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Political constitutionalism versus
political constitutional theory:
Law, power, and politics
Panu Minkkinen*
This essay juxtaposes political constitutionalism with a political constitutional theory
that is mainly based on the work of Carl Schmitt. It claims that the former understands
politics as consensual government and correspondingly the constitution as a set of principles and institutions that allows for the management of arising conflicts. Political
constitutional theory, on the other hand, acknowledges the ever-present potentiality of
conflicts as essential to the political nature of the constitution. The potential conflicts
occasionally actualize as exceptional constitutional violations that, at the same time,
reaffirm the sovereign constituent power that accounts for the radical democratic foundation of all constituted political and legal institutions. The position of occasional constitutional violations as expressions of constituent power is further illustrated in relation
to the separation of powers as actualized conflicts between the judiciary and the elected
branches. Exceptional constitutional violations that transgress the constituted limits of
the respective branches of government are an indication of the political nature of the constitution, including the separation of powers, and not as an anomaly that constitutional
theory cannot explain.
1. Introduction
For over a decade now, constitutional debate has persistently revolved around prem­
ises that, in one form or another, focus on the role of law in democracy. Cutting corners
and simplifying the issues, the debate can, perhaps, be best depicted as the challenge
of political constitutionalism to an allegedly more traditional legal constitutionalism.
Although the origins of political constitutionalism can be traced to earlier times,1
* University of Helsinki, Finland. Thanks to all who have commented on the essay in its various stages,
especially Paul O’Connell for his camaraderie and support, and Aileen Kavanagh whose book provided
an important forum for revising the ideas. All inconsistencies and mistakes are, of course, of my own
making. Email: [email protected].
1
See, e.g., J.A.G. Griffith, The Political Constitution, 42 Mod. L. Rev. 1 (1979). Further on Griffith, see Graham
Gee, The Political Constitutionalism of JAG Griffith, 28 Legal Stud. 20 (2007).
I•CON (2013), Vol. 11 No. 3, 585–610doi:10.1093/icon/mot020
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I•CON 11 (2013), 585–610
Richard Bellamy’s passionate introduction to his more or less recent book depicts this
latest challenge well:
The legal constitutionalist’s attempts to constrain democracy undercut the political constitu­
tionalism of democracy itself, jeopardizing the legitimacy and efficacy of law and the courts
along the way. For a pure legal constitutionalism, that sees itself as superior to and independent
of democracy, rests on questionable normative and empirical assumptions—both about itself
and the democratic processes it seeks to frame and partially supplant. It overlooks the true basis
of constitutional government in the democratic political constitutionalism it denigrates and
unwittingly undermines.2
But what is so particularly and exclusively “political” about the political constitu­
tionalism represented by Bellamy and others? The decisive criterion can hardly be the
commitment to democracy because defenders of legal constitutionalism often claim to
endorse the same democratic principles.3 This essay will, in fact, argue that it is specif­
ically the more or less universalistic commitment to liberal democracy that prevents
political constitutionalism—as well as its legal counterpart—from becoming political
in any strong sense of the word. The normative universalism that underpins the work
of most political constitutionalists sets a nucleus of democratic principles and institu­
tions beyond the reach of political decision-making. The validity of these principles
and institutions is claimed to be normative in a strong way, and political constitution­
alism further reinforces their normative validity through its own commitment to the
values of liberal democracy. As a consequence, constitutionalism—once again either
political or legal—runs the risk of being reduced to the management of political dis­
agreement rather than providing the fora through which disagreement is enabled and
put into practice as political action.
This essay will, then, attempt to outline a political constitutional theory with spe­
cific reference to the work of Carl Schmitt in which politics is understood as a norma­
tively unrestrained possibility of disagreement and dissent. Although Schmitt never
explicitly created such a theory, his general position in relation to law, power and poli­
tics clearly points in that direction. But political constitutional theory as it is under­
stood here does not and cannot participate in the Schmitt orthodoxy that has resulted
from the prevalent emphasis on historical perspectives. Schmitt must be “uprooted”
from his Weimarian origins and adapted to the contemporary world. Neither does
political constitutional theory cynically deny the value of the democratic principles
and institutions that are possibly enshrined in liberal constitutions as Schmitt’s critics
may claim. But it does understand their validity as factual and accordingly dependent
on the political self-determination that a nation exercises. In other words, they could
always be otherwise, and the theory must also be able to account for the exceptional
Richard Bellamy, Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy 2–3
(2007).
3
For an interesting response to Bellamy along these lines, see Alec Walen, Judicial Review in Review:
A Four-Part Defense of Legal Constitutionalism, 7 Int’l J. Const. L. 329 (2009). For another debate across
similar front lines, see Adam Tomkins, Our Republican Constitution 1–32 (2005), and Paul Craig, Political
Constitutionalism and Judicial Review, in Effective Judicial Review. A cornerstone of Good Governance 19
(Christopher Forsyth et al. eds., 2010).
2
Political constitutionalism versus political constitutional theory
587
measures adopted by one institution or another if and when existing constitutional
principles and institutions are threatened.
By way of introduction, Section 2 delineates how Schmitt has been received—or
not, as the case may be—in legal and political theory in general and political con­
stitutionalism in particular. Both ideological and epistemological obstacles to recep­
tion are identified and, hopefully, overcome. Section 3 deals with the constituent
element in Schmitt’s constitutional theory, namely constitution-giving power, which
is responsible for both the constitution as the original sovereign expression of politi­
cal self-determination and the exceptional breaches and violations made to it. Unlike
political constitutionalism, political constitutional theory does not regard occasional
constitutional violations as anomalies but, rather, as exceptional factual responses to
threats that potentially endanger the political existence that the political unity has
constituted through its political and legal institutions. Understanding constitutional
violations through Schmitt’s notions of constituent constitution-giving power and
sovereign exceptionality also suggests a particular notion of the political, which is
dealt with in Section 4. Using Schmitt’s distinction between friend and enemy, Section
4 develops a notion of the constitution as a political charter or, in other terms, of the
political constitution. As the outcome of constitution-giving power and constituent
political self-determination, constituted institutions imply the will and the need for
continuity and stability in the face of potential threats.4 Even in times of stability, con­
stituted institutions always imply scenarios that may endanger a chosen political exis­
tence. If political constitutionalism uses the epithet “political” primarily to designate
its normative commitment to liberal democracy and its institutions, then political con­
stitutional theory claims that a constitution is not political because of a commitment
to any particular choice of politics but, rather, because commitment itself implies an
ever-present and necessary tension between what has been constituted (e.g., liberal
democracy) and the “enemies” (e.g., undemocratic forces) that potentially threaten it.
After outlining a Schmittian political constitutional theory, Section 5 will apply
the created framework to contextualize two interrelated constitutional phenomena,
both relating to the separation of powers, that have been prevalent in recent debates:
the tensions between the judiciary and the elected branches, and the strong position
of the executive branch in relation to the legislature. As illustrative examples, both
the increased political influence of the courts and the demise of parliamentary power
in favor of a strong executive branch can, I would claim, be theoretically explained
through political constitutional theory. And the merits of the theory should be mea­
sured on its explanatory potential rather than the political antipathies that Schmitt’s
person undoubtedly creates.
This political dimension is already present in Cicero who is often credited as the first to use the word
“constitution.” Cicero acknowledged the Roman public institutions as second to none, but even they were
under the constant threat of decay from both internal and external danger. And so Cicero sought to con­
stitute (constituere) the relations between the public institutions in such a way that it would both ensure a
domain free from the corrupt use of power and provide continuity and stability to the polity that was thus
established. See, e.g., Cicero, The Republic and The Laws 30–32 (Niall Rudd trans., 1998).
4
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I•CON 11 (2013), 585–610
2. Schmitt revisited
Talking about Schmitt nearly three decades after his death is still regarded by many
as controversial. More often than not, critical views are informed by Schmitt’s politi­
cal escapades as the “Crown Jurist of the Third Reich”5 as in, for example, David
Dyzenhaus’s influential writings,6 and a demonization has been further fueled in
the public imagination by Schmitt’s later intellectual affiliations with “Soviet spy”
Alexandre Kojève,7 the neoconservative intellectual figurehead Leo Strauss,8 and oth­
ers.9 At the other end of the political spectrum, there has been a revived interest in
Schmitt’s work inspired by leftist continental political philosophers such as Giorgio
Agamben,10 Massimo Cacciari,11 and Chantal Mouffe,12 often depicted by Schmitt’s
critics as “apologists.” And in between these entrenched camps, political philosophers
such as George D. Schwab and a number of other scholars working around the small
publishing house Telos Press and its affiliated journal13 have been engaged in what
5
6
7
8
9
10
11
12
13
This weary epithet is usually accredited to the Catholic and anti-communist political theorist Waldemar
Gurian.
See, e.g., David Dyzenhaus, Legality and Legitimacy. Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar
(1997). An acute a reader of Schmitt as Dyzenhaus may be, he also betrays his resentment for Schmitt’s
personal politics by trying to set him up against the social democrat Hermann Heller who Dyzenhaus is
barely short of idolizing. For a critique of the factual merits of Dyzenhaus’s advocacy of Heller, see Joseph
W. Bendersky, Carl Schmitt and Hermann Heller, 113 Telos 157 (1998).
See Alexandre Kojève & Carl Schmitt, Alexandre Kojève—Carl Schmitt Correspondence and Alexandre
Kojève, “Colonialism from a European Perspective”, 29 Interpretation 91 (2001). Kojève’s own Hegelian
philosophy of law shares many affinities with Schmitt. See Alexandre Kojève, Outline of a Phenomenology
of Right (Bryan-Paul Frost & Robert Howse trans., 2000). The affinities between Schmitt and Kojève’s
Hegelian “master” are also noted in the introduction of Alexandre Kojève, La notion de l’autorité
[The Concept of Authority] (2004). See also Alexandre Kojève, Tyranny and Wisdom, in Leo Strauss &
Alexandre Kojève, On Tyranny 135 (Victor Gourevitch & Michael S. Roth eds, 2000). Kojève’s KGB affili­
ations were reported in an article in Le Monde in 1999 (see Pascal Ceaux, La DST avait identifié plusieurs
agents du KGB parmi lesquels le philosophe Alexandre Kojève [The Directorate of Territorial Surveillance
identifies several KGB agents, philosopher Alexandre Kojève among them], Le Monde, Sept. 16, 1999,
at 14).
