Constituent Power as Body, Outline of a Constitutional Theology_Lior Barshack

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* The Radzyner School of Law, The Interdisciplinary Center, Herzliya, Israel.† I am grateful to participants in seminars held at the Benjamin Cardozo School of Law;

The Interdisciplinary Center, Herzliya; King’s College, London; and the Institute for Advanced Studies, Jerusalem, for comments on early drafts of this paper.

(2006), 56 UNIVERSITY OF TORONTO LAW JOURNAL

Lior Barshack* CONSTITUENT POWER AS BODY:

OUTLINE OF A CONSTITUTIONAL THEOLOGY †

To the memory of Jim Harris

I Schmitt on sovereignty and constituent power

Insofar as theology forms an integral part of religion, civil religioncomprises not only the political myths and rituals studied by sociologistsbut also a civic theology. Political theology is concerned with the nature

of the civic God, the sovereign, and finds its natural institutional settingin learned constitutional discourse. Constitutional lawyers such as CarlSchmitt recovered the lost awareness of the theological models that shape constitutional discourse. In particular, constitutional reflections onthe concepts of sovereignty and constituent power seem to reproducetheological arguments and invite the application of general theologicaloutlooks. Contemporary constitutional theories, such as Antonio Negri’sand Bruce Ackerman’s, rarely approach the question of constituent power from the standpoint of political theology. While Schmitt’s ownpolitical theology may seem flawed, and thus incapable of yielding asatisfactory account of constituent power, the quest for a theological, or

semi-theological, understanding of constituent power deserves to becontinued. Without ever explicitly challenging Schmitt’s political theol-ogy, Ernst Kantorowicz’s study of The King’s Two Bodies suggests analternative theology. My aim in this essay is to reconstruct and developthis alternative political theology, as well as the constitutional model it entails.

The issue that divides Schmitt’s and Kantorowicz’s conceptions of sovereignty can be framed in terms of immanence versus transcendence,notwithstanding that neither author employed these terms. WhileSchmitt seems to advocate an immanent account of sovereignty, Kantoro-

wicz offers a transcendent one. According to immanent conceptions of sovereignty and constituent power, sovereignty vests in living members of the body politic. An immanent sovereign is an individual, or a group of individuals, who perpetually validates the constitution, rather than being



186 UNIVERSITY OF TORONTO LAW JOURNAL

1 As we shall see below, Schmitt’s usage of these terms is inconsistent: he sometimesidentifies and sometimes distinguishes the two terms.

empowered by it, and who is therefore unfettered by any constitutionalseparation of powers. The paradigmatic example of an immanent conception of sovereignty is Thomas Hobbes’s. The authority of the

Hobbesian monarch derives from the actual efficacy of his rule, not froma constitution that could constrain political power. Hobbes depositsdivine omnipotence in the hands of a living human being, giving aphilosophical articulation to a political phenomenon known to anthro-pologists, historians, and students of mythology as ‘divine kingship.’ By contrast, theories of transcendent sovereignty place the authority to

validate the constitution outside society. Like immanent sovereignty,transcendent sovereign power is indivisible. It precedes the separation of powers and gives unity to the constitutional order and to the politicalgroup, but it dwells outside the group.

This essay criticizes theories of constituent power, such as Schmitt’s

and Negri’s, according to which constituent power is permanently pre-sent within society or the state. The following section argues that constit-uent power vests in the imaginary collective body of the group and that this body normally resides outside the group to which it belongs. Only during dramatic constitutional moments is the collective body enacted by the group and rendered present. I will use the terms sovereignty andconstituent power interchangeably to designate the power of the group asan absolute unity, a single collective body, to author and breach theconstitution.1 By the notion of the communal body I will refer to thesovereign collective body in the moment of its enactment by the group.The notion of the corporate body, by contrast, will be used to designate the

collective body in its other dwelling place: as an absent body residingoutside the group. Both concepts, the communal body and the corporatebody, refer to the group’s imaginary collective body, but in different positions that it can occupy in relation to the group. The collective body can, in fact, exhibit different degrees of distance from the group, differ-ent degrees of absence and presence. Certain constitutional momentsoccasion a more intense presence of the collective body than others.Thus the concepts of the corporate body and the communal body designate the theoretical poles of an entire spectrum of positions that thecollective body can occupy. I will argue that a proper understanding of the conditions under which social structures arise and develop suggeststhe absence of the group’s collective body in the regular course of sociallife. Economic activities, in the broadest sense, become possible throughthe projection of sovereign omnipotence outside of society. The argu-ment for absent sovereignty rests not only on considerations of socialtheory but also on political considerations: the projection of sovereignty



CONSTITUENT POWER AS BODY 187

2 On the implications of the proposed account of sovereignty for the legitimacy of

judicial review, see Lior Barshack, ‘The Totemic Authority of the Court’ (2000) 11 Law & Crit. 301 at 318.3 Carl Schmitt, La Dictature , trans. by Mira Koeller & Dominique Seglard (Paris: Seuil,

2000).4 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. by George

Schwab (Cambridge, MA: MIT Press, 1985) at 7, 12 [Schmitt, Political Theology ].5 Ibid. at 7.6 Ibid. at 13.7 Ibid. at 10.

outside the group, it will be argued, allows the consolidation of individualautonomy and the protection of human rights within social structure.2

While Schmitt’s use of notions such as sovereignty is often ambiguous,

an examination of his thought as it developed during the 1920s demon-strates that he consistently advocated an immanent conception of constituent power. In Die Diktatur (1921) Schmitt drew a distinctionbetween sovereign and commissarial dictatorship, according to which asovereign dictator is entirely free from constitutional constraints.3 Whilecommissarial dictatorship is set up in order to defend an existing politicalform, and its duration and powers are constitutionally constrained,sovereign dictatorship is self-grounded and generative of new constitu-tional forms. A sovereign dictator overthrows the old constitutionalstructure in order to establish a new one. Thus, in Die Diktatur, theconcept of sovereignty is clearly associated with absolute freedom from

constitutional constraints and with the power to create a constitutionalorder ex nihilo, that is to say, with constituent power.In Political Theology (1922), Schmitt seems to employ a weaker notion

of sovereignty. Here sovereignty is famously defined as the power todecide the exception, to suspend the constitution in order to handle anemergency situation. According to Schmitt, sovereign discretion as to

what constitutes an emergency situation and what measures are requiredto address it is unlimited.4 However, sovereignty here does not attain thefull extent of constituent power, since the sovereign derives his authority from an established constitution,5 which he is bound to restore once thestate of emergency is over. The constitutional structure is in force

throughout the state of emergency, which Schmitt emphatically distin-guishes from anarchy. Nevertheless, Schmitt’s characterization of sover-eignty in Political Theology is not unambiguous. His assertion that emer-gency powers are limitless and his evocation of Hobbes suggest that, inPolitical Theology , sovereignty approximates constituent power. WhenSchmitt claims that in the exception ‘authority proves that to producelaw it need not be based on law,’6 he seems to describe the state of emergency as one of legal void. When he argues that at any moment ‘thelegal order rests on a decision and not on a norm,’7 it is uncertain




10 Schmitt, Théorie de la constitution, ibid. at 215; Carl Schmitt, Verfassungslehre (Berlin:

Duncker & Humblot, 1957) at 79 (author’s translation).11 Carl Schmitt, The Concept of the Political, trans. by George Schwab (Chicago: University of Chicago Press, 1996) at 19 [Schmitt, Concept ]. A sovereign body is defined in this text as a group of individuals united by their willingness to die for a common cause in waragainst an existing, concrete enemy. (Concept at 38–9). The validity of law constantly derises from the decision of such a sovereign group: ‘the sovereignty of law means only the sovereignty of men who draw up and administer this law.’ Schmitt, Concept at 67.

12 Carl Schmitt,State, Movement, People, trans. by Simona Draghici (Corvallis, OR: PlutarchPress, 2001) at 48; Carl Schmitt, Staat, Bewegung, Volk (Hamburg: Hanseatische Verlagsanstalt, 1933) at 42.

The people, the nation, remains the origin of all political events, the source of all powers, which manifests itself in ever new forms and generates out of itself ever new forms and configurations, yet never subordinates its political existence

to a fixed, definitive formation.10

This seems to be the central tenet of Schmitt’s constitutional outlook. Whether in his democratic or nostalgic monarchist moments, Schmitt sees the constitution as constantly revalidated by living human beings

wielding constituent power.In The Concept of the Political (1927), written while he was working on

Constitutional Theory, Schmitt defines a sovereign entity as a group unitedthrough the willingness of its members to die in war against a particularenemy. Here, like in Die Diktator , sovereignty seems to attain the scope of constituent power. The state – the constitution and the legal system – is

perceived as a mechanism through which the group administers itself and manifests its pre-legal sovereignty. The law is by no means the sourceof the group’s unity and self-consciousness, nor is it capable of constrain-ing the group. This is made clear in the opening sentence of the book,according to which ‘The concept of the state presupposes the concept of the political.’11 Here again Schmitt asserts the primacy of the politicalgroup to the constitutional order.

The idea of presence is invoked by Schmitt in chapter 16 of Constitu- tional Theory, where he claims that presence and representation form thetwo elementary and universal building blocks of government and politics.Each regime, according to Schmitt, exhibits a different mixture of the

two elements. Schmitt characterizes extreme cases of direct democracy asthe politics of presence, an ideal that in reality can only be approxi-mated, since leadership and procedure always introduce into politics anelement of representation. In his account of Adolf Hitler’s authority afew years later, Schmitt asserts the possibility of pure presence: ‘[Leader-ship] is a concept of the immediately present and of a real presence. Forthat reason and as a positive requirement, it also implies an absoluteethnic identity between leader and following.’12 Schmitt’s hesitationbetween denial and affirmation of the possibility of ‘real presence’ – a




13 A seminal exposition of the anthropological theory of the corporation can be found inMeyer Fortes, Kinship and the Social Order (Chicago: Aldine, 1969) [Fortes, Kinship ]. On

corporation theory in Europe, see Florian Linditch, ‘La réception de la théorieallemande de la personnalité morale de l’État dans la doctrine française’ in OlivierBeaud & Patrick Wachsmann, eds., La science juridique française et la science juridique allemande de 1870 à 1918 (Strasbourg: Presses universitaires de Strasbourg, 1997) 179.On the Crown as corporation in modern law, see Sebastian Payne & Maurice Sunkin,eds., The Nature of the Crown (Oxford: Oxford University Press, 1999). On the centrality of the corporation in social and political thought around the turn of the twentiethcentury, see David Runciman, The Personality of the State (Cambridge: CambridgeUniversity Press, 1997).

term borrowed from the theology of the sacrament – is the naturalresponse of a theorist to changing political circumstances. While varioustheoretical considerations suggest the impossibility of presence, Hitler’s

leadership collapsed representation to a degree that was formerly unimaginable.

However convincing Schmitt’s account of Hitler’s leadership as aninstance of real presence and absolute identity may be, it is doubtful

whether any general conclusions on the nature of leadership andconstituent power can be deduced from that example. Part II outlines analternative to immanent theories of constituent power. The centralconcept of the proposed account is that of the corporate body of thegroup. It will be argued that sovereignty is corporate – that is, invisibleand external to the group – rather than constantly present, as Schmitt takes it to be. It is incarnated only during constitutional episodes such as

declarations of independence, revolutions, amnesties, referenda, andstates of emergency. The enactment of constituent power implies thetemporary and partial suspension of constitutional constraints – the ruleof law, separation of powers and human rights – and the dissolution of individual autonomy during the constitutional episode. The incarnationof sovereignty and the concomitant suspension of the constitutionalorder can assume different degrees of intensity in different constitutionalmoments. Some of these moments of sovereign presence will be consid-ered in Part III below. Once the proposed model of absent sovereignty has been expounded, the essay turns in the final section to comment on

Ackerman’s and Negri’s theories of constituent power.

