Patberg, Markus

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Dealing with a Complex Family TreeMarkus Patberg 2020-12-20T09:00:42Among the recent publications on constituent power, Lucia Rubinelli’s new bookstands out. In a rapidly growing field characterised by conceptual innovationsthat apply the idea of constituent power to ever more areas of politics and law,Constituent Power: A History positions itself with an analytically impressivereconstruction of the uses of the term in the history of political thought. In a way,Rubinelli takes a meta-perspective on debates about constituent power. Instead ofsimply presenting a history of the concept, her goal is to show how other histories– or, more precisely, theories of constituent power based on such genealogies –are selective in nature and obscure many of the iterations of meaning constituentpower has seen since its first invocations. Rubinelli takes issue with the work ofcontemporary theorists, who, according to her, streamline the history of constituentpower in order to defend their own preferred view as a logical continuation of thefamily tree.In these brief remarks, I reflect on Rubinelli’s interpretation and critique of what isgoing on in contemporary theoretical debates about constituent power. What I wantto argue is that while her reconstruction of classical positions is highly illuminatingand takes our understanding of constituent power’s complex history to a new level,we risk underestimating the ideas in play if we regard them, as Rubinelli suggestswe should, as “contingent” (p. 29) and therefore equally valid. Theoretical debatesabout constituent power are not just attempts to fix a preferred meaning, possiblywith reference to a skewed genealogy, but reflect the systematic search for themost plausible conceptualization and the superior normative elaboration of theidea. In this context, a selective recourse to the history of political thought can bemethodologically justified as a way to carve out the key features of a particular modelof constituent power – which then needs to be argued for on independent grounds.In Search of the “Correct Meaning” of ConstituentPowerRubinelli looks at contemporary conceptualizations of constituent power, includingthe normative theories that build on them, through the eyes of a historian of politicalthought. More precisely, she interprets them as being grounded in particulargenealogies – in her words, they are attempts “to prove the correct meaning ofconstituent power” with reference to its use over time (p. 14). I fully support the aimof doing justice to the various historical uses of the concept, but I wonder whetherthis is the most charitable reading of today’s theoretical debates about constituentpower and the one that allows us best to make sense of them. Rubinelli is criticalof the fact that contemporary theorists “are not willing to concede that each [of theirviews] can be equally valid” (p. 14).- 1 -In current debates, we find competing normative theories in which the conceptof constituent power – or a particular conception of it – plays a key role. Rubinelliseems to suggest that any attempt to prove any of these positions as superior isfutile because they are all grounded in selective genealogies. The implication seemsto be that because the concept of constituent power has been used in various waysthroughout its history, normative theories based on it reveal little more than theauthor’s personal taste or political standpoint.This strikes me as a form of relativism, which I would like to resist and which I thinkdoes not necessarily follow from Rubinelli’s findings about constituent power’shistorical iterations of meaning. There is a difference between the methodologies ofhistory of political thought on the one hand and normative political theory (as well asconstitutional theory) on the other. It is true of all core concepts of political theory –freedom, justice, democracy, etc. – that they are contested and that they have beenused in different ways historically. Yet, we assume that progress in the normativetheorizing of these ideas is possible, even if the most plausible account may in partdepend on the social and political context to which it is meant to be applied.What I want to suggest is that when contemporary theorists of constituent powerappeal to the concept’s history, and do so selectively, this is usually not in orderto ground their normative claims (to fabricate evidence for them, one might saypolemically), but to carve out a particular model for which they then provide(or at least should provide) independent arguments. The recourse to particularclassics, but not others, serves to develop a clear position which can then enterinto competition with others. If we were not concerned with the search for the mostplausible understanding of constituent power, and if there were nothing at stake,what would be the point of our theoretical debates?On the Separation of Constituent and ConstitutedPowersI would like to illustrate my point by taking a stance on the model of constituentpower advanced in post-World War II Europe by Mortati, Vedel, and Böckenförde– as Rubinelli reconstructs it in Chapter 4. According to Rubinelli, in the work ofthese authors, constituent power describes not only the democratic source ofthe constitution, but “becomes a tool to promote popular participation inside theconstitutional state” (p. 151; emphasis added). In the case of Mortati and Vedel,this not only means that constituent power includes capacities of constitutionalchange, but that is has a role to play in ordinary politics – that there is the need forstrong popular participation in day-to-day decision-making. Mortati calls for formsof direct democracy, such as a right for citizens to initiate law-making processes,and suggests that political parties may be a vehicle for constituent power – a notionwhich, by the way, has recently been revived in debates about constituent powerin the European Union. Vedel primarily argues for a decentralization of the state,assuming that shifting the locus of politics from the national to the local level wouldopen up possibilities for popular participation – again, through instruments of directdemocracy.