See Heinrich Meier, Carl Schmitt & Leo Strauss. The Hidden Dialogue (J. Harvey Lomax trans., 1995). The
influence of Strauss, Schmitt, Kojève, and others on the development of the neoconservative agenda is
discussed in, e.g., Shadia B. Drury, The Political Ideas of Leo Strauss (2005).
Schmitt’s personal politics are certainly easy prey for sensationalist accounts of extremist intellectual
positions. See, e.g., Mark Lilla, The Reckless Mind. Intellectuals in Politics 47–76 (2001). On Schmitt’s
more hidden influence on twentieth-century political thinking, see William E. Scheuerman, Carl Schmitt.
The End of Law (1999).
See, e.g., Giorgio Agamben, Homo sacer. Sovereign Power and Bare Life (Daniel Heller-Roazen trans.,
1998) and Giorgio Agamben, State of Exception (Kevin Attell trans., 2005).
See, e.g., Massimo Cacciari, Law and Justice: On the Theological and Mystical Dimensions of the Modern
Political, in The Unpolitical. On the Radical Critique of Political Reason 173 (Massimo Verdicchio trans.,
2009) and especially Massimo Cacciari, Icone della legge (1985).
See, e.g., Chantal Mouffe, The Democratic Paradox 36–59 (2000) and Chantal Mouffe, On the Political 8–34
(2005).
See, e.g., George Schwab, The Challenge of the Exception. An Introduction to the Political Ideas of Carl
Schmitt Between 1921 and 1936 (1989), and Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich
(1983).
Political constitutionalism versus political constitutional theory
589
one might call Schmitt scholarship proper. What, however, unites the different posi­
tions is that they are all centered on a theoretical debate on political liberalism.14
Entrenched positions have, however, also made it difficult to engage with Schmitt’s
work in a way that would allow for more dispassionate analyses of what his work might
have to offer legal and political theory in general and constitutional theory in particu­
lar. This essay will attempt to situate arguments from some of Schmitt’s better known
but shorter texts (primarily Political Theology15 and The Concept of the Political16) within
the overall framework of his Constitutional Theory,17 and to assess the significance of
the emerging political constitutional theory for the contemporary British debate on
political constitutionalism.18 Due to the fairly recent publication of translations of
what could with good reason be regarded as Schmitt’s major monograph works—the
English translation of Constitutional Theory was only published in 2008 and The Nomos
of the Earth19 a few years earlier—Anglophone analyses, notwithstanding the work of
polyglot scholars such as Dyzenhaus, Schwab, or Mouffe, have all too often focused
on the shorter pamphlets translated earlier without situating the arguments into the
larger framework of Schmitt’s constitutional theory.20 What is gained in creative depar­
tures from more or less isolated arguments is, perhaps, lost in the possibility of a more
coherent theory against which competing ones could be contrasted.
Part of the reason why Schmitt’s work is not easily integrated into the British debate
on constitutionalism is the difficulty of transplanting his continental tradition into the
local theoretical paradigms. On the face of it, one could, perhaps, assume that his con­
stitutional theory is political in a similar way as the work of contemporary political
constitutionalists in Britain and elsewhere but that it only promotes non-republican
and anti-liberal principles. Schmitt is, however, not a “constitutionalist,” if by con­
stitutionalism we understand the commitment to regulate potentially arbitrary state
For a recent analysis on the ebb and flow of the Schmitt controversy, see Benno Teschke, Decisions and
Indecisions: Political and Intellectual Receptions of Carl Schmitt, 67 New Left Rev. 61 (2011). For a gen­
eral presentation of Schmitt’s critique of liberal constitutionalism (especially the rule of law), see Iain
Hampsher-Monk & Keith Zimmerman, Liberal Constitutionalism and Schmitt’s Critique, 28 History Polit.
Thought 678 (2007).
15
Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (George Schwab trans., 2005).
16
Carl Schmitt, The Concept of the Political (George Schwab trans., 2007).
17
Carl Schmitt, Constitutional Theory (Jeffrey Seitzer trans., 2008).
18
Schmitt does not specifically talk about a “political constitutional theory” but notes that his constitu­
tional theory is based on a political concept of law that “results from the political form of existence of
the state and out of the concrete manner of the formation of the organization of rule.” Id., at 187. The
introduction of an edited collection referring to the relationship between law and politics asks: “Why Carl
Schmitt?” If the subsequent chapters are anything to go by, interest in Schmitt’s work is mostly condi­
tioned by an historical context of the Weimar period rather than the possibility of a more general political
concept of law. See Law as Politics. Carl Schmitt’s Critique of Liberalism (David Dyzenhaus ed., 1998).
19
Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (G. L. Ulmen
trans., 2003).
20
An exemplary and interesting departure of this kind is William Rasch, Sovereignty and Its Discontents. On
the Primacy of Conflict and the Structure of the Political (2004). As a Germanist, Rasch would not be lim­
ited by linguistic constraints, but his reading of Schmitt is largely based on the shorter texts rather than
the major monographs.
14
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I•CON 11 (2013), 585–610
powers through principles such as the rule of law. The equivalent of constitutional­
ism understood in this way would for Schmitt be the Rechtsstaat principle, that is, the
sovereign state the powers of which are limited by a self-imposed positive constitution,
something that Austin referred to as a “flat contradiction in terms.”21
Schmitt would have no theoretical grounds to object to the rule of law principle
in itself if such a principle was, indeed, constituted through the political self-deter­
mination of a nation. Schmitt may well be a critic of parliamentarism, but he is also
a radical democrat.22 What Schmitt is opposed to is the universalizing tendency of
political liberalism, both right and left, to remove principles such as the rule of law
from the reach of sovereign power and political self-determination.23 For Schmitt,
the nation is the ultimate factual source of a constituent power that cannot logically
be constrained by what it may have constituted. A nation is, then, not the elector­
ate confined by the constitution to its role in representative democracy or a political
community constrained by the terms of its covenant. But neither is it a constitution­
ally unframed source of crude popular power. A nation is a democratic institution
that requires nothing more than a political awareness and the will to exercise fac­
tual power in accordance with that awareness in order to reconstitute itself otherwise
should it so desire.24 Disregarding his own personal politics, it is this strain of radical
democracy that aligns Schmitt theoretically with both the political left and the politi­
cal right but makes him difficult to integrate into the tradition of center-left liberalism
that political constitutionalism represents.
A second problem arises if political constitutionalism is viewed as a response or an
alternative to legal constitutionalism. To put it crudely for the sake of argument and
disregarding all the nuances of the debate, both political and legal constitutionalists
broadly agree on a nexus of core principles. What they disagree about is how these
principles can be best put into effect with political constitutionalists often arguing that
legal mechanisms such as judicial review are at best insufficient.25 But when Schmitt
John Austin, The Province of Jurisprudence Determined 212 (Wilfrid E. Rumble ed., 1995). In continental
constitutional theory, the contradiction of a self-delimiting sovereign state can be traced at least as far
back as Jhering’s notion of the bilateral coerciveness of law as “self-subordination on the part of the State
authority to the laws issued by it.” Rudolf von Jhering, Law as a Means to an End 267 (Isaac Husik trans.,
1913).
22
See Carl Schmitt, The Crisis of Parliamentary Democracy 22–32 (Ellen Kennedy trans., 1988). For a theo­
retical analysis of Schmitt’s notion of democracy, see Andreas Kalyvas, Democracy and the Politics of the
Extraordinary. Max Weber, Carl Schmitt, and Hannah Arendt 79–186 (2008).
23
This universalizing tendency is one of the key theoretical premises that critical constitutional theorists
such as Costas Douzinas argue against. See, e.g., Costas Douzinas, Human Rights and Empire. The Political
Philosophy of Cosmopolitanism 101–110 (2007).
24
If we bracket out its undeniably nationalistic and racist Herderian overtones, the German word Volk cap­
tures well the conflation of the national and the popular: constituted by both law and culture, and yet
radically free to determine its destiny. On the “populistic” strain in Paine’s predominantly legal constitu­
tionalism, see Robin West, Tom Paine’s Constitution, 89 Va. L. Rev. 1413 (2003).
25
The debate between political and legal constitutionalists is often unfortunately entrenched leading the
former, for example, to underestimate the role of courts in securing the functioning of the very same
political institutions that political constitutionalists swear by, and the latter to overestimate the indepen­
dence of the courts as a disinterested “third party.”
21
Political constitutionalism versus political constitutional theory
591
juxtaposes his political constitutional theory against what he calls normativist theo­
ries, he is not talking about whether the constitution aims at holding political actors
to account through either political processes or legal institutions.26 His main concern
is the consistency of the theory itself in explaining the constitution. Schmitt’s nem­
esis, in perhaps more ways than one, is Kelsen who, at least in his earlier neo-Kantian
work, can be considered as the archetypal normativist.27 For Kelsen, the constitution
in its material and positive sense is a collection of norms that regulates the creation of
general legal norms. The constitution can be written and hence formal, but it can also
consist either fully or partially of unwritten norms based on custom. In its function
of regulating the creation of legal norms, the constitution is the highest level of the
hierarchy of positive legal norms in the Stufenbau.28 Schmitt will have no argument
with this. The constitution can both regulate formal processes through which norms
are created and include the political principles that norms must comply with in order
to be considered valid.
Strictly speaking, Kelsen has very little to say about what the constitution “is”
because his focus is epistemological. The aim of Kelsen’s pure theory is to secure the
scientific status of legal knowledge, so instead of telling us what the constitution is, he
has to work the other way around: How should we conceptualize the constitution so
that the pure theory describing it can be regarded as scientific? Kelsen then replies that
the theory can only be scientific if the constitution is conceptualized as positive legal
norms, and this is why the pure theory is a normative science. The theory requires
that even the substantive political principles that the constitution may include must
be treated as positive legal norms, and once they have been embedded into the consti­
tution through either enactment or established custom, there is no reason why this
could not be done. Kelsen’s normativism is descriptive rather than prescriptive. Within
the theory itself, the political principles that have now been reconceptualized as posi­
tive constitutional norms can have no prescriptive value. Kelsen’s Kant is the Kant
of the first Critique, not of the second Critique, and his neo-Kantian undercurrent
means that the pure theory accounts for the constitution with reference to theoretical
reason, not to practical reason.29
So when Schmitt talks about normativist theories, he is not referring to the type of normative constitu­
tional theory as represented in the work of, for example, Trevor Allan. See T.R.S. Allan, Constitutional
Justice. A Liberal Theory of the Rule of Law (2001).