II The corporate body and the communal body

The work of Frederic William Maitland and Ernst H. Kantorowicz on thehistory of the Crown in common law, heavily influenced by Henry Sumner Maine, suggests the association of sovereignty with corporateentities. Legal anthropologists and historians single out two mainfeatures of corporate bodies: immortality and sovereignty.13 Corporations




14 Maine makes this point in his discussion of the Roman family: the Pater familias embodies the abstract legal personality of the family and is in charge of its affairs. Hecan act only in the name of its immortal interests, not out of his own passing interests

and desires. Henry Sumner Maine, Ancient Law, 1866 (New Brunswick, NJ: Transaction,2002) at 185–9. On the coronation oath see Ernst H. Kantorowicz, ‘Inalienability: A Note on Canonical Practice and the English Coronation Oath in the ThirteenthCentury’ (1954) 29 Speculum 488; Enid Campbell, ‘Oaths and Affirmations of PublicOffice under English Law: An Historical Retrospect’ (2000) 21 Leg.Hist. 1.

15 On the increasingly diluted reference to descent in the identity formation of modernnuclear families, see Fortes, Kinship, supra note 13 at 276. On the state as a unit of kinship, see Lior Barshack, ‘The Holy Family and the Law’ (2004) 18 Int.J.Law, Pol’y &Fam. 214 [Barshack, ‘Holy Family’].

are immortal because their continuity is not hampered by the deaths of individual organs. The corporate personality of the state is sovereignbecause the king is obliged to defend and augment its inalienable

possessions – they are not his own – an obligation that receives its clearest expression in the coronation oath.14

I would like to supplement this basic characterization of corporatebodies with the following claims.

A THE SEPARATE CORPORATE PERSONALITY OF THE FAMILY AND THE STATE IS ASSOCIATED WITH THE MYTHICAL PERSON OF THEIR FOUNDING ANCESTORS . While immanent approaches place constituent power in the hands of theliving, the authority of the corporate body belongs to the dead. Theexamples of the family and the state suggest that the corporation isidentified with the person of a founding ancestor of a descent group,

such as the mythical, heroic founder of a Roman family, the founder of aroyal dynasty, or the founding fathers of modern nation-states. The sym-bols and names of descent groups often refer, directly or indirectly, totheir real or fictional founding ancestors. The modern state came intobeing through a gradual appropriation of ancestral authority. Thecorporate family’s role of postulating origins and stories of descent hasbeen increasingly overtaken and almost monopolized by the state.15 It isarguable that the rise of civil religion above the different historicalreligions, its increased capacity to administer the most important rites of passage in the citizens’ life cycle and to render death for the sake of nation beautiful and exemplary, were made possible by the political

appropriation and monopolization of ancestral authority.B THE CORPORATE– ANCESTRAL PERSONALITY OF THE GROUP IS AN ABSENT,TRANSCENDENT OBJECT OF WORSHIP.Through its corporate personality – its mythical ancestors and theirmultiple totemic representations – the group articulates itself for itself.

According to G.W.F. Hegel and Emile Durkheim, notwithstanding the




16 Otto Friedrich von Gierke held an immanent, ‘communitarian,’ conception of thecorporation as a spontaneous, horizontal association of individuals. Berman convinc-ingly criticized Gierke’s conception for the lack of a vertical dimension. Harold J.Berman, Law and Revolution (Cambridge, MA: Harvard University Press, 1983) at 220.

17 Contractarian foundation narratives, such as Hobbes’s and Jean-Jacques Rousseau’s,according to which the state originates in the voluntary transfer of natural rights andfreedoms to the sovereign, capture the process of projection on which social structureis premised. As Hobbes’s account suggests, the founding projection is not a singlefounding event but a constant process of re-foundation of the polis by its individual

members.18 See E.W. Böckenforde, ‘The Rise of the State as a Process of Secularization’ in Ernst- Wolfgang Böckenförde, State, Society and Liberty, trans. by J.A. Underwood (New York:Berg, 1991) 26.

19 The process of evolution of law-bound authority out of the lawless, charismatic authority exercised in transitional periods is indicated by ample historical and anthropologicalevidence. For a classical analysis of a number of examples, see Luc de Heusch, ‘Pourune dialectique de la sacralité du pouvoir’ in Luc de Heusch, Écrits sur la royauté sacrée (Bruxelles: Université de Bruxelles, 1987) 215.

differences between their theories of religion, society’s self-representa-tion is its object of worship. If the corporation is associated with ancestralfigures – and ancestral law – and constitutes the self-representation of the

group, it cannot fail to be sacred. Furthermore, corporations, like thegods, are transcendent: they are absent and act through representatives.16

The religious dimension of political systems and families inheres in theircorporate structure. National and domestic totemic symbols designatecorporate entities and authorities; civil and domestic religions worshipthe corporate bodies of the state and the family respectively.

C THE CORPORATE BODY ORIGINATES IN THE PROJECTION OF SACREDNESSOUTSIDE OF THE GROUP. Corporations come into being through the projection of sacredness from

within the social onto a transcendent realm.17 Corporate formation

secularizes the social: once sacredness is projected outside the group, atemporal realm of pragmatic interaction can be established. While thecorporate body of the state is a sacred object of civic worship, its sacred-ness attests to the secularization of everyday politics.18 When sacredness isimmanent to the group, ancestral–corporate authority and law are not recognized. Sovereignty then vests in the private body of a divine king,

which is neither sanctioned nor constrained by a superimposed ancestrallaw. Divine kingship may be highly effective in periods of foundation andtransition but is hardly consistent with stable and continuous structuresof rule. Thus, once foundation has been accomplished, the sacredness of divine kingship is projected onto the newly founded ancestral–corporate

body.19

From this moment onward, sovereignty vests in the corporate, asopposed to the private, body of the king, in the dynasty and the constitu-




20 The construct of the communal body can be elucidated by reference to psychoanalyticconcepts such as the body-ego or the body-image. During communitas, the ordinary,individuated body-image disintegrates and gives way to an image of oneself as anextension of a collective body. The individualistic body-image can endure as long as theimaginary collective body inhabits the corporate realm. In such normal circumstances,as much as during communitas, the individualistic body-image is articulated in relationto an absolute collective body, a Leviathan from which it descended, and in which it is

contained, but that withdraws into itself to allow for a social realm comprisingdifference and plurality. There are various psychoanalytic theories of the ‘body-ego’ and‘body-image.’ Notwithstanding differences between these theories, it is widely assumedthat the conscious and unconscious body-image is a source of the self’s fictional unity and separateness and an object of narcissistic love, and that it underlies highercapacities such as critical thought and autonomous judgement. On the ego’sconstituent narcissism, see Sigmund Freud, ‘On Narcissism: An Introduction’ (1914)in James Strachey, ed., The Standard Edition of the Complete Psychological Works of Sigmund Freud , vol. 14 (London: Hogarth, 1957) 67. On the bodily ego see, e.g., Sigmund Freud,The Ego and the Id (1923), in James Strachey,ed., The Standard Edition of the Complete Psychological Works of Sigmund Freud , vol. 19 (London: Hogarth, 1961) 12 at 26–7. TheLacanian concept of the moi designates the imaginary unity acquired by the self in themirror stage through importation of the perceived unity of the body. Jacques Lacan,

‘The Mirror Stage as Formative of the Function of the I’ in Jacques Lacan, Ecrits: A Selection, trans. by Alan Sheridan (London: Tavistock, 1977); Jacques Lacan, The Ego in Freud’s Theory and in the Technique of Psychoanalysis: The Seminar of Jacques Lacan, Book II,1954–1955, trans. by Sylvana Tomaselli (Cambridge: Cambridge University Press, 1988)at 166. On the imaginary identification of the group with a single, all-embracing body,see, e.g., W.R. Bion, Experiences in Groups (London: Tavistock, 1961) at 162; Didier Anzieu, The Group and the Unconscious (London: Routledge, 1985) at 120–4; OttoKernberg, ‘Regression in Groups’ in Otto Kernberg, Internal World and External Reality (Northvale, NJ: Aronson, 1980) 211.

tion. The king is seen as an ordinary mortal, an organ of a sovereigncorporate order – the dynasty – and his rights as grounded in ancestrallaw rather than in personal charisma.

D IT IS THE SACRED COMMUNAL BODY THAT IS PROJECTED OUTSIDE THEGROUP AND TRANSFORMED INTO ITS CORPORATE BODY . By the notion of the communal body I refer to the group as a simple,inarticulate, immanent unity, generated through the dissolution of interpersonal boundaries. The communal body is the sacred fusion of group members that comes into being in rites of passage, carnivals,natural disasters, fascist regimes, wars, revolutions, referenda, elections,and other instances of communitas. During these episodes the group,permeated by sovereignty, contains and enacts its own unity.20 Theconcept of the corporate body, too, refers to the group as a single,

sacred, collective body, but one that dwells outside the social.The projection of sacred communal fusion outside the group and itstransformation into a transcendent corporate body allow for an advanceddegree of interpersonal separation and individual autonomy within the




21 See, e.g., Barshack, ‘Holy Family,’ supra note 15; Lior Barshack, ‘The Corporate Body,the Communal Body and the Clerical Body: An Anthropological Reading of theGregorian Reform’ in Lawrence Besserman, ed., Sacred and Secular in Medieval and Early Modern Cultures: New Essays (New York: Palgrave, 2005) 101 [Barshack, ‘CorporateBody’]. On the distinction between structure and communitas, the locus classicus is V.W.Turner, The Ritual Process (Ithaca, NY: Cornell University Press, 1971).

22 In Melanie Klein’s terms, symbiotic ‘object relations’ among group members re-enact

primary relations of violent fusion with the maternal body. For Erich Fromm’s account of authoritarianism as a state of violent communal fusion, see, e.g., Erich Fromm, Escape from Freedom (New York: Farrar & Rinehart, 1941) at 141; Erich Fromm, Man for Himself (New York: Holt, Rinehart & Winston, 1947) at 151. According to Fromm, the weakly individuated self seeks empowerment simultaneously through fusion with powerfulfigures and through assertion of violence, whether as the perpetrator of violence or asa victim who is empowered by becoming a passive extension of violent aggressors. Onrecognition and individuation, see generally Axel Honneth, The Struggle for Recognition (Cambridge: Polity Press, 1995).

group and for the emergence of secular spheres of interaction. Thisprocess amounts to a social acceptance of division and absence, plurality and autonomy. The communal body is projected outside society and kept

away from it through the legal institution of numerous divisions andsubdivisions between social groups, classes, spheres of interaction, andbranches of government. By implementing individual rights and duties,the law confronts the expansionist aspirations of the communal body.Similarly, the principal purpose of the constitutional separation of powers is the expulsion of sacred omnipotence – of the collective body and its constituent power – outside the group.

The ‘power over life and death,’ traditionally considered as theepitome of sovereignty, is rendered acutely visible with the enactment of the communal body. Freud’s identification of the death drive behind theaspiration for dissolution of boundaries suggests that through the

incarnation of the communal body the group temporarily surrenders todeath. The communal body seeks to annihilate the individual becauseindividuality calls into question communal oneness and presence.Episodes of sovereign presence cannot last long because of their inher-ent tendency to result in bloodshed. Thus, the projection of the sover-eign body outside the group in the regular course of social life reconcilessovereignty with individual life.

