapter. Ibid., p. 173. Ibid. See also Müller, A Dangerous Mind, p. 72 and E-W. Böckenförde, Der säkularisierte Staat: Sein Charakter, seine Rechtfertigung und seine Probleme im 21. Jahrhundert (Munich: Carl Friedrich von Siemens Stiftung, 2007). E-W. Böckenförde, ‘The constituent power of the people’, p. 173. 61 Ibid., p. 184.

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the accounts proposed by Mortati and Böckenförde.62 Like Mortati, he maintains that behind the general term ‘people’ there lies a complex equilibrium of social forces: The institutionalisation of power happens when government renounces its merely factual authority because its ‘idée d’entreprise’ has been accepted by the mass of the governed. The result of this institutionalisation of power is the birth of . . . a social belief according to which rulers are but instruments of the state, which is considered as different and superior to them.63

The emphasis is on how the bearer of a specific political idea succeeds at canvassing support from other social groups and gains for itself the position of ruler. However, Vedel does not seem to associate the distinction between the ruler and the ruled to the structure of the party. Rather, his account of power relationships in society seems to be closer to Böckenförde’s. He too stressed how important it is for the ruler who wants to exercise constituent power to convince fellow citizens of the quality of his ‘idée d’entreprise’ or, in Böckenförde’s terms, of his capacity to ‘represent’ the people. By directly discussing the identity of the bearer of constituent power, the three jurists achieved two major objectives. First, they complemented their empirical observations of constituent power with an account of who exercised it. This strengthened their argument for the existence of a founding moment from which the legal system descends and obtains its validity. Second, they empirically proved that the people effectively took part in the exercise of this constituent power. As a consequence, all theories that dismissed their role were either factually wrong or intentionally misleading.

Institutions Mortati, Vedel and Böckenförde theorised constituent power’s main features and functions, as well as its relationship to the people and to the legalpolitical order. These demonstrated the role played by the people in taking the fundamental political decision that is at the origins of the political order and that structures its ordinary working. However, and differently from their predecessors such as Sieyès, Laboulaye or Schmitt, they did not limit their theory of constituent power to describing the rarely 62

63

However, also Mortati had been influenced by French institutionalism and Hauriou, as well as by the Italian version of institutionalism promoted by Santi Romano. See M. Fioravanti, ‘Dottrina dello stato persona e dottrina della costituzione – Costantino Mortati e la tradizione giuspubblicistica italiana’, in M. Galizia and P. Grossi, Il pensiero giuridico di Costantino Mortati (Milan: Giuffré, 1990), pp. 45–186. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 101. Italics mine.

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implemented founding authority of the people. On the contrary, they also used it to respond to the second problem posed by positivist theories of legal sovereignty. As mentioned, these not only disregarded the role played by the people in setting the constitution but also risked undermining the very principle of popular participation in ordinary politics. To counter what they perceived as positivism’s anti-democratic implications, Mortati, Vedel and Böckenförde elaborated a series of institutional mechanisms aimed at guaranteeing the direct or semi-direct participation of the people in politics. These were inspired by three principles: the integration of the popular exercise of constituent power into ordinary politics, the downplaying of the distinction between constituent politics and constituted order, and the transformation of constituted citizenship into active constituent power. All three jurists claimed that these principles could be deduced from the very essence of the concept of constituent power. They were aware that previous theories of constituent power went in a completely opposite direction, trying to reduce or even prevent popular participation. Yet, in their view, buying into these understandings of popular power entailed accepting constitutional rigidity and the institutionalisation of political representation, which went hand in hand with administrative and legislative centralisation. All this was deemed simplistic and disempowering, not to say anti-democratic, by the three jurists. Consequently, they challenged previous theories of constituent power and shaped a new role for the language: from a means to prevent popular participation to an instrument aimed at securing the people’s regular exercise of power. In doing so, they purported to integrate legal definitions of sovereignty and redress the misleading interpretations of constituent power offered by canonical theorists such as Sieyès, Laboulaye and Schmitt. Although Mortati, Vedel and Böckenförde shared a strong participatory drive, the implications each of them deduced from the idea of constituent power slightly differ. I discuss them in turn. To start with, Mortati maintained that the contemporary belittlement of popular authority derived from Sieyès’s theory of politics. According to the latter, once the constitution was approved, the authority of the people remained exterior and superior to the legal-political order it had created. This, in Mortati’s view, made no sense. Relying on scattered reflections taken from Qu’est-ce que le Tiers-État?, Mortati maintained that Sieyès – as much as Laboulaye in the nineteenth century – did not offer ordinary ways of exercising popular power.64 Hence, they ended up denying it. If the people’s constituent power cannot be 64

See Mortati’s discussion of Sieyès in C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello Stato’, pp. 77–80.

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institutionalised, it can only express itself in extraordinary politics. However, the latter only takes place in moments of political turmoil and revolution, which are extremely rare. The people’s constituent power is thus neutralised in ordinary times. Mortati also added another proof of Sieyès’s antipathy for popular participation, which he retraced in his speech to the National Assembly on 8 July 1789. In this occasion, Sieyès argued that, even when laying the foundation of the political order, the people should not and could not actively exercise their constituent power. On the contrary, this had to be delegated to extraordinary representatives who, having received no imperative mandate, were, in Mortati’s view, completely unaccountable to the people. For Mortati this amounted to an attempt to strip the people from their constituent power also in extraordinary times.65 By contrast, in Mortati’s view, ‘the popular sacrifice of the direct exercise of its function should be declared and accepted by the people itself’.66 From this it follows that the representative principle, far from being prior to the constitution, should be instituted by it. Hence, at least during the constituent phase, the people should be allowed to directly express and declare their will: ‘entrusting representatives of their choice with the power to report and approve the constitution. If this is missing, then the action of elected organs cannot be legitimate, unless it is subsequently ratified by the people.’67 Since this did not happen, it became clear that, from the French Revolution onward, European political systems became ‘essentially authoritarian, as they entrusted a narrow group of representatives, oligarchic in character, with the task of creating the will of the nation in a way that was completely selfreferential and autonomous’.68 Mortati offered a different depiction of what a system based upon the idea of constituent power should look like. He maintained that, in a state whose political ‘fine’ is democracy, ‘each single citizen should actively and responsibly contribute to create the totality’.69 Yet, in order to do so, ‘it is key to put in place the material conditions and the technical instruments necessary to allow every citizen to emerge from the mass and contribute to the common oeuvre with their personal and unique 65

66 67 68

69

It is curious that Richard Tuck recently developed a very similar criticism of Sieyès in his Sleeping Sovereign. For details of his critique of Sieyès as denying the exercise of constituent power to the people, see R. Tuck, The Sleeping Sovereign, p. 167. C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello stato’, p. 97. Ibid., p. 80. Ibid., pp. 81–2. It is interesting to note that he imputes this mistake to the Third Estate, the bourgeoisie, which believed the people unable to decide for itself, even when proclaiming that the will of the people is the supreme source of authority. Ibid., p. 82. C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello stato’, p. 4.

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contribution’.70 The material conditions Mortati referred to are connected to the presence and action of groups within society. As discussed, he believed that neither isolated individuals nor abstract entities such as ‘the people’ or ‘nations’ could be meaningful participants in politics. By contrast, to be integrated in the state’s constitutional structure, citizens’ participation had to be organised around social groups. This is evident in a series of proposals he put forward in the Constituent Assembly, of which the most interesting is the institution of a second chamber organised around the principle of ‘complex representation’. This was supposed to offer representation to interests and groups, as opposed to atomised individuals, and would have reflected the relative strength of organised groups within society.71 These social groupings he called comunità intermedie or ‘intermediate communities’.72 These, if correctly institutionalised and integrated in the constitutional system, could act as ‘intermediary structures between governors and governed’, by channelling the citizens’ personal preferences into state policies.73 The most important communities, on this account, were the family, religious associations and cultural organisations of all types and inspirations, as well as professional associations and unions. To these, he also added territorial communities, such as regions, provinces and cities. All these communities fulfilled the fundamental function of grouping people around shared values, interests or territories. By doing so, they ‘expand the consciousness of the citizen and their understanding of the progressively more complex requirements of associational life’74 and thus increase their capacity to act upon it. Not only are intermediate communities the institutionalised version of the social groups Mortati identified 70 71

72 73

74

Ibid. Parts of what follows overlap with my article, L. Rubinelli, ‘Costantino Mortati and the idea of material constitution’. As Amato explains, Mortati first proposed to elect the Senate in colleges organised by corporation, then via electoral lists formed by professional categories and lastly via territorial units such as local councils and regions. Yet Mortati’s proposal failed to gather sufficient support in the Assembly. See the speech Mortati gave at the Assembly titled ‘Il potere legislativo’. See also C. Mortati, ‘Il potere legislativo: unicamerale o bicamerale?’, Realtà politica 8(2) (1946), pp. 104–6, and G. Amato, ‘Costantino Mortati e la costituzione italiana. Dalla costituente all’aspettativa mai appagata dell’attuazione costituzionale’, in M. Galizia and P. Grossi (eds), Il pensiero giuridico di Costantino Mortati (Milan: Giuffrè, 1990), pp. 231–44. See C. Mortati, La persona, lo Stato e le comunità intermedie (Cuneo: Edizioni RAI, 1959), pp. 81–145. Ibid., p. 84. In Mortati’s words, they are ‘social groups that establish themselves to satisfy needs that arise in relation to the state, as they act upon its activities. The state thus fights them when the dominant forces feel their predominance to be under threat. Vice versa, the personalist state favours them as it sees in them the necessary vehicle to raise individuals to its own level, as well as a necessary aid to the realisation of its goals.’ Ibid., pp. 25–6. Ibid., p. 141.

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as being the bearers of constituent power. In addition, their capacity to collectively elevate particular interests into a common will closely resonates with the process of the creation of a fine politico. Yet Mortati was conscious that the mere presence of intermediate communities would not alone guarantee the realisation of the contenuto proprio of the constitution. For popular participation to be seriously integrated into the life of the state, ‘technical instruments’ had to be put into place. These would give individuals the practical means to act according to the values and strategies developed in the intermediate communities and, in so doing, shape the orientation and priorities of the state.75 They can be distinguished in two groups. One includes institutions normally associated with representative democracy, where citizens express their will via some sort of expert mediation. The most important of these institutions was, for Mortati, the political party. Working within a system of proportional representation, the party could act as the institutional arm of intermediate communities and, although different from them, be their loudspeaker. Yet Mortati feared that the presence of a strong majority party would debilitate party pluralism and hence the representation of all social groups. As a corrective, he argued that parties should be run according to practices of internal democracy as well as through public deliberation. Moreover, he defended the idea of organising primaries within the party membership to elect the leaders and set the agenda for the foreseeable future.76 Alongside party representation, popular involvement and group representation would also be guaranteed by electoral laws based upon proportional representation. This would not only make each single vote count but would also accurately reproduce the composition of society in groups and intermediate communities, thus giving a voice to all social forces.77 The other type of institutions Mortati envisaged was, by contrast, inspired by practices of direct democracy. These would guarantee the people’s direct influence upon the formation and realisation of the fine politico via the right of petition, the right to initiate lawmaking processes and the right to organise referenda. The latter especially caught the 75

76 77

It should be said that many provisions included in the Italian constitution, and especially those relative to the territorial organisation of the country and of the administration, remained unenforced for a very long time. Mortati dedicated much of his energy to making sure they entered into force. For more on this point, see G. Amato, ‘Costantino Mortati e la costituzione italiana’. For a discussion of how the party could be the loudspeaker of social groups, see L. Rubinelli, ‘Parties, elites and democracy in the Italian Constituent Assembly, 1946–1947’. Later in his life that Mortati changed his mind and moved his preferences away from proportional representation in favour of majoritarian systems.

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attention of Mortati, who followed in the footsteps of Carré de Malberg to argue that they could create two ‘organs of will’, one made of the citizens and the other comprising the elected politicians. These instruments, ‘far from being a redundant duplication, are a suitable means to make the people’s unmediated participation to supreme political decisions effective’.78 In so doing, referenda as well as all other ‘technical instruments’ gave citizens, in their individual capacity, the means to steer and orient the state’s action according to the political visions developed within the intermediate communities. This would not only effectively realise the democratic fine politico of the new Italian constitution but also institutionally acknowledge the existence and importance of social forces acting within the material constitution and as bearers of the constituent power. A different political project was put forward by Vedel. He too feared the side effects of certain interpretations of constituent power. As mentioned, he was mainly concerned by its association with the idea of national sovereignty. Specifically, he believed that representation and administrative centralisation of power went hand in hand with national sovereignty. In his view, both representation and administrative centralisation found their rationale in the idea that the people could not and should not be directly involved in politics.79 This was evident in that representation substituted the actual will of the citizens with the fictitious will of an abstract entity, the nation. As per Sieyès’s theory, representatives always represent the nation as an undifferentiated totality and never the people as a collection of individuals, each having their personal preferences. More worryingly, the people do not even get to express their will in the voting phase, because during elections it is not possible to express specific preferences, but the only option is to vote on what political parties assume to be the preferences of the nation.80 This greatly diminished the extent to which citizens actually had a say in politics. Vedel’s scepticism for representation was further exacerbated by its association to administrative as well as legislative centralisation. As he made clear in his history of federalism, Vedel believed that one of the great losses of the French Revolution was the abolition of local communities, the ‘collectivités locales’, which were established and given much autonomy by the Constituent Assembly in 1791.81 As he points out, this 78 79 80 81

C. Mortati, ‘Studi sul potere costituente e sulla riforma costituzionale dello stato’, p. 91. See also C. Mortati, ‘Significato del referendum’, Rassegna parlamentare (1960): pp. 60–6. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 142. G. Vedel, ‘Souveraineté et supraconstitutionnalité’, Pouvoirs 67 (1993), pp. 76–96. G. Vedel, ‘La pensée politique et le fédéralisme I’, Commentaire 98 (2002), pp. 153–68.

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initial effort towards decentralisation went hand in hand with practices of direct democracy and found its most complete expression in the Girondin constitution. Yet this was not to last, as the Jacobins successfully turned ‘federalism into separatism, and decentralisation itself into an object of contempt’.82 The consequence of France’s long-lasting drift towards centralisation was, once again, the identification of an abstract entity, the centralised nation, as the bearer of power. This went hand in hand with the widespread tendency to conceive of popular power in terms of national sovereignty, as opposed to constituent power, and resulted in worrying levels of exclusion of the citizens from political participation. Beyond centralisation and representation, Vedel also worried about the increasingly popular idea that supra-constitutional norms could exist and that they should be considered as standing above and imposing limits upon state constitutions. Vedel retraced this reference to supra-constitutional norms in the work of jurists trying to defend the legitimacy of European treatises and international declarations of human rights. Although in principle Vedel supported both, he disliked the fact that these normative instances were considered to be superior to the constitution and thus could not be changed or suspended according to constitutional norms, nor could any constituent decision prevent or sidestep their implementation. As much as he liked the idea of securing these treatises and rights, he did not accept the imposition of limits upon the constituent power of the French people. In his words, ‘The very idea of super-constitutionality . . . is based on the illusion that, at a certain point in history (normally the one we live in), history has ended. Humanity has chosen a definitive system of values which cannot be changed.’83 Since this could not be true, ‘the introduction of the super-constitutionality myth causes a total deregulation. It dethrones the sovereign and leaves institutions in the hands of either an oligarchy or the government of judges.’84 It thus follows that ‘constituent power is no longer an original power. It is itself submitted to norms that are merely procedural, and it is required to meet demanding legitimacy standards, even though constituent power should be the only power able to embody and define what counts as legitimate.’85 In order to secure the presence and effectiveness of the people’s constituent power, Vedel put forward a detailed project to implement its exercise during ordinary politics. He called it ‘démocratie semi directe’ (semi-direct democracy).86 This system was based on the idea that ‘in the 82 86

84 85 Ibid., p. 163. 83 Vedel, ‘Souveraineté et supraconstitutionnalité’, p. 94. Ibid. Ibid. Vedel, G., ‘La notion de dialogue dans les démocraties modernes’, in G. Vedel (ed.), Grands problèmes de la science politique contemporaine, (Bruxelles: Les éditions de la librairie encyclopédique, 1958), pp. 7–28.

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very moment we question the capacity of the people to decide on issues of primary concern and its direct exercise of sovereignty, we doubt the very principle of democracy’.87 Vedel thus committed to designing a system where the ability of the people to participate in politics took centre stage and where representation as well as expertise faded in the background. At the core of Vedel’s system of ‘semi-direct’ democracy was the institutionalisation of instances of dialogue between key political actors, so as to make sure that the people’s constituent power could find multiple occasions to manifest itself. These occasions would be offered by different institutional structures which, in Vedel’s view, ‘are indisputably in line with the democratic logic’.88 Yet, before going into details, it is necessary to outline a premise common to all these institutions. Vedel strongly believed that, to guarantee the people’s exercise of constituent power, it was necessary to revise the rigid line Sieyès had drawn to separate the actions of constituent power from the ordinary working of the legislative constituted order. In his view, ‘The constitution is superior to the law, but this is essentially only a formal superiority . . . The constituent and legislative powers are made of the same substance, merely appearing in two different ways.’89 Constituent power is thus the core of all politics, as it is the political force behind both ordinary and extraordinary political decisions. As such, it should take centre stage in the life of the state and not be relegated to rare and exceptional moments of constitution-writing. In greater detail, to promote popular participation, Vedel thought it necessary to establish political tools designed to bridge the gap between the people’s constituent will and ordinary lawmaking. Referenda and constitutional revisions were apt to do the job, together with a shift towards federal principles. Specifically, referenda would allow the people to step in at times of important decisions while leaving ordinary legislation to the parliament. The referendum could be, in his view, of different types: advisory, ratifying, constituent, legislative, compulsory, elective, plebiscitary or of popular initiative.90 Constitutional revisions were also an occasion to manifest the people’s constituent power within the constituted order. Although the terms and forms of the revision would be decided by the constitution, Vedel believed that the latter could impose no limits on the extent and scope of the revisions. This was justified by the assumption that all changes in the constitution coincided with changes in the will of the constituent power. This, in turn, implied that they not only had to be 87 90

Ibid. 88 G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 139. Ibid., pp. 136–7.

89

Ibid., p. 555.

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recognised as such but also implemented without further ado. This change, moreover, could only be done by the people themselves, and no intermediary or representative body had the authority to interfere with it.91 This obviously excluded also constitutional courts. In other words, constitutional change required either direct popular lawmaking or forms of popular consultation such as referenda. Lastly, Vedel also insisted that federalism was the only way to rescue popular power from representative politics. Although, to some extent, he accepted representation, he maintained that in large states it was necessary to divide the population into smaller units able to govern themselves. In his words: [F]ederalism realises a democratic value of primary importance. In fact, each group does not presume to adopt uniform solutions and chooses the solution it prefers from both an administrative and legislative point of view. The citizens organise themselves as they please inside each member state and, in doing so, exercise their liberty. It is the most emphasised form of ‘selfgovernment’.92

Federalism thus became a cornerstone of Vedel’s project of semi-direct democracy. By shifting the locus of politics from the centre to the periphery, it would open possibilities for local politics. This, taking place at a smaller scale, would introduce elements of popular participation to local government, it would make representatives more accountable and, generally, it would avoid the domination of centralised bureaucracy over the life of the citizens. Equally, it would put the idea of the nation under relevant strain, by debunking its fictional and abstract character. For federalism would substitute the nation with local communities, with their specific needs, interests and problems. In other words, when coupled with referenda and extensive constitutional revisions, federalism would bring the citizens back at the centre of politics. This, in turn, would prove that citizens are not doomed to be subject to the monologue of power. As the man of the street would have it, they have ‘something to say’ and, in certain occasions, they must even have the last word . . . [T]he essential point is that there exists a point of equilibrium in between the electors’ permanent mobilisation, which would end up disgusting them, and the unquestionable omnipotence of an assembly elected once every five years.93

This point of equilibrium in between the two was, for Vedel, the possibility of recalling, without formal impediments, the constituent power. The 91 92

G. Vedel, ‘Souveraineté et supraconstitutionnalité’, p. 16. G. Vedel, Manuel élémentaire de Droit Constitutionnel, p. 109.

93

Ibid., p. 144.

