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Lior Barshack*


To the memory of Jim Harris


Schmitt on sovereignty and constituent power

Insofar as theology forms an integral part of religion, civil religion comprises not only the political myths and rituals studied by sociologists but also a civic theology. Political theology is concerned with the nature of the civic God, the sovereign, and finds its natural institutional setting in learned constitutional discourse. Constitutional lawyers such as Carl Schmitt recovered the lost awareness of the theological models that shape constitutional discourse. In particular, constitutional reflections on the concepts of sovereignty and constituent power seem to reproduce theological arguments and invite the application of general theological outlooks. Contemporary constitutional theories, such as Antonio Negris and Bruce Ackermans, rarely approach the question of constituent power from the standpoint of political theology. While Schmitts own political theology may seem flawed, and thus incapable of yielding a satisfactory account of constituent power, the quest for a theological, or semi-theological, understanding of constituent power deserves to be continued. Without ever explicitly challenging Schmitts political theology, Ernst Kantorowiczs study of The Kings Two Bodies suggests an alternative theology. My aim in this essay is to reconstruct and develop this alternative political theology, as well as the constitutional model it entails. The issue that divides Schmitts and Kantorowiczs conceptions of sovereignty can be framed in terms of immanence versus transcendence, notwithstanding that neither author employed these terms. While Schmitt seems to advocate an immanent account of sovereignty, Kantorowicz offers a transcendent one. According to immanent conceptions of sovereignty and constituent power, sovereignty vests in living members of the body politic. An immanent sovereign is an individual, or a group of individuals, who perpetually validates the constitution, rather than being
* The Radzyner School of Law, The Interdisciplinary Center, Herzliya, Israel. I am grateful to participants in seminars held at the Benjamin Cardozo School of Law; The Interdisciplinary Center, Herzliya; Kings College, London; and the Institute for Advanced Studies, Jerusalem, for comments on early drafts of this paper. (2006), 56 UNIVERSITY OF TORONTO LAW JOURNAL

186 UNIVERSITY OF TORONTO LAW JOURNAL empowered by it, and who is therefore unfettered by any constitutional separation of powers. The paradigmatic example of an immanent conception of sovereignty is Thomas Hobbess. The authority of the Hobbesian monarch derives from the actual efficacy of his rule, not from a constitution that could constrain political power. Hobbes deposits divine omnipotence in the hands of a living human being, giving a philosophical articulation to a political phenomenon known to anthropologists, historians, and students of mythology as divine kingship. By contrast, theories of transcendent sovereignty place the authority to validate the constitution outside society. Like immanent sovereignty, transcendent sovereign power is indivisible. It precedes the separation of powers and gives unity to the constitutional order and to the political group, but it dwells outside the group. This essay criticizes theories of constituent power, such as Schmitts and Negris, according to which constituent power is permanently present within society or the state. The following section argues that constituent power vests in the imaginary collective body of the group and that this body normally resides outside the group to which it belongs. Only during dramatic constitutional moments is the collective body enacted by the group and rendered present. I will use the terms sovereignty and constituent power interchangeably to designate the power of the group as an absolute unity, a single collective body, to author and breach the constitution.1 By the notion of the communal body I will refer to the sovereign collective body in the moment of its enactment by the group. The notion of the corporate body, by contrast, will be used to designate the collective body in its other dwelling place: as an absent body residing outside the group. Both concepts, the communal body and the corporate body, refer to the groups imaginary collective body, but in different positions that it can occupy in relation to the group. The collective body can, in fact, exhibit different degrees of distance from the group, different degrees of absence and presence. Certain constitutional moments occasion a more intense presence of the collective body than others. Thus the concepts of the corporate body and the communal body designate the theoretical poles of an entire spectrum of positions that the collective body can occupy. I will argue that a proper understanding of the conditions under which social structures arise and develop suggests the absence of the groups collective body in the regular course of social life. Economic activities, in the broadest sense, become possible through the projection of sovereign omnipotence outside of society. The argument for absent sovereignty rests not only on considerations of social theory but also on political considerations: the projection of sovereignty
1 As we shall see below, Schmitts usage of these terms is inconsistent: he sometimes identifies and sometimes distinguishes the two terms.