E THE CORPORATE BODY AND THE COMMUNAL BODY CORRESPOND TO SOCIALSTRUCTURE AND COMMUNITAS RESPECTIVELY . In earlier work, I proposed to read into V.W. Turner’s distinction between

social structure and communitas two sub-distinctions that Turner himself did not consider.21 The first is the psychoanalytic distinction betweenrelations of mutual recognition among separate individuals and relationsof violent fusion.22 Enhanced interpersonal separation is characteristic of




social structure, violent fusion of communitas. Another distinction that can be read into Turner’s dichotomy is the theological distinctionbetween absence and presence. Social structure can be seen as a state of

absence, communitas as one of presence. The combination of these twocharacterizations entails an account of communitas as presence of violent fusion – namely, as a communal body – and an account of social structureas the absence of fusion, that is, as a corporate structure.

The distinction between social structure and communitas corresponds,then, to the distinction between corporate and communal bodies. In thecourse of communitas, the group enacts its communal body, whereas inthe course of social structure the group’s collective body is projected,transformed into a corporate body, and worshiped from afar by separateand autonomous individuals. Interaction in social structure takes placebetween separate individuals and is mediated by differentiated normative

social roles that anchor interpersonal separation and dissolve in communitas. In the course of communitas every individual partakes of the commu-nal body and is thereby consecrated. Absence and promise give way toexcess and immediacy. No boundaries are recognized between self andother, life and death, sacred and profane, or between different spheres of interaction, such as society and state. Social stratification, legal media-tion, and conflicts of status and interest, which in social structure en-hance individual autonomy and the alienation of the subject from hisown and other selves, give way to an experience of universal twinship.The personal self expands and coincides with the collective self. Thegroup is pervaded by constituent, seemingly boundless power and claims

freedom from superimposed laws and constraints. Communitas is anessentially lawless form of interaction: the normative system that struc-tures everyday life is, in communitas, suspended, challenged, and some-times reformed. Fundamental interdictions are violated and traditionalauthority replaced by a charismatic leadership devoid of legal sanction.

F THE CORPORATE BODY IS REPRESENTED IN MYTHS, WHICH PRESCRIBEINDIVIDUAL AND COLLECTIVE GOALS AND SET HISTORY IN MOTION .The presence of the communal body in communitas produces an experi-ence of temporality to which anthropologists refer as ‘mythical time.’The term is somewhat misleading, because communitas allows for neithermythology nor time. Mythical time designates an atemporal liminal experience, rather than the ordinary historical time that stretchesbetween the mythical time of origins and the mythical construct of anever-postponed salvation. Like time, mythology dissolves in communitas .Myth remains in force only as long as a corporate structure is intact; thenit provides the group with prototypical representations of its absent corporate body and story of foundation. Sharing a mythology indicatesco-membership in a single corporate group, since myth postulates a




23 On the mythical origin of narrative structures, see Northrop Frye, ‘Myth, Fiction andDisplacement’ (1961) 90 Daedalus 587.

collective identity by means of reference to common ancestors andfounding episodes. It constitutes a super-narrative on which all historical,biographical, and literary narratives are modelled,23 consolidating and

perpetuating absence by seducing the subject to cling to the pleasures of fiction.

Through myth, ancestral/corporate authority exercises its sovereignty over the present and leads society toward a promised future. Myth setshistory in motion by infusing individual actors with action-orienting his-torical consciousness. It postulates the division between past and future,separating and linking the two horizons in an overarching narrative.History stretches between the meta-historical poles posited by myth: thefounding moment, in which the ideals to be unavailingly pursued by society were set, and the moment of final redemption, in which they willbe fully realized. By shaping historical consciousness, myth mediates

access to history: the learned and critical study of the past, as well asphilosophical and literary utopias, is premised on the temporal frame- work laid down by myth and seeks to answer the questions posed by myth.

As much as synchronic relations among social positions in socialstructure give rise to the diachronic, historical dimension of social life,the presence of the communal body in communitas generates an atemp-oral experience of an eternal present. Mythical time is self-sufficient andcarefree, a time of complete and immediate realization. The exuberanceof the founding episode coincides here and now with the promised blissof salvation. In the eventual passage from communitas to a corporatestructure, the sacred events and figures of mythical time are relegated to

the realm of mythical memory and representation, and historical time islaunched anew.

G THE CORPORATE STRUCTURE AS A LEGAL ORDER . In the passage from communitas to social structure, from an immanent communal body to a transcendent corporate body, from divine toconstitutional kingship, law steps forward. The group secularizes andstructures itself by transforming its sacred communal body into a super-imposed sacred law. The law is generally conceived as prescribed by thecorporate/ancestral authority of the group, and hence cannot be easily found in the course of communitas when the corporate body dissolves intoa communal body. Lawgiving is the predominant function of corpo-rate/ancestral authority: the more an authority is transcendent, the moreits function is reduced to that of lawgiving.




The corporate structure begins to crystallize with the recognition of law and persists through its enforcement. Legal categories divide society into independent institutions and alienated groups and individuals in

order to prevent it from embodying its own unity, which finds refuge inthe corporate realm. Corporate structures are premised on the comple-mentary principles of separation of powers and rule of law: separation of powers guarantees the absence of ultimate, constituent power and theconsequent subjection of all living members of the corporate group tothe rule of a superimposed ancestral law. Insofar as the law divides thegroup, it becomes also the source of its unity. As the agent of division, thelaw itself functions as a common reference for the different segments of social structure. It is in relation to the law, for example, that the different branches of government are defined – one formulates the law, anotherinterprets it, and the last executes it – and thus it is in the law that the

unity behind the separation of powers resides. Furthermore, the unity of a corporate group consists in the unity of the law that defines andregulates it, because the group’s corporate-ancestral authority manifestsitself primarily through its laws. Contrary to Schmitt’s view, the law constitutes the unity of the group to which it applies, rather than beingfreely endorsed by a pre-existing group.

III Spectres of sovereignty

The view of sovereignty as vested in the group’s collective body entails atheory of constitutional moments. According to such a theory, while

sovereignty remains absent in the normal course of affairs, it is reincar-nated during intense constitutional episodes. In the course of theseepisodes the rule of law and the separation of powers are suspended, todifferent degrees, as a sovereign and seemingly boundless power isexercised by the group. The theoretical argument for the regular ab-sence of sovereignty is strengthened by observation of a variety of histori-cal instances of coincidence between exercises of sovereignty – indicatedby the relaxation of the rule of law and separation of powers – andpassages from social structure to communitas. The alternation of sovereignpresence and absence largely corresponds to the alternation of socialstructure and communitas, order and disorder. Thus the historical study of constitutional moments can complement the argument for absent sovereignty sketched in the preceding section.

In the present section I will briefly discuss some of the principalcategories of constitutional moments in order to illustrate the idea of constituent power as alternately corporate and communal. Certainconstitutional episodes are more turbulent than others, but all can becharacterized in terms of a partial suspension of the rule of law and the




24 The fuller the enactment of sovereignty, the less justiciable the sovereign action. According to E.J. Sieyès, ‘... a nation is independent of any procedures; and no matterhow it exercises its will, the mere fact of its doing so puts an end to positive law, becauseit is the source and the supreme master of positive law.’ E.J. Sieyès, What Is the Third Estate? (London: Pall Mall, 1963) at 128 [Sieyès, Third Estate ]. According to Schmitt, ‘...the constituent power is not tied to legal forms and procedures; it is always in the “state

of nature” when it appears in its inalienable character. ... it never constitutes itself through constitutional laws.’ Schmitt, Théorie de la constitution, supra note 9 at 215;Schmitt, Verfassungslehre, supra note 10 at 79.

25 ‘It is the sanctity of the founding act by which the polity has been created which imputesto the constitution the authority of the supreme law.’ U.K. Preuss ‘The Political Mean-ing of Constitutionalism’ in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, UK: Avebury Press, 1996) 11at 21. For a parallel argument see Hannah Arendt, On Revolution (Harmondsworth, UK:Penguin, 1990) at 204.

separation of powers, brought about by the enactment of the sovereignbody.24 Other essential features of social structures, such as the pri-

vate/public distinction, become faded with the effusion of constituent

power and the concomitant transformation of structure into communitas.During most episodes of sovereign revelation, however, society abides by the general principles of the corporate form and of its own particular political form – in Schmitt’s terminology, the form brought into being by the founding constitutional decision – if not by the details of the consti-tution.

A CONSTITUTIONAL BEGINNINGS AND REFORMSThe most obvious constitutional episode in which constituent power isenacted is the inauguration of a new constitutional order. Whether theact of foundation is revolutionary or recognized by the former govern-

ment of the land, legal continuity is interrupted and a normative voidopens up. The communal body is celebrated, leaving little room for ruleof law and separation of powers. The force of new constitutions, whether

written and formal or not, partly depends on the ritual intensity of theirinauguration, the ‘sanctity of the founding act.’25 When a foundingmoment is too calm and orderly, the genuine moment of foundation may be deferred until a constitutional crisis takes place. If the constitutionsuccessfully survives such a crisis, it is imputed with the requisite mythicalauthority.

The transient nature of sovereign presence in founding moments hasbeen the subject of dispute in one of the most consequential decisions of

the Israeli Supreme Court, dealing with the Court’s power to review Knesset laws in light of the Basic Laws recently enacted by the Knesset itself. Justice Cheshin argued that the constituent assembly, which waselected upon the foundation of Israel and failed to produce a formalconstitution, is tantamount to a fleeting ‘divine apparition’ that occurs at




26 CA 6821/93, Bank Hamizrachi v. Migdal, (1995) Isr. S.C. 49(1) 221 at 485.27 On the self-destructive aspiration of Nazism, see J.L. Borges, ‘Deutsches Requiem’ in

D.A. Yates & J.E. Irby, eds., Labyrinths (Harmondsworth, UK: Penguin, 1970) 173.

28 In his essay on Antonin Artaud, Jacques Derrida argues for the impossibility of purepresence: ‘... the theater of cruelty neither begins nor is completed within the purity of simple presence, but rather is already within representation ... Presence, in order to bepresence and self-presence, has always already begun to represent itself, has alwaysalready been penetrated.’ Jacques Derrida, ‘The Theater of Cruelty and the Closure of Representation’ in Jacques Derrida, Writing and Difference, trans. by Alan Bass (Chicago:University of Chicago Press, 1978) 232 at 248–9. On the impossibility of pure presence,see also Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ (1990)11 Cardozo L.Rev. 920 at 991, 1011.

rare historical turning points.26 He concluded that the Israeli parliament,like any other, cannot regularly wield constituent power, that its BasicLaws cannot claim to enjoy constitutional entrenchment, and that the

Supreme Court is thus unauthorized to review Knesset legislation except on grounds of ‘manner and form.’ The majority of the judges, however,recognized the ongoing constituent power of the Knesset and theSupreme Court’s review powers.

