possibility actuality rupture

7/26/2019 Possibility Actuality Rupture

1/12

doi: 10.1111/1467-8675.12154

Possibility, Actuality, Rupture: Constituent Power

and the Ontology of Change

Hans Lindahl

Dedicated to Bernhard Waldenfels, on the occasion of

his 80th birthday.

1. Introduction

Constituent power is the privileged locus of modern

thinking about the emergence of legal orders. It refers

to the capacity to bring forth a new legal order, whether

by revolutionary means or otherwise, in contrast to

the capacity to enact legal norms within an extant

legal order: constituted power. Accordingly, a theory

of constituent power must address at least two general

questions. What sense are we to make of the capacity

to enact a novel legal order implied in the notion of

constituentpower? What sense of novelty is at stake in

constituentpower? I will argue that parsing constituent

power into its two ingredient terms with a view to

examining their meaning and significance demands

addressing two further and correlated questions, the

answers to which lay bare the ontologies of legal order

underpinning all and sundry theories of constituent

power: what is the temporal structure of law-making,

and in what sense can it bring about a fracture or rupture

in time? How is law-making related to possible and

actual legal order, and in what sense can law-making

call forth or bring into being a novel legal order?

2. The Secularization of Divine

Omnipotence?

I begin by introducing the ontological issues at the

background of modern theories of constituent power.Such an introduction seems necessary because it is not

obvious that these theories presuppose anything like an

ontology. Inasmuch as constituent power is a mode of

normative power, and normative power is defined as the

capacity to change a normative state of affairs, it seems

that all further analysis and debate about constituent

power can dispense with an ontological inquiry.

Yet even this stripped down characterization of nor-

mative power already evokes the ontological issues at

stake in constituent power. Indeed, the notion of change

is of central importance to Western philosophical

thinking about the emergence of beings. In Book VII of

theMetaphysics Aristotle summarizes the main features

of his theory of change as follows: [E]verything that

comes to be comes to be by the agency of something and

from something and comes to be something.1 More

than two thousand years later, Marx was to state, in

the 11th Thesis on Feuerbach, that Philosophers have

hitherto only interpreted the world in various ways;

the point is tochangeit.2 In both cases the concept of

change turns on issues of possibility and actuality, and

of temporality. Yet while the concept of change outlined

by Aristotle is incompatible with the notion of con-

stituent power in modern political and legal thinking,

the notion of change that undergirds the 11th

Thesis onFeuerbach drives all calls to the revolutionary exercise

of constituent power in the modern era.

I will later show why the barebones characterization

of normative power as the capacity to change a norma-

tive state of affairs cannot do without an ontology. For

the moment, let us examine how philosophical think-

ing on change, in the fundamental sense of a bringing

forth into being, prepares the way for modern theories

of constituent power.

Consider the cited passage of the Metaphysics,

which captures the essential features of the ontologyprevalent in Antiquity. This passage is of particular

interest to a theory of constituent power because

praxis, for Aristotle, has no ontological productivity

of its own,3 a productivity that Aristotle restricts to

art (techne) in the sentence immediately preceding the

cited passage: Of things that come to be some come to

be by nature, some by art, some spontaneously.4 From

the point of view of change, art and nature are the same,

namely efficient causes, insofar as the substrate that

changes matter is conceived in relation to the end

of the changing, itself conceptualized as form and real-ity. Accordingly, the relation between matter and form

yields the ultimate elements giving account of being as

being, and of the ontologically grounding meaning of

change: the determination of a determinable.

This is crucial to clarifying the meaning of making

apposite to techne.5 Indeed, art is like nature because

the form bed into which the carpenter coaxes the pile

of wood lying before him is already given in advance,

no less than the forms of nature. Aristotle notes that if a

house had been a thing made by nature it would have

been made in the same way as it is now by art; and if thethings made by nature were made not only by nature but

also by art they would come to be in the same ways as

by nature.6 He adds: art in some cases completes what

nature cannot bring to a finish, and in others imitates

Constellations Volume 22, No 2, 2015.C 2015 John Wiley & Sons Ltd.


2/12

164 Constellations Volume 22, Number 2, 2015

nature.7 The convertibility of art and nature determines

the making of techne as reproduction: making is

mimesis, imitation, repetition of the existent world.8

This shows that, for the Greeks, the actual exhausts

the possible. Indeed, if what comes to be comes to be

from something and comes to be something, then these

two stages of change its commencement and itsterminus are the essential moments determining the

ontological significance of change. Aristotle designates

them with the terms dynamisand energeia, possibility

(potentiality) and reality (actuality):

Since things are said to be in two ways, everything

changes form from that which is potentially to that

which is actually . . . all things come to be out of that

which is, but is potentially, and is not actually.9

Making, as paradigmatic for human intervention in the

emergence of a being, means that art is the cause that

initiates the actualization of the possible and nothing

more.

This nutshell account of Aristotles theory of

substantial change functions as a contrasting foil for

the ontological presuppositions of modern theories

of constituent power. Four aspects are important.

First, the Aristotelian concept of possibility denotes the

not-yet-real. The actual or real comes, when viewed as a

temporal relation, after the possible, and as the terminus

of a process of actualization. Second, actuality is the

ontologically primordial term of the relation. Possibility

is intelligible only with respect to the end-point of the

becoming, for example, a house or bed, whereas actu-

ality is intelligible in itself. Being as actuality is being

in its plenitude, such that the world, in all its fullness,

is binding for human beings. Third, the ontological

primacy of the actual entails the temporal primacy of the

present, even though the present is a re-actualization of

the past, thereby attesting to the revolutionary character

of time in the original sense of the term: a return of

the past.10 Fourth, the relation between possibility and

actuality is unidirectional: the possible is defined by its

directedness towards the actual, thereby excluding the

opposite direction of change, namely, the actual as the

point of departure for the enactment of the possible,

as in Marxs concept of change. Indeed, a fundamental

transformation of the structure of being as being, and of

the human relation to being, is required if the modern

notion of constituent power is at all to be possible.

This fundamental transformation has its point of

inception in Scholastic philosophy, namely, the concept

of being articulated by the characterization of divine

power as a making. Aquinas, when laying out the

plan of the Summa contra Gentiles, announces the

subject matter to be treated under the general heading

of divine power: the bringing forth of things into

being.11 Bringing into being receives its fundamental

determination as a making (facere) or doing (agere).

This determination decides on the nature of an investiga-

tion into divine power, namely, its ontological character.