- 2 -In order to defend the view that constituent power implies the need for strong popularparticipation in ordinary politics, these authors have to downplay the importanceof the distinction between constituent and constituted power. As Rubinelli explainswith regard to Vedel, “the rigidity of this distinction” is seen as “an attempt to keepconstituent power at bay and prevent its participation in actual politics” (p. 174). Letme provide a critique of this view in order to show that there is indeed a lot at stakein theoretical debates about constituent power and that we should operate on theassumption that some models can prove superior to others in the sense that betterarguments can be made in their support.As Rubinelli explains in Chapter 1, Sieyès’s distinction between pouvoir constituantand pouvoir constitué implies a vertical separation of powers. As Sieyès puts it: “Notype of delegated power can modify the conditions of its delegation. […] Thus, allthe parts of a government are answerable to and, in the last analysis, dependentupon the nation”. To explain why this idea is of crucial importance we can turn toanother thinker from post-World War II Europe – namely, the Frankfurt politicaltheorist Ingeborg Maus. As Maus argues, the “incredible rationality” (unerhörteRationalität) of the idea of a hierarchical ordering between the citizens as constituentpower and the public authorities as constituted powers consists in preventing politicalinstitutions from engaging in self-referential competence distribution. The distinctionmakes clear that public authorities must not be involved in decisions about their ownconditions of operation. Political institutions command only those powers that thecitizens confer on them and only as long as they do not withdraw them again. Bycontrast, if we blur the line between constituent and constituted powers, as Mortatiand Vedel do, it may allow us to call for a stronger role of citizens in ordinary politics,but it also means that we undermine the idea of a vertical separation of powersand thus open the door for claims of constituted powers to act in the name of theconstituent power in the shaping of the political system. What arises is the danger ofa self-empowerment of actors with institutional self-interests.The continuing importance of a clear separation of constituent and constitutedpowers is evident in current debates about constituent power in supranationalcontexts such as the European Union. As Rubinelli notes in the conclusion of herbook, much of the recent literature revolves around the implications of globalizationand pursues the idea of constituent power beyond the state. In a way, Vedelanticipated these debates. As Rubinelli explains, he was critical of Europeanintegration as well as certain international treaties such as human rights conventionsto the extent that they claim supra-constitutional status, and in this way restrict thepeople’s constituent power (p. 168). Ironically, however, Vedel’s willingness to blurthe line between constituent and constituted power apparently prevented him fromidentifying the deeper problem. Ultimately, the issue is not an external restriction onthe freedom of citizens, but an internal lack of a vertical separation of powers. Asthe case of the EU demonstrates, the reason why regional and global integrationcarry the risk of an increasing loss of citizen control over the organization of publicauthority is that governments are allowed to act as de facto constituent powers at thesupra-state level.- 3 -Drawing Selectively on the History of ConstituentPowerSo, not all ideas of constituent power are equally valid – at least not in the sensethat we are unable to determine which are more plausible from a normative pointof view. For the reasons just mentioned, it seems clear to me that models ofconstituent power that insist on a vertical separation of powers are superior tomodels that blur the line between pouvoir constituant and pouvoir constitué. AsRubinelli notes, despite all the similarities between Böckenförde’s views and thoseof Mortati and Vedel, the former insisted on a clear distinction between constituentand constituted power exactly in order “to prevent improper uses of popular authorityby the legislative power and the constituted order” (p. 172). My overall point hereis that, because of such differences, it can be methodologically appropriate forcontemporary theorists to narrow their historical focus. Rubinelli’s book brilliantlytraces the complex family tree of constituent power, making a major contributionto the history of political thought. However, for democratic theorists engaging innormative debates about constituent power, it can be useful to engage only with aparticular branch in order to carve out the key features of a specific model. Such anapproach is unproblematic as long as one does not confuse one’s genealogy with anargument supporting the proposed model of constituent power.- 4 -

Dealing with a Complex Family Tree

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Dealing with a Complex Family Tree

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