The characterization of founding moments in terms of normative voidmust be qualified in two ways. First, the dissolution of the law is not complete. A state of utter lawlessness can occasion neither the founda-tion of a new legal order nor the re-establishment of an old order. It

would seek not the substitution of one social structure by another but thetotal destruction of law and structure.27 A group entirely devoid of anincipient legal form cannot assume a stable legal structure. For a consti-

tutional order to be established, the law must be inscribed in the found-ing disorder. In the dialectical cycle of structure and communitas, eachphase harbours the seeds of the next. A moment of foundation cannot close itself to the past or to the future that it intends to shape. It cannot be a moment of sheer, stagnant presence, ignorant of past and future, amythical time to the extreme.28 Total presence, if at all conceivable, wouldhave entailed the group’s complete self-annihilation and death’s final

victory. The future constitutional order is imprinted in the foundingmoment through the traces of a law which descends from the past.Hegel’s critique of the French Revolution demonstrates the dire conse-quences of a revolutionary attempt to eradicate all ties with the existing

ethical life, the pre-revolutionary law.Second, institutional design during the drafting of a constitution must respect elementary forms of social structures and legal systems. Someconstitutional principles, such as the separation of powers and the rule of law, belong to the essential corporate form of social structure – a formabstract enough to accommodate a diversity of ‘political forms’ – andmust be recognized by any constituent body. Through the rule of law and




29 The staunchest advocates of absolute monarchy in the sixteenth century conceded that the king is bound by the two Salic laws: the order of inheritance and the inalienability of the realm; Quentin Skinner, The Foundations of Modern Political Thought, vol. 2: The Age of Reformation (Cambridge: Cambridge University Press, 1978) 261 at 293. The Salic laws were universally recognized because they articulate premises of the corporate structure:descent as the source of rights and duties and the impersonal, corporate nature of sovereignty.

30 In Barshack, ‘Holy Family,’ supra note 15 at 214–34, I argue that the independence anddignity of the family constitute another such natural principle.

31 For a critique of the view that constitutions evolve through formal amendments, seeK.N. Llewellyn, ‘The Constitution as an Institution’ in Max Radin & A.M. Kidd, eds.,Legal Essays in Tribute to Orrin Kip McMurray (Berkeley: University of California Press,1935) 277.

32 The concept of amendment must be read as broadly as that of the constitution in order tocover the diversity of constitutional amendments, a particularly rich category of constitutional moments. For example, legal systems recognize reforms of a moremodest effect than that of an ‘amendment,’ such as temporary legislative overrides of the constitution. On overrides generally, see Françoise Leurquin-de Visscher, La dérogation en droit public (Bruxelles: Bruylant, 1991).

the separation of powers, for example, constitutions secure the transcen-dence of the sovereign collective body and acknowledge the culturalnecessity of the absence of omnipotence.29 Disregard of these principles

would perpetuate communitas and thwart any attempt to found andelaborate a constitutional structure. Other ‘natural’ principles – otherfundamental principles of the corporate structure – can be invoked, but their content is, for the moment, less important than the fact of theirexistence.30

Like revolutions and other acts of foundation, constitutional reforms occasion incarnations of sovereignty. Some constitutional amendments –often those of a more technical nature – attract little public interest andproceed, barely noticeable, according to the established rules. By con-trast, substantial and contested amendments call for incarnation of thesovereign communal body, which differs each time in its intensity.

Reforms that instigate dramatic constitutional moments do not necessar-ily involve a formal amendment of an entrenched constitutional text.31

Contested decisions of exceptional historical consequence are oftenmade by ordinary branches of government. Decisions over the territorialidentity of the body politic, for example, can stir a constitutional moment

without being recorded in the formal constitution. Fundamental consti-tutional principles may be anchored in ordinary legislation, to the effect that no distinct constitutional procedure has to be activated for theirreform. There is thus only a partial overlap between formal amendmentsof the constitution, on the one hand, and reforms that kindle constitu-tional moments, on the other.32




33 ‘The ordinary representatives of a nation are charged with the exercise, under theconstitution, of that portion of the common will which is necessary to maintain a goodsocial administration. Their power is confined to governmental affairs ... A body of extraordinary representatives takes the place of the assembly of the nation. It does not,of course, need to be in charge of the whole of the national will; it needs only specialpowers, and those only in rare cases; but it is in the same position as the nation itself inrespect of independence from any constitutional forms.’ Sieyès, Third Estate, supra note24 at 130–1.

34 Kesavananda , supra note 8. For a detailed analysis of the decision, see M.P. Jain, Indian Constitutional Law , 5th ed., vol. 2 (New Delhi: Wadhwa, 2003) at 1907.

In constitutional moments, decisions are not fully authored by theofficial legal bodies that sign them, be they ordinary branches of govern-ment or parliament in a constituent or semi-constituent capacity. During

such moments it is the communal body of the group that makes thedecision. Its constituent power is inalienable. A representative body canadopt or amend a constitution only if it is empowered at the moment of adoption or amendment by an engaged public and thus operates as anextension of the communal body. While adopting or amending theconstitution, the parliament operates as a constituent assembly, and itsmembers function as ‘extraordinary’ rather than ‘ordinary’ representa-tives, in Sieyès’s terms.33 The latent shift in the function of the parliament from a representative body to an immediate extension of the communalbody may give rise to juridical unease. Several legal systems do not tolerate this discrepancy between the parliament’s representative func-

tion and its role in constitutional moments. Thus article 195 of theBelgian constitution ordains the dissolution of the acting parliament aspart of the process of constitutional amendment. The Indian SupremeCourt opted for a more radical solution. In one of its groundbreakingdecisions, the Court ruled that the parliament’s amending power,granted by the constitution, does not permit even the most sweepingmajority in Parliament to modify the ‘basic structure’ of the constitu-tion.34 The court argued that the term ‘amendment’ covers only changesof the constitution that do not alter its essence, implying that reforms of basic constitutional structure must be consummated outside the walls of Parliament.

The more exuberant the sovereign presence, the less bound is thecollective body by formal amendment procedures – where such proce-dures apply – and by the non-amendability of certain constitutionalprinciples. Theoretically inelegant as this result may be, the binding forceof constitutional procedure varies in every constitutional moment inproportion to the intensity of sovereign presence. This principle appliesto constitutional moments of different types, such as constitutionalreforms, referenda, and states of emergency. When the communal body




35 Where fundamental constitutional principles are anchored in ordinary legislation, their

reform threatens to relax the applicable ordinary procedures.36 De Gaulle acted on the basis of art. 11 of the constitution, which was designed not toregulate constitutional amendments but to define the president’s general authority toinitiate referenda. Bruce Ackerman argues that the reconstruction amendments andthe New Deal were accomplished through violation of due constitutional procedure;see Bruce Ackerman, We The People: Transformations (Cambridge, MA: HarvardUniversity Press, 1998) at 89–94 [Ackerman, Transformations ]; see also Bruce Ackerman& Neal Katyal, ‘Our Unconventional Founding’ (1995) 62 U.Chicago L.Rev. 475.

37 Schmitt, Théorie de la constitution , supra note 9 at 246.

asserts itself in the amendment of a constitution as intensely as it wasinvolved in its original adoption, it is hardly bound by constitutionalprocedure at all and hardly subject to judicial review over the constitu-

tionality of the amendment.35 The disregard of amendment proceduresdoes not interrupt constitutional continuity. As Schmitt argued, as longas the general political form of the state is affirmed by the communal body,

we can still speak of a reform rather than an abrogation of the constitu-tion.

Historical examples of constitutional amendment attest to the pres-ence of a sovereign body that is free from the procedures laid down inthe constitution. The amendment of the French constitution in 1962through the referendum initiated by Charles de Gaulle over the form of presidential elections took effect in violation of the amendment proce-dure established in art. 89 of the constitution of 1958.36 This is perhaps

the best-known modern example of a faulty amendment procedure.Contrary to the view of authors such as Ackerman, it is not the demo-cratic principle of popular sovereignty that places popular will aboveconstitutional procedure, but the fact of sovereign incarnation and theconcomitant relaxation of all principles. The communal body wieldssupreme legislative power whenever it is enacted, in democratic as well asnon-democratic contexts and rituals.

Violations of procedure in constitutional moments can be divided intotwo categories. In the first group of cases, the constitutional text isamended in violation of the prescribed procedure. In the second groupof cases, the constitution is flagrantly violated by some branch of govern-

ment – a capacity which Schmitt considers to be a mark of the ‘sovereign’branch37 – with a view to reforming the constitution, but no attempt at aformal amendment is made. Unconstitutional acts of state are not alwaysintended to reform the constitution by setting a constitutional precedent.

Whether or not such an intention exists, unlawful state actions oftenbetray the presence of sovereignty. As Schmitt writes, ‘in the theory of thefaulty act of state ... legal validity is attributed to a wrong and faulty decision. The wrong decision contains a constitutive element precisely




38 Schmitt, Political Theology, supra note 4 at 31.39 Schmitt,Théorie de la constitution, supra note 9 at 238; the German term is Durchbrechung.40 531 U.S. 98 at 109.41 The plausibility of such an interpretation of Bush v. Gore is enhanced by the fact that it

was advanced not only by adversaries of the decision but also by its advocates, such asRichard Posner, claiming the existence of an emergency situation that warranted thesuspension of general principles. See Richard Posner, ‘Bush v. Gore as Pragmatic Adjudication’ in Ronald Dworkin, ed., A Badly Flawed Election (New York: New Press,2002) 187. In his introduction to the volume, Dworkin argues that behind thepragmatic adjudication lauded by Posner lay mere partisan considerations. RonaldDworkin, ‘Introduction’ in Ronald Dwarkin, ed., A Badly Flawed Election (New York: New

Press, 2002) 1 at 37.42 Schmitt, Théorie de la constitution, supra note 9 at 238, 245–8.43 In 1969 de Gaulle attempted another amendment of the constitution through a

referendum held according to art. 11 of the constitution of 1958, which defines ingeneral terms the authority to initiate referenda, as opposed to art. 89, which fixes theamendment procedure. Since 1969 art. 11 has not been used as an instrument of amendment. On constitutional conventions that contradict the express wording of theconstitution, see John Bell, French Constitutional Law (Oxford: Oxford University Press,1992) at 58–63.

because of its falseness.’38 When the constitution is breached in the nameof the collective body, the unconstitutional act of state can be regarded asa valid expression of sovereignty. Schmitt refers to sovereign violations of

the constitution as derogations .39 Different constitutional rules andprinciples can be subject to derogation. A faulty amendment procedure,such as the one employed by de Gaulle in 1962, involves a derogation of the constitutional rules of amendment. As illustrations of derogation,Schmitt invokes a presidential decree dissolving the parliament and a law extending the legislators’ term of office, both in frontal violation of theconstitution. The US Supreme Court’s decision in Bush v. Gore can be

viewed as an instance of a judicial derogation of the constitution. Themajority’s assertion that their reasoning was ‘limited to the present circumstances’40 betrays its unprincipled, if not partisan, basis. 41

According to Schmitt, the concept of derogation covers sovereign

violations of the constitution that are necessitated by abnormal circum-stances and thus do not challenge the general validity of the constitu-tional rules and principles that they infringe.42 However, when the faulty act of state is perceived as authorized by the collective body to set aconstitutional precedent, the case is one of reform of the constitutionthrough its sovereign violation. Thus, the 1962 referendum on the formof election of the president of France, in addition to amending the text of the constitution by an ill-founded procedure, may have established aconstitutional precedent, a new amendment procedure to be utilized infuture cases. According to such a reading, the constitution was doubly amended in 1962: both the form and the outcome of the referendum

received constitutional recognition.43

In a similar vein, Ackerman pro-




44 Ackerman, Transformations, supra note 35at 415.45 Georges Balandier, Political Anthropology (London: Allen Lane, 1970) at 41.

poses a view of the New Deal not only as a reform accomplished by suspicious means but also as a rudimentary elaboration of a new amend-ment procedure (based on the initiative of a president elected for a

second term in the context of a constitutional debate among the differ-ent branches of government), a precedent to be followed in futurecases.44

The possible disregard of procedure in constitutional moments doesnot render constitutional procedure redundant, since one of its purposesis to build up, rather than regulate, genuine constitutional moments by ensuring that constitutional issues will not be too easily decided by professional politicians behind the back of the people. Procedure neces-sitates the mobilization and engagement of the general public, even if eventually it is not strictly observed. As we shall see in the discussion of elections that follows, the strength of a constitutional order lies in its

capacity to orchestrate constitutional moments, to institute and tamecommunitas.