outside the group, it will be argued, allows the consolidation of individual autonomy and the protection of human rights within social structure.2 While Schmitts use of notions such as sovereignty is often ambiguous, an examination of his thought as it developed during the 1920s demonstrates that he consistently advocated an immanent conception of constituent power. In Die Diktatur (1921) Schmitt drew a distinction between sovereign and commissarial dictatorship, according to which a sovereign dictator is entirely free from constitutional constraints.3 While commissarial dictatorship is set up in order to defend an existing political form, and its duration and powers are constitutionally constrained, sovereign dictatorship is self-grounded and generative of new constitutional forms. A sovereign dictator overthrows the old constitutional structure in order to establish a new one. Thus, in Die Diktatur, the concept of sovereignty is clearly associated with absolute freedom from constitutional constraints and with the power to create a constitutional order ex nihilo, that is to say, with constituent power. In Political Theology (1922), Schmitt seems to employ a weaker notion of sovereignty. Here sovereignty is famously defined as the power to decide the exception, to suspend the constitution in order to handle an emergency situation. According to Schmitt, sovereign discretion as to what constitutes an emergency situation and what measures are required to address it is unlimited.4 However, sovereignty here does not attain the full extent of constituent power, since the sovereign derives his authority from an established constitution,5 which he is bound to restore once the state of emergency is over. The constitutional structure is in force throughout the state of emergency, which Schmitt emphatically distinguishes from anarchy. Nevertheless, Schmitts characterization of sovereignty in Political Theology is not unambiguous. His assertion that emergency powers are limitless and his evocation of Hobbes suggest that, in Political Theology, sovereignty approximates constituent power. When Schmitt claims that in the exception authority proves that to produce law it need not be based on law,6 he seems to describe the state of emergency as one of legal void. When he argues that at any moment the legal order rests on a decision and not on a norm,7 it is uncertain
2 On the implications of the proposed account of sovereignty for the legitimacy of judicial review, see Lior Barshack, The Totemic Authority of the Court (2000) 11 Law & Crit. 301 at 318. 3 Carl Schmitt, La Dictature, trans. by Mira Koeller & Dominique Seglard (Paris: Seuil, 2000). 4 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. by George Schwab (Cambridge, MA: MIT Press, 1985) at 7, 12 [Schmitt, Political Theology]. 5 Ibid. at 7. 6 Ibid. at 13. 7 Ibid. at 10.

188 UNIVERSITY OF TORONTO LAW JOURNAL whether the decision in question concerns only the existence of an emergency or the very political form of the state. The clear distinction drawn in Die Diktatur between sovereign and commissarial dictatorship is blurred in Political Theology, where the sovereign seems to embody at the same time the two opposite models of dictatorship. To a certain extent, Schmitts inconsistent notion of sovereignty reflects the ambiguous image of political authority in actual political life, where it alternately denotes a pre-constitutional and a law-bound power. However, political sociology hardly excuses Schmitts conceptual confusion, which is partly resolved in his Constitutional Theory (Verfassungslehre) of 1928, where sovereignty and constituent power are distinguished. According to Constitutional Theory, constituent power is the author of the founding decision about the political form of the state, while the sovereign is the supreme authority designated by the political form chosen by the people, and the supreme guardian of that form. For Schmitt, the political form is the political essence of the constitution, its higher part and underlying idea, the criterion according to which constitutional continuity through dramatic political moments can be measured.8 It is created by the pre-constitutional, constituent decision that must be renewed in every moment in order to endow the various constitutional laws with validity.9 In Constitutional Theory Schmitt perceives constituent power as exercised by the group in an uninterrupted, continuous manner. The constitution emanates from the continually living will of the group. It is re-founded by the community in every moment and thus cannot constrain the community.
8 A judicial application of the idea of political form can be found in Kesavananda v. State of Kerala, [1973] A.I.R.S.C. 1461 [Kesavananda ], one of the pivotal decisions of the Indian Supreme Court. The Court interpreted the parliaments power to amend the constitution, granted by the constitution, as restricted to amendments that do not alter the basic structure or essential features of the constitution. 9 On the idea of constituent power as a founding decision over a general political form, see Carl Schmitt, Thorie de la constitution, 1923, trans. by Lilyane Deroche (Paris: Presses Universitaires de France, 1993) at 151. Chapter 16 of this book is devoted to the concept of political form. Schmitt endorses here the classic classification of regimes into three main types democracy, aristocracy, and monarchy and distinguishes between the liberal bourgeois component of constitutions, that is, the principles of rule of law and separation of powers, and the particular political form that they reflect. The concept of political form is introduced in Schmitts earlier writings, and in Political Theology, supra note 4 at 910, he gives more concrete examples of it, such as military bureaucracy, the system of soviets, federal democracy, a ruling party organization, and the self-governing commercial city. In Roman Catholicism and Political Form Schmitt implicitly characterizes political form as an institutional configuration through which a supreme authority over the matter of human life is represented: Carl Schmitt, Roman Catholicism and Political Form, trans. by G.L. Ulmen (Westport, CT: Greenwood Press, 1996) at 819. On democracy as political form, see Carl Schmitt, The Crisis of Parliamentary Democracy, 1926, trans. by Ellen Kennedy (Cambridge, MA: MIT Press, 1985) at 25.