The task of eliciting the being of beings finds its concep-

tual node in the clarification of the relation between the

made and the making. Aristotelian becoming is drasti-

cally transformed in a philosophical context in which

creatio ex nihilo acquires pride of place. Scholastic

philosophy seeks to secure a characterization of being

as made (ens creatum) when making, hence power, no

longer operates on a pre-existent matter. As a result,

the fundamental Scholastic modalization of being,

namely makeable-being (possibility) and made-being

(existence), gains a radical nature entirely foreign to the

distinction betweendynamisand energeia. Indeed, the

ontological import of making is articulated in the sole

limitation to divine omnipotence: Whatever does not

involve a contradiction is in that realm of the possible

with respect to which God is called omnipotent.12

Consequently, the basic structure of made-being has

a twofold determination. For the one, made-being qua

being entails non-contradiction; for the other, it appears

as the makeable, in its relation to God. In turn, made-

being the existing world is dependent on divine

making in a twofold manner. On the one hand, made-

being depends on divine power because it is contingent

that there is a world, rather than nothing. Divine power

functions here as the causa essendi required for bringing

something into existence from nothing, a transcendent

condition that does stand in a relation of continuity with

contingent being. On the other hand, made-being de-

pends on its maker for what it is. Ifmimesis, for the

Greeks, meant imitation in the sense of reproduction,

the agere of divine omnipotence means pure produc-

tivity. This entails, when coupled to non-contradiction

as the sole condition of possible-being, that God could

have created other worlds than the extant world. Making

not only implies bringing into being in the radical sense

of substitutingessefor thenihil, but also bestowing the

world with a determinate order that, while it is binding

on human beings, God could have created otherwise.

Notice, furthermore, that divine creativity introduces

the notion of a temporal rupture to philosophical think-

ing about action and power. The present is ontologically

primordial for theology in a sense radically different

from that of Antiquity: the human present leads back

to an absolute present; the creation, which inaugurates

time. Rather than evoking the plenitude of being, the

absolute present ofcreatio ex nihilo is marked by the ab-

sence of being, by a realm of absolute possibility waiting

to be determined by its creator, subject only to the con-

dition of non-contradiction. Crucially, the dependency

of created being does not cease with the act of creation:

the world order continues to be radically dependent on

its maker for its continued preservation in being. As

C 2015 John Wiley & Sons Ltd.


3/12

Constituent Power and the Ontology of Change: Hans Lindahl 165

a result, the human present continuously stands in the

shadow of an absolute present, which would manifest

itself in the form of a divine intervention that, casting

the extant world back into the abyss of the nihil, calls

forth an entirely new world order.

This is the ontology to which Schmitt appeals when

claiming that constituent power, like all central concepts

of state law, is a secularized theological concept.13 On

this view, God is transposed into the people, as the cre-

ator of a legal order; the world order is transposed into

the legal order; the ontological productivity of divine

making is transposed into the ontological productivity

of human law-making. The legal order is continuously

dependent on the people in a twofold sense: that there is

a legal order and what it is as a legal order. The transcen-

dence of God with respect to the world He has created

is transposed into the transcendence of the people with

respect to the legal order it has enacted, such that the

people can at any time withdraw its support from the

legal order and, exercising a constituent power which

cannot be exhausted by any of its legal creations, calls

into being a new legal order. The absolute present of

creation, in which divine power attests to a purely pro-

ductive making, is transposed into the revolutionary act

that, as the immediacy of a pure present, cuts all links

with the past and inaugurates an entirely new future.14

Schmitt is right to aver that the concept of constituent

power, and the ontology that animates it, would be un-

thinkable in the absence of theological thinking. But this

does not mean that constituent power is the seculariza-

tion of divine omnipotence. Hans Blumenbergs critique

of the secularization theorem shows, in particular, that

the modern reception of the Scholastic modalization of

being can best be understood as a new answer to the

radical problem of contingency: self-preservation.15 In

effect, divine power functions as a boundary concept

in relation to which modernity comes to interpret the

human relation to the world. The essence of the transi-

tion leading into modern philosophical thinking can be

summarized as follows. While human power, like divine

power, is conceptualized in terms of its ontological pro-

ductivity, that is, in terms of its capacity to bring forth

into being, human making is determined in a twofold

way by the agere ofactus purus: negatively, as non-

creative, as conditioned in its activity by a pre-given

world; positively, as productive, as supplying the form

(order) of the realized. Whereas techne, as an efficient

cause, only initiates the forming of matter, human action

is the formal cause of reality in modern philosophical

thinking, hence it is a making that is ontologically pro-

ductive in a strong sense because it contributes one of

the two ingredients of the being of beings.

This characterization of the ontological productivity

of human action reveals four key differences with re-

spect to divine power and the Scholastic modalization

of being. First, human activity depends on a world that

human beings do not create from nothing, and which

concretely conditions their activity. In contrast with the

unconditioned production that defines divine omnipo-

tence, human power is conceptualized as conditioned

production or dependent spontaneity, as Kant puts it in

the second edition of the firstCritique.16

Second, the ontological productivity of human

power consists in its capacity to give a form to real-

ity: to order it. Instead of regressing from real to logical

possibility, as required by divine omnipotence, modern

conceptions of human action recognize that its ontolog-

ical productivity consists in progressing from logical to

real possibility, where the former is that which is not

self-contradictory. If, for Scholastic philosophy, the ex-

tant world is one of the possible worlds that meets the

condition of non-contradiction, modernity is premised

on the idea that, in the face of an extant world rife with

internal contradictions, human action can call into being

a world that meets the condition of non-contradiction.

Third, as human being finds itself in a world given to

it as the condition for its action, its productive relation

to the world is necessarily immanent rather than tran-

scendent. We are always already in-the-world, a world

that, having forfeited its binding character for us to the

extent that it is self-contradictory, is also the world we

can act upon, ordering it in a new way. Crucially, the

ontological productivity of human action is no longer

limited to techne, as in Aristotle; dependent spontane-

ity becomes the common root of theory and practice in

modern philosophical thinking.

Fourth, the concept of dependent spontaneity

is pivotal to the development of a new concept of

freedom, which Kants Grundlegung characterizes as

the destructive and constructive moments ofautonomy.

If humans are initially given over to a world order

that appears as binding to them and as determining the

scope of their possibilities (heteronomy), the initial,

destructive moment of freedom consists in rendering

the extant world order non-binding and determinable

for human action. In its second, productive moment,

human action determines the determinable, giving it

an order that meets the condition of non-contradiction

(a universal law).17 This interpretation of freedom

finds its most significant political expression in Marxs

account of revolutionary praxis. In its first, negative

moment, revolutionary praxis deploys a critique of

the ideology that makes of capitalism an allegedly

necessary world order. This prepares the way for the

positive moment of revolutionary praxis that, acting

upon an oppressive world that has lost its binding

character, brings forth a new and universal world order

rid of internal contradictions: communism. On this

reading, constituent power is the political manifestation

of freedom as autonomy, the bringing forth into being



4/12


of a universal social and legal order: emancipation.