27
On the normativity of legal positivism and decisionism, see Carl Schmitt, On the Three Types of Juristic
Thought 63–71 (Joseph W. Bendersky trans., 2004). On Kelsen’s neo-Kantian affiliations, see Stanley
L. Paulson, The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law, 12 Oxford J. Legal Stud. 311
(1992). For a more detailed discussion on Schmitt and Kelsen’s normativity, see Sylvie Delacroix,
Schmitt’s Critique of Kelsenian Normativism, 18 Ratio Juris 30 (2005). See also Cesare Pinelli, The Kelsen/
Schmitt Controversy and the Evolving Relations between Constitutional and International Law, 23 Ratio Juris
493 (2010).
28
Hans Kelsen, Pure Theory of Law 221–224 (Max Knight trans., 1967).
29
I have elsewhere argued in more detail for such an interpretation of Kelsen’s epistemological emphasis.
See Panu Minkkinen, Thinking Without Desire. A First Philosophy of Law 35–38 (1999), and Panu Minkkinen,
Sovereignty, Knowledge, Law 13–26 (2009).
26
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I•CON 11 (2013), 585–610
Schmitt’s central disagreement with constitutional normativists like Kelsen and
Paul Laband30 comes up at the next level of reasoning. In order to remain consistent
with his “descriptive normativism,” Kelsen must ground the constitution in the “tran­
scendental-logical” basic norm that the neo-Kantians, following Bentham, Vaihinger,
and others, would have regarded as a fiction.31 The fictive basic norm is transcendental
because it is external in relation to the constitution understood as positive law, and it
is logical because it is a necessary precondition for the normativity of the constitution
that the pure theory itself epistemologically requires. But Schmitt is just as critical
about epistemological fictions as Bentham is about legal fictions. He calls the fictions
that normativist constitutional theories must construct in order to remain epistemo­
logically consistent “apocryphal”32 because their aim is to exclude factual phenomena
that cannot be accounted for with a normativist explanation. The fictive foundation of
the constitution is postulated only so that the normativist theory itself would remain
intact. For Schmitt, the only foundation that can theoretically explain the existence
of the constitution is the factual expression of a political will, that is, a decision. The
constitution is a political charter that can well include legal norms and be analyzed
accordingly. But in order to explain the foundation of the constitution or, indeed, as we
will see, any violations to it, the gap between the normative and the factual has to be
bridged. It is at this level that Schmitt’s political constitutional theory departs from the
normativist tradition even though, as a constitutional lawyer, his commentaries on
constitutional norms themselves often resemble those of his normativist and positivist
counterparts.
In other words, Schmitt’s political constitutional theory does not lend itself easily
to a discussion of what the Anglophone tradition understands as political constitu­
tionalism. The theory itself cannot claim to promote any substantive political prin­
ciples, be they republican or anti-liberal, even if Schmitt’s personal politics suggest
otherwise. It can only explain the existence of the constitution as a political charter by
breaking away from the closed normativist lattice of positivism and the universalizing
tendencies of political liberalism by grounding the constitution in a factual decision.
And so it is unlikely that a Schmittian perspective would be able to contribute much to
a debate on political constitutionalism if that debate is conducted on the latter’s terms.
Apparently there are no English translations available from this central figure in German public law and
constitutional theory. On Kelsen, Laband, and Schmitt, see Peter C. Caldwell, Popular Sovereignty and the
Crisis of German Constitutional Law. The Theory and Practice of Weimar Constitutionalism 40–119 (1997).
On Schmitt and his Weimarian contemporaries more generally, see Chris Thornhill, German Political
Philosophy. The Metaphysics of Law 261–289 (2007).
31
For the neo-Kantians, a fiction is the as if postulate with which Kant explained practical reason: there can,
for example, be no knowledge about the immortality of the soul, but even in the absence of knowledge
one must assume as if the soul was immortal for otherwise morality would be meaningless. See Immanuel
Kant, Critique of Practical Reason 167–168 (Werner S. Pluhar trans., Hackett 2002). Kelsen’s fiction is,
then, epistemological: we must assume as if the basic norm existed, for otherwise the pure theory would
be impossible. On law and neo-Kantian fictions, see Jerome Frank, Law and the Modern Mind 338–350
(2009). On law and fictions more generally, see Lon L. Fuller, Legal Fictions (1967).
32
See, e.g., Schmitt, supra note 17, at 154–155.
30
Political constitutionalism versus political constitutional theory
593
3. Constitution-giving power
Schmitt’s main contribution to constitutional theory, his Verfassungslehre, was first
published in 1928 six years after Political Theology which is much better known in
the English-speaking world mainly because of its notorious opening sentence identify­
ing sovereignty with a decision on the state of exception.33 In the introduction to the
former, Schmitt criticizes the “fictive” constructions of the Rechtsstaat in traditional
constitutional theory and notes that trying to account for sovereignty through “apoc­
ryphal acts” distorts the way in which state authorities are understood to be sover­
eign.34 In a way, then, Schmitt’s constitutional theory stands or falls depending on
how convincing or persuasive his account of sovereignty is.
In Political Theology, Schmitt clarifies that his definition of exception has to be
understood as a “borderline concept” that only applies to the “outermost sphere”
excluding what one would regard as normal cases. So the state of exception is not to
be understood in the conventional way as, for example, emergency powers that are
regulated under the Civil Contingencies Act 2004. Schmitt’s notion of exception is
seemingly something more radically out of the ordinary, that is, something that can­
not be defined within the definitions of emergency provided in, for example, §§ 1 and
19 of the Act or the corresponding emergency powers. But he insists that the state
of exception understood in this radical way is, nevertheless, a systematic and logical
element in the legal definition of sovereignty because it relates to a decision. A norm
cannot establish an absolute exception or provide the grounding for the decision that
a true exception requires.35
So, while the exception so understood may evade general legal frameworks, it does
include a specific formal and legal element, namely the decision in its purity.36 In its
absolute form, the exception can only arise in relation to an orderly normality that is
both presupposed and regulated by norms. Normality is the norm’s “homogeneous
medium” and a central requirement of its validity. But only a sovereign decision
can effectively determine whether the normality and orderly state of affairs that is
Schmitt, supra note 15, at 5. For a detailed account of Schmitt’s work during his early constitutional
period, see Schwab, supra note 13.
34
Schmitt, supra note 17, at 55. From a Schmittian point of view, Sedley’s constitutional paradigm of “bipolar sovereignty” would be such an “apocryphal act.” See Stephen Sedley, Human Rights: A Twenty-First
Century Agenda, Public L. 386 (1995). Political constitutional theory would not deny the factual changes
that are taking place, but it would regard explaining them with the contradictory paradigm as a fictive
attempt to salvage the doctrine of Crown sovereignty. See also C.J.S. Knight, Bi-Polar Sovereignty Restated,
68 Cambridge L.J. 361 (2009).
35
Schmitt, supra note 15, at 5–6. For an excellent overview of different constitutional arrangements to
cater for emergencies, see John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of
Emergency Powers, 2 Int’l J. Const. L. 210 (2004). On the constitutional ramifications of the ambiguity of
definitions of emergency in the Civil Contingencies Act 2004, see Clive Walker & James Broderick, The Civil
Contingencies Act 2004. Risk, Resilience, and the Law in the United Kingdom 77–79 (2006).
36
On Schmitt’s decisionism, see, e.g., Paul Hirst, Carl Schmitt—Decisionism and Politics, 17 Econ. & Soc’y 272
(1988). From the mid-1930s onwards, Schmitt’s decisionist formalism gradually morphs into the “third
type” of legal thought: “concrete order.” But even his post-war texts on Ordnungsdenken retain a radical
decisionist element, namely land-appropriation (Landnahme). See Schmitt, supra note 19, at 80–83.
33
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I•CON 11 (2013), 585–610
regulated by norms factually exists. Sovereign power both creates and guarantees the
situation in its totality and exercises a monopoly over the final decision. In other words,
sovereign power not only decides on the exception but also on the non-exceptional
normality by deciding to refrain from the emergency powers that are at its disposal. In
this way, the decision over the state of exception reveals the authority of the state in
the clearest possible way. The decision distinguishes itself from the legal norm, and the
factual authority invested in the decision demonstrates that it does not require a right
or a constitutional competence in order to create a legal state of affairs.37
But if the state of exception is, as Schmitt claims, a “borderline concept,” how can
we situate the sovereign power that it allegedly entails within constitutional theory?
Just as much as the constitutional framework informs Schmitt’s notion of sovereignty,
sovereignty also informs his understanding of the constitution. What is the relation­
ship between the two?
Schmitt’s sources of inspiration are quite different to his German contemporaries,
and one of them is the French revolutionary theorist Emmanuel-Joseph Sieyès. In his
celebrated 1789 pamphlet on the Third Estate, Sieyès makes the well-known distinc­
tion between constituted and constituent power. Sieyès argues that the constitutional
laws of a state all share a common source. They are regarded as fundamental because
the political and legal institutions that exist and act through them are unable to alter
these laws themselves. For Sieyès, “no type of delegated power can modify the con­
ditions of its own delegation.”38 In other words, even the constitutional competence
of the legislature is delegated power. But constitutions are not static, and the compe­
tences of the various institutions may change over time. So Sieyès must presuppose the
existence of a constituent power that, unlike the political and legal institutions that
can neither constitute themselves nor autonomously alter their own constitutional
designs, is not bound by laws, rules and forms. Constituent power is not conditioned
by any foregoing normative framework and is, therefore, capable of anything. And it
is the nation that should exercise this most important of powers, Sieyès concludes.
Constituent power is, then, a radical expression of popular sovereignty.
Constituent power is the political presupposition behind the constitutional laws of a
state, and as such it is also the sovereign foundation of the state as a constituted politi­
cal unity. Constituent power is omnipotent in so far as it cannot be subjected to formal
restrictions or regulations, and the nation that is the holder of this power is always
free to make alterations and exceptions to what it has constituted. Being in no way
constituted prior to the act of constitution, the nation is the ultimate source of power.
Schmitt, supra note 15, at 13.