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latter was thus the key to Vedel’s entire project of semi-direct democracy which, blurring the distinction between constituent and constituted politics, emphatically endorsed practices of popular self-government. Böckenförde too seemed concerned about restrictive interpretations of the idea of constituent power, which would open space for possible impediments to its exercise by the people. Specifically, he feared those who claimed that constituent power’s decision, once expressed in the constitution, should be preserved against any further reconsideration or amendment by the people. This could be achieved by arguing that the only actual expression of the people’s constituent will is the constitutional text, which thus becomes unchangeable. All other expressions of popular will are submitted to the constitution and cannot be relied upon in order to modify it. He thought that this rigid approach to the constitutional text took power away from the people and attributed it to unelected judges. It hence substituted politics with law and jurisprudence. In addressing the misunderstanding at the root of the problem, he stated that only the constituent power had the authority to decide over the means and extent of its realisation as ‘it is in a position – precisely as a political factor – to seek out and create forms of expression on its own’.94 This meant that constituent power could neither be abolished nor silenced after the entry into force of the constitution. By contrast, it had to retain a prominent role: If the constituent power of the people is (also) necessary as a real political factor and power to legitimize the constitution and its claim to validity, it cannot be juristically dismissed into nothingness once it has done so; it is and continues to exist as this factor and power. It is a peculiar notion that the necessary legitimation of the constitution could be condensed into a single point, its (revolutionary) creation, from which the constitution is then valid in a virtually self-sustaining process.95

In order to solve the problem of constituent power’s permanence inside the constituted order, Böckenförde set for himself the goal of keeping ‘the constituent power of the people as an elementary political factor and power connected as much as possible to its manifestation and decision, but without eliminating it as a political factor and power’.96 To secure the preservation of constituent power’s role, he purported to 94 96

E-W. Böckenförde, ‘The constituent power of the people’, p. 175. 95 Ibid. Ibid., p. 176. Möllers discusses how peculiar Böckenförde’s position on this issue was in the German debate of the twentieth century. He emphasises that Böckenförde was the only German jurist to claim that constituent power not only is to be considered the author of the constitution but also operates alongside it in moments of ‘constitutional populism’. With this term he means all democratic practices that are oriented towards constitutional procedures or institutions but that

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He thus aimed to integrate the spontaneous and unformed bearer of constituent power, the people, into the working of the constituted order. Interestingly, his entire theory revolves around a key assumption. Contrary to Sieyès, he maintained that, once the constitution enters into force, the people should not become a constituted organ of the state – the electoral body. Or, better, in some occasions the people acts as a constituted power but, alongside this institutional role, it also keeps its spontaneous and unconstituted force. This is the difference between the people as ‘active citizenship’ and as ‘constituent power’. The two functions of the people remain present and active alongside each other: For any time the people takes an active role as an organized entity, in the form of an active citizenry, the unorganised people of the pouvoir constituant is also involved and present in some way . . . The two cannot be separated as though they were two distinct and real entities: in the final analysis, they are the same ‘people’.98

Böckenförde identified at least four strategies to keep the people’s constituent power active alongside the constituted order. The first was – in a Sieyèsian mode, and contra Mortati and Vedel – to distinguish between the original authority of the constituent power and the delegated competences of the constituted order. This was necessary to prevent improper uses of popular authority by the legislative power and the constituted order. The second strategy consisted in ‘the development and practice of democratic procedures that serve the closer articulation, preparation, or

97

98

are not formally part of them. He indicates Böckenförde as one of the few German jurists who accounted for the existence of these practices, among which he included elections. C. Möllers, ‘We are (afraid of) the people’: constituent power in German constitutionalism’, in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism (Oxford: Oxford University Press, 2008), pp. 87–105. Since I do not particularly like the English translation of this passage offered in E-W. Böckenförde, Constitutional and Political Theory, I have used my own translation of the original German text. See E-W. Böckenförde, ‘Die verfassunggebende Gewalt des Volkes – Ein Grenzbegriff des verfassungsrechts’, in U.K. Preuss E-W. (ed), Zum Begriff der Verfassung: die Ordnung des Politischen (Frankfurt: Fischer Taschenbuch Verlag, 1994 [1986]), p. 66. Ibid., p. 179

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implementation of decisions by the bearer of the constituent power’.99 When listing these procedures, he explicitly elaborated upon Schmitt’s Verfassungslehre. In this treatise, Böckenförde maintained, Schmitt clearly presented the purpose and working of constituent assemblies, of popular votes to ratify or revise the constitution and of plebiscites. The third strategy was to advocate for the democratic legitimation of constitutional jurisdiction. As Böckenförde argued, the latter cannot ‘legitimate itself, for example, on the basis of the idea of the “rule of law”’.100 That would mean giving constitutional judges the power of changing the constitution on their own initiative and, consequently, expropriating the constituent power. By contrast, the only way to make constitutional jurisdiction legitimate is to make sure that it itself could emanate, enact and be sustained by the people.101 This, in Böckenförde’s project, could be achieved through the ‘effective democratic legitimation of the judges’, by avoiding undue political influences on their nomination and work, and by training them to ‘exercise their office in a judicial manner’.102 The last strategy was meant at ‘keeping the articulations of the pouvoir constituant open while at the same time constraining and channelling them’.103 This entailed the protection of public opinion, the freedom of the press, freedom of association, elections and referenda. These strategies thus guaranteed both to the organised citizenship and to the unorganised constituent power means of expressing their will. To conclude, Mortati, Vedel and Böckenförde aimed to promote popular involvement in politics using the notion of constituent power. This solved the second issue raised by legal accounts of sovereignty. It integrated their rigid account of the working of the legal system with a democratic theory of the people’s role in the constituted order. Moreover, it also countered the ‘French attempt’ to neutralise the people through the idea of national sovereignty. Interestingly, they achieved this by outlining the logical implications derived from the empirical observation of constituent power. These were in stark opposition to traditional assessments of constituent power’s function in the political system. Differently from what was argued by Sieyès, nineteenth-century jurists and Schmitt, Mortati, Vedel and Böckenförde maintained that constituent power 99 100 101 102

103

Ibid., p. 177. E-W. Böckenförde, ‘Constitutional jurisdiction: structure, organization, and legitimation’, in E-W. Böckenförde, Constitutional and Political Theory, p. 200. Ibid., p. 201. Ibid. On the question of the democratic legitimation of constitutional judges see E-W. Böckenförde, Verfassungsfragen der Richterwahl: dargestellt anhand der Gesetzentwürfe zur Einführung der Richterwahl in Nordrhein-Westfalen (Berlin: Duncker & Humblot, 1974). Ibid., p. 179.

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necessarily entailed practices of direct democracy. These are ascribable to three main principles. The first, mobilised by Mortati, is that constituent power does not limit itself to the revolutionary foundation of the legal-political order. By contrast, it also plays a role in the ordinary working of the state and must be recognised as a normal, active force by the constitution. The second principle is put forward by Vedel, who maintains that the traditional distinction between constituent power and the constituted order should, if not be abolished, at least be made substantially more flexible. Vedel sees in the rigidity of this distinction an attempt to keep constituent power at bay and prevent its participation in actual politics. By relativising this difference, it becomes possible to establish a system of ‘semi-direct democracy’, where federal structures guarantee the people’s frequent and authoritative involvement in politics. Last, Böckenförde contested the very idea that, once the constitution entered into force, the constituent people was transformed into a constituted citizenship once and for all. In his view, neither the constituent nor the constituted roles of the people could be eliminated, as they coexist alongside each other. Acknowledging their coexistence gives the people enough power to influence the ordinary working of politics beyond the limits established in the constitution. Although these three principles are not necessarily consistent with each other, they have similar implications. Besides promoting mechanisms of popular participation through instances of direct or semi-direct democracy, they all rely on the rejection of the Sieyèsian account of political representation, administrative centralisation and unquestionable constitutional rigidity. In doing so, Mortati, Vedel and Böckenförde moved the meaning of constituent power into a new phase. No longer being an instrument to limit the political authority of the people, it became a tool to regularly implement it inside the sovereign constitutional state.

Conclusion Mortati, Vedel and Böckenförde deployed the notion of constituent power to wage a battle against restrictive accounts of the political power of the people. In the aftermath of World War II, sovereignty had primarily acquired a legal meaning. It tended to depict popular power as an extralegal fact, to be kept outside legal enquiries and also outside the ordinary working of the legal system. This was considered a reasonable response to the experience of World War II by most scholars, who saw in legal sovereignty a way of keeping dictatorial and plebiscitary power at bay. Yet it did not appear completely satisfactory to legal theorists close to the realist and institutionalist tradition. Positivist theory did not offer an

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adequate explanation for the foundation of the legal political order or effectively secure the principle at the basis of post-war democratic states – popular political authority. To counter this approach, the three jurists introduced the notion of constituent power. To them, this indicated the people’s power to intervene in the creation of the state and take active part in its daily working. In deploying constituent power to this end, they relied upon Sieyès’s and Schmitt’s theorisations. While the implications they derived from constituent power were starkly different, they agreed with Sieyès and Schmitt that the actual source of the decision at the origins of the legal and political system was the people’s constituent power. Yet traditional accounts of constituent power did not provide Mortati, Vedel and Böckenförde with what they were looking for at a practical level: an instrument to reclaim higher levels of popular participation in daily politics. Rather, for Sieyès and nineteenth-century legal theorists, constituent power was a tool to restrain and limit popular participation in politics. For Schmitt, it was just a way of handing power over to the representative of the nation’s unity, be it the president or the dictator. By contrast, the three jurists wanted to counterbalance the legal rigidity of contemporary accounts of sovereignty. Hence, they rejected previous interpretations of constituent power and put forward a new account of the latter’s relationship to the people’s political authority. The outcome was a theory that reproduced nineteenth-century tensions between constituent power and sovereignty but on inverted terms. Lanjuinais, Berriat SaintPrix and Laferrière feared that the absolute meaning of sovereignty could attribute unlimited power to the king, parliament and the people. They did not reject the idea, but they tried to counterbalance it with the notion of constituent power. Twentieth-century jurists made a similar move, but they were motivated by an opposite concern and aimed to achieve an opposite goal. In their hands, constituent power turned out to be an instrument to integrate the political authority of the people in conceptual reflections on sovereignty and in the daily practice of politics. As such, they introduced a new way of thinking about constituent power and its history.

chapter 5

Arendt and the French Revolution

Hannah Arendt’s account of constituent power finds its origins in her early writings and is spelled out in full in her 1963 book On Revolution. As much as Mortati, Vedel and Böckenförde, Arendt developed her theory of constituent power against the background of World War II. For her, too, constituent power was primarily an empirical fact – a sociopolitical phenomenon to be observed in history, from which a normative defence of popular participation could be deduced. To do so, she critically engaged with the same body of literature upon which the three jurists relied. Not only did Sieyès play a fundamental role in her argument, but she also found in Schmitt’s account of constituent power the lenses through which to assess the intellectual history of the idea. However, the conclusions she drew from Schmitt’s interpretation of Sieyès’s constituent power are different from those inferred by the three jurists. Differently from Mortati, Vedel and Böckenförde, she read Sieyès as a theorist of sovereignty. In her view, this idea was not only the intellectual origin of World War II but also the most dangerous threat to the principle of popular power. Sovereignty, she claimed, pictured political power as an abstract, unified and personal will placed above and beyond the political order. When coupled with the idea of nation, sovereignty revealed its most troubling aspects. Reading Sieyès through Schmitt, she maintained that both were eminent theorists of national sovereignty. Their theories led to the tyranny of the majority, as in the case of the French Revolution, or of a single man, as shown by the Nazi and fascist experiences during World War II. As a consequence, Arendt completely rejected sovereignty as an intellectual category and put forward her own theory of constituent power as a radically alternative understanding of popular authority. This departs from Sieyès’s and Schmitt’s on several grounds but is not far off from the theories of constituent power developed by twentieth-century jurists. On her account, constituent power does not depict popular power as an 176

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abstract ideal but points at the concrete practices of popular rule, whose most successful examples were the Roman Republic and the system of council democracy in Revolutionary America. In both cases, the political order derived its legitimacy from the historical moment in which the people decided to bind themselves through common promises, the moment in which they exercised their constituent power. This allowed Arendt to claim that popular participation should be institutionally embedded in the very structure of the constitutional state, through federated local districts and a variety of other participatory institutions. In so claiming, she moved the language of constituent power even further in the direction of justifying popular direct participation than Mortati, Vedel and Böckenförde would do. Yet, differently from them, she did so in explicit rupture not only with Schmitt but also with Sieyès. Paradoxically, though, Arendt reproduced the same conceptual move introduced by Sieyès in 1789: she presented her theory of constituent power as a conceptualisation of popular authority alternative to those offered by theories of sovereignty.

Solipsism, Sovereignty and the Nation Arendt’s disapproval of sovereignty as a theoretical category and as a principle of political organisation is among the themes most persistently addressed in her work. Arendt’s contempt for sovereignty became a mark of her thinking when the unfolding of political events in Europe and the Middle East led her to address the intellectual and philosophical foundations of the contemporary political order. One of the earliest occasions in which Arendt discussed the notion of sovereignty was when, in the 1930s, she started getting actively involved in Jewish politics. First from France and later in the United States, she regularly wrote opinion pieces in magazines for the Jewish diaspora and debated about Jewish politics in letters to friends and colleagues.1 Among the problems that troubled her the most was the ongoing international effort to find a homeland for the Jews. As she repeatedly explained, the Dreyfus Affair and other similar cases of anti-Semitism demonstrated that European Jews were not fully fledged members of the national communities among which they lived. On the contrary, in most cases they were treated as a rightless minority. Assessing this situation, Arendt agreed with most Zionists that the Jewish people should leave European nation states and establish a homeland for 1

Most of these letters and writings are collected in H. Arendt, The Jewish Writings (New York: Shocken Books, 2007).

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themselves. Yet she disliked the idea of a Jewish nation state.2 She opposed it because, in her view, it reproduced the model of the European state and, with it, the same mistakes Europeans had made to the detriment of Jews and other minorities. Specifically, Arendt identified the first mistake in the Zionist tendency to conceive of the Jewish diaspora as a nation. This derived from the influence European nationalism exerted upon the Jews. Most worryingly, it seemed to be primarily inspired by German nationalism, which, instead of being based on history and culture, considered biological characters the only criteria of nationhood.3 This led to a second mistake. Conceiving of themselves as a biologically determined nation, Zionists from the entire political spectrum claimed sovereignty for themselves in very much the same way European nations did after the French Revolution. Although Arendt developed a full critique of the nation state only later in her life, it is at this point that she started contesting the use of sovereignty as a conceptual and political foundation for the Jewish state. Two main proposals were put forward. The first drew on the projects of Theodor Herzl, the father of Zionism. It was expressed in the Biltmore Program and aimed to establish a Jewish state in Palestine. Arendt thoroughly criticised this proposal because it was based upon the twin concepts of sovereignty and nation. Sovereignty, Arendt argued, recognised the nation as the only legitimate bearer of political authority and consequently gave it the undisputed power to arbitrarily decide who is in and who is out of the state’s protection.4 The second proposal came from a party outside the Zionist movement, the Ihud, whose champion was J. L. Magnes. The project consisted in establishing a binational state in Palestine, formed by the Jewish and the Arab nations. Although Arendt later accepted this proposal, she initially opposed it on the grounds that it reproduced the same logic underpinning the nation state and even doubled it.5 Instead of having one nation claiming sovereignty for itself, 2

3 4 5

It should be specified that she did not dislike the idea of finding a homeland for the Jews. Rather, she refused to think of this homeland through the lenses offered by the language of the nation state. On her later support for Israel see On Arendt and Kibbutzim as an alternative to the degeneration of the nation state see also E. Young-Bruehl, Hannah Arendt: For Love of the World, (New Haven: Yale University Press, 2004), p. 455. H. Arendt, ‘Zionism reconsidered’, in Arendt, The Jewish Writings, pp. 343–74, p. 367. H. Arendt, ‘Between silence and speechlessness: articles from Aufbau: February 1943–March 1944’, in Arendt, The Jewish Writings, pp. 186–98, p. 139. As Rubin explains, this proposal appeared unacceptable to Arendt at first, but she later came to accept it as part of a wider project of creating a federation in the Middle East, and she also supported the First Bernadotte Plan of 1948. See G. Rubin, ‘From federalism to binationalism: Hannah Arendt’s shifting Zionism’, Contemporary European History 24(3) (2015), pp. 393–414. See also E. YoungBruehl, Hannah Arendt: For Love of the World, 228–233.

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there would be two nations trying to appropriate the sovereign power, and the fight among them would end up with the majoritarian nation pushing the other into a minority position, thus excluding it from the political sphere and from the protection of the state. It would reproduce what European states did with their internal minorities to an even larger degree.6 In addition, Arendt also worried for the outcomes that the creation of a Palestinian nation state could have at an international level. The coupling of nationalism and sovereignty would have perverted the Jewish homeland into an autarchic Palestinian state, which, being small and surrounded by potential enemies, amounted to a political and strategic absurdity.7 Moreover, it would have balkanised the Middle East into a myriad of minorities expelled from homogeneous nation states, creating geopolitical tensions in an already highly unstable region.8 In sum, Arendt thought that the idea of sovereignty had already proved a mockery in European politics and that it would be absurd to implement it in Palestine.9 In her emphatic words, the creation of either a Jewish or a binational state in Palestine amounted to the creation of a state whose only ‘sovereign right would be to commit suicide’.10 After the Second World War, Arendt further elaborated her reflections on sovereignty in The Origins of Totalitarianism.11 In this book, her previous intuitions on sovereignty are systematised, presented in general terms 6

H. Arendt, ‘The minority question’, in H. Arendt, The Jewish Writings, pp. 125–34 p., 128. Magnus and the Ihud clearly had in mind the problem raised by Arendt and, indeed, believed that Jews and Palestinians should have perfectly equal political weight in the binational state. See C. Ashcroft, ‘Jewishness and the problem of nationalism: a genealogy of Arendt’s early political thought’, Modern Intellectual History 14(2) (2017), pp. 421–49. 7 H. Arendt, ‘Zionism reconsidered’, p. 367. Arendt goes on to say that German-inspired nationalism ‘holds a nation to be an eternal organic body, the product of inevitable natural growth of inherent qualities; and it explains peoples, not in terms of political organizations, but in terms of biological superhuman personalities. In this conception European history is split up into the stories of unrelated organic bodies, and the grand French idea of the sovereignty of the people is perverted into the nationalist claims to autarchic existence.’ It should be noted that, at this point, Arendt is still mostly concerned with the German version of nationalism, while she does not seem equally critical of the French nation state and the understanding of sovereignty that went with it. This would change in the 1960s, especially in On Revolution. Cf. M. Canovan, Hannah Arendt: A Reinterpretation of her Political Thought (Cambridge: Cambridge University Press, 1994), p. 32 ff, 70. 8 For a later articulation of this concern see H. Arendt, ‘Peace or Armistice in the Near East?’, in H. Arendt, The Jewish Writings, pp. 423–50, p. 446. 9 H. Arendt, ‘The Jewish State: Fifty Years After, Where have Herzl’s Politics Led?’, in H. Arendt, The Jewish Writings, pp. 375–86, p. 384. 10 H. Arendt, ‘To Save the Jewish Homeland’ in H. Arendt, The Jewish Writings, pp. 388-401 p. 399. 11 H. Arendt, The Origins of Totalitarianism (New York: Harvest Book, 1973 [1951]). Will Selinger argues that Arendt’s critique of sovereignty as spelled out in Origins was already present in earlier pieces she wrote in the early 1940s on imperialism and anti-Semitism in European politics, and that this critique went hand in hand with her support for a federal project in Europe. See W. Selinger, ‘The politics of Arendtian historiography: European federation and the Origins of Totalitarianism’, Modern Intellectual History 13(2) (2016), pp. 417–46. Arendt wrote again about international

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and organised in such a way as to form a structured critique of the birth of the modern state.12 The aim of the book is to explain the formation of the totalitarian phenomena in Europe in the 1930s and 1940s. She identified a series of elements at the origins of totalitarian regimes, among which was the decline of the nation state. The others were anti-Semitism, racism, imperial expansion and the alliance between capital and the mob. They all acted either from inside the state or from outside, exerting international pressure on state politics. Yet, as Arendt repeatedly explained, the idea of sovereignty and its realisation through the principle of nationality played a particularly relevant role in causing and accelerating the decay of the nation state from both the inside and the outside.13 Her argument goes as follows. In 1789 French Revolutionaries rejected monarchical authority on the grounds that all men are born equal and have a universal right to self-rule.14 In sanctioning the Declaration of the Rights of Man and Citizen, they affirmed that the citizen was ‘the only sovereign in matters of law as the people was proclaimed the only sovereign in matters of government. The people’s sovereignty (different from that of the prince) was not proclaimed by the grace of God but in the name of Man.’15 In the moment the people declared themselves to be the origin of political authority, the king lost his power and the capacity to embody the totality of citizens as well as their common interests. This, Arendt claimed, sparked conflicts over what could keep the French people together as a unitary political entity.16 The only solution they found was to recognise in the citizens’ common origins, history and culture a principle of political unity. They called it a nation. In other words, the nation as a form of political unity was born when the people emancipated

12

13

14

15

federalism as an institutional alternative to sovereignty in H. Arendt, On Violence (New York: Harcourt, Brace & World, 1970), p. 5. It should be noted that Arendt’s critique of sovereignty as articulated in The Origins of Totalitarianism as well as in her earlier writings is inextricably connected to her critique of the idea of the nation. However, the extent and articulation of this connection slightly changed in her later writings and, especially, in On Revolution (1963), where she appears to be attacking sovereignty tout court and the idea of the nation qua subject of sovereignty. On this point, see I. Hont, ‘The Permanent Crisis of a Divided Mankind’, p. 208. Arendt, The Origins of Totalitarianism, p. 270. Arendt distinguishes between two types of nationalism, broadly corresponding to civic and ethnic nationalism. See H. Arendt, The Origins of Totalitarianism, pp. 227–33. On Arendt’s account of the internal and external causes of the rise of totalitarian regimes, see D. Klusmeyer, ‘Hannah Arendt’s case for federalism’, Publius: the Journal of Federalism 40(1) (2009): pp. 31–58. It should be noted that Arendt turns France into the ‘nation par excellence’. France is for Arendt the paradigm of the western nation. See R. Beiner, ‘Arendt and nationalism’, in D. Villa (ed.), The Cambridge Companion to Hannah Arendt (Cambridge: Cambridge University Press, 2003), pp. 44–62, p. 50. 16 Arendt, The Origins of Totalitarianism, p. 290. Ibid., p. 230.

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themselves and ‘acquired a consciousness of themselves as cultural and historical entities, and of their territory as a permanent home, where history had left its visible traces, whose cultivation was the product of the common labour of their ancestors and whose future would depend upon the course of a common civilization’.17 Yet it is at this point that the nation, being the only available form of political identity, also became the only legitimate bearer of the state’s power, as sanctioned by the transfer of the king’s personal power, his sovereignty, to the nation.18 In Arendt’s view, the nation’s appropriation of sovereignty marked the turning point in the history of Western states for the following reason. When attributed to the king, sovereignty indicated a voluntary power, pertaining exclusively to the person of the monarch. Yet this power recognised a limit in the legitimising force of divine investiture. By contrast, the modern nation did not recognise any authority above itself and its will. God no longer interfered in human affairs, and laws were made by the nation. Moreover, there was no plurality of interests to arrange and fulfil, but only a unitary national will. The consequence was that, when the nation appropriated the king’s sovereignty for itself, it created a form of power that was as voluntary and personal as monarchical sovereignty but also more absolute and unlimited. Hence, the idea of ‘national sovereignty . . . lost its original connotation of freedom of the people and was being surrounded by a pseudo mystical aura of lawless arbitrariness’.19 This provoked an important transformation in the state and in its relationship to the citizens. In Arendt’s view, the state’s original function was protecting its citizens, regardless of their ethnic origins, political preferences or cultural backgrounds. Arendt stated, ‘Whether in the form of a new republic or of a reformed constitutional monarchy, the state inherited as its supreme function the protection of all inhabitants in its territory no matter what their nationality, and was supposed to act as a supreme legal institution.’20 This meant that the state, as enforcer of the law, was obedient to the will of its ruler but blind to the identity of its citizens. Once captured by the nation, this was no longer the case because the nation was both the source and the recipient of power.21 Hence, the 17 18

19 21

Ibid., p. 229. Once more, it is worthwhile to point out that Arendt too, along with Sieyès, Schmitt, Vedel and others, used the image of the transfer of royal power to describe how sovereignty was attributed to the people during the French Revolution. 20 H. Arendt, The Origins of Totalitarianism, p. 231. Ibid., p. 230. Beiner suggests that Arendt’s understanding of the state as captured by the nation is inspired by J. T. Delos and his two-volume book La Nation, which she reviewed in 1946. See H. Arendt, ‘The

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only legitimate interests were those of the nation, which excluded minorities from the exercise of state power as well as from state’s protection. This gave the nation the opportunity to unilaterally expel parts of the population that, like the Jews, did not share the same history, culture and origins of the majority. Even the universal rights of men, recognised by the nation as the grounds of its political authority, lost their universal value when implemented through sovereignty. According to Arendt’s famous critique, they simply became the rights of citizens, guaranteed by the nation state to its members.22 This paradox found clear expression in minority treatises adopted by the newly founded eastern states during the Congress of Vienna, which eventually led to the creation of large rightless minorities and refugees in Central and Eastern Europe. These, putting pressure on the state from both inside and outside, unveiled the fundamental paradox at the core of the nation state: that it was rooted in the universal principle of human rights but enforced through the means of national sovereignty. The latter, being the supreme power, accepted neither superior forms of authority nor exterior limits to its will, regardless of whether these came from a monarch, god or universal human rights. Arendt’s critique of sovereignty further developed with the publication of The Human Condition in 1958, where she offered a fully fledged critique of the idea as both a philosophical concept and a principle of political organisation.23 Detaching herself from historical events, she argued that sovereignty became the modern way to conceive of the people’s power because of a shift in our philosophical understanding of liberty. In reconstructing the tripartite history of labour, work and action, Arendt claimed that modern philosophy failed to understand that the essence of freedom lies in action and in its process-like dimension of unpredictability,

22

23

Nation’, The Review of Politics 8(1) (January 1946), pp. 138–41. J. T. Delos, La Nation (Montreal: Editions de l’Arbre, 1944). See also R. Beiner, ‘Arendt and nationalism’, p. 52. Hont notes the paradox at the basis of this argument. Although Arendt goes out of her way to accuse the Jacobins of the failures of the French Revolution and heavily criticises their understanding of politics, she shares with them the same critique of the Declaration of the Rights of Man and Citizen. Indeed, also Robespierre accused his fellow deputies of hypocrisy: while the declaration was supposedly universal, it was only valid for the citizens of France. Cf. I. Hont, ‘The Permanent Crisis of a Divided Mankind’, p. 207. H. Arendt, The Human Condition (Chicago: Chicago University Press, 1998 [1958]).The aim of The Human Condition is to theorise the dignity of the political as a sphere of human activity. Arendt sets out to do so by focusing on the idea of ‘action’ as a quintessentially political category. Yet it is interesting to note that this quest for identifying the defining features of ‘the political’ is something she shared with Weber and also, ironically, with Schmitt. See G. Kateb, ‘Political action: its nature and advantages’, in D. (ed.), The Cambridge Companion to Hannah Arendt pp. 130–48, pp. 131–2.