In its own way, thisreading of constituent power remains

faithful to the Scholastic doctrine of the transcendentals:

ens et unum et verum et bonum convertuntur.

3. Authoritative Collective Actionand Constituted Power

This is, I believe, the ontology underpinning much of

contemporary political and legal theorizing about con-

stituent power. But instead of assessing this ontology

head on I favor a more indirect approach that, focus-

ing on a concrete analysis of legal ordering, seeks to

establish whether and how this ontology could provide

the elements for a defensible reading of what is at stake

in constituent power. For, as noted earlier, it remains

unclear how an ontology of constituent power can be

linked to normative power in its minimalistic interpre-

tation as the capacity to change a normative situation, let

alone to the legal doctrine. In short, there is no guaran-

tee that the change of revolutionary praxis, as articulated

by Marx, has anything to do with the stripped-down no-

tion of change involved in law-making in general, and

constitution-making in particular. In fact, need we at

all take for granted that constituent power is a notion

central to thinking about law?18

Addressing these objections requires bracketing for

the time being the ontological style of questioning I

have privileged and taking up residence in legal theory

proper, focusing directly on the permutations of legal

ordering which the doctrine parses into constituted and

constituted power. In particular, we need to describe

concretely the correlation between possibility and ac-

tuality, on the one hand, and temporality, on the other,

as revealed by these two modes of legal ordering. Only

then will it be possible to ascertain whether and how a

theory of constituent power is, at bottom, an exercise in

political ontology.

I argue in this article that legal order can best be

described in terms of what I will call authoritative

collective action (ACA). On this view, legal orders are a

species of collective action, which Margaret Gilbert cap-

tures with the expression we together, and which she

contrasts to we each.19 Consider a scenario in which

several people are queuing up to board an airplane. And

now compare it to a second scenario in which a group of

friends queue up for a joint trip. If someone were to ask,

What are you doing? the answer might run we are

queuing up for the departure. But the use of the indexi-

cal we is quite different in these scenarios. In the first,

it functions as an aggregative term: each of a manifold

of individuals stands in the queue, waiting to be called

on board, regardless of what the others are doing: we

each. In the second, we functions as an integrative

term; a manifold of individuals are a group of friends

going on a trip: we together. Imagine, furthermore,

that in the first scenario one of the individuals misses

the boarding call and she realizes what has happened

only when it is too late. She would have no standing

to rebuke the other passengers for not having called her

attention to the boarding call; they had no obligation to

do so. In the second scenario the stranded friend would

certainly be entitled to rebuke her fellow travellers. See

here the elementary structure of entitlements between

members which attaches to action by social groups

plural subjects, to use Gilberts favored expression.

Legal orders are a species of collective action, or so I

hold. By the same token, legal obligations and sanctions

are a species of the entitlements and rebukes that emerge

between participant agents in the course of collective ac-

tion. The nature and scope of legally relevant behavior,

as well as the rights and obligations that accrue to it, are

internally related to the normative point of joint action:

that which our joint act ought to be about. Significantly,

the normative point of joint action under law may itself

be open to conflict, as occurs with other forms of social

groups. But in contrast with the latter, legal orders in-

volve second-level authorities that monitor participant

agency with a view to realizing the (transformable) nor-

mative point of joint action. By monitoring I mean that

second-level authorities lay down general or individ-

ual norms that are a default setting of the normative

point of joint action. Monitoring includes decisions in

the face of conflict among the participant agents about

the course that their joint action ought to take. Legal or-

ders also typically involve second-level authorities who

uphold joint action: they take the appropriate steps to

ensure that participant agents comply with joint action

and its normative point, bringing sanctions to bear on

non-compliers.

In what way does ACA shed light on the manner in

which legal orders structure the relation between possi-

bility and actuality? The first point to bear in mind is that

legal possibilities are a species of practical possibilities.

Indeed, ACA opens up a realm of possibilities of action

for participant agents, a repertoire of ways of involve-

ment with others and with things, and which participant

agents can instantiate actualize or realize. Crucially,

practical possibilities entail the first-person perspective

of an actor, both singular and plural. For the one, legal

possibilities appear as my own or anothers possibilities,

possibilities I or someone else can realize in the course

of participating in ACA. For the other, and precisely be-

cause my participation is part and parcel of joint action,

my own possibilities are also our own possibilities, the

possibilities we can actualize in the course of realizing

the normative point of ACA.

Two further points merit attention here. First, ACA

opens up a realm of practical possibilities while closing



5/12


down other practical possibilities. Depending on the

normative point of ACA, certain kinds of behavior are

singled out as relevant and important with a view to

realizing it; all other forms of behavior are discarded and

pushed beyond the pale. Notice, in this respect, that what

is excluded is not simply illegal behavior, for illegal

behavior is itself relevant and important to ACA; rather,

what is excluded from ACA is behavior irrelevant and

unimportant for the realization of its normative point.

Secondly, as in modal logic and logical possibility, the

principle of non-contradiction plays a role in assuring

the coherence of ACA, but in the form of practical non-

contradiction. One cannot, for example, both manage

the property of another and receive it in donation.

More could be said about ACA. But these consid-

erations suffice to show how legal power relates to

possibility and actuality. In effect, the legal term for

a practical possibility is competence. But I prefer the

notions of empowerment or authorization to that of

competence, such that the realm of practical possibil-

ities that ACA opens up is the realm of actions which

participant agents are empowered to realize. See here

the elemental relation between power and possibility

and actuality proper to ACA: in a legal sense, power

involves the authorization to do so something, that is to

actualize a practical possibility made available by ACA.

This is legal power in a broad sense. In a narrower

sense, legal power is a form of normative power in the

stripped-down version indicated at the outset of this

chapter; namely, the capacity to change a normative

situation by enacting legal norms. The broad sense of

legal power includes its narrow sense. Indeed, one of the

ways to actualize the practical possibilities that an agent

is empowered to instantiate is for the agent to enact

legal norms, thereby changing the normative situation

of the addressees of the norm. To change the latters

normative situation is, in turn, to change what they are

empowered to do: their practical possibilities (which,

in turn, can be an authorization to enact norms). This is

the authoritative dimension of ACA I referred to earlier,

in which second-level authorities monitor collective

action by laying down legal norms that establish the

default setting of the normative point of joint action.

This notion of legal power is proper to constituted

power. In the same way that we must distinguish

between the broad and narrow senses of legal power,

so also should we distinguish between the broad and

narrow senses of constituted power. As to the former,

constituted power is the actualization of a practical pos-

sibility authorized under ACA. In this broad sense, all

participant agents in ACA exercise constituted powers.