B RITUALS OF SUSPENSION AND CONFIRMATIONEvery constitutional order, once established and stabilized, is relaxed inrituals of suspension and reconfirmation. Unlike constitutional reformsand revolutions, rituals of confirmation do not alter the constitutionalorder. The communal body asserts its power to overthrow the constitu-tion but eventually confirms the existing order. The purpose of the ritualrelaxation of the constitution is to release anti-constitutional forces in a

way that will tame them. The corporate, constitutional order emerges

from its ritual suspension invigorated. As Georges Balandier writes, ‘Thesupreme ruse of power is to allow itself to be contested ritually in order toconsolidate itself more effectively ...’45 Rituals of suspension and confir-mation often stage expressions of contempt for the ruling elite. Throughthis defiance of the ruling authorities, the entire constitutional order andthe very principle of the rule of law are challenged. Placed somehow above the group, political leaders embody a constitutional order superim-posed on the group in such a way that a public denial of their authority places the group as a whole in a position of anarchic rebellion. Contrary to our democratic intuitions, elected leaders derive part of their authority from an ancestral/corporate authority that they are taken to represent and to which they always remain answerable. Consequently, attempts todepose leaders, even on palpable grounds of corruption or treason andin the name of the existing constitution, always appear as lawless usurpa-tions.




46 On customary pillaging after the death of popes in the Middle Ages, see AgostinoParavicini-Bagliani, The Pope’s Body (Chicago: University of Chicago Press, 2000) at

99–106.47 See Bruce G. Trigger et al., Ancient Egypt: A Social History (Cambridge: CambridgeUniversity Press, 1983) at 48.

48 Hilda Kuper, African Aristocracy (Oxford: Oxford University Press, 1947) at 206.49 Max Gluckman, ‘Rituals of Rebellion in South-East Africa’ in Max Gluckman, Order and

Rebellion in Tribal Africa: Collected Essays (London: Cohen & West, 1963) 110 at 135.Gluckman’s account of ritual rebellion and the ensuing agonic understanding of democracy entails a liberal rather than communitarian or republican conception of democratic politics.

Political anthropologists have recorded a wealth of examples of anar-chic rituals in which representatives and symbols of power are scorned.Rituals of suspension and confirmation may take place spontaneously, at

prescribed times, during an interregnum, or when leading politiciansand officials face trial. Across different periods and civilizations, deaths of kings have presented opportunities for plunder and destruction and forthe expression of anarchic aspirations. In many cases, the chaos is in fact fairly organized and brief, leading to the restoration of the formerconstitutional order.46 The Sed ritual of Pharaonic Egypt illustratesanother category of rituals of suspension and confirmation. In this ritual,

which took place regularly when the Egyptian king accomplished thirty years of reign and reached an advanced age, the king had to prove hisability to rule, and renew his authority over the land, through a ritual‘running.’ The king succeeded with the help of the gods, whose care for

the realm was thereupon lauded and prolonged. It is generally thought that the Sed gave vent to attitudes of doubt and hostility toward the king,exhausted them, and renewed the legitimacy of the dynastic regime andof the rule of law generally.47 One of the best-known examples of a ritualof suspension and confirmation is the Incwala ritual of the Swazi, de-scribed by Hilda Kuper in her book African Aristocracy:

The words of the Incwala songs are surprising to the European, accustomed, at national celebrations, to hear royalty blatantly extolled, the virtues of the nationmagnified, and the country glorified. The theme of the Incwala songs is hatred of the king and his rejection by the people.48

Max Gluckman famously described other African rituals during whichthe king is publicly humiliated and temporarily deprived of authority.Gluckman considered democratic elections as a modern version of therituals of suspension and confirmation familiar from traditional societies:‘In our society the parliamentary system and local government providetwo among many secular mechanisms to express opposition overtly.’49

Gluckman refers to these various rituals as ‘rituals of rebellion’ anddistinguishes them from revolutions:




50 Ibid. at 122. Gluckman continues, ‘... since the rebellion is to put a prince, who it ishoped will observe these values, in the king’s place with the same powers, a rebellion

paradoxically supports the kingship. Further, as the leader of a rebellion is a memberof the royal family, rebellion confirms that family’s title to the kingship.’ Ibid. at 129.51 Ibid. at 135.52 Ibid. at 131.53 On the strike as a form of political action intended to defy the governing elite see

Edward Shorter & Charles Tilly, Strikes in France 1830–1968 (Cambridge: CambridgeUniversity Press, 1974) at 343.

54 See, e.g., P.H. Merkl, A Coup Attempt in Washington? A European Mirror on the 1998–1999 Constitutional Crisis (New York: Palgrave, 2001).

... ritual rebellions proceed within an established and sacred traditional system,in which there is dispute about particular distributions of power, and not about the structure of the system itself. This allows for instituted protest, and in

complex ways renews the unity of the system.50

‘ritual rebellion’ can be enjoyed by tradition, as a social blessing, in repetitivesocial systems, but not in systems where revolution is possible.’51

Periodic civil wars thus strengthened the system by canalizing tendencies tosegment, and by stating that the main goal of leaders was the sacred kingshipitself.52

Gluckman’s distinction between revolutions and ritual rebellions hasto be loosened insofar as ritual rebellions generate a normative void of the kind that can be found in revolutions. Even if the suspension of structure during ritual rebellions and other episodes of sovereignincarnation is organized and usually ends in a predictable manner, theexperience of communitas remains authentic and never fully domesti-cated. Even when sovereign presence is brought about by a formal legalprocedure, such as democratic elections, the continuity of the rule of law is undermined. Rituals of rebellion are not fully integrated into theconstitutional order. Like revolutions, they challenge the existingconstitution, even if they apparently proceed under it. Elections not only contest the existing distribution of power but challenge the rule of law and constitutional continuity. General strikes provide another modernexample of ritual rebellion. Like elections, general strikes are intended

to call into question not only particular distributions but the very idea of structure.53

Another modern version of rituals of suspension and confirmation,alongside elections and strikes, are impeachments and trials of heads of state that take place not in the course of a revolution but within anestablished constitutional order. The attempt to impeach Bill Clintonstruck some observers as a partisan usurpation of democracy,54 but anelement of lawlessness is inherent in any impeachment process. Like




55 In Federalist 65 Alexander Hamilton argued that impeachments are unsuitable for

ordinary courts because they conflate legal and political issues and because theirprocedure cannot follow ‘strict rules.’ See James Madison, Alexander Hamilton, & John Jay, The Federalist Papers, ed. by Isaac Kramnick (Harmondsworth, UK: Penguin Books,1987) at 382. Neal Katyal has argued that in the impeachment process members of Congress are not bound by any original or historical understanding of the Constitution.See Neal K. Katyal, ‘Impeachment as Congressional Constitutional Interpretation’(2000) 63 Law & Contemp.Probs. 169 at 170. Michael Gerhardt repeatedly stressed thefreedom of Congress, in the exercise of its impeachment powers, from normal checksand constraints such as judicial review and presidential veto. See, e.g., Michael J.Gerhardt, The Federal Impeachment Process , 2d ed. (Princeton, NJ: Princeton University Press, 2000) at 118–46. The Supreme Court of Lithuania ruled, in the context of theimpeachment of Lithuanian President Rolandas Paksas in 2004, that parliament isentitled not to impeach a president found guilty of an impeachable offence by the

court. For general background on the affair, see Terry D. Clark & Egle Verseckaite,‘PaskasGate: Lithuania Impeaches a President’ (2005) 52:3 Problems of Post-Communism 16.

56 The special solemn procedures of impeachments and ‘acts of grace’ (see discussion of amnesties below) in the English Parliament suggest that Parliament was wielding, onsuch occasions, an unusual power, which can theoretically be equated with constituent power. On the historical procedure of impeachment, see C.S. Lerner, ‘Impeachment, Attainder and a True Constitutional Crisis: Lessons from the Strafford Trial’ (2002) 69U.Chicago L.Rev . 2057.

elections, impeachments challenge the representatives of sovereignty –the heads of the executive or the judiciary – in a way that channelssovereignty into the group. Arguably a tame form of regicide, impeach-

ment occasions a ritual process in which the group embraces its sover-eignty. More than a few constitutions deposit impeachment powers in thehands of the parliament, thereby infusing it with a nigh complete sov-ereignty: the executive is to be judged by the parliament in a way that temporarily excludes judicial power from the scene. In the United States,the appropriation of sovereignty by Congress in the process of impeach-ment implies that it is hardly bound by established procedures.55 In asense, the impeaching parliament is temporarily transformed into aconstituent assembly.56

Trials of heads of state and high-ranking officials are not the only category of political trials that occasion an incarnation of sovereignty,

undermining and potentially consolidating the constitutional structure.In trials of leaders and powerful politicians, it is the fact that one branchof government – executive power, the power responsible for law enforce-ment – is put on trial that suspends the separation of powers and the ruleof law. In another category of political trials, the separation of powersand the separation between the legal and the political are suspendedbecause the courts function as mere extensions of the dominant politi-cal faction. In other words, political and judicial powers coincide. This isthe case in show trials of enemies of the state and in military trials of




57 Where show trials are a regular feature of the legal system, they weaken rather thanconsolidate social structure by undermining the separation of powers.

58 Ron Christenson, Political Trials in History: From Antiquity to the Present (New Brunswick,NJ: Transaction, 1991) at 26.

59 The trials of Nazi collaborators in France, in which the history of the occupation hadto be examined by the same tribunals and judges that operated under the Vichy government, illustrate this category of cases. The myth of the uninterrupted existenceof a free France, in the name of which the collaborators were put on trial, was at stakein these trials.

60 See Walter Benjamin, ‘The Critique of Violence’ in Walter Benjamin, Selected Writing, vol. 1: 1913–1926 (Cambridge, MA: Belknap Press, 1996) 236 at 243.

resistance forces.57 Ron Christenson’s distinction between partisan andnon-partisan political trials grasps the dissolution of the rule of law brought about by judicial partisanship.58 His distinction fails, however, to

capture the source of lawlessness in political trials: it is not partisanship assuch that dissolves the rule of law, but any suspension of the respectiveautonomy of state powers. Thus, military trials and impeachments, forexample, may occasion an experience of lawlessness because of therelaxation of the separation of powers that they involve, without beingdistinctly partisan.

A final category of political trials in which the rule of law and theseparation of powers are relaxed covers cases in which a historical affairraised in court undermines the court’s own claims to legitimate author-ity. The calling into question of founding political myths in court chal-lenges the court’s jurisdiction. By being considered in court, let alone

contested, political myths lose their power to legitimize and ground theclaims of the legal system in a way that suspends the rule of law. Thecourts can no longer confine themselves to the application of the law onthe basis of an accepted, underlying political mythology but openly takesides in a political conflict, propagating a contested political myth whosesocial acceptance conditions their authority.59 In the different categoriesof political trials, the founding moment is re-enacted and the court’s‘law-preserving violence’ gives way to ‘lawmaking violence,’ to use WalterBenjamin’s terms.60 The distinction between the legal and the political issuspended as sovereignty pervades the court. The court finds itself in arelative normative void, entrusted with a historical, almost constituent,

task for which its ordinary procedures are poorly suited.C STATES OF EMERGENCY

Wars and other states of emergency precipitate an enactment of thecommunal body and the relaxation of the rule of law and the separationof powers. John Locke argued that war does not allow the luxury of




61 John Locke, ‘Second Treatise’ in Peter Laslett, ed., Two Treatises of Government (Cambridge: Cambridge University Press, 1988) 265 at 374 [Locke, Two Treatises ]. OnLocke’s influence on the American Constitution in relation to the question of emergency powers, see Jules Lobel, ‘Emergency Power and the Decline of Liberalism’(1989) 98 Yale L.J. 1385 [Lobel, ‘Emergency Power’]. For a survey of the legal andintellectual history of the state of emergency see François Saint-Bonnet,L’État d’exception (Paris: Presses Universitaires de France, 2001).