Emmanuel-Joseph Sieyès, What is the Third Estate?, in Political Writings. Including the Debate between Sieyès
and Tom Paine in 1791, at 92, 136 (Michael Sonenscher trans., 2003). This is an inverted version of the
basic principle of sovereignty that was already put forward by Bodin who argued that “sovereignty given
to a prince subject to obligations and conditions is properly not sovereignty or absolute power.” Jean Bodin,
On Sovereignty 8 (Julian H. Franklin trans., 1992). See also Carl Schmitt, Die Diktatur. Von den Anfängen des
modernen Souveränitätsgedankes bis zum proletarischen Klassenkampf 137–140 (1994). A translation of this
essential book will be shortly available as Carl Schmitt, Dictatorship. From the Origin of the Modern Concept
of Sovereignty to Proletarian Class Struggle (Michael Hoelzl trans., forthcoming Aug. 2013).
37
38
Political constitutionalism versus political constitutional theory
595
The will of the nation is free and independent of all civil forms and only requires the
factual characteristics typical of a will as if it were in a state of nature: “Every form is
good, and its will is always the supreme law.”39
Schmitt’s constitutional theory is built around a concept of constitution-making
power that is clearly akin to Sieyès’s constituent power. Schmitt understands consti­
tution-making power as the political will that has the power or the authority to make
a general decision that defines the manner and form of its own political existence.
In other words, constitution-making power determines the existence of the political
unity as a whole. Like Sieyès, Schmitt further argues that the constitution understood
as the outcome of a sovereign act of constitution-making power cannot be subject
to normative constraints that could define or rule over its validity or legitimacy. The
validity of the constitution is not based on a higher norm or principle but merely on
a decision through which a nation defines the type and the norm of its own political
existence. The only criterion of constitutional validity can, for Schmitt, be the factual
will to exist in a particular way.40
So the validity of the constitution is not measured against a normative standard
such as a superior ethical norm or political principle. The decision of political exis­
tence or, perhaps more accurately, the decision to exist politically that determines the
type and the form of the constitution is valid if and only if the subject of constitu­
tion-making power, that is, the nation in constitutional democracies, has the factual
ability to make the required decision. The specific ways of existing politically that the
constitution establishes and institutes need not and cannot be justified in any other
way. Correspondingly, the constitution as a decision to exist politically can never be
dependent on preceding constituted restrictions.41
Individual constitutional norms cannot exhaust, absorb, or subsume the constitu­
tion-making power to which they owe their existence. Because it is constituent, consti­
tution-making power does not eliminate itself after it has once constituted a particular
institutional design. The constitution is the outcome of a political decision that cannot
operate retroactively and dissolve itself into what it may have constituted. So every
constitutional crisis or conflict that threatens the principles of the general political
decision, and all arising uncertainties and amendments, are decided through the same
constitution-making power. Constitution-making power is uniform and indivisible. It
Sieyès, supra note 38, at 138. On constituent power and democracy, see Andreas Kalyvas, Popular
Sovereignty, Democracy, and the Constituent Power, 12 Constellations. Int’l J. Critical & Democratic
Theory 223 (2005). On constituent power and politics, see Emilios Christodoulidis, Against Substitution:
The Constitutional Thinking of Dissensus, in The Paradox of Constitutionalism. Constituent Power and
Constitutional Form 189 (Martin Loughlin & Neil Walker eds., 2007).
40
Schmitt, supra note 17, at 125. With an unfortunately familiar gesture, the absence of a normative frame­
work conditioning the constituent sovereign decision gives Gross and Aoláin reason to call Schmitt’s
theory “nihilistic.” See Oren Gross & Fionnuala Ní Aoláin, Law in Times of Crisis. Emergency Powers in Theory
and Practice 167 (2006). Such a gesture inevitably misses the point. If the legitimacy of the sovereign
decision were subject to an even superior normative framework, then the whole vocabulary of sover­
eignty would be pointless, except, perhaps, in terms of the framework itself.
41
Schmitt, supra note 17, at 136–139.
39
596
I•CON 11 (2013), 585–610
is not a supplementary power that coordinates between other separated powers, but
the comprehensive principle behind all other powers and their possible separations.42
For Schmitt, the continuity of the political unity that is established through the
constitution is not endangered by occasional constitutional violations as long as the
comprehensive principle of constitution-making power is not compromised. The only
exception that Schmitt recognizes is a revolution where the subject of constitutionmaking power changes from, for example, monarch to nation or vice versa. Such a
change would, in Schmitt’s terms, completely annihilate the existing constitution.43
On the face of it, this would first seem like little more than a parallel formulation of
Kelsen’s discontinuity thesis.44 But quite unlike Kelsen, Schmitt is not concerned with
the epistemic requirement of explaining everything with a pure normativist theory.
A normativist theory of the constitution will have to set the revolutionary phenom­
enon aside because it cannot be explained as positive norms. For Schmitt, by way of
contrast, the revolutionary annihilation of the constitution merely reaffirms the supe­
riority of the factual over the normative, and so it validates his political constitutional
theory in general.
But an occasional constitutional violation would only be an individual exception
leaving the general validity of the constitution intact. As an example of an occasional
constitutional violation, Schmitt mentions the decision of a head-of-state to dismiss
a politically divided and ineffectual parliament and to call for new elections even if
the constitution does not recognize such powers or the circumstances in which these
powers have been used.45 Occasional constitutional violations are not legal norms in
the general sense of the word and cannot subsequently be regarded as constitutional
norms, either. They come about in the interests of the existence of the political unity,
and for Schmitt they are, once again, an indication of the superiority of the factual over
the normative. A constitutional violation so understood is a factual political decision
and an exception, and it is always an indication of sovereignty. Traditional theories
of the Rechtsstaat are unable to account for the factuality of the sovereign exception
because it falls outside of the constitutional competences of state institutions. And
yet, it is a logically and legally necessary element of any constitutional theory.46
For Schmitt, then, factual constitutional violations as exceptions are not symp­
toms of an anomaly. They are an indication of the superiority of the factual over the
normative and the guarantee of the vitality of political existence. In discussing the
Id. at 125–126.
Id. at 141–143.
44
See, e.g., Kelsen, supra note 28, at 208–211. See also John Finnis, Revolutions and Continuity of Law, in
Oxford Essays in Jurisprudence. Second Series 44 (A.W.B. Simpson ed.,1973).
45
Schmitt, supra note 17, at 148. Different constitutional cultures and theoretical frameworks have differ­
ent names for such violations. The American tradition often refers to them as “constitutional events”
perhaps wishing to emphasize how the violation was later absorbed into accepted constitutional practice,
while the European tradition is more prone to see a “constitutional crisis” in every violation. Levinson
and Balkin argue that “[i]f a central purpose of constitutions is to make politics possible, constitutional
crises mark moments when constitutions threaten to fail at this task.” Sanford Levinson & Jack M. Balkin,
Constitutional Crises, 157 U. Pa. L. Rev. 707, 714 (2009).
46
Schmitt, supra note 17, at 154–155.
42
43
Political constitutionalism versus political constitutional theory
597
superiority of the factual, Schmitt often uses the adjective “existential” (existenziell).
But Schmitt is not an existentialist, or at least not in the Sartrean or Jaspersian sense
of the term.47 With the adjective, Schmitt may wish to emphasize the ontic character
of his theory, that it is a theory of factual political life within a constitution.48
4. The political constitution
Therefore, for Schmitt, sovereign constituent power expresses itself in two ways. On
the one hand, it is the decision with which the nation constitutes the foundations of
its political existence. Through the constituent power that it factually exercises, the
nation determines the ways in which it will establish itself as a political unity through
its chosen political and legal institutions. This sovereign constituent power is, then,
constitution-making power:
The constitution in the positive sense originates from an act of constitution-making power.
The act of establishing a constitution as such involves not separate sets of norms. Instead, it
determines the entirety of the political unity in regard to its peculiar form of existence through
a single instance of decision. The act constitutes the form and type of the political unity, the
existence of which is presupposed.49
But sovereign constituent power also expresses itself as the superiority of the fac­
tual over the normative, as the factual ability to violate the normative framework,
which has been constituted as political and legal institutions, and to make exceptions
to it when political existence is threatened, without annihilating the constitution
through a revolutionary act. Schmitt’s claim concerning sovereignty and the state
of exception refers more generally to this second expression of sovereign constituent
power. A constitutional violation that, as an exception, still maintains the integrity
and the continuity of the political existence that is enshrined in the constitution is
a radical expression of factual political self-determination. Just as Sieyès’s constitu­
ent power, it must logically remain uninhibited by the constituted political and legal
institutions that have been set up. If the constitutional theory of the Rechtsstaat can be
seen as a logical contradiction in the sense that the state can only exercise its sovereign
powers within the normative framework of its own constitution and competences,
for Schmitt, the constituent nature of constitution-making power is responsible both
for the constitution as the initial expression of political self-determination and for
the exceptions required when the existence of the political and legal institutions thus
constituted are threatened. Sovereign constituent power can, therefore, be seen as an
Ellen Kennedy does, however, attribute both Schmitt’s decisionism and his notion of the exception to
Kierkegaard. See Ellen Kennedy, Constitutional Failure. Carl Schmitt in Weimar 47–48 (2004).
48
Only a year before the publication of Schmitt’s Constitutional Theory, Martin Heidegger had made the
distinction between existenziell, the common German spelling for “existential,” and existenzial comment­
ing on the former’s ontic (as opposed to the latter’s ontological) character as an expression of Dasein’s
possibilities to be itself, that is, to exist. These possibilities can be chosen, stumbled upon, or grown into,
but by either seizing upon such possibilities or neglecting them, Dasein “decides its existence.” Martin
Heidegger, Being and Time 33 (John Macquarrie & Edward Robinson trans., Harper & Row 1962).
49
Schmitt, supra note 17, at 75.
47
598
I•CON 11 (2013), 585–610
essential precondition of political constitutional theory rather than the dark anti-lib­
eral ethos of the “Crown Jurist.”