As to the latter, constituted power is the enactment of

legal norms by second-level officials authorized to mon-

itor ACA. The latter falls under the scope of the former

because, as noted earlier, one of the ways to actualize an

authorized practical possibility is to enact a legal norm

that changes the normative situation of its addressees.

These broad and narrow conceptions of legal power

deploy a relation between possibility and actuality

that runs parallel to the unidirectionality going from

dynamis to energeia. Abstracting from the question

concerning the ontological productivity of human ac-

tion, Aristotle provides a phenomenologically accurate

description of how the exercise of constituted power

relates to possibility and actuality; namely, possibility

as the-not-yet-real-but-realizable. Notice, moreover,

that by making use of the practical possibilities made

available to them by ACA, the acts of participant

agents repeat prior acts that actualized those practical

possibilities. Participant agency manifests itself as

reproducing the extant legal order, such that there is

a continuity linking together past, present, and future

as the temporal modes of the group agent. Insomuch

that it seems to do no more than reproduce the extant

legal order, the exercise of constituted power appears

to have no ontological productivity of its own. To

this extent, the Aristotelian notion of mimesis offers

a phenomenologically accurate description of the

experience of temporality proper to constituted power.

This rough and ready account of constituted power

will need to be rendered more complex at a later stage

of the argument. But it will do for the time being. In any

case, and to conclude this section, if the re-actualization

of practical possibilities as authorized under ACA de-

scribes the phenomenon of constituted power, so also,

conversely, constituted power is shorthand for a specific

manifestation of the correlation between possibility and

actuality and collective temporality deployed by ACA.

4. Representation and the Paradox

of Constituent Power

The foregoing section could offer an account of con-

stituted power because it took for granted that a legal

collective has already emerged, with a view to picking

out and examining the basic features of legal power that

accrue to ACA. A theory of constituent power comes

into its own when one drops this assumption and asks

how ACA arises.

The heart of the matter is this: the concept of con-

stituent power is indispensable to a theory of legal or-

dering because there could be no ACA unless someone

seizes the initiative to say we on behalf of the individ-

uals who would act jointly, and in such a way that this

initiative provides a preliminary determination of the

normative point of ACA and of those who are or could

become participant agents in it. Bernhard Waldenfels

incisively formulates the core of what is by now a well-

established critique of social contract theory and all of



6/12


its ramifications and permutations: A we [cannot] say

we . . . A political group only finds its voice by way

of spokespersons that speak in its name and represent it

as a whole.20 Because legal collectives are irreducible

to the (variable constellation) of the participant agents

that compose them, the legal collective is absent as a

unity, which is always and perforce a represented unity.

This holds irrespectively of whether the initiative takes

the form of a revolution or of the slow emergence of a

legal collective, which Anglo-Saxon theorists are fond

of extolling when writing about common law.21

Moreover, the initiative to act on behalf of the

whole must be seized because there can be no prior

authorization to this effect by its addressees. Only

thanks to this initiative can individuals come to view

themselves as participants in a plural subject, such that

their acts can be attributed to a collective as a whole,

including the mandate participant agents might grant to

second-level officials via elections, for example

to enact legal norms that monitor the normative point

of ACA. In short, without this initiative there can be no

constituted powers, either in the broad or in the narrow

sense indicated in section 3. So what legal sense can be

made of this initiative? What does it say about power

as constituent power?

Kelsens theory of the basic norm exposes this

problem and attempts to deal with it. He argues that to

attribute an act to a legal collective implies that the act is

authorized by a higher level norm. This regressive move-

ment, leading from the authorized act to the authorizing

norm, ultimately leads back to a first constitution

enacted by an assembly or individual. But, legally

speaking, the notion of a first constitution is an oxy-

moron. If an act is to be an act of constitution-making,

then it must proceed from an earlier constitution. If, on

the other hand, the act creates a first constitution then

the latter cannot be a constitution, but is rather a mere

command, such that right collapses into might. Because

empowerments or authorizations are the legal manifes-

tation of practical possibilities made available by ACA,

Kelsen effectively unveils a paradox at the heart of

legal power: constituent power is the im/possible origin

of legal possibilities. By im/possible I mean that the

initiative that gets ACA going is itself neither legally

possible nor impossible because it is an act that opens

up and closes down legal possibilities. More generally,

Kelsens regressive line of inquiry shows that ultimately

the (il)legality of actscannot be safeguarded from within

the legal order itself; because the law only grasps acts

as legal acts, hence possibilities as legal possibilities, an

act can initiate a legal order only if it is retroactively in-

terpreted as an authorized or empowered act, that is, as

an act of constituted power. Such is the task of the basic

norm.22

The problem of retroactivity reintroduces the

problem of temporality into an account of legal power.

Whoever seizes the initiative to constitute a group

claims to act on behalf of a we, hence avers that

there is already a group on whose behalf the individual

acts. The constituent act that gives rise to a new legal

order retrojects the emergence of this order into the

past, such that the emergent legal order is deemed

to be the implication of an origin that has already

come to pass. Notice the temporal paradox inscribed

in representation, a paradox that is foreign to both the

Greekmimesisand the Scholasticactus purus: the re

of representation does not refer to what supervenes

or follows an original present and presence, a now

in which a manifold of individuals gather together to

constitute themselves as a group in the plenitude of a

simple and immediate presence to themselves. Instead,

and paradoxically, an act originates a collective by rep-

resenting its origin. Constituent power has the temporal

structure of an anticipative retrojection: what is said to

already have taken place is what is yet to come.23

The paradox of representation is, consequently, also

the paradox of constituent power. On the one hand, the

group that would constitute itself as a legal collective

by enacting a new legal order is in fact constituted as a

group. Whoever seizes the initiative to speak on behalf

of a putative we, projecting a collective image that

allows a manifold of individuals to identify themselves

as the members of a group oriented to realizing a certain

normative point under law, is the constituent power

of a legal order. But this initial act of identification

and empowerment only works as a constituent act if

its addressees retroactively identify themselves as the

members of the collective by exercising the practical

possibilities made available to them by ACA. Hence, an

act succeeds as the exercise of constituent power only if,

retrospectively, it appears to be the act of a constituted

power. This paradox entails that only retrospectively

is a collective a we; it begins, ever anew, as an us:

it emerges into being as the object of an interpellation

before it can become the subject of action, and in such a

way that it neverentirely leaves behind its heteronomous

origin. In this precise sense, the emergence of a legal

order is anevent, not the act of a collective subject. By

the same token, constituent power only manifests itself

indirectly, through its effects, that is, after the event.