62 ‘If in order to counteract [danger], it suffices to increase the activity of the government,then it gets concentrated in one or two of its members; this way it is not the authority of the laws that is disturbed, but only the form of their administration. If however theperil is such that the laws as an instrumentality are an obstacle to guarding against it,then a supreme chief is named who silences all the laws and provisionally suspends theSovereign authority; in such a case the general will is not in doubt, it is obvious that thepeople’s foremost intention is that the State not perish.’ Jean-Jacques Rousseau, The Social Contract, ed. by Victor Gourevitch (Cambridge: Cambridge University Press, 1997)at 138.

divided government, since the work of Parliament is too slow.61 However,the amalgamation of different state powers in war is not merely a time-saving device. It reflects the transformation of a warring society into a

single body that cannot accommodate the differences of interest andopinion characteristic of balmier days. Jean-Jacques Rousseau hoped that in states of emergency of moderate gravity state powers could be united

without compromising the rule of law.62 However, neither the separationof powers nor the rule of law can be reconciled with the presence of thecommunal body, and they are jointly suspended in the course of communitas. The fusion of different state powers, individual interests, andrival groups entails the suspension of the rule of law.

The source of emergency powers can be located either within or without the constitution. Thinkers as discordant as Thomas Jefferson andCarl Schmitt subscribed to the latter theory. The American framers

believed that the constitution should not allocate emergency powers.They admitted that army officers, under military necessity, may beobliged by a moral command or law of nature to violate positive law. But in violating the law they incur the risk of facing justice and can only hopefor retrospective indemnification by court or Congress. According to

Jefferson,

A strict observance of the written laws is doubtless one of the high duties of agood citizen, but it is not the highest. The laws of necessity, of self-preservation,of saving our country when in danger, are of higher obligation ... The officer

who is called to act on this superior ground, does indeed risk himself on the justice of the controlling power of the Constitution, and his station makes it his

duty to incur that risk ... The line of discrimination between cases may bexxxxxxxxxxxxxxxxxxxx




63 Letter from Thomas Jefferson to John B. Colvin (20 September 1810), in P. Ford, ed.,The Works of Thomas Jefferson (1905) 146 at 148–9; quoted in Lobel, ‘Emergency Power,’supra note 61 at 1393. Already Locke suggests in his discussion of prerogative in theSecond Treatise of Government that legitimate use of prerogative depends in some way upon retrospective approval. ‘Prerogative can be nothing, but the Peoples permittingtheir Rulers, to do several things of their own free choice, where the law was silent, andsometimes too against the direct Letter of the Law, for the public good; and theiracquiescing in it when so done.’ Locke, Two Treatises, supra note 61 at 377. Accordingto Rousseau, Cicero violated the law in defence of Rome and was subsequently pardoned by the Romans. Rousseau, The Social Contract, supra note 62 at 140.

64 Lobel, ‘Emergency Power,’ supra note 61 at 1396.65 Article 9 of Japan’s post-war constitution, which outlaws the maintenance andemployment of armed forces, and the parallel articles in Germany’s post-war Basic Law, would have seemed to Schmitt not only suspendable by sovereign decision – like allother constitutional principles – but contradictory to the very essence of sovereignty and, hence, unconstitutional.

66 Schmitt,Political Theology , supra note 4 at 9. In Constitutional Theory , Schmitt asserts that emergency powers are bound by the existing political form; Schmitt, Théorie de la constitution, supra note 9 at 248–9.

difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.63

Jules Lobel sums up as follows the Founding Fathers’ conception of emergency powers:

The following elements were required of official emergency action in violationof the law within this liberal tradition: the presence of an extreme emergency threatening the nation, the termination of the unlawful conduct when the emer-gency ended, the frank acknowledgement by the official that he had actedunlawfully, review of the unlawful conduct by the Congress of the courts, and theappropriate implementation of legal remedies and congressional indemnifica-tion.64

The analogy between Jefferson’s position and Schmitt’s is obviously superficial. Like Jefferson, Schmitt holds that emergency powers do not derive from the formal constitution, but his argument does not rest onthe dangers of a constitutional allocation of emergency powers; it restsrather on the inherent legitimacy of these powers. Emergency powers donot need the formal constitution as their anchor; their legality is at least as obvious and fundamental as that of the constitution.65 In Political Theology , Schmitt argues that the binding force of the constitutiondepends at any moment on a sovereign decision as to whether an emer-gency situation exists. The sovereign declaration of a state of emergency is unconditionally valid. For the author of Political Theology, the authority of the sovereign to suspend the constitution is built into every type of regime, every ‘political form.’66 Emergency powers do not derive from

formal constitutional laws and do not depend upon formal recognition.In The Concept of the Political , emergency powers seem even less con-




67 Schmitt, Concept, supra note 11.68 John McCormick, ‘The Dilemmas of Dictatorship: Carl Schmitt and Constitutional

Emergency Powers’ in David Dyzenhaus, ed., Law as Politics (Durham, NC: DukeUniversity Press, 1998) 217 at 239.

69 The death of a member of the social structure casts the group as a whole into a liminal experience of timelessness. See Arnold Van Gennep, The Rites of Passage (Chicago:University of Chicago Press, 1960) at 146.

strained and regulated than in Political Theology. They emanate not fromthe political form of the state, its higher constitution, but from the pre-legal self-definition of the group vis-a-vis an enemy. In the name of the

willingness of its members to die for a common cause, the group wieldssovereignty and in that capacity adopts a certain constitutional form.However, emergency powers remain independent of any particularconstitutional form that the group may endorse. They belong to thegroup as a formless unity, a unity which precedes any political form, andare thus unfettered by any such form. They inhere in a sovereign body that cannot alienate them and whose authority is higher than that of theconstitution.67

John McCormick criticizes Schmitt’s account of the inherent legiti-macy of emergency powers, claiming that

[an] emergency provision should be seen as one ... mechanism among many constitutional provisions. It therefore has no privileged link, neither direct norexclusive, with the ‘original’ political will – a link that Schmitt so dramatically asserts in Political Theology.68

McCormick fails to refute Schmitt’s account of emergency powersbecause he separates it from Schmitt’s general understanding of theconstitution. For Schmitt, the author of the constitution is constantly present and never resigns its ‘natural’ emergency powers to the constitu-tional order. A criticism of Schmitt’s theory of emergency powers must tackle his entire constitutional thought. The view of emergency powers aspre-constitutional is convincing even if one does not endorse Schmitt’s

conception of permanent sovereign presence. In the face of danger,constituent power – whether normally absent or present – comes to theforeground. Society’s encounter with death precipitates the dissolutionof the corporate into the communal body and of calendrical into mythi-cal time.69 In cases of acute danger, emergency powers do not deriveexclusively from the constitution but originate in a pre- or meta-constitu-tional power.

As in other constitutional moments, the enactment of sovereignty andthe relaxation of the rule of law and the separation of powers assumedifferent degrees of intensity in different states of emergency. Contrary xxxxxxxxxxxxxxxxx




70 Schmitt, Political Theology, supra note 4 at 12. The same view appears in The Concept of the Political: ‘Every norm presupposes a normal situation, and no norm can be valid inan entirely abnormal situation.’ Supra note 11 at 46; see also 49, 55.

71 The Third Republic emerged from the French defeat of 1870. Defeat also paved the way to the establishment of the Weimar Republic in 1918. On the two events see

Eberhard Kolb, The Weimar Republic (London: Routledge, 2001) at 4. In response tosuch precedents, art. 196 of the Belgian constitution provides that ‘[n]o constitutionalrevision may be undertaken or pursued during times of war or when the Chambers areprevented from meeting freely on Federal territory.’

72 ‘[the] constituent representative body must be set up without regard to the distinctionbetween orders.’ Sieyès, Third Estate, supra note 24 at 137.

73 ‘une cité commune entre les vivants et les morts.’ Jules Michelet, ‘Histoire du XIXe

siècle’ in Paul Viallaneix, ed., Oeuvres Complètes , vol. 21 (Paris: Flammarion, 1982) at 268,quoted in Benedict Anderson, Imagined Communities (London: Verso, 1991) at 198.

to Schmitt’s view in Political Theology ,70 the fact that the powers in opera-tion may not wholly derive from constitutional laws does not render themunlimited. When a constitutional structure is relaxed, it can still con-

strain the purpose and extent of emergency powers. In Schmitt’s ownterms, emergency powers can still be constrained by the political form of the state when constitutional laws become less binding, even in circum-stances in which that form itself becomes relatively blurred. The politicalform dissolves entirely only in extreme states of emergency, which,throughout history, have offered a convenient opportunity for revolu-tion.71 Even the complete dissolution of the state’s particular politicalform in such extreme cases of emergency does not result in unqualifiedlegal licence. A society with a dying or dead constitution will still recog-nize general principles of corporate social structures, if any capacity remains in it to regenerate form and re-found structure.

D REFERENDA AND AMNESTIESI would like to conclude this incomplete overview of instances of sover-eign presence with a few words on referenda and amnesties. Constitu-tional moments are characterized by a high degree of public involvement and suspension of factional loyalties. The suspension of party politicsallows sovereignty to step forward in referenda.72 In the course of politi-cal routine, ideological, religious, economic, geographic, ethnic, andother divisions guarantee that the sovereign collective body remainsdistant from the group. The dissolution of structural divisions in certainreferenda allows them to be experienced and impressed in the collective

memory as revelations of sovereignty, of the will of the Nation as a meta-historical ‘city of the living and the dead,’73 even if they were decided by a single vote. The capacity of referenda to render sovereignty present isnever guaranteed. When referenda are held too frequently without sufficient public interest, or when voting patterns reflect factionalloyalties and public discussion is dominated by sectarian campaigns, only




74 On the freedom of the people from established procedures in referenda, J.M. Denquinconcludes as follows: ‘Nous pouvons maintenant établir le bilan de la rencontre entreun système juridique élaboré et l’expression directe de la volonté populaire. Le postulat démocratique aboutit nécessairement, en droit et en fait, à dévaloriser le premier auprofit de la seconde. Celle-ci n’a pas à respecter les distinctions posées par lui. Elle est donc maîtresse à la fois de son action et de son champ d’action. Elle détruit, par le fait même qu’elle est exprimée, toutes les normes logiquement incompatibles avec sesdécisions. Enfin, elle est susceptible de modifier implicitement le droit positif enfondant des coutumes constitutionnelles – si du moins on reconnaît la possibilitéthéorique de telles normes – et elle est seule à jouir de ce privilège.’ J.M. Denquin,Referendum et plebiscite (Paris: Pichon, 1976) at 301.

75 Plutarch, ‘Numa’ in Plutarch’s Lives, vol. 1, trans. by Bernadotte Perrin, 1914 (Cam-bridge, MA: Harvard University Press, 1967) 305 at 343. On the theological origins anddimensions of the pardoning power, see Hélène Millet, ed., Suppliques et requêtes : le gouvernement par la grâce en Occident (Rome: École Française de Rome, 2003).