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openness and plurality.24 Greek and Roman citizens daily experienced freedom as action, insofar as they acted in the public world, and in so doing understood action as an enduring process that lasted long beyond the moment in which it was initiated and had neither foreseeable nor necessarily controllable consequences. Unpredictability is, for Arendt, the key element of action, as it reveals its necessarily plural character. Whoever initiates an action cannot control its outcomes. These, by contrast, depend on the way in which other people react to the action and, in so doing, contribute to its unfolding. Arendt explained this by reference to Machiavelli’s idea of virtù, which was, for her, the expression of freedom, as it entailed the capacity to respond to the circumstances of the world in a condition of human plurality.25 Freedom, in other words, entails the initiation of a completely new beginning, a man-made miracle that springs out of action’s uncontrollability. Yet Arendt accuses the Western philosophical tradition of having obliterated and rejected the plural and unforeseeable character of action. While in Ancient Greece, action, as much as freedom, was considered to be inherently frail because experienced in a condition of plurality, the modern philosopher started seeing the association of action and freedom as a threat. In Arendt’s view, this shift in perception goes as far back as Stoicism and is rooted in two fundamental misconceptions at the basis of the entire canon of Western thought. The first has to do with philosophy as a form of enquiry. Several times throughout her career, Arendt accused philosophy of preferring solipsist speculation to the observation and actual experience of politics. This obliteration of the real for the ideal is at the origins of the shift in the meaning of freedom; far from experiencing it in the public life of the polis, philosophers preferred reflecting about it in solitude and adopting an abstract perspective. In so doing, they falsified its meaning. Second, preferring theoretical speculations to the praxis of freedom, they ended up equating liberty to sovereignty. Since philosophers, in their detached solitude, were afraid of the uncontrollability of action, they stopped seeing it as the essence of freedom and turned to liberum arbitrium as the definition of human liberty. This, entailing the actors’ control over their thinking, also entailed control over the outcomes of thought, including action. Whoever did not control the effects of their actions was not in control of themselves and depended on external circumstances rather than 24

25

The relation between Arendt’s criticism of philosophy and her understanding of politics is discussed, in more general terms, in H. Sluga, ‘The pluralism of the political: from Carl Schmitt to Hannah Arendt’, Telos 142 (Spring 2008): pp. 91–109, pp. 92–3. H. Arendt, ‘Freedom and politics: a lecture’, Chicago Review 14(1) (1960), pp. 28–46, p. 33.

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on their will, which by consequence was no longer free. This points at the individual and singular dimension of the new understanding of liberty and signals the birth of sovereignty as a philosophical and political ideal; as much as freedom entailed control over one’s thoughts, sovereignty entailed control over one’s deeds. In Arendt’s words, ‘Because of the philosophical shift from action to will-power, from freedom as a state of being manifest in action to the liberum arbitrium, the ideal of freedom . . . became sovereignty, the ideal of a free will, independent from others and eventually prevailing against them.’26 As evinced in this quote, for Arendt sovereignty is a faculty of the will acting upon itself and the world in complete solitude and independence. It abstracts from the actual condition in which humanity lives, which is plurality. And it is exactly this tension between the plural reality of the human world and the singularity of sovereignty that engenders the worst consequences for both individuals and society. Since ‘sovereignty, the ideal of uncompromising selfsufficiency and mastership, is contradictory to the very condition of plurality . . . no man can be sovereign because not one man, but men, inhabit the earth’.27 Yet individuals have proven particularly tenacious in adapting the reality they inhabit to conform to their ideas. This implies that one succeeds at completely controlling one’s self and the results of one’s actions in the human world: the alternative is the arbitrary domination of the self by the others. This, Arendt explains, can only be achieved through violence, which alone can destroy human plurality and prevent men from acting together. Far from securing freedom, sovereignty abolishes it as it destroys the very grounds for action, plurality and unpredictability. This is true at both the individual and political level. In Arendt’s terms: [T]he famous sovereignty of political bodies has always been an illusion which, moreover, can be maintained only by the instruments of violence, that is, with essentially non-political means. Under human conditions, which are determined by the fact that not man but men live on the earth, freedom and sovereignty are so little identical that they cannot even exist simultaneously. Where men wish to be sovereign, as individuals or as organized groups, they must submit to the oppression of the will, be this the individual will with which I force myself or the ‘general will’ of an organized group. If men wish to be free, it is precisely sovereignty they must renounce.28

The equation of freedom with liberum arbitrium and its association to the idea of sovereignty abolished not only plurality but also the conditions of 26 28

27 Ibid., p. 40. H. Arendt, The Human Condition, p. 234. H. Arendt, ‘Freedom and politics: a lecture’, p. 41.

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other people’s freedom by imposing the domination of the will upon the unpredictability and plurality of the human world. Hence sovereignty becomes, in Arendt’s view, the expression of Western philosophy’s quest for willpower, whose extreme outcome is the proclamation of national sovereignty, as a form of control of the nation upon its destiny as well as upon the destiny of peoples who interfere with its willpower.

France in America Arendt’s problem with sovereignty should be understood as part of her larger distrust for the role played by abstract ideas in politics. In the case of sovereignty, the effects of its ideal character manifested themselves more worryingly during the course of the French Revolution, as sovereignty ended up been coupled with the idea of the nation. Sovereignty, she claims in her 1963 book On Revolution, ‘had defeated the revolution in Europe even before it had made its appearance’.29 As already mentioned, when it passed from being a philosophical idea embodying a principle of political order, sovereignty incarnated the absolute willpower of the monarch. The Revolution overthrew monarchical power but did not succeed in rejecting the categories upon which this was based nor did it establish a new political order. This was due to the long-held conviction that power, whoever it belonged to, needed to be personal, unified and unlimited: in a word, sovereign. Even when attributed to the collective body of the French people, political authority maintained its sovereign and absolute features. This was already evident in Rousseau’s thinking, but it was ultimately sanctioned by one of the Revolution’s sharpest minds, Sieyès.30 Reworking what was already addressed in The Origins of Totalitarianism, Arendt argued that sovereignty came to the world as a secularised idea. As such, it required some sort of justification of governmental power – she called it a petitio principii – as well as a justification of the source of law and its legality. The answer to this double request of legitimacy was originally found in the unitary figure of the prince, who was at the origins of both government and the law. During and after the Revolution, this figure was identified with the nation. Misreading Sieyès’s thought, she argued that Sieyès substituted the nation for the prince and thus was responsible for the transfer of the prince’s absolute and unlimited sovereignty to the nation. In her words: 29 30

H. Arendt, On Revolution (London: Penguin, 2006 [1963]), p. 14. Arendt discusses Rousseau at length, especially in H. Arendt, ‘What is Freedom’, in H. Arendt, Between Past and Future (New York: The Viking Press, 1961), pp. 143–72, p. 143.

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Arendt and the French Revolution What else did even Sieyès do but simply put the sovereignty of the nation into the place which had been vacated by a sovereign king? What would have been more natural to him than to put the nation above the law, as the French king’s sovereignty had long since ceased to mean independence from feudal pacts and obligations and, at least since the days of Bodin, had meant the true absoluteness of regal power, a potestas legibus soluta, power absolved from the laws? And since the person of the king had not only been the source of all earthly power, but his will the origin of all earthly law, the nation’s will, obviously, from now on had to be the law itself.31

Although Sieyès surely contributed to overthrowing the monarchical order in the name of the nation, he did not define the latter’s political authority in terms of sovereignty. On the contrary, like Arendt, Sieyès realised that since the idea of sovereignty was used to express the king’s absolute authority, it entailed an abstract and unlimited form of power. Far from endorsing the absolutist dimension of sovereignty, he opposed its attribution to the nation by all possible means. Even more, he actively fought against its use as a way to indicate popular power, to the point of introducing an alternative idea, pouvoir constituant. Yet Arendt overlooked the subtlety of Sieyès’s move. Throughout her writings, she only cited from Qu’est-ce que le Tiers-État?,32 It thus follows that her misrepresentation of Sieyès is certainly due, at least in part, to her lack of engagement with the corpus of Sieyès’s writings.33 Yet it must also be possible to explain her misleading reading of Sieyès as a deliberate choice, given that most of Sieyès’s published writings were available at the time and, as Chapter 3 illustrates, circulated widely, especially in France and Germany. Further, the literature on Sieyès she referred to in her books did discuss the entire trajectory of Sieyès’s thought, but she systematically overlooked it and returned, time and again, to Sieyès’s most polemical text: Qu’est-ce que le Tiers-État?34 This, together with her focus on Sieyès’s theorisation of the nation, seems to suggest that her engagement with Sieyès was, at least to some extent, filtered through Schmitt’s interpretation 31 32

33 34

H. Arendt, On Revolution, p. 147. Italics in the original text. In The Origins of Totalitarianism Arendt quotes directly from Qu’est-ce que le Tiers-État?, but the bibliographical reference is a book on Sieyès by J. H. Clapham, which does not include the actual essay by Sieyès in its entirety. See J. H. Clapham, The Abbé Sieyès: an Essay in the Politics of the French Revolution (London: P. S. King & Son, 1912). In On Revolution, Arendt quotes from the fourth French edition of Qu’est-ce que le Tiers-État?. As noted in Chapter 3, Sieyès’s manuscripts only became available in the mid 1960s, after Arendt had published On Revolution. J. H. Clapham’s book on Sieyès, The Abbé Sieyès: an Essay in the Politics of the French Revolution is composed of eight chapters, ranging from Sieyès’s education to his writings on the Constitution of 1799 and his ‘old age’.

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of the Abbé’s political thought. Unfortunately, Arendt’s relationship to Schmitt’s work is not clearly documented, yet she referred to him as one of the most audacious theorists of sovereignty in modern political and legal thought.35 Hence, it is certain that she not only read him but also worked on Political Theology and, more importantly, on Verfassungslehre, where Schmitt extensively engages with Sieyès.36 Arendt’s reading of Sieyès through Schmitt is also made plausible by the fact that she not only accused Sieyès of sticking to the language of sovereignty during the Revolution, thus failing to overthrow the previous political regime and its political categories. She also interpreted Sieyès’s introduction of constituent power in the revolutionary vocabulary as a skilful attempt to declare the nation’s sovereignty above the limits of government and law.37 Both these points were incorrect, but they could easily be inferred from Schmitt’s reconstruction of Sieyès’s thought in Verfassungslehre. As explained in Chapter 3, Schmitt relied on Sieyès’s constituent power to theorise a form of sovereignty that, avoiding the limits entailed in both parliamentary and direct democracy, could be unlimited, absolute and personal. Arendt took 35

36

37

In a footnote to her essay ‘Freedom and politics’, Arendt discusses Schmitt and his theory of sovereignty with the following words: ‘Among modern political theorists, Carl Schmitt has remained the most consistent and the ablest defender of the notion of sovereignty. He recognizes clearly that the root of sovereignty is the will: Sovereign is who wills and commands. See especially his Verfassungslehre, Munich 1928, pp. 7 ff., 146.’ See H. Arendt, ‘Freedom and politics: a lecture’, p. 40. Arendt also cites Schmitt’s Staat, Bewegung, Volk and agrees with Schmitt’s emphasis on the importance of “movement” in Nazi Germany in her The Origins of Totalitarianism, p. 214 ff., 14. Sluga notes that Arendt repeatedly expressed admiration for Schmitt both as a jurist and as an intellectual. However, she systematically qualified these praises with criticisms of his political views. Cf. H. Sluga, ‘The Pluralism of the Political: From Carl Schmitt to Hannah Arendt’, p. 95. Similarly, Müller believes that Schmitt is Arendt’s main interlocutor throughout her writings on revolutions. See Müller, A Dangerous Mind, p. 2. Jay also briefly discusses the influence Schmitt had on Arendt in M. Jay, Permanent Exiles: Essays on the Intellectual Migration from Germany to America (New York: Columbia University Press, 1985), p. 240. On Arendt’s subterranean as well as explicit engagement with Schmitt’s The Nomos of the Earth, see A. Jurkevics, ‘Hannah Arendt reads Carl Schmitt’s The Nomos of the Earth: a dialogue on law and geopolitics from the margins’, European Journal of Political Theory, 6(3) (2015): pp. 345–66. For a more general discussion of Arendt’s interpretation of Schmitt on questions of international politics, see L. Keedus, ‘Human and nothing but human: how Schmittian is Hannah Arendt’s critique of human rights?’, History of European Ideas 37(2) (2011), pp. 190–6. The Hannah Arendt Centre for Politics and the Humanities at Bard College has a collection of Arendt’s books, among which figure a number of German editions of Schmitt’s writings. It is thus possible to see that Arendt read and worked on Verfassungslehre, as well as Politische Theologie among other writings. J. Frank underlines how closely Arendt seems to have read Schmitt’s Verfassungslehre and that she appears to have taken inspiration from it for her comments on Sieyès. Cf. J. Frank, Constituent Moments: Enacting the People in Post-revolutionary America (Durham: Duke University Press, 2010), p. 49. Also, Arato and Cohen maintain that, when criticising Sieyès, Arendt was in fact targeting Schmitt: her arguments against Schmitt merge into arguments against Sieyès. See A. Arato and J. Cohen, ‘Banishing the sovereign? Internal and external sovereignty in Arendt’, Constellations 16(2) (2009), pp. 307–30, p. 310.

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Schmitt by the letter and accused Sieyès of having sacrificed the practice of constituent power to the nation’s unlimited sovereignty.38 In Arendt’s view, Sieyès achieved this in two passages. First, attributing the power to constitute the political order to the nation, he situated the factual act of founding above and beyond French citizens. The nation was an unworldly and abstract entity, whose will did not coincide with the people’s preferences. Hence, the French citizens had no role to play in the creation of the political order. Second, by situating the power to constitute the law (pouvoir constitué) outside the realm of politics, in the abstract nation, he proclaimed the latter’s superiority vis-à-vis both government and law. In doing so, he stripped the people of the possibility of having a say in both government and law. Freed from all connections to the French people and to their concrete power, whoever embodied the nation could change constitution, government and law at their pleasure.39 This, in Arendt’s view, amounted to the transformation of the people’s constituent power into a form of sovereignty, grounded in nothing but the abstract will of an abstract entity, the nation. In Arendt’s words: Sieyès, who, in the field of theory, had no peer among the men of the French revolution, broke this vicious circle, and the petitio principii of which he spoke so eloquently, first by drawing his famous distinction between a pouvoir constituant and a pouvoir constitué and, second, by putting the pouvoir constituant, that is, the nation, into a perpetual ‘state of nature’ . . . Thus he seemingly solved both problems, the problem of the legitimacy of the new power, the pouvoir constitué, whose authority could not be guaranteed by the Constituent Assembly, the pouvoir constituant, because the power of the Assembly itself was not constitutional and could never be constitutional since it was prior to the constitution itself; and the problem of the legality of the new laws which needed a ‘source and supreme master’, the ‘higher law’ from which to derive their validity. Both power and law were anchored in the nation, or rather, in the will of the nation, which itself remained outside and above all governments and all laws.40

Arendt claimed that Sieyès appropriated the idea of constituent power and, attributing it to the nation, successfully turned the latter into an absolute sovereign. This was perfectly in line with both Hobbes’s conception of freedom as the absence of constraints, with the idea of liberum arbitrium, 38 39

40

The wording of some of Arendt’s passages on Sieyès is almost identical to Schmitt’s discussion of Sieyès in Verfassungslehre. Arato and Cohen point out that Arendt seems to have in mind Schmitt’s model of presidential dictatorship here, rather than any of Sieyès’s institutional projects. Cf. A. Arato and J. Cohen, ‘Banishing the sovereign? Internal and external sovereignty in Arendt’, p. 311. H. Arendt, On Revolution, p. 154.

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and with Rousseau’s general will. Moreover, this powerful combination of absolute power and the unitary nation gave Robespierre the hook to claim that neither participation nor consent but a uniform and indivisible will had to rule the Revolution.41 This was the nation’s will, which soon turned its attention away from liberty to focus on what Arendt called the ‘social question’: not the overthrowing of the political order but the creation of a new social structure dictated by necessity.42 Being the result of the equation of popular power to national sovereignty, this engendered a series of institutional and political problems. The first and most evident consequence of the French faith in national sovereignty was the impossibility of establishing a suitable republican government. Although her definition of ‘republic’ will be discussed later, Arendt believed that any system based upon the idea of sovereignty was doomed to degenerate in either arbitrary power and dictatorship or democracy and majority rule. Both options were, for Arendt as much as for Sieyès a century and a half before, the direct consequence of the idea of sovereignty. The first element leading towards tyranny was the centralised form of government. In Arendt’s opinion, from Turgot down to the revolutionaries, French politicians systematically ignored the insights of Montesquieu’s work and, particularly, his emphasis on the need to separate power. They rejected it because, in Arendt’s reconstruction, the very idea of national sovereignty, with its heritage of majestic power, could not be divided. This was clearly theorised by Rousseau, from whom the revolutionaries took inspiration. The result was either the moderate deputies’ attempt to separate power while maintaining sovereignty (which for Arendt was inherently doomed to fail) or a centralised nation state, whose power was united in the hands of a few people representing the nation’s will. In Arendt’s words, ‘national sovereignty, that is, the majesty of the public realm itself as it had come to be understood in the long 41

42

She recognised that Sieyès’s nation was composed of private interests and not unitary. Cf. Arendt, On Revolution, p. 155. It is interesting how quickly Arendt assumed the direct influence of Sieyes’s theory on Robespierre. Cf. I. Hont, ‘The Permanent Crisis of a Divided Mankind’, pp. 206–17. H. Arendt, On Revolution, pp. 50–1. Pitkin critically engages with Arendt’s concept of the social, as developed throughout her writings; see H. Pitkin, The Attack of the Blob: Hannah Arendt’s Concept of the Social (Chicago: University of Chicago Press, 1998), especially pp. 219–23 where she discusses Robespierre and the French Revolution. Also, Hont points out that Arendt turned the Jacobin interpretation of the French Revolution upside down: while for Robespierre the problem of the Revolution consisted in the fact that the état social had been corrupted by the état politique, Arendt maintained that ‘the political’ had been overshadowed and corrupted by the ‘social question’. See I. Hont, ‘The Permanent Crisis of a Divided Mankind’, p. 217.

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centuries of absolute kingship, seemed in contradiction to the establishment of a republic’.43 Moreover, the centralisation of political authority necessarily entailed the creation of a hierarchy of power, whereby the people were banished from the political sphere and relegated to be a uniform mass, obedient to the ruler who alone expressed the sovereign will of the nation. The ruler, on his part, would begin to fear losing his power and thus suspect all people around him of hypocrisy and, eventually, treason.44 This, Arendt claimed, was the logic behind the Terror. It forced people to relinquish their power and give up their freedom, and it eventually led to dictatorship and tyranny. Similarly, the attribution of sovereignty to the nation could alternatively result, as it did during the Revolution, in democracy, which for Arendt meant unstructured popular rule. Sovereignty did not allow the creation of institutions that were able to filter and channel citizens’ participation. Moreover, the unitary will of the sovereign nation could not tolerate the presence and action of citizens’ councils and other small-scale instances of organised deliberation, as they threatened the core of sovereignty, its unity, by injecting plurality in the political sphere. Rather, it simply let the most extreme opinions rule, thus establishing nothing but ‘democratic chaos’.45 The evidence of this was the Jacobins’ decision to outlaw local districts and committees in the name of the general will, which, before becoming pure dictatorship, was to be implemented through decisions taken according to the rule of the majority. This, Arendt argued, was different from majority rule. While the latter is an established and acceptable principle of decisionmaking, the former is not. The rule of the majority is the process through which the majority proceeds to politically and, in some cases, physically destroy the minority in the name of the people’s unity.46 Hence, when the principle of national sovereignty reigns and no institutional structure is available to tame the democratic chaos, the people is transformed into a multi-headed monster.47 The will of this democratic multitude, with its temporary and violent majorities, is ‘ever-changing by definition’, and any constitutional ‘structure built on it is built on quicksand’.48

43 44

45 48

H. Arendt, The Origins of Totalitarianism, p. 14. Ibid., p. 100. On Arendt’s understanding of the relationship between hierarchy and power, see P. Markell, ‘The rule of the people: Arendt, archê, and democracy’, American Political Science Review 100(1) (2006): 1–14. 46 47 H. Arendt, The Origins of Totalitarianism, p. 82. Ibid., p. 155. Ibid., p. 85. Ibid., p. 154.