Elsewhere, Schmitt calls this constituent element dictatorial, and the choice of
terminology will, of course, further fuel controversies about Schmitt’s personal poli­
tics.50 Nevertheless, it is consistent with his general theory. Commissarial dictatorship
involves an exception to the constitution when it is threatened, and the use of dictato­
rial powers in such a situation involves a temporary suspension of the constitution
itself. The validity of legal norms implies a state of normality. In exceptional circum­
stances, when this normality is threatened, legal norms also run the risk of losing
their validity. Dictatorial action addresses the exceptional circumstances that threaten
that validity with the aim of “creating a state in which law can become reality.” This
allows Schmitt to conclude that, although commissarial dictatorship is, once again, a
factual rather than a normative phenomenon, it is still legally relevant: “The consti­
tution can be suspended without it becoming invalid only if the suspension is under­
stood as a concrete exception.”51
In other words, commissarial dictatorship and the factual suspension of the con­
stitution do not invalidate the constitution. This applies just as much to the historical
circumstances of the Weimar Republic that Schmitt is specifically referring to as to a
more contemporary situation in which political and legal institutions exercise uncon­
stituted powers and authority. Commissarial dictatorship acts on the constituted
framework without being embedded in it itself and cannot, accordingly, be negated
by that constitution. This is what Schmitt specifically understands by constituent
power.52
But what makes Schmitt’s constitutional theory “political” in a way that politi­
cal constitutionalism allegedly is not? What is the “political form of existence of the
state”53 that informs his constitutional theory? In short, what is “political” about polit­
ical constitutional theory?
In another context, Schmitt named the distinction between friend and enemy as
the criterion of a positive concept of the political.54 Martin Loughlin, the only real
exception among political constitutionalists to specifically draw on Schmitt, takes the
distinction as one of his starting points. Loughlin notes that the distinction does not
depict the practice of politics or, as Loughlin will later call it, the second order of the
In 1931, three years before Hitler merged the offices of the Reichspräsident and the Chancellor, Schmitt
identified the former as the locus of a “neutral power” relatively independent of parliamentary control
but immediately drawing on a popular mandate. As the “guardian of the constitution,” the powers of the
“neutral third” were continuous but activated in times of need. See Carl Schmitt, Der Hüter der Verfassung
[The Guardian of the Constitution] 132–140 (1969). Schmitt’s reference to “need” places the office of
the Reichspräsident within the dictatorial paradigm.
51
Schmitt, Die Diktatur, supra note 38, at 133–134. See also Carl Schmitt, The Dictatorship of the Reich
President according to Art 48 of the Reich Constitution, 18 Constellations. Int’l J. Critical & Democratic Theory
299 (2011), and the other articles in this special issue.
52
Schmitt, Die Diktatur, supra note 38, at 134.
53
Schmitt, supra note 17, at 187.
54
See Schmitt, supra note 16, at 25–37. On the distinction, see also Carl Schmitt, Theory of the Partisan.
Intermediate Commentary on the Concept of the Political (Gary L. Ulmen trans., 2007).
50
Political constitutionalism versus political constitutional theory
599
political, but provides a theoretical criterion for the concept of the political itself. As
the first order of the political, the ever-present possibility of conflict and antagonism
that the distinction implies is an “inescapable aspect of the human condition,” and
Loughlin continues that Schmitt had the “unsound tendency to raise the inevitability
of conflict into a foundational principle.”55
Although Loughlin himself seems to understand conflict more as actual strife,56
he is well aware that Schmitt’s bellicose conceptualization does not refer to actuality.
Schmitt emphasizes that:
War is neither the aim nor the purpose of nor even the very content of politics. But as an
ever present possibility it is the leading presupposition which determines in a characteristic way
human action and thinking and thereby creates a specifically political behavior.57
Loughlin’s emphases on constitutional self-regulation and practical reason in gov­
erning conflicts situate his vision of public law in general and constitutional theory
in particular well within the parameters of political liberalism and a liberal account
of law. From the perspective adopted here, the resulting constitutional theory is politi­
cal in only a limited way.58 This need not, however, be the case, and the potentiality
of conflict need not be the “unsound” starting point that Loughlin claims it is. If the
ever-present potentiality of conflict is recognized as an essential characteristic of the
political nature of the constitution, then everyday government is also political even
in the interim periods when conflicts do not actualize. This is analogous to the way in
which the sovereign decision affirms a normal state of affairs by refraining from the
exception. This was, of course, one of Schmitt’s central arguments. Who decides on
the exception also decides on the situation in its totality by defining where a normal
state of affairs ends and exception begins. Sovereign constituent power may well only
reveal itself when factual exceptions are made, but it is no less constituent or sovereign
in the dormant state of potentiality that allows for legally regulated government to
go about its usual business. In other words, even government is political if the everpresent potentiality of conflict is embedded into the core of constitutional theory.
The constitution is political in the sense that the political unity establishes itself in
the act of constituting, and simultaneously announces the enmities that character­
ize it both internally and externally. By constituting a set of values, principles, and
Martin Loughlin, The Idea of Public Law 33–37 (2003).
See id. at 40–42.
57
Schmitt, supra note 16, at 34 (my emphasis). In his notes after the war, Schmitt talks about “enmity poten­
tial [Feindschaftpotential].” Carl Schmitt, Glossarium. Aufzeichnungen der Jahre 1947–1951 [Glossarium.
Notes from the Years 1947–1951] at 213 (1991).
58
A similar point is, perhaps surprisingly, made in David Dyzenhaus, The Left and the Question of Law, 17
Can. J. L. & Jurisprudence 7, 24 (2004). Loughlin’s “companion volume” is considerably more continental
in its influences, but its argumentation proceeds along similar lines. He begins with the radical potential
of concepts such as constituent power, but then continues to redefine that potential into an instrument
of government as, for example, a necessary dialectics between the nation as both the factual subject of
constituent power and a normatively constituted institution. See Martin Loughlin, Foundations of Public
Law 221–228 (2010). For a non-dialectical and theoretically provoking account of the demos that in
democracy both constitutes and is constituted, see Jacques Derrida, Rogues. Two Essays on Reason 6–18
(Pascale-Anne Brault & Michael Naas trans., 2005).
55
56
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I•CON 11 (2013), 585–610
institutions as the foundation of its political existence within a state, a nation exer­
cises its political self-determination through the constituent decision that the act of
constituting involves.59 The constitution both establishes the institutions and declares
them as worthy of protection. By doing so, the constitution also defines its “existen­
tial other,” that is, the external threats that may potentially endanger the political
existence that it is meant to protect. The threats may be extremist positions perceived
to be undemocratic, an individualistic philosophy hampering the development of a
planned economy, a religious worldview jeopardizing a fundamentally laic notion of
the public sphere, or even a past the traumas of which a nation is determined not to
relive.60 Internally, the constitution also announces the undesired scenarios in which,
for example, the excessive use of factual powers by one branch of government or
another may jeopardize the ideal equilibrium that the constituted political and legal
institutions and their relationships represent calling for constituent countermeasures
by another branch that often actualize as exceptional constitutional violations.61
Political life is existence under constant threat.62 The initial decision to constitute
political existence is always motivated by the threats that are perceived to potentially
endanger it and that are announced by a publicized enmity. But it can never eradicate
those threats completely. In other words, constituent constitution-making power does
James Boyd White notes how constitutions literally “constitute” political communities as a rhetorical
effect but leaves the political aspects of the constituent element underdeveloped. See James Boyd White,
When Words Lose Their Meaning. Constitutions and Reconstitutions of Language, Character, and Community
231–274 (1984). On Schmittian constitutional thinking and rhetorics, see also David W. Bates, States of
War. Enlightenment Origins of the Political (2011).
60
Hegel makes the same claim in his Philosophy of Right: the constitution individualizes the state and must
by necessity also distinguish it from other individualities. Even an alliance of nations as an individuality
“must generate opposition and create an enemy.” Georg Wilhelm Friedrich Hegel, Elements of the Philosophy
of Right 362 (Hugh Barr Nisbet trans., 1991). Schmitt addresses the same threat of enmity in his later
geopolitical work. The order of nomos marks a territorial space that, once so marked, establishes a ten­
sion between, on the one hand, the orderly and firm dimension of the land and, on the other, the free
sea that represents both the potential of new conquests and the external threat posed to an established
state territory. See Schmitt, supra note 19, at 172–184 and Carl Schmitt, Land and Sea (Simona Draghici
trans., 1997). See also Martti Koskenniemi, International Law as Political Theology: How to Read Nomos
der Erde?, 11 Constellations. Int’l J. Critical & Democratic Theory 492 (2004), and Mark Antaki, Carl
Schmitt’s Nomos of the Earth, 42 Osgoode Hall L.J. 317 (2004). On the various dimensions of this phase
in Schmitt’s work, see William Hooker, Carl Schmitt’s International Thought. Order and Orientation (2009),
and Louiza Odysseos & Fabio Petito (eds.), The International Political Thought of Carl Schmitt. Terror, Liberal
War and the Crisis of Global Order (2007). For a well-researched albeit hypercritical assessment from the
perspective of political geography, see Stuart Elden, Reading Schmitt Geopolitically: Nomos, Territory and
Großraum, 161 Radical Philosophy 18 (2010).
61
Gee and Webber understand a political constitution (and its legal counterpart) as a model, a necessar­
ily incomplete explanatory framework that contributes towards constitutional self-understanding even
in situations where there is fundamental disagreement about the constitution as a whole. Graham Gee
& Grégoire C. N. Webber, What Is a Political Constitution?, 30 Oxford J. Legal Stud. 273 (2010). From the
perspective adopted here, a political constitution is not a heuristic and cognitive framework for coping
with actual disagreement, but the mechanism through which potential disagreement is both publicly
announced and instituted.
62
On politics, threat and risk, see Michael Marder, Groundless Existence. The Political Ontology of Carl Schmitt
38–59 (2010).
59
Political constitutionalism versus political constitutional theory
601
not exhaust itself through the political and legal institutions that it has established.
It reaffirms and reinvigorates itself in the constitutional violations that an actualized
existential threat may necessitate. The interplay of factual and exceptional violations
by one branch of government or another that occasionally actualize, accounts for
what is continuously political about the constitution preventing it from collapsing
into a mere instrument of government. In its commitment to democracy and political
self-determination, political constitutional theory can no more adopt a wholesale nor­
mative position on the acceptability of factual violations as it can on the decision of a
nation to constitute its political existence in a particular way, be it through the strong
executive of a Bolivarian constitution, the theocratic elements of an Islamic constitu­
tion, or the representative legislature of Westminster democracy. It can only assess
the individual violations in relation to a political existence that is both constituted and
open to the exceptions of constituent power at the same time.63
5. Shared and separated powers
So what does political constitutional theory so understood imply for constitutional­
ist debates? What possible new insights could it give to contemporary issues? What
follows is an attempt to illustrate how the theory enables a reframing of factually
relatively uncontroversial and interrelated constitutional developments in the United
Kingdom, that is, the possible changes in the constitutional independence of the judi­
ciary especially after the Constitutional Reform Act 2005 and the Human Rights Act
1998, and the more general strengthening of ‘executive-led’ political government in
liberal democracies. The illustration aims to show how seemingly ‘exceptional’ devel­
opments can be understood as normal phenomena belonging to the political nature
of constitutional practice.