76 The association of the pardoning power with constituent power sheds light on themeaning of pardons. Constituent power consists in the capacity of the collective body to impose a law, a corporate structure, upon itself. The pardoning power extends thefreedom of self-imposition into the established constitutional structure in order toascertain at any moment that the laws governing society were, and continually are, freely

a massive manipulation of the collective memory will make a referendumappear to future generations as an authentic manifestation of the general

will. The potential political advantages of the referendum in certain,

mostly critical, historical contexts derive from its semi-religious dimen-sion, its capacity to occasion an enactment of the sovereign body. Theritual dimension of the referendum is entirely consistent with its allegedepistemic adequacy for the resolution of certain social dilemmas, sincethe ability of participants to bracket factional loyalties in a referendumstems from the sanctity of the event. As in other constitutional moments,the intensity of sovereign presence varies from one referendum toanother. The fuller the sovereign presence, the more relaxed the consti-tutional structure and the formal procedure that governs the referen-dum.74

While the pardoning power is normally regulated by the constitution,

its exercise occasions an enactment of a pre-constitutional power, thepower to self-impose and suspend the rule of law. The pardoning powerinterferes with the regular administration of the separation of powersand the rule of law. It has always been enshrouded in mystery and secrecy and associated with divine powers. In Rome, for example, the life of acondemned prisoner was spared if a vestal virgin saw him by accident onthe way to the scaffold.75 In contemporary democracies, too, the pardon-ing power emits the shiniest aura of sovereignty among executive powers.In the exercise of the pardoning power, the head of state declares theexception and brings to naught the deeds of other branches of govern-ment. Many advocates of broad judicial review believe that pardons, as

exercises of an extraordinary power, should remain barely reviewable.76




endorsed. Positive law must appear to each individual, and to society as a multitude of individuals, external and superimposed. The externality and superiority of the state vis- à-vis society objectifies the externality of the law. However, in its relation to thecollective body, to the group as a cross-generational unity comprising ancestralauthorities represented as lawgivers, the law should appear self-imposed. Sincemonarchs and presidents, as epitomes and personifications of the state, stage theexternality of the law in relation to the group as an aggregation of individuals, they canre-enact, by wielding the pardoning power, the founding self-imposition of the law onthe part of the collective body as a whole. While, in the passage from pre-constitutional,charismatic authority to constitutional structure, power is impersonalized andbureaucratized, the pardoning power remains relatively personal. (On theimpersonalization of authority in the process of constitutional consolidation, seeBarshack, ‘Corporate Body,’ supra note 21).

Without the pardoning power, the law would have been perceived as imposed uponhumanity by an inhuman, alien force unintegrated into social structure, as an all-embracing, domesticated cosmos, a persecutory deity threatening the human order of things. The pardoning power thus testifies to a deep-seated sense of human domestica-tion of and reconciliation with the world. Davis McMullen notes the cosmic significanceof the pardoning power in his interpretation of Chinese imperial ritual: ‘Ritualoccasions enabled the emperor to affirm the benevolence of the cosmic order and of his own role in mediating between it and the human hierarchy. The great ritualcelebrations were customarily followed by acts of grace (she ). In these, the emperormight extend pardon to criminals in all categories of wrong-doing ...’ Davis McMullen,‘Bureaucrats and Cosmology: The Ritual Code of T’ang China’ in David Cannadine &Simon Price, eds., Rituals of Royalty: Power and Ceremonial in Traditional Societies

(Cambridge: Cambridge University Press, 1987) 181 at 217. On the cosmological andpolitical grounds behind the Chinese practice of amnesties, see also B.E. McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu: University Press of Hawai‘i, 1981). The abolition of the pardoning power during the French Revolutionattests to a sense of alienation between humanity and the world and to a veneration of a persecutory, inhuman deity. It reflects the hatred of the personal and the particular which was rooted, according to Hegel, in the revolutionary ideal of abstract reason and which resulted in revolutionary terror. A humanistic ideal of the rule of law combinesideas of the law’s self-imposition and superimposition. On the revolutionary abolitionof pardon, see Jacques Foviaux, La Rémission des peines et des condemnations (Paris: PressesUniversitaires de France, 1970) at 91. On the Terror as expression of a drive toeradicate particularity resulting from the revolutionary attempt to actualize abstract reason, see G.W.F. Hegel, Phenomenology of Spirit, trans. by A.V. Miller (Oxford: Oxford

University Press, 1977) at 357–9; G.W.F. Hegel, The Philosophy of History, trans. by JohnSibree (New York: Wiley, 1944) at 450.77 On the solemn ‘Acts of Grace’ of the English Parliament, see M. Radin, ‘Legislative

Pardons: Another View’ (1939) 27 Calif.L.Rev . 387 at 392 [Radin, ‘Legislative’]. While,according to art. 17 of the French constitution, ‘Le président de la République a ledroit de faire grâce,’ art. 34 states that only the parliament can grant amnesty. Thisdistinction can be found in the constitutions of Austria (art. 65), Greece (art. 47), andSpain (art. 62) and in many other constitutions. An exception can be found in art. 24of the constitution of Denmark, which accords the king the power to grant amnesties.

General pardons, unlike pardons proper, involve a thorough appropri-ation and incarnation of sovereignty on the part of the group. Generally issued by parliaments,77 amnesties involve not the assertion of particular-




78 ‘Pardon is the remission of punishment, but it is not a cancellation of right. On thecontrary, right continues to apply, and the pardoned individual still remains a criminal;the pardon does not state that he has not committed a crime. This cancellation[Aufhebung ] of punishment may be effected by religion, for what has been done can beundone in spirit by spirit itself. But in so far as it is accomplished in this world, it is tobe found only in the majesty [of the sovereign] and is the prerogative of [thesovereign’s] ungrounded decision.’ G.W.F. Hegel, Elements of the Philosophy of Right, ed.by A.W. Wood, trans. by H.B. Nisbet (Cambridge: Cambridge University Press, 1991)at 326 (addition to paragraph 282).

79 Radin, ‘Legislative,’ supra note 77 at 392.

80 On the use of amnesty to protect national unity in critical moments in French history,see Stéphane Gacon, ‘L’oubli institutionnel’ in Dimitri Nicolaïdis, ed., Oublier nos crimes (Paris: Autrement, 1994) 98. See generally Stéphane Gacon, L’amnistie : de la commune à la guerre d’Algérie (Paris: Seuil, 2002). Gacon points out the special role of thepresident in prompting parliamentary amnesties. It seems that presidential involvement signifies in two ways the communal authorship of amnesties, that is, their origin in theauthority of the group as a single body. While parliaments display plurality anddifference, presidents represent national unity (and are thus given the power toannounce a referendum by a number of constitutions). Presidential involvement further suggests the suspension of the separation of powers and the unified agency of all branches of government. The wave of transitions to democracy in Eastern Europe, Africa, and South America in the last decade propelled a massive use of amnesties of different types, devised to protect the fragile nascent democracies from social division

and anti-democratic opposition forces. See, e.g., Alexandra Barahona De Brito, C.G.Enriquez, & Paloma Aguilar, eds., The Politics of Memory and Democratization (Oxford:Oxford University Press, 2001); John Hatchard, Muna Ndulo, & Peter Slinn, eds.,Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (Cambridge: Cambridge University Press, 2004) at 262 ff.;Douglass Cassel, ‘Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities’ (1996) 59 L.&Contemp.Prob. 197.

81 On royal amnesties on the occasion of coronation or royal entry, see R.A. Jackson, Vive le roi: A History of the French Coronation from Charles V to Charles X (Chapel Hill: University

ity and grace in the face of universal laws – neither the grantor nor thegrantee is an individual – but the public interest and political decision.Despite their generality and democratic legitimacy, amnesties involve a

harsher compromise with the rule of law than ordinary pardons. While,as Hegel pointed out, pardons proper annul neither the law nor the fact of its infringement,78 amnesties obliterate all traces of the crime. They require the exercise of sovereignty because they rescind a general law retroactively, rather than merely remitting a penalty on the basis of individual circumstances. Like amendment and impeachment, amnesty transforms the parliament into a constituent assembly. In amnesties thecommunal body asserts its sovereignty in order to ‘put an end to rebel-lions, civil wars or disturbances,’79 and generally in order to celebrate andrenew its integrity.80 Thus, amnesties have been triggered by each of thefamiliar occasions of sovereign presence, including military triumphs,

coronations, declarations of independence, and other political rites of passage such as royal entries, marriages, and births.81




of North Carolina Press, 1984) at 98. On pardons and amnesties upon royal entries andbirths, see L.M. Bryant, The King and the City in the Parisian Royal Entry Ceremony: Politics,Art and Ritual in the Renaissance (Geneva: Droz, 1986) at 25. Recent examples includethe general pardons declared in Belgium upon the crown prince’s marriage and in

Morocco upon the birth of King Mohammed VI’s first son. Presidential elections inFrance are still customarily followed by amnesty laws.82 Bruce Ackerman, We The People: Foundations (Cambridge, MA: Harvard University Press,

1991) at 272–3 [Ackerman, Foundations ].83 Ibid. at 171–2, 263.84 Ibid. at 52.85 Ackerman, Transformations, supra note 35 at 89–94.86 On constitutional impasse see Bruce Ackerman, ‘Higher Lawmaking’ in Sanford

Levinson, ed., Responding to Imperfection (Princeton, NJ: Princeton University Press, 1995)63; Ackerman, Foundations, supra note 81 at ch. 10.

IV Two contemporary theories

A ACKERMAN ON CONSTITUTIONAL MOMENTS

Bruce Ackerman’s and Antonio Negri’s theories of constitutional author-ship count among the most comprehensive contemporary constitutionaltheories. In its broad contours, Ackerman’s theory is consistent with theproposed understanding of constituent power as alternately present andabsent. His discussion revolves around the distinction between normal and constitutional politics, the latter potentially leading to higher lawmaking. According to Ackerman, constitutional authorship is discontinu-ous and sporadic. It is confined to rare moments of constitutionalpolitics, during which citizens are less focused on their private concernsthan they are in the course of normal politics, and more attentive to thegeneral good.82 Constitutional politics allows the will of the people to be

formed and pronounced83

and breathes new meaning into the constitu-tion, whether through a formal amendment of the constitutional text orthrough a revision of constitutional practice and interpretation84 Article V of the American Constitution, according to Ackerman, has repeatedly obstructed the people’s capacity to express its will, to the effect that major constitutional reforms in American legal history deviated from theamendment procedure it prescribes.85

In the course of normal politics, constitutional reforms cannot andshould not be undertaken. According to Ackerman, the court’s role inthe ordinary course of political life is to execute the will of the People asit crystallized in past episodes of constitutional politics. The American

Constitution instituted an elaborate division of powers that makes it impossible for any of the different branches of government to be innova-tive on constitutional issues in the course of normal politics. The rami-fied division of powers guarantees that any attempt to reform constitu-tional practice will face institutional opposition. A conflict betweeninstitutions over constitutional reform and the ensuing constitutionalimpasse ‘signal’ a passage from normal to constitutional politics. 86 The




87 Ackerman, ibid. at ch. 11.88 Ibid. at 11–13.89 ‘The nation is prior to everything. It is the source of everything. Its will is always legal;

indeed it is the law itself. Prior to and above the nation, there is only natural law.’ Sieyès,Third Estate, supra note 24 at 124.

people is then called to decide the constitutional issue that divides therival institutions. Popular movements can also initiate a passage to con-stitutional politics and invite citizens to engage in a process of collective

will formation. Ackerman’s theory is based on the principle that higher laws can be

enacted only in constitutional moments during which the will of thepeople pronounces itself. The American ideal of ‘private citizenship,’

Ackerman argues, allows citizens to concentrate on their private con-cerns until some signal invites them to take part in a collective decision.87

This is a compelling principle, but Ackerman’s model misses much of itsraison d’être by regarding modern democracy – in particular, Americandemocracy – as its exclusive realization. The collective body of the peopleasserts its will and makes law in constitutional moments in different typesof regimes; democratic institutions are not the exclusive setting in which

the people can speak and make law. Ackerman’s construction of an idealof ‘private citizenship,’ affirming both citizen involvement duringconstitutional politics and citizen indifference during normal politics,captures the alternation of social life between phases of structure andcommunitas, segmentation and convergence. This alternation character-izes social and political life under all types of regimes. The principalconcepts employed by Ackerman – normal politics, constitutionalpolitics, constitutional moments, and higher law-making – are readily applicable to non-democratic constitutional orders. Ackerman distortsthe theoretical import of these concepts by reading into them a locallegal history.