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In sum, French revolutionaries failed to secure a stable system of government solidly based upon the principle of popular power. It either degenerated into a despotic dictatorial government or into an equally despotic democratic regime. Interestingly, Arendt’s explanation of these failures amounts to two arguments that very much resemble Sieyès’s critique of the moderate model of the separation of power as well as of the radical project of popular democracy. The first argument is based on the equation of sovereignty with tyranny. In Arendt’s words: ‘In the realm of human affairs sovereignty and tyranny are the same.’49 As the previous discussion showed, for Arendt, whenever power is conceived as sovereignty, it necessarily becomes omnipotent. Whether attributed to a dictatorial government or to the multitude, it eventually leads to despotic and tyrannical governments. This, although not acknowledged by Arendt, reproduces Sieyès’s argument against the attribution of sovereignty to both the nation and the people. As he repeatedly argued, moderate deputies in 1789 were afraid of the absolute power the idea of sovereignty entailed and tried to counterbalance it with the royal veto and the institution of a second legislative chamber. Yet this system could lead to political paralysis and eventually require the control of a single man.50 Similarly, Sieyès warned radical deputies against the attribution of sovereignty to the people, as this could degenerate into democracy and rule by the masses. Indeed, the appropriation of sovereignty by the mob led to the Terror and proved to be a ‘monster in politics’.51 Second, Arendt offered another explanation of the French failure to secure stable governments. It points toward what French politicians did not do – or did wrongly. In Arendt’s view, the revolutionaries’ most important mistake was to ignore the people’s constituent power or, for those who did not ignore it like Sieyès, to attribute it to the abstract nation instead of the people. This not only abolished constituent power’s practical and concrete character but also stripped the people of the possibility of constituting their political order. Hence, it turned into sovereignty. In other words: ‘The deputies of the French Assembly who had declared themselves a permanent body and then, instead of taking their resolutions and deliberations back to the people, cut themselves adrift from their constituent powers, did not become founders or founding fathers.’52 49 51 52

Ibid., p. 144. 50 See Chapter 1 of this book as well as L. Rubinelli, ‘Sieyès versus bicameralism’. E. Sieyès, ‘Opinion de Sieyès sur plusieurs articles des titres IV et V du projet de constitution’, p. 6. H. Arendt, The Origins of Totalitarianism, p. 117.

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As the next paragraphs will show at some length, Arendt maintained that the revolutionaries’ obsession for national sovereignty had led them to ignore the constituent power of the people or, even worse, expropriate its exercise and put it at the service of the abstract nation and its sovereignty. In doing so, they ignored the extent to which the practice of pouvoir constituant could have provided a better foundation for the new political order and, consequently, failed the Revolution. Although with substantial differences, this argument reproduces part of the reasoning Sieyès offered more than 150 years earlier. As noted in the first chapter, Sieyès argued that the Revolution could have been saved if the revolutionaries had abandoned the idea of sovereignty and embraced his definition of popular power in terms of pouvoir constituant. Had the constituents refused to proclaim national sovereignty in 1791, they could have established a sound separation between the constituent power and the constituted order. In so doing, they would have prevented the subsequent imposition of popular sovereignty by the Jacobins and, potentially, saved the Revolution. This line of reasoning – constituent power versus sovereignty – inevitably reverberates in Arendt’s argument. Yet part of constituent power’s redeeming capacity depended, in Sieyès’s view, on its attribution to the nation, which was precisely what Arendt disliked and rejected. This will be discussed later on. For now, it suffices to say that, both thinkers believed that constituent power would have offered a better foundation for post-revolutionary French politics.

The Practice of Constituent Power To a large extent, Arendt’s antipathy towards sovereignty was motivated by its abstract and ideal character. Sovereignty was the result of the philosophers’ preference for solipsist speculation over concrete political action, which resulted in the substitution of political freedom with individual control over oneself and over the course of one’s action – the free will. Sovereignty also entailed a unified form of power, which reflected the unity of the will. This could not be realised through popular participation in politics but had to be expressed by a single voice. That voice belonged to the nation, which was an unworldly entity. Hence, the combination of two abstract ideas – sovereignty and nation – with no direct connections to the reality of politics – neither with political action nor with human plurality – was a very unstable and dangerous foundation for politics. It was an ‘absolute’, a way to answer the problem of secularised power, which

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was still in need of an unearthly foundation.53 By contrast, the problem of political founding could only be resolved through the concrete experience of politics. This showed that neither the nation nor sovereignty could found a political system, as what was needed was the people’s actual exercise of constituent power.54 This was proved by Roman history as well as by the events that led to the American Revolution.55 In both cases, the founders successfully established solid political orders because they knew that it would be the act of foundation itself, rather than an Immortal Legislator or self-evident truth or any other transcendent, transmundane source, which eventually would become the fountain of authority in the new body politic. From this it follows that it is futile to search for an absolute to break the vicious circle in which all beginning is inevitably caught, because this ‘absolute’ lies in the very act of beginning itself.56

And this beginning was the exercise of the people’s constituent power: a concrete act carried out by the actual population in the context of human plurality. Although constituent power plays a capital role in Arendt’s theory of politics, she never theorised its meaning and form systematically. This can be explained by the fact that constituent power was, for Arendt, a concrete experience, a practice, and not an idea to be theorised and elaborated upon. Therefore, she only discussed it in relation to specific events and historical circumstances in which she could recover the experience of popular founding. When addressing the success of the American Revolution, she argued that ‘it was experience . . . rather than theory or learning that taught the men of the Revolution the real meaning of the Roman potestas in populo’.57 However, it is possible to delineate some of the

53 54

55

56

Ibid., pp. 187–8. Frank provides a different interpretation of Arendt’s desire to ground political systems on the negation of sovereignty and on the foundation of constitutions. More specifically, he maintains that one of the aims of On Revolution is to demonstrate that the success of the American Revolution depended on the Founding Fathers’ refusal to rely on the notion of sovereignty and, crucially, on constituent power. Although it is true that Arendt believed the success of the American Revolution depended on its rejection of sovereignty, I do not think that she associated it with a rejection of constituent power. By contrast, the next paragraphs will argue that she made constituent power the key to its success, as demonstrated by practices of augmentation and council democracy which, in Arendt’s view, depended on the very practice of constituent power. See J. Frank, Constituent Moments: Enacting the People in Post-revolutionary America, ch. 1. On the ironies and paradoxes of Arendt’s preference for the American Revolution against the French, see L. Disch, ‘How could Hannah Arendt glorify the American Revolution and revile the French?’, European Journal of Political Theory 10(3) (2011), pp. 350–71. 57 H. Arendt, On Revolution, p. 196. Ibid., p. 169. Italics in the original.

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basic elements comprising Arendt’s account of the people’s constituent power. First, it can be exercised only when the founding act is immanent. In order for the people’s constituent power to exist, no transcendent source of authority should be recognised as the foundation of the political order. This, Arendt claimed, had already been understood in antiquity by Greek and Roman societies.58 As Montesquieu explained, neither law nor the political system needed to be justified in relation to an external will, be it God’s or the nation’s. Rather, they found their origins in the people’s capacity to make binding promises. Far from being an expression of will, the promise is a concrete action, whereby the people agree to bind themselves through a set of common laws and, in so doing, create a political order. In Arendt’s words: ‘Binding and promising, combining and covenanting are the means by which power is kept in existence.’59 This mutual promise only works if there is no distinction between rulers and ruled and if it is accomplished in a situation of isonomy and human plurality.60 For constituent power to be exercised, the people should ‘combine in the act of foundation by virtue of the making and keeping of promises, which, in the realm of politics, may well be the highest human faculty’.61 Yet for this to be possible it is necessary that people actually engage in creating the constitution. The people’s participation in the constitution-making process is the second element characterizing Arendt’s account of constituent power. In her view, it is not enough to have representatives binding themselves to mutual promises in the name of the people.62 Rather, the people should directly exercise the constituent power. Paine understood the core of the question when he argued that ‘a constitution is not the act of a government, but of a people constituting a government’.63 This was because any 58 60

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Ibid., pp. 177–84. 59 Ibid., p. 166. Isonomy is ‘the capacity of positive law to make people equal in the political realm’. J. Waldron, ‘Arendt’s constitutional politics’, in D. Villa (ed.), The Cambridge Companion to Hannah Arendt, pp. 201–19, p. 209. Ibid., p. 167. On Arendt and representation, see G. Kateb, ‘Arendt and representative democracy’, Salmagundi 60 (1983), pp. 20–50. There he argues that Arendt criticises representation because representative government is a form of sovereignty that claims sovereignty over the people. Moreover, he maintains that she saw a paradox within representative governments: if the representatives act according to the desires of the people, they are just administrators as there is no freedom in their action, and thus no politics. If they act politically, i.e. they are free from all mandate, then the people are actually ruled and therefore have become subjects. Waldron, by contrast, underlines that Arendt occasionally saw representation as helpful to deliberation. See J. Waldron, ‘Arendt’s constitutional politics’, p. 211. He deduces the above from Arendt, On Revolution, p. 227, and Arendt, The Origins of Totalitarianism, p. 115, pp. 250–66. H. Arendt, On Revolution, p. 145.

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delegation of the constitution-making power entailed its abstraction. It risked displacing the action of promising to an abstract level, where a few people (the representatives) pretended to incarnate an entity which did not exist in practice (the nation) and whose will had to be created through the constitution. This, Arendt claimed, would necessarily fall back into the logic of national sovereignty. The only way to avoid it was to directly involve the people in the process of writing the constitution, so as to make clear that the political order was not based on an abstract promise but on the people’s acceptance of the rules organising their lives together.64 This could be done through a simple procedure, which amounts to the third feature of constituent power. People, organized in local councils, should discuss, deliberate and eventually adopt the constitutional text drafted and proposed by a committee created ad hoc. This clearly happened in America, or at least so Arendt believed when she wrote that in America there was the need to bring the draft home and back to the people and have the Articles of Confederacy debated, clause by clause, in the town-hall meetings and, later, the articles of the Constitution in the state congresses. For the point of the matter was not at all that the provincial congresses of the thirteen colonies could not be trusted to establish state governments whose powers were properly and sufficiently limited, but that it had become a principle with the constituents ‘that the people should endow the government with a constitution and not vice versa’.65

As Arendt explained, during the French Revolution constituent power could have been a foundation which presented an alternative to sovereignty. Yet it failed to be so because Sieyès attributed it to the nation and, in so doing, entrusted its working to an unworldly entity that became the origin of both government and law, thus entering the vicious circle of having to justify the constituted order by reference to a constituent power that did not exist in reality. By contrast, the people’s direct exercise of constituent power avoided 64

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At this point it should be noted that constituent power, for Arendt, is a deeply contextual and contingent way of realising freedom. Hence, it can only be realised at a local level, in the here and now. This, according to Wellmer, showcases the tension at the core of Arendt’s practice-oriented understanding of politics: because the latter can only exist in a limited and situated space, it necessarily breaks away from the universalistic drive at the core of Arendt’s philosophy. See A. Wellmer, ‘Arendt on revoluion’, in D. Villa (ed.), The Cambridge Companion to Hannah Arendt, pp. 220–42, p. 223. H. Arendt, On Revolution, p. 145. On the relationship between councils and constituent power, see J. Muldoon, ‘The lost treasure of Arendt’s Council System’, Critical Horizons, 12(3) (2011), pp. 396–417. In this article, he argues that councils are, for Arendt, a way to avoid affirming the superiority of either the constituent power or the constituted order. Instead, councils guarantee a fluid relationship between the two types of power; see pp. 410–12.

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that trap. The constituted order – comprising both government and law – found its origins in the people’s concrete choice of binding themselves through a mutual promise, the constitution. Hence, law and government are not founded on some exterior and transcendent will but on the concrete choice made by the population at a given time. In making this choice, they give themselves a government and a constitutional structure. From this it follows that the government finds its source of authority in the councils. These entrust the government with power at regular intervals. Law originates in the constitution, which is a stable set of norms ruling subsequent law-making and enshrining the core of the original promise. This eventually breaks the petitio principii, as there is no transcendent source of authority to refer to but the people’s mutual and immanent bond as expressed in the constitution. The outcome of Arendt’s account of constituent power is the abolition of sovereignty; since power consists in collective action, the need to interpret and enforce a unitary will suddenly disappears. When constituent power is exercised by the people, Arendt seems to argue, the appeal to sovereignty is vain and inconclusive. It not only is unfit for a society structured around the principles of plurality and political equality but also overlooks the fact that power lies in action and not in will. ‘I can’, as opposed to ‘I will’, is the authority of a body politic formed around the practice of constituent power. The latter, although it failed in France, succeeded in America, where the federated states ‘really were “political societies”, and their great importance for the future lay in the formation of a political realm that enjoyed power and was entitled to claim rights without possessing or claiming sovereignty’.66

Institutions of Popular Participation The three elements defining the practice of constituent power – its being realized in action instead of will, by the people as opposed to the nation and through practices of direct democracy rather than representation – are retraceable in different moments of Western history.67 Arendt first discusses foundations in The Human Condition, where she describes action, and particularly political action, as a miracle, an interruption of the normal routine that brings the new and unexpected to life and makes it last. Action is thus ‘the ability to begin something new’.68 It is ‘an unconnected, new 66 67

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H. Arendt, On Revolution., p. 159. On Arendt’s account of historical understanding and its relationship to politics, see W. Yaqoob, ‘Reconciliation and violence: Hannah Arendt on historical understanding’, Modern Intellectual History 11(2) (2014), pp. 385–416. H. Arendt, On Violence, p. 179.

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event breaking into the continuous sequence of historical time’.69 In political terms, action entails a ‘hiatus between the end of the old order and the beginning of the new’; it is a foundation.70 This necessarily entails an element of arbitrariness, which characterises the moment of passing from the old political order forward into the new. The void left by this passage can be filled in three ways: by anchoring action in tradition, as happened in Ancient Rome; in an absolute, which is the case of sovereignty during the French Revolution; or in a principle of action, as happened in America. In Arendt’s view, the first historical example of constituent power is the foundation of Rome. This was framed as the re-foundation of Troy, in order to avoid the arbitrariness of novelty. It anchored Roman political life in a legendary past, able to give directions and stability to the future. Since then, the act of foundation played an important role in Roman history, as it became the source of legitimation for both the political order and its modifications. The defining features of the Roman experience were the attribution of political authority to the people and its exercise according to the laws and inside the limits they dictated. When the two modern revolutions broke into Western history, their foundations played out differently. In the case of France, the arbitrariness of novelty was captured by the idea of sovereignty, and a single omnipotent will was considered as the origins of the entire political order. As previously discussed, this emphasis on sovereignty caused the Revolution to fail. Differently from France, America was the only case after Rome in which the act of foundation played out successfully and, with it, the practice of constituent power affirmed itself.71 In Arendt’s words, never ‘was the course of the American Revolution ever followed or repeated: constitutionmaking was never again understood as the foremost and the noblest of all revolutionary deeds’.72 Yet its success was ascribed to a combination of elements, some derived from the Roman tradition, some completely new. Starting with the latter, the American founders decided not to root their beginning in tradition. By contrast, they completely embraced its arbitrary character. Although greatly influenced by Roman history, they opted for 69 71

72

H. Arendt, On Revolution, p. 197. 70 Ibid. Scheuerman has argued that Arendt’s veneration of the American Revolution and contempt for the French can be explained in relation to her reading of Schmitt. In other words, it is to counter Schmitt’s embrace of the national and decisionist character of French accounts of sovereignty that she construed the American experience as the paradigmatic example of a successful revolution. Cf. W. E. Scheuerman, ‘Revolution and Constitution: Hannah Arendt’s challenge to Carl Schmitt’, Canadian Journal of Law and Jurisprudence, 10(141) (1997), pp. 141–61. H. Arendt, On Revolution, p. 150.

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a complete break with the past, one in which the only guiding criterion was the principle of action; this ‘inspires the deeds that are to follow and remains apparent as long as the action lasts’.73 This principle, in the American case, was ‘the interconnected and combined power of the many . . . [and] the interconnected principle of mutual promise and common deliberation’.74 In other words, as much as the Romans grounded their republic on the people’s authority as legitimised through tradition, the Americans anchored the legitimacy of the people’s constituent power in its mere practice. This, Arendt claimed, explains their description of the revolutionary experience as a novus ordo saeclorum.75 On the other hand, and very much like the Romans did, in America those who received the power to constitute, to frame constitutions, were duly elected delegates of constituted bodies; they received their authority from below, and when they held fast to the Roman principle that the seat of power lay in the people, they did not think in terms of a fiction and an absolute, the nation above all authority and absolved from all laws, but in terms of a working reality, the organised multitude whose power was exerted in accordance with laws and limited by them.76

This was made possible by the founders’ reliance upon the Roman experience, combined with a series of historical circumstances. First, and differently from France, pre-revolutionary America did not have experience of the ‘social question’. Although poverty existed, it never became a central question of politics, and this spared the Revolution from having to deal with social and economic – as opposed to political – problems. Second, the American colonies were influenced by the heritage of the British constitutional monarchy, which implied that power, even under colonial rule, was never experienced in absolute and unlimited forms but was commonly submitted to the laws and was thereby limited. This diminished the founders’ fascination for sovereignty which, as the French case demonstrates, was inherently connected to absolute monarchy. Third, the American Revolution greatly benefited from the pre-existence of selfgoverning bodies. Throughout the colonial period, government was organised in small local councils, which governed themselves independently. This form of decentralised and almost direct political organisation 73 75

76

Ibid., p. 205. 74 Ibid., p. 206. On Arendt’s understanding of the absolute character of foundations and their relation to political theology and Schmitt, see S. Moyn, ‘Hannah Arendt on the secular’, New German Critique 105 (2008), pp. 71–96. H. Arendt, On Revolution, p. 157.

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prevented the assimilation of local communities into a single nation and kept power firmly rooted in the people. In Arendt’s terms: the great good fortune of the American Revolution was that the people of the colonies, prior to their conflict with England, were organized in selfgoverning bodies, that the revolution – to speak the language of the eighteenth century – did not throw them into a state of nature, that there never was any serious questioning of the pouvoir constituant of those who framed the state constitutions and, eventually, the Constitution of the United States.77

These fortunate historical circumstances, interpreted in the light of the Roman tradition and coupled with the founders’ passion for new beginnings, had the positive effect of preventing the derivation of law and power from the same source. By contrast, for the American revolutionaries ‘the seat of power . . . was the people, but the source of law was to become the Constitution, a written document, an endurable objective thing’.78 This distinction was made possible by the very practice of constituent power. On the one hand, the people bind themselves through the constitution, which becomes the supreme law to which all other laws are submitted. On the other hand, the people remain the source of government, as the latter is legitimate only if chosen and authorised by the citizens. Yet neither government nor ordinary laws can change the constitution, which is accessible only by the constituent power. This, in Arendt’s view, secured the success of the Revolution in America. However, the founders’ attempt to create a political space open to plurality and novelty did not last long after the end of the Revolution. The substitution of the words ‘pursuit of happiness’ for ‘public happiness’ in the Declaration of Independence gave rise to a slow but steady expansion of the private sphere at the expense of the political realm. In the long run, the passion for action and public freedom was replaced by with the enjoyment of private goods. The only possibility to rescue the revolutionary spirit, Arendt argued, laid in Jefferson’s proposal to develop a system of council democracy, capable of integrating the people’s constituent power into the regular working of politics. Yet Jefferson’s proposal was not implemented; the people’s constituent power suddenly disappeared and gave room to the dangerous and misplaced language of sovereignty. This brought the principle of representation back in the political scene and transformed the American Republic into a representative government, 77

Ibid., p. 156.

78

Ibid., p. 148.

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where ‘the age old distinction between ruler and ruled which the Revolution had set out to abolish through the establishment of a republic has asserted itself again: once more the people are not admitted to the public realm’.79 With some exceptions, from then on the lack of power and the concomitant want of authority have been the curse of constitutional government in nearly all European countries . . . and the fourteen constitutions of France between 1789 and 1875 have caused, even before the rainfall of post war constitutions in the twentieth century, the very word to become a mockery.80

As a consequence, the model of the American Revolution was never replicated in history. Yet Arendt purported to demonstrate the normative value of a system based upon the practice of constituent power. She discussed how it could be translated into permanent institutional structures, and discussed them in relation to the Palestinian state, the post–world war European order and student protests in the 1960s. On Arendt and Kibbutzim as an alternative to the degeneration of the nation state see also E. Young-Bruehl, Hannah Arendt: For Love of the World, p. 229. As suggested before, the exercise of constituent power was, in Arendt’s view, based upon the people’s direct participation in politics, but this was neither spontaneous nor impulsive. By contrast, it was highly dependent on institutional structures.81 These were different in kind and scope, but they were all aimed at fostering the participation of the people. As such, they are perfectly in line with the mechanisms of popular participation theorised by mid-twentieth-century jurists and even expand upon them, allowing for more radically democratic instances of popular involvement in both constituent and constituted politics. First, Arendt argued that only republics could successfully embody the people’s political authority. By republic she meant – as much as Vedel did – a federal regime, based upon decentralised governmental structures, which reduced the delegation of power to a minimum.82 Specifically, her republic was organised in local councils, each entrusted with as direct an exercise of power as possible. In her words: ‘A republican government . . . would rest on ‘elementary republics’ in such a way that its own central power did not deprive 79 81 82

80 Ibid., p. 229. Ibid., p. 137. On the importance of constitutional structures in Arendt’s thought, see J. Waldron, ‘Arendt’s constitutional politics’, pp. 201–19. Already in her Jewish writings, Arendt presents the confederation as the only political regime apt to be established in Palestine. She argues that it was the only alternative to the nation state and to its twin principle, sovereignty. H. Arendt, ‘The minority question’, in H. Arendt, The Jewish Writings, pp. 125–33, p. 129, and H. Arendt, ‘The failure of reason: the mission of Bernadotte’, in H. Arendt, The Jewish Writings, pp. 408–13, p. 409.

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the constituent bodies of their original power to constitute’.83 Republican regimes would indeed guarantee the practice of constituent power by avoiding its appropriation by central bodies. This was evident in Jefferson’s proposal to establish wards, in the Kibbutz system and in the Hungarian experiment in council democracy.84 It was only in small-scale communities that citizens could actively participate in politics and effectively exercise their political authority. The elementary republic of wards was the only ‘tangible place where everyone could be free’ because ‘no one could be called free without his experience in public freedom [and] no one could be called either happy or free without participation, and having a share, in public power’.85 Moreover, republican regimes would protect the practice of constituent power by preventing the equation of political authority with the national will. In a republic, where citizens are organised on territorial bases, the principle of national belonging is pointlessly abstract and unsubstantial. It no longer determines the form and limits of political organisation and is reduced to a mere cultural feature.86 In addition, the republic’s federal organisation would realise Montesquieu’s project of separation of power.87 As Arendt repeated, the legacy of Montesquieu’s analysis had been seriously misunderstood in Europe, where constitution-makers assumed that power could be balanced only through its limitation.88 This, she argued, was incorrect; power did not need limitation but separation. While the first was meant to diminish power, the second aimed at increasing it and subsequently taming it through the multiplication of instances of its exercise. The federal system was precisely meant to create new power by separating it.89 Since power in Arendt’s view is not a zero-sum game, every new instance of exercise spreads its force and presence and, in so doing, tames it. Hence, the separation between a weak central government and local councils ensured the division of power while multiplying its instances. 83

84 86

87

88 89

H. Arendt, On Revolution, p. 259. For a historical analysis of how Arendt became interested in councils, see J. Muldoon, ‘The origins of Hannah Arendt’s council system’, History of Political Thought 37(4), 2016, 761–89. H. Arendt, On Revolution, p. 245–6. 85 Ibid., p. 247. ‘Nationality would become a personal status rather than a territorial one’, H. Arendt, ‘The nation’, in H. Arendt, ‘The nation’, in H. Arendt, Essays in Understanding (New York: Shocken Books, 1994 [1970]), pp. 206–11, p. 210. Arato and Cohen argue that Arendt’s Montesquieu-inspired model of checks and balances is her response to Schmitt’s concentration of power in the hands of the Weimar President. Cf. A. Arato and J. Cohen, ‘Banishing the sovereign? Internal and external sovereignty in Arendt’, p. 311. For a historical analysis of Arendt’s position on federalism, see W. Selinger, ‘The politics of Arendtian historiography’. This is precisely the reason why Sieyès disapproved of and tried to avoid the principle of separation of power.