Before examining the implications of the paradox of

constituent power at greater length, let me first distin-

guish two different ways in which it is effectual. In the

first, constituent power transforms an extant legal order;

in the second, it calls forth a new legal order irreducible

to extant legal orders. While both modes of constituent

power mark the emergence of legal order, the first speaks

to a weak, the second to a strong form of novelty. I call



7/12


these, respectively, secondary and primary constituent

power, albeit with a meaning that is quite different from

that of the doctrine of constitutional law, for which it

refers to the amendment of a constitution.

The transformation of legal orders is linked to the

relation between a legal order and the normative point

of ACA. An extant legal order, as explained in section 3,

is the current default answer to the fundamental prac-

tical question confronting a collective: what ought

our joint action to be about? Accordingly, the default

setting of the normative point of ACA can be changed

in the course of joint action if it appears that, under

new circumstances, this default setting is inadequate

to realizing the normative point of joint action. In some

cases, resetting the default setting of ACA will appear

as part and parcel of ordinary politics. The normative

point of ACA remains more or less taken for granted,

such that at issue are the proper means to realize the

normative point. We can speak in such cases of the

exercise of constituted power, and of a first sense in

which normative power involves the capacity to change

a normative state of affairs. Importantly, the change of a

normative state of affairs wrought by constituted power

already moves on the ground of an ontology according

to which the actual does not exhaust the possible: a legal

order is but the default setting of the normative point

of joint action. In other cases, however, the new default

setting of the normative point also transforms the nor-

mative point of ACA. To the extent that the addressees

of this new interpretation of the relation between the

default setting and the normative point of ACA take up

and instantiate the practical possibilities opened up by

this transformation, a weak mode of constituent power

has transpired. It is a weak mode of constituent power

and a weak form of novelty because, although there is

a rupture with the past, the new possibilities which are

called forth are retrospectively deemed to remain within

the circle of the collectives own legal possibilities.

Constituent power is also associated with a strong

form of novelty that gives rise to a new legal order irre-

ducible to extant legal orders, either by breaking away

from them or destroying them. An example of the for-

mer would be the new lex mercatoria which, wresting

itself loose from the commercial law of states, claims an

independent validity of its own, even though arbitration

awards proffered under its aegis continue to depend

on state enforcement. The paradigm of the latter is, of

course, the revolutionary enactment of a new legal order

on the ashes of order it overturns. Both cases point to a

rupture that opens up a novel first-person plural perspec-

tive of a we. The emergence of a novel ACA makes

available an interconnected realm of practical possibil-

ities for participant agents that is not available in other

legal orders. These novel practical possibilities may

include substantive empowerments or authorizations

incompatible with action authorized by another legal

collective: at issue is another normative point, not

merely the transformation of a collectives normative

point. They also comprise empowerments to monitor

ACA by enacting general or individual legal norms that

fall outside the chain of second-level empowerments of

an extant legal order. This, I think, is what Kelsen has

in mind when noting that a legal revolution can leave

in place the substantive law of the prior legal order,

only changing the authorities empowered to enact legal

norms.24

The question we must now address, to conclude this

section, concerns the nature of the rupture wrought by

constituent power. As we have seen, ACA cannot em-

power participant agents without also disempowering

them. This disempowerment remains more or less con-

cealed in the course of constituted power, in which there

is a continuity between past, present, and future: I do

(present) what I havebeenempowered to do (past) with a

viewto realizing my own ends and those of the collective

(future). The continuity of past, present, and future has

its correlate in the characterization of the possible as the-

not-yet-realized-but-realizable. By contrast, the exer-

cise of constituent power marks a temporal rupture and a

rupture of possibilities. Constituent power suspends the

normal course of ACA by actualizing practical possibil-

ities beyond the realm of practical possibilities that had

been made available to participant agents by ACA. What

had not been possible within the realm of practical pos-

sibilities opened up by an extant legal order retroactively

manifests itself as possible and calling for realization.

A precise characterization of the rupture proper

to constituent power turns on the retroactivity of

constituent power. As concerns secondary constituent

power, if the scope of practical possibilities available to

a collective were given in advance, then a collectives

own possibilities would concern the actualization

of forms already given in the collectives point of

departure, and which were simply held in reserve until

the appropriate moment. There would be no rupture

because change would be but the explication of possi-

bilities implied in the origin: the Aristotelian movement

leading from dynamis to energeia. The paradox of

representation would collapse into a form of original-

ism, and the paradox of constituent power would be

leveled down to the exercise of constituted power: the

realization of the-not-yet-realized-but-realizable. Yet

secondary constituent power, as I call it, catches us by

surprise because it reveals possibilities as our possibili-

ties, yet as possibilities that we knew nothing about. A

rupture takes place because constituent power projects

possibilities as our own possibilities into the future, such

that one moves from the actual to the possible, while

also retrojecting these possibilities into our past as pos-

sibilities that are already available to us and that we can



8/12


now realize. If the addressees of secondary constituent

power carry forward this changed first-person plural

perspective, the collective is transformed in a strong

sense because it moves from the actual to the possible,

while it seems, retrospectively, as though the trans-

formation is no more than the realization of an extant

possibility: an implied power. Here, then, is a second

sense of the concept of change at issue in the minimal-

istic interpretation of normative power as the capacity

to change a normative state of affairs. This concept of

change also presupposes an ontology irreducible to the

making of either Greekmimesisor divine omnipotence.

Similar considerations hold for primary constituent

power. It catches us, a manifold of individuals, by

surprise because it reveals us as a group that is in

the offing in the same movement by which it claims

that we are already off to a start as a group in legal

action. At issue, here, is not merely the emergence of

what, retrospectively, appear to have always been our

own possibilities but rather the founding of a novel

we. The emergence of a new group takes place as

the rupture leading from an actual group to another,

new group in such a way that if primary constituent

power catches on, it appears as though we are already

a collective that merely obtains legal expression by

way of its first constitution. Here is a third sense of

the concept of change apposite to normative power as

the capacity to change the normative situation of the

addressees of an act. Here again, change presupposes an

ontology irreducible to eithermimesisor actus purus.