The constitutional framework of a given state is often presented as a scheme of
power-sharing between branches of government or as a theoretical account of the
separation of powers.64 The tripartite notion of the separation of powers does not fit
comfortably with the British Constitution and the two-party political system that blurs
the dividing line between the legislature and the executive branch. The role of the
Prime Minister is not literally to execute or to implement the decisions of Parliament
but, rather, as the chief executive of the political party in power, to lead and coordi­
nate strategically the majority party’s political agenda while in power.65 This fusing
The openness of this position is reminiscent of Weber’s “charismatic” politics that I have discussed else­
where. See Max Weber, Politics as a Vocation, in From Max Weber: Essays in Sociology 77 (Hans Heinrich
Gerth & C. Wright Mills trans., 1991), and Panu Minkkinen, The Legal Academic of Max Weber’s Tragic
Modernity, 19 Social & Legal Stud. 165 (2010).
64
Much of the current debate about the separation of powers has been about its incompatibility with what
political scientists have called the “administrative state” where executive powers are increasingly shared
with a salaried civil service. For a classic study, see Dwight Waldo, The Administrative State. A Study of the
Political Theory of American Public Administration 104–129 (2007). For a more recent contribution, see
Eoin Carolan, The New Separation of Powers. A Theory for the Modern State (2009).
65
On the political advantages of executive dominance, see, e.g., Danny Nicol, Law and Politics after the Human
Rights Act, Public L. 722 (2006).
63
602
I•CON 11 (2013), 585–610
of legislative and executive powers that Bagehot famously described as the “effectual
secret of the English Constitution”66 is not unique—the German Constitution, for
example, gives the Chancellor similar strong executive powers—but the case of the
United Kingdom is, perhaps, peculiar. If the continental paradigm assumes that even
a strong executive branch must nevertheless enjoy the confidence of the legislature,
the authority of which rests on the popular mandate, the British Parliament or, more
accurately, its ruling party is in many ways factually deferential in relation to the lead­
ership of the Prime Minister.67 The combination of the elected Parliament and extent
of the Prime Minister’s executive powers as leader of the majority parliamentary party
is distinctive of the British notion of elected branches of government.68
The starting point of the British paradigm of the separation of powers is the
Diceyan notion of parliamentary sovereignty or legislative omnipotence; and because
the separation between the legislature and the executive branch is institutionally rela­
tively weak, the discussion has mostly focused on the relationship between the elected
branches and the judiciary.69 What Dicey called the “negative side” of the doctrine,
that is, that no other institution such as the judiciary can override or derogate from
a legislative act passed by the Parliament, centers on the Parliament’s monopoly over
“legislative power.”70 In other words, the relationship between the elected branches
and the judiciary is primarily viewed in terms of the courts’ inability to legislate or to
overturn valid laws.
Constitutional review and judicial review more generally would, then, seem to
challenge the notion of parliamentary sovereignty so understood. When judicial
review triggers an explicit disagreement on the compatibility of existing law with
constitutional principles, the courts can be said to factually undermine the sovereign
Walter Bagehot, The English Constitution 12 (Paul Smith ed., 2001). The continental and American
understanding of the separation of powers is, of course, a counterpoint to this very same potentially
“tyrannical” efficiency: “When legislative and executive powers are united in the same person, or in the
same body of magistracy, there can be then no liberty; because apprehensions may arise, lest the same
monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Charles de
Montesquieu, The Spirit of Laws. A Compendium of the First English Edition 202 (David Wallace Carrithers ed.,
1977).
67
In the exercise of strong executive powers, the Prime Minister carries at least a residue of the royal pre­
rogative that Locke described as the “latitude left to the Executive power, to do many things of choice,
which the Laws do not prescribe.” John Locke, Two Treatises of Government 375 (Peter Laslett ed., 1988).
68
The fusion of legislative and executive powers in “Cabinet Government” that Bagehot distinguished from
the American presidential system accounts for the peculiar nature of the British executive and its domi­
nance as the primary representative of the “elected branches”: “It is a creature, but it has the power of
destroying its creators. It is an executive which can annihilate the legislature, as well as an executive
which is the nominee of the legislature. It was made, but it can unmake; it was derivative in its origin, but
it is destructive in its action.” Bagehot, supra note 66, at 11–12.
69
For a recent analysis of the separation of powers along these lines, see Roger Masterman, The Separation
of Powers in the Contemporary Constitution. Judicial Competence and Independence in the United Kingdom
(2011). See also Peter A. Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process.
Constitutional Principles and Limitations 271–310 (2007).
70
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution 38 and 48 (E.C.S. Wade ed.,
1959). For a detailed reading of Dicey in an attempt to rehabilitate his doctrine of parliamentary sover­
eignty, see Alison Young, Parliamentary Sovereignty and the Human Rights Act 1–30 (2009).
66
Political constitutionalism versus political constitutional theory
603
authority of the elected branches. In other words, judicial review can be understood
as a mechanism with which unelected courts intervene with the basic principles of
parliamentary democracy.71 If judicial review is understood broadly enough, that is,
as any mechanism through which the courts challenge the sovereign authority of the
elected branches, we can, for the purposes of political constitutional theory, discern a
number of ways in which the intervention takes place.72
The obvious starting point would be arrangements that are regarded as textbook
examples of judicial review where the competence of the judiciary is more or less
clearly constituted. For example, the competence of the German Federal Constitutional
Court, “independent of all other constitutional bodies,”73 to exercise judicial review
over the compatibility of federal and Land legislation is constituted in the Basic Law
itself.74 Subsequent legislation establishes that the decisions of the Court on compat­
ibility will have the force of law.75 In other words, the decisions of the Court are explic­
itly given a legislative status. In addition to individual constitutional complaints and
the concrete and abstract review of the constitutionality of federal and Land legisla­
tion, the Court also resolves disputes between constitutional bodies on their respective
competences.76
A second form of judicial intervention can be called communicative. In this case,
the intervention of the judiciary is not based on its explicit constitutional competence
as in judicial review proper. While the competence of the courts to review legislation
may not be clearly constituted, the constitution will provide the institutional mech­
anisms for the courts’ engagement with the legislature. If there is disagreement on
compatibility, the constitution may either explicitly or implicitly require the disagree­
ing branches to enter into dialogue in an attempt to resolve the disagreement. The
engagement may be institutionally designed as the judicial preview of draft legisla­
tion as in the case of the 1974 Swedish Constitution that requires the Law Council
(Lagrådet) consisting of Supreme Court and Supreme Administrative Court justices to
scrutinize the compatibility of legislative proposals already before adoption.77 Because
In a recent contribution to the debate, Waldron, for example, concludes that, in resolving disagreements
about rights, judicial review is little more than “a rather insulting form of disenfranchisement and a
legalistic obfuscation of the moral issues at stake.” Jeremy Waldron, The Core of the Case Against Judicial
Review, 115 Yale L.J. 1346, 1406 (2006).
72
There is a certain kinship between judicial intervention so understood and what Sabel and Simon, fol­
lowing John Dewey, call experimentalism. See Charles F. Sabel & William H. Simon, Minimalism and
Experimentalism in the Administrative State, 100 Geo. L.J. 53 (2011).
73
Federal Constitutional Court Act (Bundesverfassungsgerichts-Gesetz, BVerfGG), Art. 1.
74
Basic Law (Grundgesetz, GG), Art. 93.
75
Federal Constitutional Court Act (Bundesverfassungsgerichts-Gesetz, BVerfGG), Art. 31.
76
On such Organstreit disputes, see Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic
of Germany 12 (1997). On the Court and judicial review in general, see id. at 50–60. See also Georg
Vanberg, The Politics of Constitutional Review in Germany (2005).
77
The Instrument of Government (Regeringsformen, SFS 1974:152), Ch. 8, § 18. See Niklas Sonntag, An
Introduction to Swedish Constitutional Law, 4 Vienna J. Int’l Const. L. 663, 679–680 (2010). The remit
of the Council is broader than scrutinizing the constitutionality of legislative proposals. There are not
many studies available in English on the Council’s political significance. See, however, Thomas Bull, Judges
without a Court—Judicial Preview in Sweden, in The Legal Protection of Human Rights. Sceptical Essays 392
71
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the opinion of the Council must be sought at the drafting stage, the expectation is that,
where disagreement arises, the Riksdag will respond by considering necessary amend­
ments even if the Council’s opinion is not binding. Judicial preview can be seen as a
preventive measure for the use of judicial review proper that the Constitution provides
for, as well.78 As a form of constrained parliamentarism, a communicative model is
akin to what Tushnet calls weak-form judicial review.79
The key feature of the two models of judicial intervention outlined above is that
either the competence of the judiciary or the mechanisms with which the judiciary—
or a separate representative institution as in the case of the Swedish Law Council—
communicates with the legislature are defined in the constitution itself. But the
judiciary exercises authority outside of clearly constituted institutional frameworks,
as well. The current situation in Britain would seem to provide a third quasi-consti­
tuted model for judicial intervention that can be called consensual. Aileen Kavanagh
depicts the post-HRA constitutional landscape in the theoretical context of her recent
analysis.80 Kavanagh takes the idea often credited to Richard Neustadt of “separated
institutions sharing powers”81 to the letter and consequently avoids setting the elected
branches against the judiciary in a rigid interpretation of separated powers. The
arguments, however, run diagonally. While Neustadt begins with a branch of gov­
ernment the competence of which is seemingly clearly constituted—the American
presidency—but proceeds to analyze the limitations that require factual coopera­
tion and compromise, Kavanagh’s starting point is a judiciary with an apparently
weaker constitutional competence but factually sharing powers in a way that would
suggest a more prominent role in the institutional framework, as well. Because pow­
ers are shared rather than separated, the elected branches and the judiciary form
a democratic alliance, a collaborative partnership that still recognizes a division of
labor. In this division of labor, the courts with their duty of upholding Convention
rights perform functions associated with constitutional review proper. The normative
framework of the courts’ competence is, then, twofold. While the HRA is not legally
entrenched in a way that would give it a recognized constitutional status, it gives the
78
79
80
81
(Tom Campbell et al. eds., 2011). A reform of the constitution is under way. In its final report from 2008,
a legislative committee proposed strengthening both the position of the Council in the preview of legis­
lative proposals and the mechanisms of judicial review proper. See En reformerad grundlag. Betänkande
av Grundlagsutredningen [A Reformed Constitution. Report of the Constitutional Law Commission] (SOU
2008:125), English summary, 37–45. In its proposal (Prop. 2009/10:80, 141–148), the Swedish gov­
ernment supported the committee’s views.