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This, in Arendt’s view, not only prevented the danger of arbitrary power but also firmly situated it in the hands of the people. The second institutional feature of systems based upon the practice of constituent power is their rejection of European parliamentarism. The latter, in Arendt’s view, was anchored in the principle of national sovereignty, where representation, party politics and majority rule dominated the political sphere. While representation stripped the people from the exercise of power, majority rule and party politics allowed a specific interpretation of the nation’s will to be imposed upon the political community. By contrast, in the republican form of government . . . decisions are made, and . . . life is conducted, within the framework and according to the regulations of a constitution which, in turn, is no more the expression of a national will or subject to the will of a majority than a building is the expression of the will of its architect or subject to the will of its inhabitants.90

Lastly, as much as the jurists discussed in Chapter 4, Arendt reflected on how to keep the people’s constituent power alive once the constitution had entered into force. The system of councils surely guaranteed the people’s exercise of power at the local level, but it did not secure involvement in constitutional politics. Specifically, Arendt aimed to find instruments to incorporate political change in the constitution without endangering its authority. Once more, she looked back at the Roman experience and its influence upon the American Founding Fathers. This showed that the founding moment, although not replicable on a regular basis, could be augmented institutionally. By augmentation, she meant the Roman practice according to which the political authority, as opposed to political power, is incarnated in the Senate. The latter, being different from the people and having no direct power, is entrusted with auctoritas.91 This is the capacity to augment the foundation of the political order by adapting and updating them to the changing circumstances as well as by judging the fitness of politics to its foundations. In America, the Roman Senate was transformed into the Supreme Court. This exerted a form of authority that amounted to ‘a kind of continuous constitution-making, for the Supreme Court is indeed, in Woodrow Wilson’s phrase, a ‘kind of Constitutional 90 91

H. Arendt, On Revolution, pp. 155–6. See also H. Arendt, ‘Parties, movements and classes’, Partisan Review 12(4) (1945), pp. 504–13. ‘They knew that the principle of potestas in populo is capable of inspiring a form of government only if one adds, as the Romans did, auctoritas in senatu, authority resides in the senate, so that government itself consists of both power and authority, or, as the Romans had it, senatus populusque Romanus’. H. Arendt, On Revolution, p. 170.

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Assembly in continuous session’.92 Hence, the people’s constituent power could be kept alive not only through the people’s participation in councils but also through processes of constitutional revision, enshrined in the Supreme Court’s work of augmenting the foundation.

Conclusion For Arendt, the notion of pouvoir constituant indicated the core of the republican understanding of power. She used it to imagine a foundation of the political order alternative to the one offered by the notion of sovereignty. This unmistakably resembles Sieyès’s choice to introduce the language of constituent power in 1789. In both Sieyès’s and Arendt’s cases, sovereignty and constituent power were not just different ideas but opposite understandings of political authority. Yet behind this crucial similarity there stands an intricate web of theoretical and political differences, as well as a series of interpretative misunderstandings. These can be explained in relation to both Arendt’s limited engagement with Sieyès and their different political goals. Starting with the former, Arendt read Sieyès via Schmitt and hence did not understand that, like herself, Sieyès too feared sovereignty. Sieyès’s critique of sovereignty derived from what he thought were the concrete dangers implied in the evocation of sovereignty during the Revolution. In his view, whether attributed to the assembly or to the people, sovereignty presented its bearer as the supreme source of authority and entrusted it with the power to change the political order at it pleased, beyond and against all constitutional limits. Moreover, as much as Arendt, Sieyès too feared attempts to tame sovereignty through the separation of power, as these attempts would lead to the system’s collapse into either direct democracy or the tyranny of one man. Yet, differently from Arendt, he did not think that centralisation of power, representation and the very idea of the nation went hand in hand with sovereignty and its absolute character. Rather, he thought they could all be, in different ways, solid safeguards against the totalising and despotic effects of sovereignty. The idea of nation created a unitary political entity different from the Estates; centralisation of power prevented fragmentation and regional tensions, and representation distinguished those who exercised power from its bearer. Ignoring these arguments, Arendt assumed that Sieyès’s support for centralisation, representation and nationhood was enough to demonstrate his commitment to the 92

Ibid., p. 192.

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idea of sovereignty in general and to a proto-Schmittian version of it in particular. The result was that she completely overlooked Sieyès’s hatred of sovereignty and turned him into one of its ‘finest’ theorists. This reveals the extent to which she never seriously engaged with Sieyès’s thought but contented herself with Schmitt’s interpretation of it. Yet Arendt was right in accusing Sieyès of having preferred to attribute power to the abstract nation to the detriment of the people. This difference is central to understanding the extent to which, beyond her misinterpretations of Sieyès, their opposition to sovereignty was based upon two completely different political projects. These can be tied back to two opposite visions of politics and, in turn, to two corresponding accounts of why constituent power was an alternative to sovereignty. They both certainly feared the sovereign’s disregard for the constitution and the absolute power that sovereignty as an idea entailed. Hence, constituent power was for both Sieyès and Arendt a type of power organised according to constitutional provisions. The constitution was meant to lay the foundations of the political order, to safeguard popular participation and to establish the limits of governmental authorities. Hence, Arendt’s constituent power represented, very much like Sieyès’s, the authority to establish a constitutional order anterior and superior to ordinary politics. Sieyès’s distinction between constituent power and the constituted order was precisely meant to affirm the constitution’s superiority over secondary powers. It can thus be argued that constituent power was for both a way to avoid sovereignty and establish a limited constitutional government. Yet these are the only elements Arendt’s conception of constituent power has in common with that of Sieyès. Arendt despised sovereignty because it did not allow for the people’s direct exercise of power, while Sieyès rejected sovereignty because it potentially engendered popular participation. For Arendt, the people’s direct exercise of power was key to maintaining the constitutional structure; for Sieyès, it was a major threat to its existence. This radical difference motivates their respective conceptions of constituent power. First, for Arendt constituent power needed to be exercised by the people as opposed to by the nation. This could only be achieved in a republican system based on federal structures organised around small local councils and townships. Neither representation nor party politics were considered mechanisms apt to exert constituent power. For Sieyès, constituent power belonged to the nation, and the nation could express its will only through representatives. Hence, he delegated the exercise of constituent power to the members of

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the constituent assembly, which was a unitary central body representing the totality of the French nation. Popular participation, far from being enshrined in a federated system of councils, was limited to voting for the representatives in the constituent assembly. Second, in Arendt’s view, popular power needed to be exercised in times of constitution-making as well as ordinary politics. Although through different means, the people should be able to directly participate in politics at all times, via federated structures, such as councils. Hence, the people’s constituent power does not expire after the constitution’s entrance into force but remains active inside and alongside the constituted order. By contrast, Sieyès’s constituent power was meant to disappear immediately after the constitution’s entrance into force (or even before, after the authorisation of the constituent enterprise via the election of extraordinary representatives). After that, what remained was solely regular representative politics, and popular participation was reduced to voting representatives into office. Although Sieyès admitted the possibility of recalling the people’s constituent power in exceptional instances of constitutional revision, this was far from Arendt’s defence of constituent power’s permanence in local councils alongside the constituted order. Therefore, it can be argued that constituent power was, for both, a way to avoid sovereignty and establish a limited constitutional government. However, for Sieyès this implied the institution of a centralised representative regime where the people’s role was reduced to participating in elections. By contrast, Arendt understood constituent power as the direct participation of the people in politics, through decentralised local structures of popular deliberation. Sieyès’s constituent power meant popular authorisation of the political order; Arendt’s, popular participation into the political order.

Conclusion

Hannah Arendt’s theory of constituent power is radically different from Sieyès’s. Although in both cases constituent power offers a conceptualisation of popular power alternative to sovereignty, in Arendt’s case this alternative coincides with self-government. In Sieyès’s case, meanwhile, it entails the delegation of power to elected representatives. The differences and similarities between these two accounts show the interest and purpose of reconstructing the history of constituent power. By looking at the language of constituent power and putting its uses into historical perspective, it becomes clear that, in the past two centuries, constituent power has been endowed with different, even opposite, meanings. It follows that the notion of pouvoir constituant has contributed in varying ways to the conceptualisation and institutionalisation of the principle of popular power within the framework of post-revolutionary European states. While in some cases it underpinned an understanding of popular power leading to the creation of constitutional courts, in other cases it pointed at the people’s inalienable power to directly participate in ordinary and extraordinary politics via federal structures and referenda. This highlights the multiplicity of ways in which constituent power has been used to articulate the principle of popular power both at a theoretical and at an institutional level. Far from being tied to a substantial definition of the power of the people that remains consistent over time, constituent power has offered a language through which to contest, challenge and modify existing definitions of the principle and hence widen the debate about its meaning and institutional implications. This is constituent power’s distinctive contribution to the history of the modern state. The diversity of understandings of popular power channelled through the language of constituent power reflects the different intellectual and political contexts in which the notion has been deployed. In some cases, these were mainly revolutionary and parliamentary debates; in others, the context was primarily limited to intellectual and academic circles. Yet at 206

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least one contextual element is consistently present and relevant to all the theories of constituent power analysed: the reference to contemporary accounts of sovereignty. The assessment of the shortcomings of given theories of sovereignty is fully part of the intellectual context against which theorists of constituent power acted and to which they reacted. Sovereignty not only represented a competing understanding of popular power, but it was also the reference point in relation to which theorists of constituent power put forward their own accounts of popular power. In the first half of the story – roughly from the French Revolution to the end of the nineteenth century – constituent power was mobilised to claim that the power of the people was limited to authorising the creation of the constitution and of the representative political system within its framework. The language of constituent power thus offered a circumscribed understanding of popular power, opposed to the unlimited account of political authority entailed in contemporary theories of sovereignty. Yet in the middle of the story, Schmitt equated constituent power with his understanding of sovereignty as the power of the elected leader to take unbounded and ultimate decisions, through the institutional structure of the state. From then on, the second half of the story illustrates how the language of constituent power started to diverge again from contemporary notions of sovereignty but on opposite terms. Throughout the twentieth century, constituent power became a conceptual tool to promote the people’s direct involvement in politics against the rigid legal understandings of political power offered by theories of sovereignty. This process culminated when the languages of constituent power and sovereignty reached a stark new level of opposition. This moment is enshrined in the political thought of Hannah Arendt. The five phases just mentioned depict five different meanings that have been attributed to the language of constituent power in the past two centuries. They demonstrate that, in any given case, constituent power was taken to be a conceptualisation of the principle of popular power on its own terms. As such, its meaning was substantially different from contemporary interpretations of sovereignty, yet it developed in relation to their perceived shortcomings. As mentioned in the Introduction, this assessment of constituent power’s historical significance does not really fit with contemporary theorists accounts of its meaning and development. Not only do most of them tend to see in constituent power a synonym for, if not the actual definition of, given accounts of sovereignty, but they also assume it to have only one correct meaning, whose history they trace via linear genealogies. Yet for all that my story about constituent power does

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not fit with that recounted by contemporary theorists, the latter do fit into my story. This might appear paradoxical at first sight, but it is not. Contemporary theorists rely on constituent power to develop normative arguments about how we should make sense of popular power and realise it institutionally. To do so, they decide ex ante what the correct meaning of constituent power is and then legitimise it via appeal to variably selective readings of history. Because I emphasise the plurality and contingency of constituent power’s historical meanings, my version of the story runs necessarily against those offered by most contemporary theorists. Yet it shows that even though their readings of history are partial, they are also fully part of the process of negotiation, reassessment and redefinition of the meaning and extension of popular power I have been concerned with in this book. In what follows, I will thus venture to offer an analysis of why the theorists discussed in the Introduction systematically associate their accounts of constituent power with only one way of making sense of popular power. In doing so, I will also attempt to assess whether the five moments of this history play any role in contemporary accounts of constituent power.

New Questions, Old Answers The theorists of constituent power discussed in the Introduction are in explicit dialogue with each other. They all purport to make sense of the principle of popular power and assess the possibility of its exercise in modern politics. This, being their main concern, ties their work back to previous accounts of constituent power. They share with Sieyès, Schmitt, Arendt and other figures discussed in the book the goal of defining and institutionalising the principle of popular power through the language of pouvoir constituant. Most of them do so, in the same way as Schmitt did, without rejecting the notion of sovereignty. On the contrary, they aim to redefine it through constituent power. Others adopt Arendt’s position and rely on constituent power to do away with the language of sovereignty altogether. Yet there is something that is peculiar to contemporary theorists and to them only. This is the specific context in relation to which they are negotiating a new meaning for the principle of popular power: the globalised world order, with the challenges and opportunities it presents to the conceptualisation and institutionalisation of popular power. Contemporary theorists of constituent power share a widespread apprehension about the possibility of realising the principle of popular power in

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the global system.1 This is a ‘multi-level and polycentric order’2 and, as such, depends upon a plurality of centres of authority acting upon and interacting with the state, conceived as the traditional unit of organisation and expression of popular power. By consequence, decisions affecting people’s lives are often taken beyond the control of the state. It follows that the traditional locus for the exercise of power, the state and its legal system, is neither the only nor the privileged venue of decision-making. This is seen as either a challenge or an opportunity by contemporary theorists. Theorists who see it as a challenge start from the assumption that the state, although problematic on several different levels, is the conditio sine qua non of democratic politics. Globalisation threatens the fundamental structure of the modern state insofar as it imposes limits on its sovereignty, and, in so doing, it indirectly curbs the extension and exercise of popular power within the state. It thus follows that, as an intellectual category, sovereignty appears to be inadequate to capture the sources of political power in the contemporary world. Instead of the people’s will, international agreements are often concluded in the name of human rights. These, although enshrined in international treatises ratified by states’ representatives, often take precedence over state constitutions. In addition, most international agreements and regulations are indeed carried out privately, beyond the reach of the state. Yet they heavily affect the lives of the citizens, who appear to most theorists of constituent power helpless and vulnerable in the face of multinational corporations’ ability to influence law-making and trump states’ vetoes and internal accountability. The weakness of state sovereignty is thus evident at the international level: it no longer guarantees the enforcement of the people’s will. Theorists of constituent power such as Loughlin, Kalyvas and Arato read in this a proof of the declining relevance and legitimacy of the principle of popular power in the global system. In addressing this problem, they purport to redefine popular power as a dynamic, multilayered and participatory principle, suitable to enforce popular participation in the new global order. To do so, they resort to the language of 1

2

Cf. C. Thornill, ‘Contemporary constitutionalism and the dialectic of constituent power’, Global Constitutionalism 1(3) (2012), pp. 369–404; C. Thornill, ‘A sociology of constituent power: the political code of transnational societal constitutionalism’, Indiana Journal of Global Legal Studies 20(1) (2013), pp. 551–603. P. Carrozza, ‘Constitutionalism’s post-modern opening’, in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism (Oxford: Oxford University Press, 2008), pp. 169–87, p. 169.

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constituent power. Yet each author uses constituent power in a different way, consistent with the specific type of popular participation each of them advocates for. To start, Loughlin is primarily concerned with the rise of what he calls, borrowing Negri and Hardt’s expression, the Empire.3 This is a type of supra-national sovereignty existing above and beyond nation states and aimed at destroying all types of state sovereignty in order to abolish the institutional possibilities of popular exercise of power.4 It transforms all political issues, traditionally debated in parliament by the people’s representatives, into mere administrative law, privately negotiated, stipulated and enforced. This has multiple effects, but three seem to be particularly worrisome for Loughlin. The first is the irrelevance of traditional institutional means of popular participation in decision-making processes. The second is the insurgence of the multitude as a major historical and political subject, whose antiinstitutional, fluid and insurgent character Loughlin fears.5 The third risk is of an intellectual kind. Most theorists discouraged by the irrelevance of traditional ideas of sovereignty, stopped looking for criteria to defend the democratic principle in the new global order. This is evident in that, on Loughlin’s account, mainstream theorists dismiss sovereignty as a merely legal category and radical theorists advocate for the abolition of sovereignty in favour of the multitude’s unbounded exercise of constituent power.6 Both options are a dangerous surrender to globalisation. Instead of defending the principle and practice of popular power, they give it up completely. By contrast, Loughlin explicitly embarks on its defence, which he sees as part of ‘the ongoing struggle to give particular institutional meaning to 3 4 5 6

See A. Negri and M. Hardt, Empire (Cambridge, MA: Harvard University Press, 2000). Negri and Hardt’s conceptualisation of ‘Empire’ will be discussed in the next paragraphs. M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2004), pp. 96–7. This is directly connected to his criticism of Negri and Hardt. In his view, they gave up the idea of sovereignty completely, as will become clear later. In the introduction to his The Idea of Public Law, Loughlin sets out a long and detailed critique of legal positivism. For supporters of this positon, there is no point in looking at the pre-juridical origins of law, at either the national or the global level. Law is a closed normative system able to work without references to external sources of validation. Loughlin, in turn, accuses legal positivism of abolishing the idea of public law as an autonomous discipline and reducing the foundation of law to either an assumption or a postulated fact. In sum, positivism rejects the connection tying law to politics. On the other hand of the spectrum, theorists such as Negri and Hardt forecast the global success of Empire and suggest abandoning all theories of sovereignty and of the people as political unity. This is, in Loughlin’s view, equally concerning. See M. Loughlin, The Idea of Public Law, pp. 1–4. Alongside Loughlin, other theorists put forward similar critiques of Negri and Hardt’s invitation to abandon the idea of sovereignty in favour of the power of the multitude. See R. Geenes et al., ‘The co-originality of constituent power and representation’, Constellations 22(4) (2015), pp. 514–22.

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general democratic ideals’.7 The intellectual tool he deploys in this struggle is the language of constituent power. This allows him to redefine sovereignty in a ‘relational way’. First, Loughlin’s approach to the principle of popular power is highly indebted to Schmitt’s theory of sovereignty as constituent power. This depicts constituent power as ‘not entirely encapsulated in the term sovereign will [because] it also expresses the formative process by which that sovereign will exhibits itself through time’.8 This approach prevents the collapse of sovereignty in the constituted order, thus avoiding its reduction to imperial administrative law. It keeps the connection between law and politics open, creating a political space that must be ‘recognized as incorporating an unresolved dialectic of determinacy and indeterminacy, of closure and openness’,9 able to maintain the people’s power alive and present at a global level. Second, Loughlin completes this Schmittian understanding of sovereignty as constituent power by introducing institutional elements aimed at avoiding the transformation of the people into unformed multitudes. The relational idea of constituent power highlights the necessity to stop discussing ‘unmediated notions of popular will’.10 Rather, it suggests that ‘the aggregation of interests and opinions in the concept of a democratic will can be recognized only once absorbed into some representative form […] through certain institutional arrangements’.11 Although accepting much of Schmitt’s position, Loughlin claims to diverge from him and Sieyès on the question of representation. While Schmitt allegedly rejected it because it was contrary to the democratic principle of identity, Sieyès saw in it only a solution to social division of labour.12 By contrast, Loughlin conceives of representation as the only mechanism allowing the transformation of the multitude into a people. In his words: ‘Once representation is invoked for the purpose of generating political power, “the people” must itself be regarded as a representation. Political power is generated only when “the people” is differentiated from the existential reality of a mass of particular people (the multitude).’13 This is also reflected in the importance Loughlin attributes to public opinion: while it keeps the representatives in check, it also creates a sense of unity and community. 7 10 12

13

8 9 M. Loughlin, ‘The concept of constituent power’, p. 232. Ibid., p. 225. Ibid., p. 228. 11 M. Loughlin, The Idea of Public Law, p. 113. Ibid. This interpretation of Sieyès is rather dubious. Sieyès’s theory of representation seems, on the contrary, quite consistent with Loughlin’s. See also R. Tuck, The Sleeping Sovereign (Cambridge: Cambridge University Press, 2016), p. 256. M. Loughlin, ‘The concept of constituent power’, p. 228.

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Third, Loughlin directly engages with mid twentieth-century theorists of constituent power to design a form of sovereignty that does not exhaust itself in the creation of the legal political order but survives alongside it. The latter acquires validity and legitimacy only if constantly irritated, challenged and modified by the people’s restless will. Loughlin draws on Hauriou and Böckenförde to claim that constituent power is the expression of the competition among different social groups in the struggle to define the content of the will of the people. This is constantly changing. Hence, sovereignty as constituent power must ‘insinuate … itself into the discourse of constitutionalism … ensuring that the intrinsic tension between the abstract rationalities of constitutional design and the quotidian realities of governing remain exposed’.14 In so doing, constituent power allows for popular participation in ordinary politics and acts as a reminder that the people’s power is the ultimate source of political legitimacy at the national, international and global levels. Loughlin thus introduces the language of constituent power to offer a new definition of sovereignty: no longer the rigid sovereignty of the state, which has been proven inadequate to the configuration of forces shaping the global order. By contrast, he reinterprets Schmitt’s account of constituent power in a collective and participatory fashion by reading it through the lenses offered by twentieth-century jurists. The result is an account of sovereignty that positions the people at the centre of the decision-making process through institutionalised practices of representation and participation. These, ultimately, prevent the collapse of the people into the multitude as well as the assimilation of their power to imperial administrative practices. Kalyvas too relies on constituent power to shape a new meaning for the idea of sovereignty. As discussed in the Introduction, he purports to redress political thought’s overwhelming focus on sovereignty as command. The latter is only one possible meaning of the idea and is the least apt to face the challenges posed to popular power by the changing configuration of the global order. Specifically, Kalyvas draws on Arendt to claim that the failure of the French and American Revolutions overshadowed the importance of the people’s exercise of sovereignty.15 The result was the success of an 14

15

M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism (Oxford: Oxford University Press, 2008), p. 4. He explicitly discusses Hauriou, who was a great source of inspiration for Vedel, and Böckenförde. See, for example, M. Loughlin, ‘The concept of constituent power’, p. 230 and ff. 1, 14, p. 234. In personal communication, Loughlin also made repeated references to Mortati. Kalyvas heavily relies on Arendt’s assessment of the fate of constituent power. He discusses the failure of the American Revolution as follows: ‘The constituted order turned against the constituent power. The new republic absorbed the constituent principle to sanctify its foundations, but it did so by repressing its own beginnings and by objecting to the extra-constitutional survival of the power of

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interpretation of sovereignty as command which, ultimately, expelled popular sovereignty from the political scene and opened up space for the advent of globalisation.16 Arisen out of the widespread neglect for the popular dimension of sovereignty – the power the people have to create and keep a political system alive – globalisation drastically weakened the very idea of popular power.17 As a consequence, contemporary politics lost all criteria for judging the legitimacy of national, international and global institutions. Since they are no longer the expression of the will of the people, it is not clear how their democratic legitimacy can be assessed and, even more worryingly, reclaimed.18 How to reintroduce the correct understanding of sovereignty and, with it, a strong criterion for judging the legitimacy of the global political order? Kalyvas’s answer is, unsurprisingly, constituent power. As much as Loughlin’s, his theory of constituent power heavily draws on Schmitt. Yet he reads him in a different and peculiar way because he adapts him to fit with Arendt’s theory of politics.19 From Schmitt, Kalyvas takes the idea of differentiating his theory of sovereignty from other accounts of it through the idea of constituent power. By defining sovereignty as constituent power, Schmitt ‘conceives sovereignty in a completely different way’.20 The difference lies in that Schmitt, supposedly, does not equate it with command but defines it as ‘the power to create new constitutions,

16

17 18

19 20

the many to constitute.’ A. Kalyvas, ‘Constituent power’, in Political Concepts, p. 9. Similarly, he also criticises Sieyès, accusing him of theorising national sovereignty and thus abolishing all practices of direct exercise of power by the people. Once more, this argument greatly resembles Arendt’s. In his words, Sieyès ‘inaugurated the doctrine of national sovereignty … In the end, Sieyès’s version not only displaced and defeated Condorcet’s democratic contribution but it also made possible the subsequent national-plebiscitary exploitation and populist disfiguration of the constituent power … With the French revolution, the concept, caught in the realm of representation, became entangled with intricate logical paradoxes and puzzling legal formulations that produced politically suspicious appropriations and polemical refutations.’ A. Kalyvas, ‘Constituent power’, p. 10. For a discussion of how contemporary theory ignores the idea of sovereignty, see A. Kalyvas, ‘Popular sovereignty, democracy and the constituent power’, Constellations 12(2) (2005), pp. 223– 44, p. 223. Ibid., p. 224. Kalyvas demonstrates how important it is to have criteria to judge for judging democratic legitimacy when discussing Schmitt’s and Gramsci’s theories of sovereignty. He says, ‘We are left with no normative criteria to evaluate and choose between ‘good’ or ‘bad’ foundations, valid or invalid origins of novel social orders. This descriptive approach considerably impairs the possibility of social and political critique, as it fails to produce any meaningful criteria that would enable us to distinguish between free and oppressive forms of creating new states or new regimes.’ A. Kalyvas, ‘Hegemonic sovereignty: Carl Schmitt, Antonio Gramsci and the constituent prince’, Journal of Political Ideologies 5(3) (2000), pp. 343–376, p. 357. Paradoxically, though, he seems to overlook Arendt’s critique of Schmitt’s theory of sovereignty as constituent power. A. Kalyvas, ‘Hegemonic sovereignty: Carl Schmitt, Antonio Gramsci and the constituent prince’, p. 346.