To summarize, if the correlation between the open-

ing up of novel practical possibilities and the tempo-

ral rupture that dislocates and reorganizes the temporal

arc of past, present, and future characterizes constituent

power, so also, and conversely, constituent power is

shorthand for the specific manifestation of the corre-

lation between possibility and actuality and collective

temporality that governs the emergence of a novel legal

order.25

5. The Paradox of Emancipation

The upshot of sections 3 and 4 is, first, that the concept

of constituent power is an indispensable ingredient of a

theory of legal ordering and, second, that there is indeed

a certain ontology at work in the concept of norma-

tive power, even if it remains more or less implicit and

taken for granted by those very theorists who spurn an

overtly ontological inquiry into constituent power. Cer-

tainly, part of this inquiry has already been addressed in

contemporary theories of social ontology oriented to es-

tablishing whether and how the existence of collectives

is irreducible to the existence of the individuals that

compose them.26 But we need to go further. A theory

of constituent power, as a subset of a general theory of

the emergence of collective action, involves an ontology

that is thinkable only in the wake of Christian theology. I

submit, however, that it is not the ontology espoused by

the champions of the secularization theorem, whatever

their political bent. Is it, instead, the ontology accord-

ing to which constituent power, in its politically strong

sense, amounts to emancipative praxis, whereby an op-

pressive social and legal order is definitively overturned

by a revolution that calls into being a universal hence

all-inclusive legal order in which only freedom would

reign?

To address this question let us examine a series of

oppositions that structure the concept of revolutionary

praxis underpinning this interpretation of the emanci-

pative potential of constituent power: spontaneity and

dependency; form and matter; activity and passivity; the

self and the strange; freedom and domination.

Notice, to begin with, that the account of constituent

power outlined in section 4 does not simply reject out

of hand the notion of spontaneity. The power to inaugu-

rate is deployed by the act whereby someone seizes the

initiative to represent a new collective. Moreover, this

initiative, if it catches on, marks a new beginning to the

extent that it introduces a twofold rupture. The first is

a rupture in time, such that the collective represented

by the initiative is not simply the (transformed) contin-

uation of an extent collective. The second is a rupture

that inverts the relation between possibility and reality,

insofar as an extant order becomes the point of depar-

ture for the realization of a possible order irreducible

to the former, hence not merely the actualization of

one of the formers possibilities. To this extent, at least,

the paradox of constituent power supports the notion of

emancipative revolutionary praxis, rejecting contempo-

rary attempts to domesticate or neutralize it by way of

normative theories of constitutionalism.

However, the paradoxical structure of representation

decisively questions the idea that constituent power can

be characterized as an absolute, albeit formal, beginning

of action. If, on the one hand, the activity of constituent

power discloses an irreducible passivity in the plural

subject that must be constituted by the initiative to rep-

resent it, constituent activity is imbued, on the other,

with a no less irreducible passivity because this initia-

tive only constitutes a collective if it is taken up again

and carried forward by its addressees. That the initiative

will be carried forward cannot be taken for granted; it

must succeed in representing its addressees as a group

in a way that is both viable as a future possibility and

recognizable, albeit retroactively, as articulating what

they already share. Constituent power does not have

these conditions under its control, and they resist char-

acterization, in line with the concept of dependent spon-

taneity, as the merely material condition of a formally

productive activity. Thus, the representation at work in



9/12


constituent power is not the Greekmimesis, the repro-

duction of an extant world. Nor is it simply the formal

production of a new legal order from scratch. To the ex-

tent that modern philosophy interprets human creativity

as an absolute formal beginning it remains in thrall to

the metaphysics of actus purus. Instead, the represen-

tational process at work in the paradox of constituent

power deploys what Andre Malraux and Merleau-Ponty

call a coherent deformation,27 when describing artis-

tic and linguistic creativity. If the notion of deformation

involves a strong sense of rupture and creativity irre-

ducible to reformation, it also underscores the fact that

constituent power can create a new legal order only in

a representational process that, paradoxically, discovers

in the extant social and legal order ways of acting jointly

that its participants never had envisaged. And the defor-

mation wrought by constituent power is coherent to the

extent that it succeeds in representing a legal collective

in a way that is both viable as a future possibility and

also recognizable, to its addressees, as the articulation

of who they already are.

But there is more. The notion of a pure formal

causality re-enacts the Scholastic notion of divine

omnipotence as taking place in a pure present, even

if a pure present limited to an inaugural ordering.

The purity of this present means that a manifold of

individuals are present to each other as a unity in the

immediacy of a now that allows them to jointly enact

a constitution and to enact it in their joint interest. This

absolute presence and present would guarantee that the

constitution is the product of their joint act, and that

it is a constitution enacted in their joint interest. This

immediate self-presence would guarantee that there is

a new beginning, a rupture whereby, breaking entirely

with the past, a manifold of individuals call forth an

entirely new future by constituting themselves as a legal

order. This would be the notion of constituent power

demanded by an emancipative revolutionary praxis

faithful to the ontology of dependent spontaneity.

Here again, the paradox of constituent power desta-

bilizes this understanding of the temporality of revolu-

tionary praxis: representation ensures that there is no

direct access to the foundation of a collective in a pure

present. Indeed, the paradoxical structure of representa-

tion entails that a legal collective must rely, as Merleau-

Ponty puts it, on a past that never has been present28

and, I would add, a future that never will become a

present, hence a past and a future that definitively elude

the control of whoever seizes the initiative to represent

a novel collective. The meaning of what takes place

now is shot through with ambiguity, for its significance

can only be established retrospectively, and only for

the time being. On the one hand, what may seem to

participant agents to be only a slight change in ACA,

retrospectively can appear to be a decisive change that

marks the emergence of a novel collective. What seemed

to be at the time the continuation of order by constituted

power becomes, with the benefit of hindsight, a veritable

foundational moment, but one that escaped its protago-

nists in that now. On the other hand, what now seems to

be a revolutionary moment, galvanizing participants to

great achievements and sacrifices, retrospectively can

appear to be no more than a revolution in the sense of a

return of the same; the genuinely revolutionary moment

escaped its protagonists when they thought they had it

in their hands. The paradox of representation entails that

there is no way of definitely establishing whether an act

taking place now is an act of constituent power or of

constituted power; only retrospectively, and only incon-

clusively will it manifest itself as the one or the other.