The Instrument of Government (Regeringsformen, SFS 1974:152), Ch. 11, §14, where both courts and
“other public bodies” are given the powers of judicial review.
See Mark Tushnet, Weak Courts, Strong Rights. Judicial Review and Social Welfare Rights in Comparative
Constitutional Law 18–42 (2008).
Kavanagh develops the theory consistently throughout the detailed analyses of primary and secondary
sources but provides a summary in her concluding remarks. See Aileen Kavanagh, Constitutional Review
under the UK Human Rights Act 404–421 (2009).
Richard E. Neustadt, Presidential Power and the Modern Presidents. The Politics of Leadership from Roosevelt
to Reagan 29 (1990). The preference of sharing constitutional powers is also akin to Lijphart’s advocacy
of “consociational” consensus democracy over majoritarian Westminster democracy. See Arend Lijphart,
Patterns of Democracy. Government Forms and Performance in Thirty-Six Countries 9–47 (1999).
Political constitutionalism versus political constitutional theory
605
courts analogous powers to review the compatibility of primary legislation.82 But in
addition, a partnership and a division of labor imply a joint and common task in con­
stitutional practice: the upholding and enhancement of democratic principles and
values including Convention rights themselves on which there is, if not consensus,
then at least broad agreement. The consensual democratic principles and values pro­
vide a second normative framework within which the courts exercise their authority.
In this way, Kavanagh’s theoretical context is essentially a theory of democracy.83
In all three cases outlined above, the intervention of the courts is either explicitly or
implicitly constituted. From the point of view of political constitutional theory, these
arrangements are, however, political in only a limited way because the judiciary still
exercises its authority within constituted limits. While the significance of the consti­
tuted arrangements that regulate how power is shared and even contained is undeni­
able, political constitutional theory would insist on going beyond a purely normative
account of the constitution by annexing the factual political authority of the branches
into the theory itself even when the normative framework does not officially recognize
such a competence. In terms of the judiciary, political constitutional theory acknowl­
edges factual judicial interventions as constitutional even if they may strictly speaking
be unconstituted expressions of judicial activism. The interventions can range from
contentious rulings openly challenging the will of the elected branches without con­
stitutional support or more tacit forms of defiant rhetoric pushed into the margins of
dicta to drumming up popular support for the defiant agenda through public appear­
ances outside of the legal process.84
The factual power that the courts exercise is, then, not regarded as an unwanted
political anomaly that cannot be explained or that has to be explained separately
outside of the constitutional framework itself. On the contrary, it is a necessary con­
stituent element of the constitution that validates its political character. Singular
unconstituted judicial interventions are exceptional in the sense that they break with
the normative framework and momentarily blur the constituted arrangements that
regulate the relations between branches of government and their respective compe­
tences. But how does judicial intervention so understood contradict legislative pow­
ers and a Diceyan notion of parliamentary sovereignty? Within the unique British
Stephen Gardbaum, however, has argued that the HRA represents a particular model of “Commonwealth
constitutionalism” or a “hybrid bill of rights.” See, e.g., Stephen Gardbaum, Reassessing the New
Commonwealth Model of Constitutionalism, 8 Int’l J. Const. L. 167 (2010).
83
While Kavanagh’s positive endorsement of constitutional review in democracy may encourage hasty
readers to view her as a legal constitutionalist, the emphasis she gives to the democratic functions of the
judiciary actually situate her work much closer to that of her political constitutionalist peers. The courts
are seen as both legal and political institutions, and in upholding Convention rights and reviewing the
compatibility of primary legislation, they are, at least to a certain extent, acting as the latter.
84
A typical blind spot of conventional constitutionalist paradigms is to restrict the analysis of judicial
intervention to adjudication. But the use of factual judicial power is not confined to the courtroom.
The judiciary as a professional elite will, for example, often play an important part in law drafting even
before policies are implemented in legislation. Ran Hirschl has done excellent comparative and empirical
research into the various ways in which the judiciary exercises its political influence. See, e.g., Ran Hirschl,
The Judicialization of Mega-Politics and the Rise of Political Courts, 11 Ann. Rev. Polit. Sci. 93 (2008).
82
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I•CON 11 (2013), 585–610
constitutional framework, the courts’ political conflicts with the elected branches
have, perhaps, less to do with direct challenges to democratic principles as one would
at first assume. If we consider the elected branches as the Bagehotian executive where
the Prime Minister manages Parliament policies, one can reframe judicial intervention
as an attempt to challenge a power that is more executive in nature than legislative.
In terms of traditional tripartite depictions of the separation of powers, the executive
emphasis in the elected branches would, then, suggest that judicial intervention is a
political relationship that juxtaposes the judiciary with the executive branch rather
than with a democratically elected Parliament.
Within political constitutional theory, the elected branches so understood use excep­
tional constituent powers, as well. The exceptional powers of the Bagehotian execu­
tive can, perhaps, be depicted through what Giorgio Agamben, following Schmitt,
has somewhat hyperbolically called the permanent state of exception.85 Agamben’s
initial starting point is historical. He namely claims that, during the course of the
nineteenth and twentieth centuries, the use of extraordinary executive powers has
become a more regular feature of government than the exceptionality of such powers
would suggest. These powers can range from temporary restrictions to property rights
in battling hyperinflation86 and limitations to free movement in managing natural
disasters87 to more drastic suspensions of civil liberties and fundamental freedoms in
times of civil unrest or external conflict.88 The regularity with which governments
have had recourse to extraordinary executive powers accounts for the permanency of
the phenomenon.89
Agamben’s political philosophy is multi-faceted and complex, and extends over a number of essays that
have mainly been published in volumes of his Homo sacer project between 1995 and 2008. Agamben’s first
texts on the state of exception were, however, published before the events of September 2001, as early as
1994, in the Italian version of Giorgio Agamben, What is a Camp?, in Means Without End. Notes on Politics
37 (Vincenzo Binetti & Cesare Casarino trans., 2000). For a critical review of Agamben’s claims with
regard to the state of exception, see Stephen Humphreys, Legalizing Lawlessness: On Giorgio Agamben’s State
of Exception, 17 Eur. J. Int’l L. 677 (2006). For an analysis of Agamben’s political philosophy in relation
to law more generally, see Thanos Zartaloudis, Giorgio Agamben. Power, Law and the Uses of Criticism (2010),
and Tom Frost, Agamben’s Sovereign Legalization of Foucault, 30 Oxford J. Legal Stud. 545 (2010).
86
E.g., the emergency measures of Argentina’s corralito and corralón in 2001 and 2002. On economic
emergencies more generally, see William E. Scheuerman, The Economic State of Emergency, 21 Cardozo
L. Rev. 1869 (2000), and Bernadette Meyler, Economic Emergency and the Rule of Law, 56 DePaul L. Rev.
539 (2006).
87
E.g., the mandatory evacuations in Louisiana following hurricane Katrina in 2005. While the Louisiana
example may be a benign illustration, security concerns more generally are increasingly used as mech­
anisms to govern and contain free movement. For a European perspective, see Joanna Apap & Sergio
Carrera, Maintaining Security Within Borders: Toward a Permanent State of Emergency in the EU?, 29
Alternatives: Global, Local, Political 399 (2004).
88
E.g., the measures provided by the USA PATRIOT Act following the attacks of September 2001. See Bruce
Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004).
89
Agamben, State of Exception, supra note 10, at 11–22. A topical example of the prolonged use of emer­
gency powers in governing is Egypt that has been in a state of exception practically uninterruptedly since
1967. Article 74 of the Egyptian Constitution of 1971, further expanded by Art. 179 in 2007, gave
the president far-reaching and relatively unchallenged powers to both define the scope of the measures
required to address the emergency and the duration of the state of exception. These powers were used
widely to quash political opposition to the Mubarak regime. But the events after January 2011 illuminate
85
Political constitutionalism versus political constitutional theory
607
Agamben maintains that the actual recurrence of states of exception and the
potentiality that regular recurrence implies have changed the constitutional para­
digm of liberal democracies. The Rechtsstaat or the état de droit has been coupled with
a seemingly unregulated locus of emergency and exception, unregulated because
the specific aim of the locus is to suspend, often indefinitely, legally defined rights and
freedoms traditionally guaranteed by the constitution. Because it is unregulated, the
state of exception is not officially annexed to the constitution, and this gives Agamben
reason to argue that it cannot be explained as a temporary dictatorship as Schmitt
does. The institution of the iustitium in Roman law that Agamben considers as the
archetype of the modern state of exception provides an unregulated space in which
state magistrates or even individual citizens were authorized by a decree of the Senate
to take whatever measures were necessary to protect the state if it was considered to
be in danger due to internal conflict or war.90 A dictator, on the other hand, was a par­
ticular type of extraordinary magistrate, chosen by the consuls of the Republic, and
whose executive powers, extensive as they may have been, were always specified and
regulated by the lex curiata that conferred the powers of imperium.91
In other words, a state of exception cannot be explained with a dictatorial meta­
phor because the latter still refers to a constituted domain. The exception does not
include legally conferred extraordinary powers, but it is a space of anomie, a domain
of Lockean “royal prerogative” that results from the suspension of law. He who acts
under the iustitium neither applies the law nor transgresses it. His actions take place in
an unconstituted space of factual power that cannot be contained by law.92 The per­
manency of the space of anomie that the state of exception establishes or, as Agamben
metaphorically calls it, the “camp,” is a challenge to any attempt to explain state pow­
ers through conventional normative theories. Agamben does not suggest that excep­
tion should be redefined within limits that would enable a reaffirmation of the rights
that are grounded in the constitution. There is no return to the Rechtsstaat because “at
issue now are the very concepts of ‘state’ and ‘law’.”93
92
90
91
93
the Schmittian argument of radical exceptionality: the constituted powers of the Presidency, as extensive
as they may have been, have in turn been suspended by the military council pending amendments drafted
by a constitutional committee. At the time of writing, the explicit intention of the committee is to reform
the existing constitution, not to abolish it.
Id. at 41.
Id. at 47. See also Nomi Claire Lazar, States of Emergency in Liberal Democracies 113–135 (2009).