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[and] the emphasis here is based on the instituting and originating aspect of the sovereign will more than on the repressive and coercive function of a command’.21 Schmitt thus appears to offer precisely what Kalyvas is looking for. He justifies his adoption of Schmitt’s – creatively interpreted – theory of sovereignty as constituent power because this is ‘able to formulate one of the most powerful and explicit theories of democratic legitimacy … For Schmitt, a constitution is democratic only when it is directly derived from the direct and immediate expression of the constituent power of the popular sovereign will.’22 Hence, Kalyvas interprets Schmitt as providing a poignant equation of sovereignty with the people’s power to directly constitute the state. As discussed in Chapter 3, this might be abstractly true, but in practice Schmitt reduced popular participation to the mere plebiscitary election of the leader. Kalyvas, however, glosses over this key particular.23 By contrast, he retains Schmitt’s theory of the people’s sovereign constituent power as the first criterion for judging the legitimacy of political institutions: they must be the direct and unmediated expression of the will of the people. The second criterion is extrapolated from Arendt’s theory of politics.24 This entails high levels of popular participation which, in Kalyvas’s view, are essential to any definition of popular sovereignty as constituent power. The participation of the people in the exercise of power should not be limited to creating the legal political order but should extend to ordinary politics, so as to constantly shape and challenge, from below, the established political system. Constituent power thus becomes a ‘principle of disruption … [I]t ponders alterity and otherness against legal closure.’25 As such, Kalyvas maintains, constituent power needs to be associated with a series of institutions fostering popular self-rule. These should organise the political order in such a way as to make sure that power comes from the bottom, that it is organised horizontally and that it is realised collectively. Echoing Arendt, Kalyvas suggests that only federal institutions guarantee the full exercise of the people’s constituent sovereignty, as they have an

21 23

24

25

Ibid., p. 348. 22 Ibid., p. 350. He discusses his own appropriation of Schmitt’s theory for radical democratic purposes as follows: ‘Paradoxically enough given Schmitt’s conservative allegiances, his concept of sovereignty, as Andrew Arato has correctly pointed out, hinges on left-wing radicalism and a radical revolutionary position, despite its plebiscitarian form’. Ibid., p. 352. On several occasions, Kalyvas explicitly embraces Arendt’s theory of constituent power. See A. Kalyvas, ‘Constituent power’, and A. Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt and Hannah Arendt, (Cambridge: Cambridge University Press, 2009), pp. 232–52, pp. 292–300. A. Kalyvas, ‘Constituent power’, p. 12.

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undeniable associative and public dimension. Consequently, they successfully prevent the personification of power.26 The people’s direct institution of the political order and their constant participation in its ordinary working are the two main features of Kalyvas’s definition of constituent power. This not only offers new content to the idea of sovereignty but also distinguishes it from its unsatisfactory depiction as the supreme power of command. The outcome is a theory of sovereign constituent power able to ‘provide a critical lens by which to evaluate existing political practices and choices’.27 It not only posits valuable criteria for judging the legitimacy of the global order but also a ‘rule of recognition’.28 It offers what traditional theories of sovereignty in the globalised world are unable to provide: ‘a normative criterion, … an ideal and pure type of democratic constitutional making in accordance with which we can measure and assess, that is recognize, the legitimacy of existing practices of constitutional founding in relation to whether and how much they approximate or depart from its participatory and inclusive method’.29 As mentioned in the Introduction, Arato has a slightly different approach to the idea of constituent power. While he too sees in it an opportunity to conceive of the power of the people correctly, he does not assume it to be the right definition of sovereignty. By contrast, in an Arendtian move, he opposes constituent power to the very notion of sovereignty. Also, differently from other theorists, he is interested in theorising constituent power for the effects this can have on actual practices of constitution-making around the world. And he approaches the problems raised by globalisation mostly as a consequence of his interest in constitution-writing. As he makes repeatedly clear in his writings, the model of constitution-making typical of the liberal state is underpinned by the notion of sovereignty. It thus is a ‘sovereign model of constitutionmaking’. The main problem of this model is that it collapses the sources of authority of the new constitution with the sources of its legitimacy. This, he claims following Arendt, is worrisome in that it eventually reduces the legitimacy of the constitution to pure power.30 In other words, it equates 26

27 29 30

Kalyvas discusses Arendt’s account of federal institutions and council democracy in A. Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt and Hannah Arendt, pp. 276–8. A. Kalyvas, ‘Popular sovereignty, democracy and the constituent power’, p. 238. 28 Ibid. Ibid. See, for example, A. Arato, The Adventures of the Constituent Power (Cambridge: Cambridge University Press, 2017), pp. 17–23.

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the foundational moment of the political community to a decision taken by whoever has the power to claim to be acting in the name of the people. This was already problematic when it happened in the context of nationstate constitutions. It is however exacerbated and made more prominent by globalisation. This brings with itself a new series of problems, as well as some opportunities. Arato sees globalisation – at least under the current model of the Washington Consensus – as a form of neo-imperialism. The main implication of this neo-imperialist configuration for the exercise of the people’s constituent power is that it exerts undue influence on the constitution-making process. This is the necessary consequence of a ‘globally capitalist economy whose protagonists can reward as well as punish’.31 The result is thus a double form of limitation of popular power. Already within the context of the nation state, the sovereign model of constitutionmaking did not entail enough popular participation. Under a neo-imperial form, the risk is that the interests of capital and powerful transnational actors will get their way in the new constitution, disregarding or even violating the will of the people. Once more, the solution to this problem comes from a new way of thinking and practising the constituent power of the people. This entails, as mentioned in the Introduction, abandoning the language of sovereignty and instead embracing a model of constituent power. According to Arato, however, the model needs to reject Schmitt’s theorisation of constituent power. This theorisation is indeed problematic, because Schmitt portrayed constituent power as originating from a source that does not allow for any differentiation between authority and legitimacy. In Arato’s words: ‘Schmitt’s theory of constituent power is either a mythological conception of the popular pouvoir constituant without authority (and with a greatly reduced concept of legitimacy), or a conception of constituent authority, relying on both state power and a combination of traditional authoritarian and democratic-plebiscitary legitimation.’32 The consequence is the reduction of the validity of the constitution to its success, which in turn results in collapsing the legitimacy of the text into its effectiveness. It thus follows that the ‘initial constitution-making can be nothing other than dictatorship, usurpation, or perhaps, prophecy’.33 The result, in Arato’s terms, is that Schmitt opens the way to the right of the stronger. This, in the neo-imperial

31 32

See A. Arato, ‘Revolution, anti imperialism and learning’, http://blogs.law.columbia.edu/upris ing1313/andrew-arato-revolution-anti-imperialism-and-learning/. 33 A. Arato, The Adventures of the Constituent Power, p. 30. Ibid., p. 35.

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context already discussed, could very well be one or more protagonists of the ‘globally capitalist economy’. To prevent this from happening, it is necessary to abandon Schmitt’s theory of constituent power and adopt an Arendtian approach instead. This entails separating authority from legitimacy, which in turn implies making the legitimacy of a constitution depend on the authority that created it, as opposed to the mere fact of its effectiveness. The authority is the people, in its flesh and bones. This can be achieved by relying on ‘two types of representation, pluralist and electoral’.34 The element of novelty here is the reference to the pluralist type of representation. This means giving voice not only to individual citizens in their capacity as voters but also to the groups and associations present in any given society.35 To make this happen it is necessary to rely on round tables and other similar instruments of popular participation in the constitution-writing process.36 And the result is the reintroduction of ‘normative foundations in foundings, … based on a conception of legal norms outside the law of the state, and the other ultimately settling on procedures justified by reference to their own discursively justifiable principles’.37 This reliance on multi-layered practices of constitution-making, that involve the population at different levels, is not only typically Arendtian but also Arato’s solution to the dominating presence of the neo-imperial order. Yet, differently from Arendt, Arato refuses to admit that the success of constituent power only depends on historical contingency. While criticising Arendt’s reliance on the argument for American exceptionalism, he is adamant about developing a set of guidelines for thinking about and exercising constituent power around the globe. This is his response to the contingent problem of contemporary politics: the need to write constitutions in a post-revolutionary setting that all too easily falls prey to external influences and powers. In other words, for Arato as much as for Loughlin and Kalyvas, constituent power is the conceptual tool to affirm the role of the people in constitution-writing and to insulate their power from the dominating forces of global capital. 34 35

36

37

A. Arato, ‘Revolution, anti imperialism and learning’. At this point, it is interesting to be reminded of Mortati’s argument for instituting a corporative Senate in Italy. Although Arato does not cite Mortati, the reasoning behind their proposals is similar: to represent not only individuals but also all forms of associational life that are meaningful to the political life of any given society. Cf. Chapter 4. On forms and practices of constitution-making, see A. Arato, The Adventures of the Constituent Power, pp. 204–17; A. Arato, Post Sovereign Constitution-Making (Oxford: Oxford University Press, 2016), pp. 107–59; A. Arato, Civil Society, Constitution and Legitimacy (Lanham: Rowman & Littlefield, 2000), pp. 229–56. A. Arato, The Adventures of the Constituent Power, p. 36.

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Among those who see in globalisation an opportunity are radical political theorists. For Negri and Hardt, the global order is shaped by the neoliberal economic project, based upon aggressive capitalism and private transactions shaping global law: the Empire.38 This mainly refers to ‘the new form of sovereignty that succeeded the sovereignty of the nation state’.39 It is unlimited and knows no external borders, as it expands over the entire globe. The new imperial power is transnational and hence exercises global control.40 Internally, imperial sovereignty maintains the fundamental feature of national sovereignty – the relationship between dominant forces and dominated actors, between sovereign and subjects – but expands it beyond the territory of the nation state. The dominating forces are indeed no longer states but international private actors shaping the rules of global capitalism through, among other things, the lex mercatoria. Equally, imperial sovereignty no longer recognises the people as the traditional subject of power. The people as a represented unity is of no interest to the Empire, as this does away with the practice of representation and with the idea of unitary nations. It follows that democracy as we are used to thinking of it – as representation of the will of the people in the context of state politics – is no longer realisable or sustainable under the new imperial configuration. Negri and Hardt thus join the chorus of voices arguing that globalisation poses very serious threats to representative democracy. Yet, differently from the other authors mentioned here, they see in this threat an exciting opportunity to realise ‘the foundation of a global democracy without sovereignty’.41 In order to achieve this goal, it is necessary to substitute the idea and practice of constituent power for sovereignty. This entails, in Negri’s words, ‘the communal invention of a new social and political constitution’.42 This communal invention can only be achieved if we start conceiving of our relations in terms of constituent power, which means, in other words, thinking of ourselves as moved by strength and not by power. The implication of this shift is that the traditional sovereign relation between dominant forces and dominated subjects is abolished. There no longer is a state, there no longer are borders. All traditional barriers to political creativity are abolished, as constituent power ‘is not something preformed, but it is something that takes shape promptly and unintentionally, but not less effectively. It is the effectiveness of the fight, of the 38 39 41

See A. Negri and M. Hardt, Empire. See also A. Negri, ‘Premessa’ and ‘Lezione 4’ in A. Negri, Guide: cinque lezioni su impero e dintorni (Milan: Raffaello Cortina Editore, 2003). A. Negri, Guide, p. 90. All quotes from Guide are my translations. 40 Ibid., p. 56. Ibid., p. 64. 42 Ibid., p. 104.

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demands of the multitude, of the strength of its movements that invent and constitute a new reality.’43 Constituent power is thus a form of ‘counter power’. It acts from within the Empire to expose its contradictions and to bring it down, while preparing the ground for a new form of global democracy. Integral to this project is the abolition of ‘the people’ as fundamental political unity. This unity is brought about by the nation state’s reliance on the social contract and representation but is already deeply challenged by the new imperial configuration. The latter, far from being a negative development, is fruitful insofar as it opens the way to the multitude. This is a ‘singular multiplicity, a concrete universal’.44 The subjectivities that form the multitude reject all forms of representation and organisation, as these would result in alienation. By contrast, the multitude realises and actualises itself through the expression of its creative labour. This results in a form of political will that is absolute, in that it knows no limits or boundaries. It is thus the bearer of the constituent power and, as such, it is also the protagonist of the civil war against the Empire. The latter, in Negri and Hardt’s view, will result in the abolition of all forms of constituted and institutionalised politics, of power. In their stead, absolute democracy will triumph and impose itself as a new form of communal living. Negri and Hardt thus present constituent power as the radical revolutionary alternative not only to the global Empire but also to its account of sovereignty. Yet in shaping and defining what this revolutionary constituent power is, they explicitly engage with the work of Sieyès, Schmitt, Mortati and Arendt and interpret their ideas as being all, to different extents, insufficient theorisations of popular power.45 Although these authors are presented as eminent theorists of constituent power, they all try to constrain its revolutionary potential by tying it back to the state and its strictures, including its constitutional character, its borders and, except for Arendt, its reliance on representation and on theories of the nation. Yet, in a somewhat ironic move, Negri and Hardt end up offering what amounts to a Sieyèsian argument against sovereignty. As Sieyès did, also Negri and Hardt argue that the very word ‘sovereignty’ signifies a form of power that is intrinsically despotic, unitary and personal. As such, it fits well with the aims of the Empire but not with those of the multitude. The 43 44 45

Ibid., p. 124. Ibid., p. 98. See also A. Negri and M. Hardt, Multitudes: War and Democracy in the Age of Empire (Cambridge: Penguin, 2005). Negri discusses each of these authors in his Insurgencies. See A. Negri, Insurgencies: Constituent Power and the Modern State, pp. 6–9, 14–21, 107–59.

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latter, in order to become an actual political subject, needs to get rid of the idea of sovereignty and embrace the idea of constituent power. The structure of Negri and Hardt’s argument – opposing sovereignty and constituent power – is thus deeply Sieyèsian, but the meaning and implications they attribute to constituent power are not. While for Sieyès constituent power was meant to create the constituted order, for Hardt and Negri constituent power never constitutes itself but remains a free and unlimited expression of the multitude’s absolute will. This interpretation of constituent power is also taken up by other radical theorists.46 Yet, differently from Negri and Hardt, they do not want to abolish the concept of sovereignty but purport to give it a new meaning through the idea of constituent power. This radical theory of sovereignty as constituent power has two main features. First, radical theorists such as Del Lucchese rely on Negri and Hardt to claim that constituent power belongs to the unformed multitude, as opposed to the institutionalised ‘people’. Only if conceived as a spontaneous aggregation can the unorganised peoples avoid being trapped by the need to institutionalise themselves and the expression of their power through the ‘illusion of a homogeneous will or the utopia of representation’.47 More specifically, they offer more details about who could count as part of the multitude, by suggesting that it is social movements that are able to express their will beyond and against the state. Global social movements are capable of negotiating with private global actors and of functioning as counter-hegemonic forces.48 Social movements, as much as the multitude, have the power of ‘redefining “what counts as political and who defines what is political”, as thereby reclaiming popular sovereignty and exposing the hidden and unjust assumptions and prefigured distributions of liberal constitutionalism’.49 The second main feature is that, when conceived as sovereign constituent power, the exercise of popular power cannot distinguish between extraordinary founding and ordinary policy-making. This distinction is the backbone of the liberal state and keeps the power of the people at bay. It should be abolished and a new form of political organisation established.50 The result is a new political space, where there is the possibility to ‘offer 46 47 48 49 50

See for example Del Lucchese, Mattei and Bailey as discussed in the Introduction. F. Del Lucchese, ‘Machiavelli and constituent power: the revolutionary foundation of modern political thought’, European Journal of Political Theory 16(1) (2014), p. 10. U. Mattei and S. Bailey, ‘Social movements as constituent power: the Italian struggle for the commons’, Indiana Journal of Global Legal Studies 20(2), pp. 965–1013, p. 1012. Ibid., p. 977. A less radical version of this argument had already been advanced by Mortati and Vedel. Cf. Chapter 4.

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alternative political strategies and forums in the vacuum created by a weakening Leviathan … [to fill] a crucial vacuum where representative politics have failed, offering alternative channels for political engagement’.51 Hence, the main feature of the modern state, the distinction between the authorising will of the people and the ordinary exercise of power, disappears. In Del Lucchese’s terms: ‘We should stop imagining the separation of the factual origin of law from its ordinary exercise.’52 The abolition of this separation opens space for the constant reiteration of the beginning, for the constant negotiation of the relation between law and politics. The substitution of the people with the multitude and the abolition of the distinction between extraordinary and normal politics are the key elements common to all radical theories of constituent power. Yet, differently from Negri and Hardt, Del Lucchese, Mattei and Bailey present constituent power as an instrument to redefine sovereignty and turn it into a radical democratic concept. This is a form of sovereignty that moves beyond the limits of the nation state and imposes the power of the people as a democratic presence at the global level. The new sovereign constituent power defies the traditional imperialist association of a unitary people with centralised sovereignty and representative government in favour of irruptions of popular sovereignty domestically and internationally. It transforms the people from a passive electorate to an ‘important form of constituent power emerging … at the supranational level to limit the power of transnational actors’.53 When seen in this light, it becomes clear why the radical redefinition of sovereignty as constituent power could not draw on the authors discussed in this book. Although they obviously read Sieyès, Schmitt and Arendt, and acknowledge their theories of constituent power in their works, they do not rely on them explicitly.54 By contrast, they all find inspiration in ‘other theorists of constituent power’.55 While they might share Arendt’s commitments to popular participation and her despise for the artificial 51 52 53 54 55

U. Mattei and S. Bailey, ‘Social movements as constituent power: the Italian struggle for the commons’, p. 980. F. Del Lucchese, ‘Machiavelli and constituent power’, p. 18. U. Mattei and S. Bailey, ‘Social movements as constituent power: the Italian struggle for the commons’, p. 968. Del Lucchese discusses Mortati and Böckenförde. See F. Del Lucchese, ‘Machiavelli and constituent power’, p. 10, p. 19. In Del Lucchese’s case, these are Spinoza and Machiavelli. As already discussed in the Introduction, most of these are interesting theorists of political authority, but their theories do not necessarily fit in the scope of this book, as they are not distinctively recognisable as theories of constituent power.

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unity of the people – the nation – like Negri they cannot accept her, or Schmitt’s and Sieyès’s, focus on the institutional and statist dimension of constituent power. The latter is precisely what they want to challenge and overcome. This discussion of contemporary theories of constituent power suggests two tentative conclusions. The first is that contemporary political theorists are primarily engaged in finding new definitions for the language of constituent power. As shown in the Introduction, they present their works as objective investigations into the history and practice of constituent power. However, in most cases they are not analysing an intellectual, political or social phenomenon. On the contrary, they are actively contributing to the creation of this phenomenon through the elaboration of their own theory of constituent power, whose origins they claim to find in history and whose reality they claim to witness in political practice. The second conclusion is that they do so to respond to the challenges that the global order poses to the theory and practice of popular power. As such, they are actively involved in negotiating the sense, extension and institutionalisation of the power of the people in the contemporary world.