Let us now turn to the opposition between the self

and the alien or strange. Both Kants account of moral

freedom and Marxs interpretation of revolutionary

emancipation depart from a situation in which human

being is given over to a world that opposes its free

activity. In both cases, the extant world manifests itself

as alien. Kant refers to alien [fremden] causes29 that

restrict freedom; Marx speaks of an initial situation of

alienation (Entfremdung), in particular, the alienation

of labor in the capitalist mode of production.30 In

both cases, the negative moment of freedom consists

in leveling down the strange to the factuality of

what merely exists, such that, deprived of its binding

character, the real becomes the point of departure for

the positive moment of freedom, namely, the enactment

of a universal order. Accordingly, the strange or alien

manifests itself as the ultimate danger that human

being could lose itself; that, no longer recognizing

itself in the made of its making, the subject forfeits

its primordial ontological productivity and its capacity

to assert itself against what opposes its continued

existence in being. Carl Schmitt articulates the extreme

political implications of this assumption when equating

the enemy with the stranger, and then describing the

enemy as the existential negation of a collective.31

Emancipation, on this account of constituent power,

demands overcoming the strange by way of a critique of

ideology that leads over into a revolutionary praxis that

enacts a social and legal order in which we have ceased

to be estranged or alienated from ourselves and have

become fully ourselves. Revolutionary emancipation

leads to collective self-identity in the form of what I

would call a synthetic tautology: indirectly, by way

of a detour through nature and society, human beings

come to recognize themselves fully in their products,

namely, as its producers. The universal social and legal

order is the fully humanized order, an order that, having

overcome all forms of strangeness, is fully and properly

ours, the order we, as humans, can call our own. If the

Greek notion ofmimesis implied that human making



10/12


had a tautological structure because techne imitated

nature, the notion of autonomy entails a new (albeit for-

mal) tautology in the relation between the making and

the made: the exercise of constituent power as emanci-

pative praxis would mark the political accomplishment

of this synthetic tautology: man man.32

The paradox of constituent power reveals that this

is a strongly reductive interpretation of the strange. My

point is not to deny that the politically strange can mani-

fest itself in the form of an existential negation that calls

forth a revolutionary response, even though this is by no

means its primordial mode of appearance.33 It is to note

that the revolutionary response that calls forth a new

legal order never only affirms a pre-existent collective

against what would negate it; it also always creates a

collective in the very process of claiming to defend it.

Hence, the foundation of a novel collective includes, by

establishing what kinds of behavior are important and

relevant with a view to realizing the normative point

of ACA, while also excluding everything else as unim-

portant and irrelevant thereto. What has been excluded

does not simply disappear: having been marginalized, it

can manifest itself in the guise of strange behavior, that

is, behavior that, calling into question what our joint

action ought to be about, refuses normative integration

into what is deemed to be the new collectives own legal

order. So, in responding to domination by calling forth a

novel legal order, the exercise of constituent power must

marginalize in the process of gathering together, thereby

paving the way for more or less radical contestation of

its default setting of ACA: not in our name.

Accordingly, the conditions that govern the foun-

dation of a legal order ensure that a form of plurality

is ensconced in ACA that is far more radical than the

plurality of Gilberts plural subject: nous sont des

autres, to paraphrase Rimbauds famous je est un autre.

Because there can be no inclusion without exclusion,

emancipative revolutionary praxis does not lead over

into a universal collective. The exercise of constituent

power is never an innocent matter, and perhaps least so

when universality is claimed for the enacted legal order.

Constituent power speaks to an initial situation of inde-

terminacy between law and violence, an indeterminacy

that never entirely abandons ACA and that becomes

manifest when second-level officials claim, in response

to the radical contestation of ACA by the strange or

alien, that they are empowered to draw the distinction

between law and violence because freedom is on the

side of the law and violence on the side of the strange.

This is the point at which the dialectic of emancipa-

tive revolutionary praxis kicks in: emancipation as the

process of overcoming extant domination becomes the

vehicle for a new form of domination.

The foregoing is not, nevertheless, an argument

against emancipative revolutionary praxis. It shows, in-

stead, that all revolutionary emancipation is a specific

response to domination that calls forth a domain of

freedom rather than freedomtout court: there are eman-

cipations in the plural, rather than emancipation in the

singular. Constituent power cannot empower, enabling

a domain of freedom as a realm of practical possibili-

ties, without also disempowering,thereby marginalizing

other ways in which joint action might be the expression

of freedom. This disempowerment is radical in those

cases in which the strange intimates practical possibili-

ties which cannot be integrated into a given legal collec-

tive because they are irreducibly in contradiction with

the latters normative point. In such situations, a collec-

tive cannot respond to what calls it radically into ques-

tion with a new legal default setting of the normative

point of ACA. Those practical possibilities can be real-

ized only from another first-person plural perspective.34

The initiative to found a collective has, on this read-

ing, an irreducibly ambiguous status: it is the expression

of constituent power and of constituent powerlessness,

of a primordial we can and a no less primordial we

cannot. The strange, in a strong sense, is what con-

fronts a collective with its powerlessness, that is, with

what cannot be said or done in the framework of a given

ACA because it intimates possibilities that lie beyond

the variable scope of that collectives own possibilities.

The im/possibility that gives rise to practical possibili-

ties under ACA catches up with a given collective from

ahead in the form of practical im/possibilities intimated

by strange behavior. Constituent power lies behind a

legal order and ahead of it, as strange behavior that an-

ticipates the emergence of another first-person plural

perspective.

The task of legal ordering, as concerns the strange in

the strong sense of what refuses normative integration

into a given ACA, is to respond to it by exercising

collective self-restraint. Legal collectives acknowledge

in this indirect way that they exist in the mode of a

finite questionability and a finite responsiveness. The

conceptual and normative stakes of constituent power

are not only about collective self-preservation but also,

and no less importantly, about the preservation of the

strange. This ontology of legal ordering is what I take to

be the core of a conceptually and normatively defensible

theory of constituent power.

NOTES

1. Aristotle,Metaphysics, 1032a1213, in The CompleteWorks of Aristotle, ed. Jonathan Barnes (Princeton: PrincetonUniversity Press, 1985), Vol. II.



11/12


2. Karl Marx, Theses on Feuerbach 1845. http://www.marxists.org/archive/marx/works/1845/theses/, accessed 23March 2015.

3. A point also made by Hannah Arendt, The HumanCondition(Chicago: Chicago University Press, 1958), 175.

4. Aristotle,Metaphysics, n 1, 1032a1213.5. Ibid, 1032a2728.6. Aristotle,Physics, 199a15, inThe Complete Works of

Aristotle, ed. Jonathan Barnes, Vol. 1.7. Ibid, 199a15.8. On the history of the concept of mimesis, see the

essay Nachahmung der Natur. Zur Vorgeschichte der Ideedes schopferischen Menschen, inWirklichkeiten in denen wirleben, Hans Blumenberg (Stuttgart: Philipp Reclam, 1986),55103.

9. Aristotle,Metaphysics, n 1, 1069b141070a10.10. Hannah Arendt, On Revolution (London: Penguin

Books, 1977), 21.11. Thomas Aquinas, Summa contra Gentiles, trans.

James F. Anderson (Notre Dame: University of Notre DamePress, 1975) II, 5.

12. Thomas Aquinas,Summa Theologia, trans. EnglishDominican Fathers (London: Blackfriars, 1964) 1, 25, 3.13. Carl Schmitt, Political Theology. Four Chapters on

the Concept of Sovereignty, trans. George Schwab (Cambridge,MA: MIT Press, 1985), 36.