Ackerman depicts constitutional politics as at the same time too tameand too unruly. Constitutional moments are too lawless because, for Ackerman, the will of the people is not subject to any legal constraints.88

The spontaneous will of the people is the exclusive, self-identical, andabsolute source of higher law. Ackerman envisages constitutional mo-ments as episodes of radical creation ex nihilo. As suggested above, thegroup can conceive a constitutional order only when it recognizes certainlegal constraints as pre-given, only if the law-giving authority of thepeople is not fully incarnated by the living but partly exercised from thepast, from below or above the group. Constituent power, as Sieyès wrote,is constrained by natural law even at the moment of foundation, in whichit appears more powerful than ever.89

While Ackerman views the will of the people as an ultimate, boundlesslaw-making authority, he does not perceive an inherent conflict between




90 Contrary to Ackerman’s proposal, there is no need to recognize new procedures of constitutional amendment, since the established procedure is in any case relaxed ingenuine constitutional moments. The proposed reform will unduly expose constitu-tional principles to partisan and populist challenges in moments that are not sufficiently intense to apply, or violate, the established procedure.

91 Ackerman, Transformations, supra note 35 at 417.92 Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. by Maurizia

Boscagli (Minneapolis: University of Minnesota Press, 1999) at 8.93 Negri, ibid. at 3, 4, claims that it is impossible to lock constituent power within a static

system of representation.

constitutional politics and constitutional procedure. Even if past constitu-tional moments in American history triggered violations of the amend-ment rules established in the constitution, the conflict between legality

and legitimacy can be avoided, according to Ackerman, through theintroduction of new procedures.90 Like any other part of the law, thesenew procedures may one day become too rigid, but they can reconcileprocedure and popular sovereignty in the foreseeable future. There isnothing in the process of collective will formation that is inherently antagonistic to procedure.91 The foregoing account of constitutionalmoments suggests, contrary to Ackerman’s view, that constitutionalmoments cannot be fully regulated by law. Sovereign presence involvescollective participation, but one that is festive and liminal rather thanbound to procedure. The appropriation of constituent power by thegroup can be largely manipulated and domesticated by democratic

institutions, but it remains essentially anarchic and lawless.

B NEGRI ON CONSTITUENT POWER Antonio Negri is the prominent contemporary exponent of the view that denies the distinction between normal and constitutional politics. WhileNegri and Schmitt epitomize diametrically opposed political positions,their constitutional theories bear an alarming affinity. For Schmitt, wehave seen, the validity of the constitutional structure depends at any moment on the implicit assent of a present, embodied sovereign and canbe at any moment retracted by sovereign decision. In Negri’s words,Schmitt dissolves the distinction between constituent and constituted

power,92

because the latter never breaks free from the former. For Negri,too, constituted power is an immediate expression of constituent powerand is never durably independent. It forms part of the ‘total matrix’ of interactions and situations Negri identifies with constituent power. Only

when constituted institutional formations become petrified and repres-sive do they enter into collision with constituent power.93 Such a conflict between state and society, between constituted and constituent power, ishardly envisaged by Schmitt. Negri is far more hostile to the state thanSchmitt and far more doubtful of its capacity to manifest constituent power. But in many respects Negri’s account of constituent power




94 Ibid. at 318, 320, 330.95 ‘Constitutive strength dislocates and transvalues space into time ...’ Ibid. at 317–8.

96 Ibid. at 327.97 Ibid. at 318–9.98 Ibid. at 24, 334, 335.99 ‘The political is ... production par excellence, collective and non-teleological. Innovation

constitutes the political; constitution cannot but be constant innovation.’ Ibid. at 28.Thus, for Negri, constituent power cannot be associated with utopia. Utopia, he says,is not a genuine, traumatic experience of time but a linear movement toward adeterminate future. Ibid. at 322.

100 Ibid. at 28, 322.101 Ibid. at 322.

remains close to Schmitt’s. Indeed, Negri affirms the permanent pres-ence of constituent power more explicitly than Schmitt ever did.

In Negri’s distinctive terminology, constituent power is born of the

marriage of ‘multitude’ and ‘strength.’94 This encounter produces apower that is unlimited and independent of any existing institutionalframeworks, revealing itself through fluid and changing media. Constitu-ent power is a dynamic totality that casts itself constantly toward anunknown future, dissolving on its way distinctions between time andspace95 and between the social and the political.96 Negri defines constitu-ent power as ‘love of time’ and celebration of temporality, and as anendorsement and affirmation of the ‘crisis’ inherent in a genuineexperience of time.97 Constituent power is the lack of a clear constitutedframework or purpose, a permanent revolution98 gushing toward an openfuture.99 As we saw, anthropologists refer to such an experience of

temporality as ‘mythical time.’Negri denounces any concept of externality to the social and theconcomitant idea of a constitution. While constituent power consists inthe permanent presence of democratic strength – Negri refers to it as a‘living God’100 – the constitution attempts to deprive the people of itspowers. Let me quote two long passages in Negri’s own words:

... democracy means the omnilateral expression of the multitude, the radicalimmanence of strength, and the exclusion of any sign of external definition,either transcendent or transcendental and in any case external to this radical,absolute terrain of immanence. This democracy is the opposite of constitutional-ism. Or better, it is the negation itself of constitutionalism as constituent power –

a power made impermeable to singular modalities of space and time, and amachine predisposed not so much to exercising strength, but, rather, tocontrolling its dynamics, its unchangeable dispositions of force. Constitutional-ism is transcendence, but above all constitutionalism is the police that transcen-dence establishes over the wholeness of bodies in order to impose on them orderand hierarchy. Constitutionalism is an apparatus that denies constituent powerand democracy.101




102 Ibid. at 327.

103 Ibid.104 Ibid. at 335.105 ‘Constituent power is this force that, on the absence of finalities, is projected out as an

all-powerful and always more expansive tendency. Lack of preconstituted assumptionsand fullness of strength: this is a truly positive concept of freedom. Omnipotence andexpansiveness also characterize democracy, since they define constituent power.Democracy is both absolute process and absolute government.’ Ibid. at 14.

‘Only in the multitude, insofar as it is capable of expressing living labor, lies thetruth of the constitution. Democracy, a real democracy of right and appropriation,

Whereas constituent power had always been defined (in the terms of modernity)as an extraordinary power with respect to the ordinary legitimacy of the constitu-tion, here any extraordinariness is taken away because through its reduction to

the social (animated by living labor) constituent power’s ordinary capability of operating in ontological terms is recognized. Constituent power is a creativestrength of being, that is, of concrete figures of reality, values, institutions, andlogics of the order of reality. Constituent power constitutes society and identifiesthe social and the political in an ontological nexus.102

At the end of his book, Negri suggests how his ontology of constituent power might illuminate concrete political developments. The mystifica-tion of the constitution and of its institutions is designed, according toNegri, to rob constituent power of ‘being,’ but rigid constitutions arebound to be sooner or later overthrown by fermenting constituent power:

This appearance of exhaustion is the effect of the mystification that the practicesof constitutionalism stage in order to block the investment of the social and thepolitical in being.103

A political world, many political worlds, in the West and the East, are collapsingbecause they have exhausted constituent power.104

Contrary to Negri’s remarks on constituent power and time, imma-nence betrays a hatred of time and change, a quest for a perpetualpresent. It amounts to a repudiation of the authority of the past and of duties to the future, an extermination of ancestors as well as future

generations. Despite Negri’s critique of Schmitt, the parallels betweentheir positions are striking. Like Schmitt in Constitutional Theory , Negrilocates constituent power in the hands of the group and conceives of it asan immanent radiant power free from any normative constraints. BothNegri and Schmitt identify the political not with regulated activity withingiven institutional frameworks but with the exuberant vitality of thepeople’s constituent power. Negri’s account of democracy as absolutegovernment and as a living god seems to coincide perfectly withSchmitt’s.105 Admittedly, Negri portrays constituent power as far more




equal distribution of wealth, and equal participation in production, becomes the livinggod. In it subject and structure, strength and the multitude become identical. Ibid. at 28.

106 Ibid. at 332.107 The same sentiment surfaces in the following description of constituent power: ‘[the]

movement [of constituent power] is uninterrupted, a construction from below that traverses the singular emergences by coordinating their action. In this process generaland abstract rules are not applied, but, rather, constellations of interests, agreements,and relations are continually constituted and verified. If procedural rules exist, they themselves are each time verified. Cartographies of the connections and theinterrelations of the relations and initiatives are constructed. The frame is that of acontinual expansion of “entrepreneurial” activities, cutting through the social and thepolitical, the juridical and the institutional. Sovereignty never separates from its originsand is organized in the relations between origin and exercise.’ Ibid. at 330.

dynamic, plural, and scattered than Schmitt takes it to be: according toNegri, constituent power cannot support for long a single, hegemonicinstitutional structure and is made of plurality and difference. Negri

believes that the immanence of sovereignty can be reconciled withplurality and individual autonomy. Schmitt’s political anthropology,associating sovereign immanence with social uniformity, seems at thispoint more convincing, at least according to the account of corporateand communal bodies proposed earlier. Schmitt perceived the inconsis-tency of the permanent presence of sovereignty with plurality anddivision. When the collective body assumes the form of an immanent communal body, it is all-embracing and undivided. Negri ignores thethreats to individual autonomy posed by his model of immanent constitu-ent power and absolute democracy. He does not acknowledge any correlation between the empowerment of popular forces and the loosen-

ing of the rule of law, on the one hand, and the violation of individualliberties, on the other. For him, immanent constituent power is nothingbut cooperation among free individuals:

Cooperation is in fact the living and productive pulsation of the multitudo. [...]Cooperation is innovation, richness, and thus the basis of the creative surplusthat defines the expression of the multitudo. Command is constructed onabstraction, alienation, and the expropriation of the cooperative creativity of themultitude. Command is privilege: the fixed and unified appropriation of constituent power. It is constituted power and constitution. The world is thusinverted: command precedes cooperation. But this reversal and the rationality and logic that exalt it are in themselves contradictory and limited because they

do not possess the force of their own reproduction.106

Negri’s words reveal here a deep-seated aversion to the idea of the ruleof law.107 His model of absolute democracy is stripped of central featuresof liberal or republican democracy: the rule of law and the division




between private and political spheres. These principles entrench individ-ual autonomy by securing the absence of the sovereign collective body.Democracy is particularly vulnerable to the expansionist attempts of the

communal body. Like Schmitt, Negri advocates an understanding of popular sovereignty, which turned democracy into a hothouse for fascist ideas and movements. Contrary to Negri’s account, only democraticinstitutions that secure the transcendence of sovereignty allow fordiversity of opinion and pluralism of conflicting loyalties. The moreepisodic and fleeting is sovereign presence, the safer are individualautonomy and human rights.

Constituent Power as Body, Outline of a Constitutional Theology_Lior Barshack

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