History Contemporary theories of constituent power are fully part of the history here narrated. Not only have they been put forward to negotiate popular power in the global world, but they do so in a way that puts them in line with previous theories of constituent power. Specifically, two main elements of continuity can be retraced. First, Loughlin and Kalyvas and, to a lesser extent, Negri build their accounts of constituent power relying upon varying interpretations of Sieyès’s initial definition of constituent power. These interpretative twists are typical of contemporary literature on constituent power, yet they are also a distinctive mark of the five interpretations of constituent power discussed in this book. Until the publication of Schmitt’s Verfassungslehre, the idea had mostly been read on Sieyès’s terms: it was mobilised by nineteenth-century scholars and politicians to establish limits to the exercise of power. However, the interpretation of Sieyès’s idea changed radically after Schmitt reworked it. He not only offered a partial interpretation of Sieyès’s thought but also presented it as consistent with his own ideas. This had a double effect. On the one hand, twentieth-century legal theorists attributed to Sieyès the same ideas they read and liked in Schmitt – namely, the need to keep the source of power

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alive.56 They thus transformed Sieyès into an early champion of popular state foundation. On the other hand, Arendt attributed to Sieyès the ideas she disliked in Schmitt, such as the collapse of constituent power into sovereignty, the abstract attribution of political power to the nation and representative politics. Although some of these ideas indeed belonged to Sieyès, she presented him as a proto-Schmittian, as the theorist of national sovereignty responsible for the nationalist degeneration of the French Revolution. This twofold interpretation of Sieyès still influences theorists today. Perhaps because of his background as a constitutionalist, Loughlin filters Schmitt’s radical interpretation of Sieyès through the lenses offered by twentieth-century jurists, most of all Böckenförde. By contrast, Kalyvas discusses Sieyès building upon Schmitt’s theory of constituent power as tempered by Arendt. Radical theorists criticise and reject most of the authors here discussed, with the partial exception of Böckenförde, Mortati and Arendt, but still actively engage with their arguments. This similarity of interpretative moves not only proves that contemporary theories of constituent power fit within the broader story narrated by the book. It also suggests that the way in which Sieyès is interpreted has important effects on how the language of constituent power is defined and used. The negotiation of constituent power’s sense is carried out not only through explicit disputes over the meaning and extension of popular power but also in academic discussions over the correct interpretation of the political thought of some key historical figures, Sieyès more than anybody else. It thus follows that the varying interpretations of Sieyès discussed in the book are also elements in past and present debates over the meaning, role and institutional realisation of the principle of popular power. A second element of continuity is contemporary theorists’ use of constituent power to move beyond the shortcomings of current definitions of sovereignty. Specifically, Loughlin wants to redefine the traditional idea of state sovereignty, as this appears unable to counter the rise of imperial sovereignty. The latter transforms all law-making processes into administrative affairs, and traditional sovereignty is trumped by the power of transnational actors. The redefinition of sovereignty via the idea of 56

This does not apply to Arato who, on the contrary, relies on recent historical work on Sieyès to distinguish his account of constituent power from Schmitt’s. He also discusses Schmitt’s biased reading of Sieyès and how this resulted in a chain of misinterpretations. Cf. ch. 1 and 2 of A. Arato, The Adventures; A. Arato, ‘Forms of constitution-making and theories of democracy’; and also part I of A. Arato, Post-sovereign Constitution Making (Oxford: Oxford University Press, 2016).

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constituent power is meant precisely to overcome this dynamic. Kalyvas sees in globalisation the result of the idea of sovereignty as command. The latter has an arbitrary dimension and pushes the people’s exercise of power into the realm of theology and mythology. Constituent power is meant to bring it back to the centre of the political arena. Radical theorists express their discontent with all ideas of sovereignty that tie the exercise of popular power to the institutional structure of the modern liberal state. This is responsible for the expansion of neo-liberal doctrines, imperial constitutionalism and aggressive capitalism. Only an understanding of sovereignty as constituent power will guarantee the people’s exercise of power beyond the reductive frame of the nation state and against the private forces fostering globalisation. The use of constituent power to move beyond the problematic aspects of given definitions of sovereignty is certainly not new. It has been relied upon by all the authors discussed in the book. However, the place contemporary theories occupy in the present story is not one of perfect continuity with twentieth-century theories of constituent power either. As much as there are similarities, there are also differences. These suggest that contemporary theories of constituent power are not just a continuation of the story but a new and independent phase. With the notable exception of Arato and Negri, the first element that distinguishes contemporary theorists from previous theorists is their collapse of constituent power into sovereignty. This is different from both Arendt’s and twentieth-century jurists’ definitions of constituent power’s relationship to sovereignty, which tended to oppose the two ideas. There are two possible explanations for this different use of constituent power. To start, contemporary theorists adopt the language of constituent power to find a definition of sovereignty apt to preserve popular power at the national and global levels. Therefore, the language of constituent power is interesting for them only insofar as it provides a satisfactory definition of sovereignty. They are not concerned with sovereignty as a conceptualisation of the power of the people per se; they rather think it needs some reshaping if it is to meet the challenges posed by globalisation. It follows that sovereignty is the fixed point in the equation, not constituent power. The fact that the latter could have been, historically, a conceptualisation of popular power opposed to sovereignty is relatively insignificant for them. What matters is whether or not it is, now, suitable for strengthening the meaning and role of sovereignty in the global arena. And the participatory implications constituent power assumed in the last fifty years suggest that it is worthwhile discussing in relation to sovereignty.

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The second explanation for the collapse of constituent power into sovereignty derives from contemporary theorists’ attraction to Carl Schmitt. Although they are often sceptical of his political thought, they are also fascinated by his account of the foundations of the legal political order. The idea that the latter could derive from an absolute, unbounded and unconstrained decision immediately re-establishes the hierarchy between law and politics contemporary theorists are looking for. It sets the relationship between the legal order at the national and international level and popular power straight. Since Schmitt describes this eminently political decision as the sovereign constituent power, and opposes it to sovereignty in its national and popular versions, contemporary theorists opt for doing the same. If the traditional idea of state sovereignty is not enough to guarantee the popular exercise of power at a global level, sovereignty as constituent power will provide a better theorisation. Schmitt and contemporary theorists operate the same intellectual move; however, their aims are ironically opposite. While Schmitt introduced the idea of constituent power to attribute unlimited power to a single man, contemporary theorists directly transpose his theory of constituent power from the dictator back to the people. In so doing, they transform Schmitt’s plebiscitary theory of politics into a theory of democratic participation. This is quite audacious. Yet it is precisely the possibility of this move that might explain the contemporary collapse of sovereignty into constituent power. Furthermore, the contemporary redefinition of constituent power’s relationship to sovereignty reveals another difference between current theories and those analysed in the book. For the first time, the language of constituent power is used to negotiate the role of the people beyond the frame of the modern state. Although this is more evident in the work of Negri, Hardt and other radical theorists than it is in Loughlin’s and Kalyvas’s, they all shift the focus of their reflections away from the statist dimension of popular power. The underlying assumption is that we are living in a globalised political system. In this context, popular power needs to be defended and implemented beyond the state if it is still to be a valid criterion to assess the legitimacy of political decisions. Therefore, contemporary authors focus less on discussing traditional means of implementation of popular power, such as referenda, constitutional amendments and local councils. These are valid but only useful for implementing the power of the people inside the frame of the nation state. By contrast, contemporary theorists concentrate on theorising venues for the exercise of political power across or beyond state structures, such as in the case of Mattei’s

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global social movements, Loughlin’s public opinion or Kalyvas’s hegemonic forces. All this signals that contemporary theorists put forward unprecedented meanings for constituent power, in reaction to a series of challenges that are also unprecedented. This, far from being exceptional, is an indication of the position contemporary accounts of constituent power occupy in the history narrated in this book. While the elements of continuity mentioned prove that they are fully part of the story, the elements of novelty here discussed testify to the independent position they should occupy in it. What might initially have appeared as straightforward scholarly investigations into the theory and practice of constituent power build up to comprise the sixth and, for the time being, last phase in the history of how the principle of popular power has been negotiated through the language of constituent power.

Constituent Power as Institutional Politics Today as throughout history, the meaning of constituent power is negotiated in relation to the changing meanings of sovereignty as well as the political circumstances in which both ideas were situated and to which they responded. More specifically, I suggest that the story of constituent power’s changing meaning is a story of how the role, extent and implications of the principle of popular power have been negotiated in the past two centuries. For Sieyès, popular power had to be limited to the authorisation of the constitution and the elections of political representatives to the constituted legislative assembly. For nineteenth-century French jurists, the power of the people amounted to a limit to the power of the king and parliament. In Schmitt’s view, the direct exercise of power by the people had to be reduced to the plebiscitary election of the president. In post–World War II Europe, jurists aimed to strengthen the principle of popular power by devolving power to local authorities and introducing mechanisms of popular participation such as referenda and constitutional revisions. Arendt made the power of the people the backbone of her political project by defending practices of direct popular participation against representative politics. Today, constituent power is used to reclaim the voice of the people in an increasingly complex globalised world. The book thus suggests that constituent power’s distinctive contribution to the history of the modern state lies in the fact that it offered a language to negotiate new meanings and implications for the principle of popular power. Yet this story is not only a story of how the power of the

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people has been negotiated over time. It can also be read, transversally, in at least three or four other ways, and none of them excludes any other. It could, for instance, be seen as an intellectual history of Sieyès in general and of the reception of his idea of constituent power in particular. After the first chapter, each subsequent phase of the story discusses how different authors have read, understood and interpreted Sieyès’s political thought. All the authors studied in this book engage with Sieyès and present their theory of constituent power as an iteration, evolution of or alternative to his initial theorisation of pouvoir constituant. Alternatively, this story could also be read as a history of the opposition between sovereignty and government. As has recently been demonstrated, there is a case to be made for considering the idea of sovereignty as indicating the people’s direct exercise of power in key decisions affecting the state’s fundamental structure.57 This is then distinguished from the notion of government, which indicates the day-to-day exercise of power by delegated bodies. The distinction between the two ideas thus enshrines the distinction between political acts establishing the foundations of the state and ordinary legislation. To a certain extent, this corresponds to the criterion distinguishing the idea of constituent power from that of a constituted order. Both pairs – sovereignty and government as well as constituent power and constituted order – have been used to make sense of the democratic principle of popular power in the modern state. They were aimed at avoiding both direct democracy (as a system based only or primarily on the sovereignty/constituent power part of the equation) and pre-modern anti-democratic regimes (based only on the government/constituted power part and disregarding the principle of popular power). Furthermore, the changing meanings attributed to constituent power could correspond to different levels of popular involvement in the exercise of ‘sovereignty’, as defined in the sovereignty–government opposition. While Sieyès’s idea of constituent power reduced the participation of the people to a minimal act of ex ante authorisation, via election, of the work of the constituent assembly, Arendt’s definition of constituent power substantially extended the range of ‘fundamental acts of sovereignty’ and tied it to the people’s direct participation in the lawmaking process. This story of constituent power is thus also a story of how the boundaries between popular sovereignty and government have been determined. And last, the book can also be read as a historical overview of how different understandings of popular power have been used to create and 57

Cf. R. Tuck, The Sleeping Sovereign, pp. 249–83.

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justify specific institutional structures. As an example, the story of constituent power retraced here overlaps, to some extent, with the history of the principle of political representation. All the theorists discussed in this book have indeed relied upon the notion of constituent power to argue in favour of or against representation and to discuss how far the principle of popular power could be considered satisfactorily realised through its delegation to the ‘experts in the field of politics’. In very much the same way, this is also a history of how plebiscites, referenda, bicameral or unicameral legislatures, centralised or federal systems, constitutional courts and procedures of constitution-making have been conceived of in relation to the principle of popular power. However, the fact that, at different points in history, the language of constituent power has been used in strikingly similar ways should not be misunderstood as a necessarily recurring historical pattern and, even less so, as an indication of the essential meaning or reality of constituent power. By contrast, it should be emphasised that, although different thinkers used constituent power for similar purposes, the content and implications attributed to constituent power remained radically different. It is true that both Sieyès and Arendt presented constituent power to oppose contemporary accounts of sovereignty, but they did so to encapsulate the power of the people in completely different institutional structures: the first argued in favour of the almost complete delegation of power to representatives; the second defended council democracy. Similarly, Schmitt and contemporary theorists associate constituent power with their preferred account of sovereignty, but they do so to implement institutions as different as plebiscitary dictatorship and radical democracy. Further, the book demonstrates that there is no such thing as a uniform or pre-established meaning for the language of constituent power, whose regularity recurs over time. The existence of similar patterns is simply due to the alternate emphasis that different theorists have put on different phases of constituent power’s intellectual history. They can thus be explained in relation to the theorists’ desire to reproduce and rework some elements of past theorisations of constituent power against others. However, this desire is contingent, as contingent is the meaning attributed to the language of constituent power. Both depend upon how, at different points in history, the theory and implications of given conceptualisations of popular power have been assessed. The criteria guiding these assessments were, in turn, informed by the political and intellectual weight of some key historical events. Whilst Sieyès theorised constituent power to act upon the course of the French Revolution, jurists and politicians such as Lanjuinais,

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Laferrière, Berriat-Saint-Prix and Laboulaye responded to the succession of regimes that characterised nineteenth-century French history: the First and Second Restorations, the 1848 Revolution, the Second Empire and the Third Republic. Also, Carl Schmitt’s concern for liberal parliamentarism and democracy is to be set against the background of the Weimar Republic and its political instability. Even more markedly, both the twentiethcentury jurists’ dissatisfaction with legal sovereignty and Arendt’s hatred for national sovereignty are deeply connected to the experience of World War II in Europe. Today, current accounts of constituent power are primarily aimed at providing a criterion for judging the legitimacy of political decisions in a progressively more globalised context. It thus follows that any time a definition of constituent power is presented as the only, the historically correct or the true interpretation of popular power – as in the case of Sieyès, Lanjuinais, Schmitt, Mortati, Arendt and Loughlin, to name just a few – what we are faced with is neither a necessary recourse of history nor the eventual discovery of the truth of modern democracy. Rather, it is likely to be yet another attempt to present a contingent understanding of popular power as the best way of responding to the contingency of historical circumstances. And it is precisely the relationship between these changing historical circumstances and the correspondent shifts in meaning and institutional implications of constituent power that have been the object of this book. This was concerned neither with their objective truthfulness nor with their historical correctness. Rather, it purported to show that past and contemporary debates about constituent power are part of an ongoing struggle to make sense of, and stabilise, the principle of popular power. As such, this is not only a story about democracy and some of its institutions from the French Revolution to the globalised world. It is also a reflection on how and why we make sense of democracy in the way we do.

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Index

acclamation. See plebiscite Acte additionnel aux constitutions de l’Empire of 1815 (France), 76 Ahrens, Henri, 80 American exceptionalism, 200, 217 American Revolution, 5, 10, 212 and constituent power, 18 Arendt on, 193, 197, 199, 200 Anschütz, Gerhard, 113, 134 Arato, Andrew, 13, 15, 30, 31, 223, 224, 230 and constituent power, 4–6, 216–17 and constitution-making, 216 and neo-imperialism, 216 and sovereignty, 215–16 and the global world order, 209 on Arendt, 215, 217 on Schmitt, 216 Arendt, Hannah, 28, 31, 208, 226 and action, 183, 196 and Ancient Greece, 183, 194 and Ancient Rome, 197, 202 and augmentation, 26, 202 and centralisation of power, 189 and checks and balances, 201 and constituent power, 26, 176, 188, 191, 193, 194, 196, 198, 199, 227 and council democracy, 177, 190, 195, 198, 200, 201 and Declaration of the Rights of Man and the Citizen, 180 and dictatorship, 189, 190 and federalism, 177, 179, 200, 201 and human plurality, 183, 184, 192, 194 and Jewish politics, 177–9 and liberty, 182–5, 188 and majority rule, 189, 190 and new beginnings, 183, 197, 199 and parliamentarism, 202, 203 and popular participation, 194 and representation, 195, 202

and Sieyès, 26, 47, 191, 206, 228 and sovereignty, 25–6, 36, 176, 178, 180, 181, 182–5, 191, 203, 204 and the constitution, 194, 196, 199 and the French Revolution, 180, 185–9, 195, 197 and the nation, 176, 178, 180, 181, 185, 188, 192, 201, 203 and the nation state, 178, 179–82 and the republic, 26, 189, 200 and the social question, 189, 198 and totalitarianism, 180 and violence, 184 Arato on, 6, 215, 217 Kalyvas on, 212, 214, 223 Negri on, 219 on Hobbes, 188 On Revolution, 176, 185 on Rousseau, 185, 189 on Schmitt, 139, 187 on Sieyès, 185, 187, 188, 195, 223 Terror, the, 190 The Human Condition, 182, 196 The Origins of Totalitarianism, 179, 185 Backzo, Bronislaw, 47 Baker, Keith, 47 Bastid, Paul, 47, 136 Berriat-Saint-Prix, Felix, 21, 28, 78, 80, 81, 84, 98, 175, 229 and constituent power, 92–4 and popular sovereignty, 82 and representation, 93 life of, 77 bicameralism, 20, 28, 191, 228 and action unique, 65 and contre-action, 65 and unity of decision, 65 criticised by Sieyès, 64–5 Mortati on, 165 the Monarchiens on, 62 Bluntschli, Johann Kaspar

246

Index and the French Revolution, 105 on Rousseau, 105 on Sieyès, 106 Böckenförde, Ernst-Wolfgang, 141, 173, 176, 177, 212 and constituent power, 152, 155, 161, 171–3 and constitutional jurisdiction, 173 and constitutional rigidity, 171 and direct democracy, 160, 172 and politischer Willensentschluß, 154, 161 and public opinion, 173 and realism, 157, 159 and representation, 161 and sovereignty, 36, 146, 147–8 and the bearer of constituent power, 160 and the nation, 161 and the referendum, 173 life of, 143 Loughlin on, 223 Negri on, 219 on Kelsen, 147 on Schmitt, 139, 143, 152, 153, 155, 156, 173 on Sieyès, 156, 161, 172 Bodin, Jean, 7, 8, 186 Boulay de la Meurthe, Henri Georges, 50 Bourbon Restoration (France), 21, 85, 88, 100, 229 Brissot, Jacques Pierre, 44, 57, 70 and referenda, 70 Cahiers de doléances, 37 Carré de Malberg, Raymond, 46 and constituent power, 99 and national sovereignty, 148 and referendum, 167 and the nation, 149 Contribution à la théorie générale de l’État, 148 on Sieyès, 100, 149 centralisation of power, 24, 28, 163, 174 Arendt on, 189, 203 Sieyès on, 203 Vedel on, 167, 168 Champion de Cicé, Jérôme Marie, 46 Charles X, 88 Charte Constitutionnelle of 1814 (France), 76, 86 article 14, 87 attempts to revise, 87 octroyée, 76, 86 preamble, 76 Charte constitutionnelle of 1848 (France) attempts to revise, 86 checks and balances Arendt on, 201 bicameralism, 62, 64–5 Constant on, 81 royal veto, 62, 63–4

247

Schmitt on, 127 Sieyès on, 127 the Monarchiens on, 61, 62 unicameralism, 98, 130 Zweig on, 108 Clermont-Tonnerre, Stanislas Marie, Comte de, 39 Club de Cordeliers, 68, 120 Condorcet, Nicolas de Caritat, Marquis de, 8, 9, 44, 57, 213 and referenda, 70 Zweig on, 108 Congress of Vienna, 182 Constant, Benjamin, 45, 78, 81, 93 and balance of power, 81 and pouvoir neutre, 83 and public opinion, 81, 83 and sovereignty, 80, 82, 83 constituent assembly, 165, 188, 227 Constituent Assembly of 1791 (France), 167 Constituent Assembly of 1848 (France), 96 Constituent Assembly of 1946 (Italy), 143 Convention Nationale (France), 69, 70 National Assembly of 1789 (France), 34, 36, 191 Sieyès on, 58 constituent power, 15, 204, 207, 225 and augmentation, 202 and dictatorship, 115, 129 and extraordinary representatives, 90 and popular participation, 163, 167–73, 215 and representation. See representation and sovereignty, 12–13, 17, 27, 207, 220–2, 224 Arato on, 4–6, 216–17 Arendt on, 26–6, 176, 188, 191, 193 bearer of, 219, See Nation, People Berriat-Saint-Prix on, 92 Böckenförde on, 26–6, 152, 153, 155, 156 c.19 jurists on, 21–2, 75, 85, 101 c. 20 jurists on, 150, 159–62 Carré de Malberg on, 99 Cormenin on, 90–1 Delarue on, 89–90 distinct from constituted powers, 46, 87, 94, 96, 99, 101, 108, 118, 169, 171, 172, 205, 221 during the Bourbon Restoration (France), 85–8 during the July Monarchy (France), 88–91 during the Second Republic (France), 91–5 genealogy of, 13–14, 15, 207 history of, 7, 12, 17, 27–8, 29, 206 Kalyvas on, 8–9, 212–15 Laboulaye on, 98, 99 Laferrière on, 88–9, 92–4

248

Index

constituent power (cont.) language of, 13, 16–17, 29, 206, 208, 222, 224, 226, 228 Lanjuinais on, 85–8, 92, 101 Loughlin on, 7–8, 211–12 meaning of, 14, 17 Mommsen on, 107 Mortati on, 26–6, 152, 153, 155, 156, 163–67 Negri on, 10–11, 218–20 radical thinkers on, 11 Redslob on, 106 Schmitt on, 22–3, 103, 115–18 Sièyes on, 18–20, 49–50, 56–61, 85 Vedel on, 24–5, 152, 154, 155 Zweig on, 108 constituted powers, 10, 59, 93, 99, 195 and elections, 60 and hierarchy of norms, 60 as secondary sovereignty, 94 of Louis XVIII, 86 Schmitt on, 118 constitution, 1, 5, 204 absolute sense of, 135, 153 and supra-constitutional norms, 168 and the global world order, 209 Arato on, 217 Arendt on, 194, 196, 199 Berriat-Saint-Prix on, 93 contenuto proprio, 166 grundnorm, 145 hierarchy of norms, 21, 60, 95, 96, 145 material sense of, 153 Negri on, 218 octroyée, 76 positive sense of, 132 ratification of, 57 rigidity of, 21, 94, 96, 163, 171, 174 Sieyès on, 61 tacit approval of, 86 Constitution of 1791 (France), 100 heritage of, 83 national sovereignty, 76 separation of power, 81 Constitution of 1793 (France), 168 popular sovereignty, 76 Constitution of 1795 (France), 76 Constitution of 1830 (France), 76, 90 criticised as illegitimate, 90 Constitution of 1848 (France), 91 article 1, 91 revision of, 96 Constitution of 1852 (France), 98 Constitution of 1947 (Italy), 143

Constitution of the German Reich of 1919 (Weimar Constitution), 104 article 1, 104 article 17, 125 article 48, 133 article 72, 118 article 73, 121, 122, 133 article 76, 113 as a compromise, 104 Constitution of the Year III (France), 45 Constitution of the Year VIII (France), 76 Constitution of the Year X (France), 76 Constitution of the Year XII (France), 76 constitutional amendment. See constitutional revision constitutional court, 1, 2, 206, 228 Supreme Court (USA), 202 Vedel on, 170 Constitutional Jury. See Sieyès constitutional revision, 25, 26, 203, 205, 225, 226 and augmentation, 26, 202 and the Charte Constitutionnelle of 1814, 86, 87 and the Constitution of 1848 (France), 96, 98 and the Constitution of the German Reich of 1919 (Weimar Constitution), 113 Vedel on, 169 constitution-making, 5, 6, 207 participatory model of, 6 post-sovereign constitution-making, 5 sovereign constitution-making, 5 Convention Nationale (France), 69, 70 Cormenin, Louis Marie, vicomte de, 78, 96 and constituent power, 90–1 life of, 78 council democracy, 20, 26, 28, 104, 199, 225, 228 Arendt on, 177, 190, 195, 198, 200, 201 Schmitt on, 122 Cristi, Renato, 114 Declaration of the Rights of Man and the Citizen, 34, 36, 39, 76 Arendt on, 180 Jellinek on, 106 Del Lucchese, Filippo, 11, 218, 221 and constituent power, 220–2 Delarue, François, 78, 80, 84, 90 and constituent power, 89–90 life of, 77 dictatorship, 225, 228 and constitution-making, 216 and the Weimar President, 129 Arato on, 5