14. See Carl Schmitt, Constitutional Theory, trans.Jeffrey Seitzer (Durham: Duke University Press, 2008);Schmitt, Political Theology, n 13; Antonio Negri, Insurgen-cies. Constituent Power and the Modern State, trans. MauriziaBoscagli (Minneapolis: University of Minneapolis Press,1999). I cannot discuss here Benjamins and Agambensmessianic interpretations of rupture. See BenjaminsCritique of Violence, inSelected Writings, Walter Benjamin(Cambridge, MA: Belknap Press, 1996), Vol. 1, 23652,

and Giorgio Agamben, Potentialities. Collected Essays inPhilosophy, trans. Daniel Heller-Roazen (Stanford: StanfordUniversity Press, 1999), 16084.

15. Hans Blumenberg, The Legitimacy of the ModernAge, trans. Robert M. Wallace (Cambridge, MA: MIT Press,1986).

16. Immanuel Kant, Critique of Pure Reason, trans.Norman Kemp Smith (Hong Kong: Macmillan, 1987), B72.Dependent spontaneity is Kants formulation of the cogitoprinciple, where ego sum captures the conditioned characterof human being, and ego cogitoits productive activity.

17. Immanuel Kant, Groundwork of the Metaphysics ofMorals, trans. H. J. Paton (London: Routledge, 1991), BA 97,

BA 119.18. David Dyzenhaus has mounted a powerful attack onthe notion of constituent power in Constitutionalism in an OldKey: Legality and Constituent Power, Global Constitutional-ism 1 (2012): 22960. For a careful analysis of constituentpower see Martin Loughlin, The Concept of ConstituentPower, European Journal of Political Theory 13 (2014):218237.

19. Margaret Gilbert,On Social Facts, 2nd ed. (Prince-ton: Princeton University Press, 1992), 168.

20. Bernhard Waldenfels, Verfremdung der Moderne:Phanomenologische Grenzgange (Essen: Wallstein Verlag,2001), 140. See also Bert van Roermund, Law, Narrative andReality: An Essay in Intercepting Politics(Dordrecht: Kluwer

Academic Publishers, 1997), 14565; Jacques Derrida, Dec-larations of Independence, New Political Science15 (1986):715.

21. See Ferdinando Menga, Potere costituente e rapp-resentanza democratica: per una fenomenologia dello spazio

istituzionale, 2nd ed. (Naples: Editoriale Scientifica, 2010), foran excellent study on the relation between constituent powerand representation.

22. See Hans Lindahl, The Paradox of ConstituentPower. The Ambiguous Self-Constitution of the EuropeanUnion,Ratio Juris. An International Journal of Jurisprudenceand Philosophy of Law, 20 (2007): 485505. For a differ-ent reading of the political significance of the basic norm see

Andreas Kalyvas, The Basic Norm and Democracy in HansKelsens Legal and Political Theory, Philosophy and SocialCriticism32 (2006): 57399.

23. On representation, differance, and the supple-ment of origin see Jacques Derrida, Speech and Phenomenaand Other Essays on Husserls Theory of Signs, trans. DavidB. Allison (Evanston: Northwestern University Press, 1973).

24. Hans Kelsen, Pure Theory of Law, trans. MaxKnight(Berkeley: University of California Press, 1967), 209.

25. See Hans Lindahl, Fault Lines of Globalization:Legal Order and the Politics of A-legality (Oxford: OxfordUniversity Press, 2013), 13133.

26. See for example, Gilbert, 4326; Philip Pettit,A The-

ory of Freedom: From the Psychology to the Politics of Agency(Cambridge: Polity, 2001), 11415; Michael Bratman, Facesof Intention: Selected Essays on Intention and Agency(Cam-bridge: Cambridge University Press, 1999), 129; John Searle,Collective Intentions and Actions, in Intention in Commu-nication, eds. Philip R. Cohen, Jerry Morgan and Martha E.Pollack (Cambridge, MA: MIT Press, 2003), 40115.

27. Andre Malraux,La Cr eation artistique(Paris: Skira,1948), 152, cited by Maurice Merleau-Ponty, La Prose duMonde(Paris: Gallimard, 1969), 85.

28. Maurice Merleau-Ponty,Phenomenology of Percep-tion, trans. Colin Smith (London: Routledge, 1989), 242.

29. Kant,Groundwork, BA 97.30. See, among others, Karl Marx, Economic and

Philosophical Manuscripts of 1844, https://www.marxists.org/archive/marx/works/1844/manuscripts/preface.htm, accessed23 March 2015.

31. Carl Schmitt, The Concept of the Political, trans.George Schwab (Chicago: Chicago University Press, 2007),27.

32. Compare with Heideggers analysis of Protagorasfamous aphorism, man is the measure of all things, inthe Appendices to The Age of the World Picture, in OffThe Beaten Path, Martin Heidegger, trans. Julian Young andKenneth Haynes (Cambridge: Cambridge University Press,2002), 7380.

33. See Bernhard Waldenfels,A Phenomenology of the

Alien: Basic Concepts, trans. Tanja Stahler and AlexanderKozin (Evanston: Northwestern University Press, 2011).34. The constitutional deadlock that arose in the fa-

mous Quebec Secession Reference issued by the CanadianConstitutional Court between, on the one hand, the Canadiangovernment and Supreme Court, and, on the other, theQuebecer initiative to secede from Canada is a good illustrationof this point. See my article Recognition as Domination: Con-stitutionalism, Reciprocity, and the Problem of Singularity, inEuropes Constitutional Mosaic, eds. Neil Walker, StephenTierney and Jo Shaw (Oxford: Hart, 2011), 20530.

Hans Lindahl holds the Chair of Legal Philosophy at

Tilburg University, the Netherlands. His primary areas

of research are legal and political philosophy. Lindahl

has published numerous articles in these fields. His

monograph,Fault Lines of Globalization: Legal Order



12/12


and the Politics of A-Legality, was published with

Oxford University Press in 2013. His current research

is primarily oriented to issues germane to globaliza-

tion processes, such as the concept of legal order in

a global setting; the relation of boundaries to free-

dom, justice, and security; a politics of boundary-

setting alternatives to both cosmopolitanism and

communitarianism; transformations of legal authority

and political representation; immigration and global jus-

tice; collective identity and difference in the process

of European integration. In dealing with these topics

Lindahl draws on (post)phenomenology and theories of

collective action of analytical provenance, while also

seeking to do justice to the nitty-gritty of positive law.

2015 h l & S d

possibility actuality rupture

Documents