Dyzenhaus criticizes Agamben’s “opaque” and “dramatic” notion of exceptional anomie by suggesting
that even in the absence of legal norms proper, an extra-legal morality continues to regulate the practices
of state authorities. Such a normative and even wishfully prescriptive position will inevitably miss the
point. See David Dyzenhaus, The Constitution of Law. Legality in a Time of Emergency 60–62 (2006).
Agamben, State of Exception, supra note 10, at 87. In a study on the constitutional ramifications of antiterrorism legislation in liberal democracies, Jean-Claude Paye notes that the suspension of law in the state
of exception is not an end in itself but a means in the construction of a new global conception of law that he,
following Hardt and Negri, calls Empire. The permanency of the exception is not a static state but a dynamic
foundation for this new global order that strategically approaches dictatorship as a central form of govern­
ment. See Jean-Claude Paye, Global War on Liberty 241–242 (2007). For a classic study, see Clinton Rossiter,
Constitutional Dictatorship. Crisis Government in the Modern Democracies (2002). See also Sanford Levinson &
Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010).
608
I•CON 11 (2013), 585–610
Agamben’s Schmittian etiology of liberal democracies illuminates constitutional
episodes that have taken place in the United Kingdom, as well. The central observation
would have to do with the role of the Bagehotian executive and especially with the rela­
tionship between executive and legislative powers.94 The problem of a “rubber stamp”
Parliament deferential to the Prime Minister’s leadership has come up in responses
to, for example, the Derogation of November 2001 with respect to the Anti-Terrorism
Crime and Security Act 2001.95 In his opinion, the Commissioner for Human Rights of
the Council of Europe emphasized the importance of parliamentary scrutiny and how
the sequencing adopted in this case may have compromised it. The Home Secretary’s
Designated Derogation Order was approved by Parliament before the latter had had an
opportunity to properly discuss and assess the measures of the proposed Bill that the
derogation applied to. Perhaps concerned of the dangers of Bagehotian efficiency, the
Commissioner’s opinion suggests a more central democratic role for the legislature.96
6. Potentiality and actuality
This essay has argued that despite its self-proclaimed nominal difference in relation
to legal constitutionalism, political constitutionalism is political in only a limited way.
By committing itself normatively to the institutions, principles and values of liberal
democracy, it situates them beyond the reach of the constituent power to which the
constitution owes its existence. Political constitutional theory, on the other hand,
acknowledges that the constitution is the factual expression of an unrestrained politi­
cal self-determination and can always be otherwise. Not only can the subject of consti­
tution-giving power decide to constitute different, non-liberal institutions, principles
and values (e.g., those of an Islamic state), but all constituted arrangements, includ­
ing liberal ones, will require exceptional violations if the political existence they are
intended to protect is endangered. The constitution is not political because it provides
continuity to a particular type of political existence, but because it enables political
existence to begin with. Political existence is always caught in the tension between
what has been constituted and its “enemies,” between the institutions, principles and
values that have been constituted through political self-determination and the dan­
gers and threats that were the motivation for constituting them in the first place.
For a review of the strained constitutional relationship between a weakened Parliament and a strong
executive especially in light of recent debates on parliamentary reform, see Matthew Flinders, Shifting the
Balance? Parliament, the Executive and the British Constitution, 50 Polit. Stud. 23 (2002).
95
See the Human Rights Act 1998 (Designated Derogation) Order 2001 and Note Verbale from the
Permanent Representation of the United Kingdom, 18 December 2001.
96
Opinion of the Commissioner for Human Rights, Mr. Alvaro Gil-Robles, on certain aspects of the United
Kingdom 2001 derogation from Article 5 para. 1 of the European Convention on Human Rights,
CommDH(2002)7, especially ¶¶ 19, 20, and 32. Strasbourg jurisprudence seldom makes explicit refer­
ence to the role of the separation of powers in securing Convention rights, and for the most part the con­
stitutional implications have focused on the independence of the judiciary. For a more detailed analysis,
see Masterman, supra note 69, at 60–86. For an excellent and detailed analysis of executive responses to
the terrorism threat after September 2001, see David Bonner, Executive Measures, Terrorism and National
Security. Have the Rules of the Game Changed? 217–264 (2007).
94
Political constitutionalism versus political constitutional theory
609
For Jacques Rancière, politics is about “dissensus” or disagreement, the exceptional
and unconstituted intervention of, for example, a political or legal institution suddenly
revealing itself by disrupting the everyday routines of government:
[P]olitics cannot be identified with the model of communicative action. This model presupposes
partners that are already pre-constituted as such and discursive forms that entail a speech
community, the constraint of which is always explicable. Now, the specificity of political dis­
sensus is that its partners are no more constituted than is the object or stage of discussion itself.
Those who make visible the fact that they belong to a shared world that others do not see—and
cannot take advantage of—is the implicit logic of any pragmatics of communication.97
From this perspective, any constituted exchange between branches of government
would be the practice of government or, as Rancière would call it, “police” as opposed
to politics proper. When, for example, the judiciary exercises its constitutional compe­
tence to challenge the power of the elected branches, it engages in “police” regardless
of how “strong” or “weak” the constitutional framework for its intervention may be.
In stable liberal democracies, government will by convention usually lead to consen­
sual outcomes even if it means accepting interpretations that one or the other branch
was originally in disagreement about.98 But with the help of the distinction between
potentiality and actuality, we can avoid the unnecessarily rigid character of Rancière’s
notion of politics as being uniquely the domain of open dissent. For Schmitt, the politi­
cal denotes the potentiality of conflict, and even when that potentiality does not mate­
rialize into actual dissent, constituted government remains characteristically political.
The potentiality of conflict only becomes actuality when communication and gov­
ernment fails. Political constitutionalism would see this as a failing in political dialogue
the explicit or implicit aim of which is consensual government and constitutional sta­
bility and would consequently exclude the phenomenon from its theoretical under­
standing of constitutional practice. It would regard exceptional dissent outside of the
constituted competences and arrangements as unconstitutional and, consequently,
not as part of the constitution itself. But if we see conflicts between the branches of
government as an essentially necessary characteristic of the political nature of the
constitution, and if we further regard the separation of powers as a properly political
relationship, then a potential conflict between the judiciary and the elected branches
actualized as a constitutional violation appears in a different light. The separation of
powers is neither a doctrine nor a fixed arrangement, but a blueprint for the front lines
separating political and legal institutions that exercise factual power, the constitutional
Jacques Rancière, Dissensus. On Politics and Aesthetics 38 (Steven Corcoran trans., 2009). See also Jacques
Rancière, Disagreement. Politics and Philosophy 72–74 (Julie Rose trans., 1998). On Loughlin’s take on
Rancière, see Martin Loughlin, Reflections on The Idea of Public Law, in Public Law and Politics. The Scope and
Limits of Constitutionalism 47, 61–62 (Emilios Christodoulidis & Stephen Tierney eds., 2008). On Rancière
and Schmitt (and Arendt), see Andrew Schaap, Enacting the Right to Have Rights: Jacques Rancière’s Critique
of Hannah Arendt, 10 Eur. J. Polit. Theory 22 (2011).
98
Waldron claims that disagreement is “not the exception but the rule in politics” but then continues to
exclude “unreasonable” differences. In other words, disagreement must first be framed with reasonability
or “good faith” before it can qualify as politics. Jeremy Waldron, Law and Disagreement 12, 93, 268 (1999).
For Rancière, reasonable disagreement would still be communicative government.
97
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I•CON 11 (2013), 585–610
design of a potentially antagonistic political relationship that only becomes actuality
when the option of consensual power-sharing government is no longer possible. Only
at that point do the shared powers of government become separated.
In other words, the delimiting function of the separation of powers, the core of its
“checks and balances,” only comes to light when consensual government, that is, the
collaborative exercise of shared powers by the institutionally identifiable branches of
government, becomes actually antagonistic. Within the separation, the judiciary exer­
cises its political power by factually intervening in government in a way that is consti­
tutional even if it is not constituted.99 Conversely, the potentially political government
of the elected branches becomes actually political only when the constituted compe­
tence of the courts in, for example, upholding Convention rights is openly challenged
in dissent. I have elsewhere used the expression “Bagehotian democracy” to suggest
that, at least in the contemporary constitutional landscape of the United Kingdom,
an increase of actualized political dissent as exceptional violations may be accredited
to the primacy of the executive branch with a correspondingly weak Parliament and
the Thucydidean stasis that follows.100 The more detailed substantiation of this broad
claim goes beyond the scope of this essay.
From the point of view of political constitutional theory, it matters little whether
the confrontations are triggered by government policies threatening constitutionally
guaranteed rights and freedoms or excessive judicial activism allegedly jeopardizing
democratic principles. Political life is literally polemical. The constitution of a state is
an expression of the political unity’s existence within a tension that is grounded in
the perpetual potentiality of open conflict. It marks the decision to exist politically, to
decisively enter the domain of polemos.101
The most instructive example is, of course, Marbury v. Madison, 5 U.S. 137 (1803). The Supreme Court
did not have explicit constitutional competence for judicial review. Despite the political controversy, the
decision was not only accepted as constitutional in itself, but it also became the template for acceptable
constitutional practice.
100
Invoking Thucydides will inevitably introduce a Hobbesian element into the argument. On Schmitt
and Hobbes, see Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes. Meaning and Failure of
a Political Symbol (George Schwab & Erna Hilfstein trans., 2008), and Thomas Hobbes & Carl Schmitt. The
Politics of Order and Myth (Johan Tralau ed., 2010).
101
Heraclitus’s Fragment 53 on polemos reads: “War is the father of all, and king of all. He renders some
gods, others men; he makes some slaves, others free.” Heraclitus, Fragments. Phoenix. Supplementary Volume
XXII 37 (T.M. Robinson trans., U. Toronto Press 1987). Although Schmitt does not explicitly draw on
Heraclitus in The Concept of the Political, it is clearly central. See, e.g., Martin Heidegger & Carl Schmitt,
Heidegger and Schmitt: A Letter, 72 Telos 132 (1987). For Heidegger’s reading of the fragment, see, e.g.,
Martin Heidegger, On the Origin of the Work of Art, in Basic Writings. From Being and Time (1927) to The Task
of Thinking (1964) at 139, 169 (David Farrell Krell trans., 1993). On this Heideggerian interpretation of
polemos and politics, see Gregory Fried, Heidegger’s Polemos. From Being to Politics (2000).
99