Index Arendt on, 189, 190 commissarial, 115, 132 Mommsen on, 107 Schmitt on, 23, 111, 115, 131, 132 sovereign, 111, 115, 131 direct democracy, 22, 25, 82, 174, 206, 227 and démocratie semi-directe, 168 Kalyvas on, 9, 14 Mortati on, 166 Schmitt on, 121 Vedel on, 168 Directoire (France), 45 district democracy, 19, 20, 63, 68 and imperative mandate, 40 Doctrinaires. See Guizot; Royer-Collard Dreyfus Affair, 177 Dufour, Gabriel, 91 and constituent power, 94 elections, 33, 40, 63, 172, 173, 205 and constituent power, 59, 227 and dictatorship, 107 and Napoleon Bonaparte, 78 and plebiscites, 104, 226 and pouvoir commettant, 58 critique of, 167 in the Weimar Republic, 134 municipal elections, 125 of ordinary representatives, 60, 73, 226 of the constituent assembly, 21, 49, 58, 205 secret elections, 125 Vote par tête, 37 electoral law, 1 majoritarian, 1, 2, 28, 166 Mortati on, 166 of the Weimar Republic, 113 proportional, 1, 104, 105, 113, 125, 126, 166 Schmitt on, 125, 126 Elster, Jon, 12 Empire, 210, 219 and sovereignty, 219 Loughlin on, 210 Negri and Hardt on, 218 English Revolution, 5, 10 Estates General, 33, 37 Europe, 177, 182, 185 and nation states, 178 and super-constitutionality, 168 and totalitarianism, 180 treatises of the EU, 168 extraordinary politics, 11, 156, 164, 220, 221 extraordinary representatives, 90, 206 and constitutional revision, 98

249 election of, 58, 89 Sieyès on, 57, 164

fascism, 141, 176 heritage in legal theory, 146 Mortati on, 142, 160 Fauré, Christine, 47 federalism, 20, 25, 26, 28, 206 and the Weimar Republic, 104 Arendt on, 177, 179, 200, 201 Kalyvas on, 214 Sieyès on, 70 Vedel on, 170, 174 First Empire (France), 79, 100 French Revolution, 5, 10, 22, 26, 31, 212, 223, 228 and constituent power, 20 and sovereignty, 20, 77, 88, 203 and the Weimar Republic, 105 Arendt on, 176, 178, 180, 185, 195, 197 Carré de Malberg on, 148 Jellinek on, 106 Mortati on, 164 Schmitt on, 115, 118 Vedel on, 167 Zweig on, 108 Furet, François, 34 Gallot, Jean Gabriel, 35 Garsten, Brian, 83 general will, 43, 72, 111, 156, 189, 190 Arendt on, 184 Bluntschli on, 105 Delarue on, 89 Rousseau on, 8 Salle on, 43 Sieyès on, 70 the Jacobins on, 69 the Monarchiens on, 39 Girondins, 41, 68, 120 global world order, 224 and sovereignty, 208, 209 Arato on, 215 and the principle of popular power, 209 Kalyvas on, 213 Loughlin on, 210 radical thinkers on, 218 Gouges-Cartou, Arnaud-Raymond, 36 Gramsci, Antonio, 213 Gueniffey, Patrice, 64 Guilhaumou, Jacques, 49 Guizot, François, 78, 83, 99 and the sovereignty of reason, 84

250 Habermas, Jürgen, 12 Hardt, Michael, 210, 218, 219, 225 Hauriou, Maurice, 132, 212 Mortati on, 154 Vedel on, 154, 161 hegemony, 13, 226 Herzl, Theodor, 178 Hobbes, Thomas, 8, 11 Arendt on, 188 Bluntschli on, 105 Schmitt on, 130 Zweig on, 108 Hont, Istvan, 48, 55 human rights, 182, 209 imperative mandate, 19, 20, 68, 164 during the French Revolution, 36 radical deputies on, 41 Sieyès on, 69–70 the Monarchiens on, 38–40 threat to national unity, 39 Jacobins, 41, 69, 120, 168, 190, 192 Jefferson, Thomas, 199, 201 Jellinek, Georg and sovereignty, 106 and the French Revolution, 106 on Rousseau, 106 July Monarchy (France), 21, 85, 92, 100, 229 Kalyvas, Andreas, 13, 16, 209 and constituent power, 212–15, 217 and direct democracy, 14 and federalism, 214 and sovereignty, 224 and the global world order, 213 on Arendt, 212, 214, 223 on Gramsci, 213 on Schmitt, 140, 213, 223 on Sieyès, 213, 222, 223 Kelly, Duncan, 114, 130 Kelsen, Hans, 23, 113, 132, 144, 145 and constituent power, 151 and positivism, 144 and sovereignty, 145 and the hierarchy of norms, 145 and the legal system, 144 Böckenförde on, 147 Grundnorm, 23, 145 Reine Rechtslehre, 144 Kibbutz, 201 Klein, Claude, 18

Index La Tribune, 97 Laboulaye, Édouard René, 21, 24, 31, 31, 103, 162, 163 and constituent power, 98, 99 and unicameralism, 98 Lafayette, Gilbert du Motier, Marquis de, 9, 35 Laferrière, Louis Firmin, 21, 79, 80, 84, 98, 103, 175, 229 and constituent power, 88–9, 92–4 life of, 77 Lally-Tollendal, Trophime-Gérard, Marquis de, 37, 39, 61, 63, 64 and division of legislative power, 62 and Sieyès, 46 life of, 38 Lamennais, Hugues Felicité Robert de, 79, 97 Le Peuple constituant, 97 Lanjuinais, Jean-Denis, 20, 78, 80, 84, 94, 100, 142, 175, 228 and the rigid constitution, 28, 95 and constituent power, 85–8, 92, 101 life of, 77 Le Peuple constituant, 97 Lee, Daniel, 19 legal positivism, 141, 147, See also Kelsen and Kelsen, 144 and sovereignty, 141, 146, 154, 163, 174 and the constitution, 113, 135 as a method, 24, 147 critique of, 147, 150 Loughlin on, 210 Mortati on, 144 lex mercatoria, 218 liberty, 19 and representation, 43 Arendt on, 25, 182 Sieyès on, 50 Loughlin, Martin, 3, 5, 209, 229 and constituent power, 211–12, 217 and public opinion, 226 and representation, 211 and sovereignty, 223 and the Empire, 210 and the multitude, 211 on Böckenförde, 223 on Schmitt, 211, 223 on Sieyès, 222 Louis Napoleon, 98, 99 Louis XVIII, 79, 87 and the revision of the Charte Constitutionnelle, 86 Machiavelli, Niccolò, 7, 8, 10, 11, 13, 183, 221 Magnes, Judah, 178 majority rule, 126, 166, 176, 189, 202, 203

Index Malouet, Pierre-Victor, 64 life of, 38 Marsilius of Padua, 9, 13 Marx, Karl, 10 Möllers, Christoph, 171 Mommsen, Theodor and constituent power, 107 and dictatorship, 107 Römisches Staatsrecht, 107 Schmitt on, 115, 129, 136 monarchical sovereignty, 79, 86, 112, 149, 181 and the Charte Constitutionnelle of 1848, 76 Monarchiens. See Lally-Tollendal; Malouet; Mounier monarchy king as representative, 81 limited power of, 81 responsible ministers, 81 Montesquieu, Charles-Louis de Secondat, 108, 127, 189, 194, 201 Mortati, Costantino, 141, 173, 176, 177, 212 and bicameralism, 165 and comunità intermedie, 165, 167 and constituent power, 152, 155, 156, 163–7 and direct democracy, 166 and fascism, 142, 160 and fine politico, 153, 155, 159, 160, 166, 167 and political parties, 160, 166 and positivism, 144 and realism, 157, 159 and representation, 164, 165 and social forces, 159 and sovereignty, 36, 144, 146, 147–8, 149 and the bearer of constituent power, 159 and the constitution in the material sense, 153, 159, 166 and the nation, 149, 158, 165 life of, 142 Negri on, 219 on Hauriou, 154 on Schmitt, 139, 153, 155, 156, 160 on Sieyès, 158, 163 Mounier, Jean-Joseph, 64 and sovereignty, 35, 38, 40 and the multitude, 39 and unlimited legislative power, 61 life of, 38 multitude, 11, 218, 220 and social movements, 220, 226 Arendt on, 190, 191 as bearer of constituent power, 219 Loughlin on, 210, 211, 212 Mounier on, 39 Negri on, 10, 219

251 Schmitt on, 118, 122, 129, 136, 137 Sieyès on, 137

Napoleon Bonaparte, 50, 77, 78 nation, 222, 223 and the Constitution of 1791 (France), 76 Arendt on, 176, 178, 180, 181, 185, 188, 192, 203 as a collective of individuals, 108, 120, 122 author of the constitution, 89, 99 bearer of constituent power, 87, 89, 115, 157, 158 bearer of sovereignty, 35, 80 Böckenförde on, 161 Carré de Malberg on, 149 Mortati on, 149, 158, 165 Negri on, 219 represented by the National Assembly of 1791 (France), 39 Schmitt on, 115, 119, 122, 129, 134, 136 Sieyès on, 56, 89, 203, 204 threatened by bicameralism, 64 threatened by the imperative mandate, 39 Vedel on, 149, 158, 167, 170 nation state, 105 and constituent power, 224 and Palestine, 179 and sovereignty, 210, 216 Arendt on, 177, 178, 180, 189 National, 97 National Assembly of 1789 (France), 37, 164, 191 and bicameralism, 61 and imperative mandate, 36 and sovereignty, 34 national sovereignty, 2, 24, 137 and c.19 jurists, 80 and the Constitution of 1791 (France), 76 Arendt on, 181, 187, 192, 195 Carré de Malberg on, 149 critique of, 149 Lafayette on, 35 Monarchiens on, 38–40, 61, 66 Mounier on, 35, 38, 40 Redslob on, 106 Schmitt on, 22 Sieyès on, 20 Nazism, 141, 176 heritage in legal theory, 146 Negri, Antonio, 4, 31, 210, 218, 224, 225 and constituent power, 10–11, 218–20 and Empire, 218 and sovereignty, 218–20 and the constitution, 218 on Sieyès, 219 Niesen, Peter, 12 Orlando, Vittorio Emanuele, 144

252 Paine, Thomas, 194 paradox of constitutionalism, 3, 4 rejection of, 4, 6 solution to, 4, 7, 9, 11 Paris Commune of 1871, 10 parliament, 1, 2, 210, 226 during July Monarchy (France), 88 limited power of, 81 Reichstag (Weimar Republic), 104, 121, 133 Schmitt on, 127 Vedel on, 169 parliamentarism, 28 Arendt on, 203 Schmitt on, 22, 112, 118, 124–8, 129, 134, 136, 229 parliamentary sovereignty, 2, 79, 137 and the Weimar Republic, 103 Schmitt on, 128 Pasquino, Pasquale, 47, 48, 57 Patberg, Markus, 12 people, the, 4, 225 and acclamation, 130 and participation in politics, 163 and representation, 5, 130, 211 and the Constitution of 1791 (France), 76 and the multitude, 218 Arendt on, 204 as a collective subject, 121 as a fiction, 5 as a multi-headed monster, 190 as the electorate, 122, 221 author of the constitution, 93 bearer of constituent power, 90, 156, 158, 159–62 bearer of sovereignty, 75, 82 Böckenförde on, 161, 172 critique of, 219, 220 Mortati on, 150 unity of, 222 Vedel on, 150 Pétion, Jérôme de Villeneuve, 41, 67 and popular participation, 42 and representation, 42 life of, 41 Pinhero Ferreira, Silvestre, 82 plebiscite, 23, 139, 228 and acclamation, 131 and Napoleon Bonaparte, 78 Böckenförde on, 173 Constant on, 83 during the Weimar Republic, 104, 133 of 1852 (France), 98 plebiscitary legitimation, 214, 216, 226 plebiscitary rule, 141, 207, 213, 225

Index Schmitt on, 104, 131, 134 Vedel on, 169 popular participation, 7, 207, 210, 212, 226 and the global order, 209, 216 Arendt on, 194 in the constitution-making process, 6, 217 Schmitt on, 214, 225 popular sovereignty, 2, 7, 11, 137, 220, 221 and c.19 jurists, 80–2, 101 and the Constitution of 1793 (France), 76 and the Constitution of 1848 (France), 91–95 and the Weimar Republic, 103 Arato on, 5 beyond the state, 218 Carré de Malberg on, 149 Delarue on, 90 Laferrière on, 88–9 limit to, 82 radical deputies on, 41–3 Salle on, 41 Schmitt on, 22, 123 Sieyès on, 20 the Jacobins on, 67–9 pouvoir commettant, 57 Preuß, Hugo, 126, 132, 134 Preuss, Ulrich, 12 public opinion, 45, 83, 211 Böckenförde on, 173 Constant on, 81, 83 Loughlin on, 226 Ramsay, Allan, 19 Redslob, Robert and constituent power, 106 on Sieyès, 106 referendum, 2, 19, 20, 21, 25, 206, 225, 226, 228 and article 73 of the Weimar Constitution, 120, 121, 133 and the Weimar Republic, 104 Böckenförde on, 173 Brissot on, 70 Condorcet on, 70 Constitution of 1830 (France), 90 Lanjuinais on, 86 Mortati on, 166 Pétion de Villeneuve on, 63 Schmitt on, 122, 123, 137 Sieyès on, 20, 57–8, 59 Vedel on, 169 representation, 10, 24, 28, 228 and constituent power, 56 and dictatorship, 130

Index and division of labour, 53 and liberty, 43, 51 and pluralism, 217 and the nation, 124 Arendt on, 195, 202 Berriat-Saint-Prix on, 93 Böckenförde on, 161 Delarue on, 90 Loughlin on, 211, 212 Mortati on, 164, 165 Negri on, 218 Pétion de Villeneuve on, 42 Robespierre on, 68 Schmitt on, 113, 123–7, 129, 137 Sièyes on, 53–5, 203, 205 the Jacobins on, 67–9 the Monarchiens on, 39, 61–3 Vedel on, 167, 170 Revolution of 1830 (France), 21, 88, 93 Revolution of 1848 (France), 93, 96, 229 Revue des Deux Mondes, 97 Revue Wolowski (Revue de Législation et de Jurisprudence), 88, 97 Robespierre, Maximilien, 41, 67 on Rousseau, 68 and the delegation of power, 68 Romano, Santi, 162 Rosanvallon, Pierre, 44, 84, 90 Rossi, Pellegrino, 99 Rousseau, Jean-Jacques, 8, 47, 48, 59, 77 Arendt on, 185, 189 Bluntschli on, 105 Carré de Malberg on, 99, 149 Jellinek on, 106 Robespierre on, 68 Schmitt on, 111, 120 Sieyès on, 70 Zweig on, 108 royal veto, 19, 36, 63, 70, 191 Sieyès, critique of, 63–4 suspensive, 68 the Monarchiens on, 62 Royer-Collard, Pierre-Paul, 84 Russian Revolution, 10 Saint-Just, Louis Antoine, 69 Salle, Jean-Baptiste, 67 and general will, 43 and sovereignty, 41 life of, 41 Schmitt, Carl, 24, 31, 31, 47, 142, 162, 163, 173, 175, 181, 208 and acclamation, 131, 134

253

and constituent power, 22–3, 28, 115–18, 128 and democracy, 22, 112, 119, 121, 123, 129, 136, 226 and dictatorship, 115, 131, 132 and Hobbes, 130 and legal positivism, 113 and majority rule, 126 and Mommsen, 115 and national sovereignty, 22 and parliamentarism, 22, 112, 118, 124–8, 129, 134, 136, 137, 229 and parliamentary sovereignty, 137 and plebiscites, 104 and political unity, 110 and popular sovereignty, 22, 118, 123 and representation, 113, 123–7, 129, 130, 137 and secret elections, 125 and sovereignty, 22, 109–12, 117 and subsequent scholarship, 23, 139, 225 and the decision, 110, 115 and the French Revolution, 118 and the guardian of the constitution, 132, 133 and the multitude, 129, 136, 137 and the nation, 115, 119, 122, 123, 124, 129, 134 and the President of the Reich, 129, 135, 136, 138 and the Weimar Constitution, 112, 124 Arato on, 216 Arendt on, 139, 176, 177, 187, 203 Böckenförde on, 139, 143, 152, 153, 155, 173 Der Hüter der Verfassung, 125, 132 Die Diktatur, 111, 115, 116, 129, 136 Kalyvas on, 140, 213, 223 Loughlin on, 211 Mortati on, 139, 153, 155, 160 Negri on, 219 on Mommsen, 129, 136 on Rousseau, 111, 120 on Sieyès, 23, 111, 114, 116, 117, 120, 122, 124, 128, 129, 136–40 on Zweig, 116 Political Theology, 109, 111 The Crisis of Parliamentary Democracy, 125 Verfassungslehre, 115, 116, 120, 122, 130, 135, 187, 222 Volksentscheid und Volksbegehren, 122, 130, 131 Second Empire (France), 98, 229 Second Republic (France), 21, 78, 85, 91 separation of powers, 66, 203

254

Index

Sieyès, Emmanuel Joseph, 4, 8, 9, 24, 31, 31, 94, 142, 162, 163, 173, 175, 181, 208 and Arendt, 26, 203, 206, 228 and bicameralism, 64–5, 191 and checks and balances, 127 and Constant, 78, 82, 83 and constituent assembly, 58 and constituent power, 18–20, 44, 47, 49–50, 56–61, 66, 85, 93, 101, 138, 226, 227 and extraordinary representatives, 57, 58, 89, 164 and federalism, 70 and Great Elector, 138 and language, 49 and liberty, 50, 51–3, 60, 69 and Napoleon Bonaparte, 50 and national sovereignty, 56 and popular sovereignty, 56 and pouvoir commettant, 57, 58 and representation, 53–5, 58, 69, 93 and re-totale, 20, 71 and separation of powers, 59 and sovereignty, 36, 48, 55–6, 66, 72, 158, 203, 204 and the constitutional jury, 57, 67 and the English Constitution, 66 and the general will, 70–1 and the imperative mandate, 69–70 and the nation, 137, 158, 188, 204 and the nation, 56, 203 and the referendum, 57–8 and the royal veto, 63–4, 70 and the Terror, 72 and unicameralism, 64, 130 and unité d’action, 138 Arato on, 5 Arendt on, 176, 177, 185, 187, 188, 191, 195, 203 Bluntschli on, 106 Böckenförde on, 156, 161, 172 Carré de Malberg on, 100, 149 interpretations of, 47, 103, 203, 222, 227 Kalyvas on, 213, 223 life of, 44–5 Loughlin on, 211 manuscripts of, 138 Mortati on, 158, 163 Negri on, 219 on Rousseau, 70–1 Préliminaire de la constitution Françoise reconnaissance et exposition raisonnée des droits de l’homme et du citoyen, 136 Qu’est-ce que le Tiers-État?, 33, 44, 136, 163 Redslob on, 106 Schmitt on, 23, 111, 114, 116, 117, 120, 122, 124, 128, 129, 136–40

Vedel on, 167, 169 Vues sur les moyens d’exécution dont les réprésentants de la France pourront disposer en 1789, 136 Zweig on, 107 Sillery, Marquis de, 35 Smith, Adam, 53 social forces, 7, 24, 127, 149, 156, 158, 159, 160, 166, 212 and constituent power, 142, 167 Mortati on, 148, 153, 158, 159 Vedel on, 162 Sonenscher, Michael, 44, 48 sovereignty, 2, 5, 10, 212, 215, 218, See also national sovereignty; popular sovereignty; parliamentary sovereignty; monarchical sovereignty abused by parliament, 81–2, 88, 90 abused by the king, 81–2 and constituent power, 12–13, 17, 27, 211–15, 220–2, 224 and dictatorship, 115 and imperial sovereignty, 219 and Napoleon Bonaparte, 78 and the global world order, 209 Arato on, 215–16 Arendt on, 25–6, 176, 178, 179–89, 203, 204 as contested in France c.19, 75, 77, 78–80, 83 as legal norm, 23, 141, 147–8, 173, 174, See also positivism as opposed to government, 227 Böckenförde on, 146 imperial sovereignty, 218, 223 Jellinek on, 106 Kelsen on, 145 language of, 28, 83, 199 Loughlin on, 223 Mortati on, 146 Negri on, 218–20 of reason, 84 Schmitt on, 22, 103, 109–12, 117 Sieyès on, 48, 55–6, 203, 204 sovereignty as command, 8, 25, 212, 224 Vedel on, 146, 167 Spinoza, Baruch, 10, 11, 116, 221 suffrage limits to, 39 reduced in 1819 (France), 86 universal male, 1848 (France), 96 Talleyrand-Périgord, Charles-Maurice, 39 Terror, the, 69, 77, 82, 91, 100, 105 Arendt on, 190, 191 Schmitt on, 118 Sieyès on, 67, 72

Index Third Estate, 34, 45, 161 Third Republic (France), 99, 229 Thoma, Richard, 113 Thornill, Christopher, 209 Triepel, Heinrich, 132 Tuck, Richard, 45, 48, 59, 164 Ultra-royalists, 79, 87 unicameralism, 130, 228 Laboulaye on, 98 unity, 211, 218 and democratic homogeneity, 119 of all citizens, 69 of constituent and constituted powers, 155 of decision, 65 of the assembly, 65 of the legal order, 147 of the nation, 22, 23, 39, 115, 118, 124, 126, 130, 138, 175, 218 of the people, 7, 64, 115, 180, 190, 210, 222 of the social orders at the National Assembly of 1789, 37 of the state, 22, 127 of the will, 192 political unity, 110, 219 unité d’action, 130 Vedel, Georges, 28, 31, 141, 173, 176, 177, 181 and Arendt, 200 and centralisation of power, 167, 168 and constituent power, 152, 155, 161, 167–71 and constitutional courts, 170 and constitutional revision, 169 and democracy, 150 and démocratie semi-directe, 168, 170 and federalism, 170, 174 and Hauriou, 161 and idée d’entreprise, 154, 155, 162 and legal sovereignty, 147–8 and national sovereignty, 149 and parliament, 169 and plebiscites, 169

255

and political parties, 167 and realism, 157, 159 and representation, 167, 170 and social forces, 162 and sovereignty, 36, 146, 167 and supra-constitutional norms, 168 and the constituted power, 171 and the nation, 149, 158, 167, 170 and the people, 158 and the referendum, 169 life of, 143 on Hauriou, 154 on Sieyès, 167, 169 Vergnaud, Armand Denis, 81 veto. See also royal veto and the global world order, 209 legislative veto, 20, 65 of the president, 98 Vinx, Lars, 112 Von Savigny, Friedrich Carl, 132 Walker, Neil, 3 Weber, Max, 113 Schmitt on, 113, 131 Weimar Republic, 22, 31, 103, 104, 144, 229 and Schmitt, 112 constitution of, 113 instability of, 104 Kapp Putsch, 105 President of the Reich, 104, 133, 134 referendum, 104, 121 Reichstag, 121, 133 Williams, Melissa, 6 World War I, 104 World War II, 24, 25, 139, 141, 174, 176, 229 Zweig, Egon and constituent power, 107 Die Lehre von Pouvoir Constituant, 108, 109 on Condorcet, 108 on Sieyès, 108 Schmitt on, 116