The people, the nation, remains the origin of all political events, the source of all powers, which manifests itself in ever new forms and generates out of itself ever new forms and configurations, yet never subordinates its political existence to a fixed, definitive formation.10

This seems to be the central tenet of Schmitts constitutional outlook. Whether in his democratic or nostalgic monarchist moments, Schmitt sees the constitution as constantly revalidated by living human beings wielding constituent power. In The Concept of the Political (1927), written while he was working on Constitutional Theory, Schmitt defines a sovereign entity as a group united through the willingness of its members to die in war against a particular enemy. Here, like in Die Diktator, sovereignty seems to attain the scope of constituent power. The state the constitution and the legal system is perceived as a mechanism through which the group administers itself and manifests its pre-legal sovereignty. The law is by no means the source of the groups unity and self-consciousness, nor is it capable of constraining the group. This is made clear in the opening sentence of the book, according to which The concept of the state presupposes the concept of the political.11 Here again Schmitt asserts the primacy of the political group to the constitutional order. The idea of presence is invoked by Schmitt in chapter 16 of Constitutional Theory, where he claims that presence and representation form the two elementary and universal building blocks of government and politics. Each regime, according to Schmitt, exhibits a different mixture of the two elements. Schmitt characterizes extreme cases of direct democracy as the politics of presence, an ideal that in reality can only be approximated, since leadership and procedure always introduce into politics an element of representation. In his account of Adolf Hitlers authority a few years later, Schmitt asserts the possibility of pure presence: [Leadership] is a concept of the immediately present and of a real presence. For that reason and as a positive requirement, it also implies an absolute ethnic identity between leader and following.12 Schmitts hesitation between denial and affirmation of the possibility of real presence a
10 Schmitt, Thorie de la constitution, ibid. at 215; Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1957) at 79 (authors translation). 11 Carl Schmitt, The Concept of the Political, trans. by George Schwab (Chicago: University of Chicago Press, 1996) at 19 [Schmitt, Concept]. A sovereign body is defined in this text as a group of individuals united by their willingness to die for a common cause in war against an existing, concrete enemy. (Concept at 389). The validity of law constantly derises from the decision of such a sovereign group: the sovereignty of law means only the sovereignty of men who draw up and administer this law. Schmitt, Concept at 67. 12 Carl Schmitt, State, Movement, People, trans. by Simona Draghici (Corvallis, OR: Plutarch Press, 2001) at 48; Carl Schmitt, Staat, Bewegung, Volk (Hamburg: Hanseatische Verlagsanstalt, 1933) at 42.

190 UNIVERSITY OF TORONTO LAW JOURNAL term borrowed from the theology of the sacrament is the natural response of a theorist to changing political circumstances. While various theoretical considerations suggest the impossibility of presence, Hitlers leadership collapsed representation to a degree that was formerly unimaginable. However convincing Schmitts account of Hitlers leadership as an instance of real presence and absolute identity may be, it is doubtful whether any general conclusions on the nature of leadership and constituent power can be deduced from that example. Part II outlines an alternative to immanent theories of constituent power. The central concept of the proposed account is that of the corporate body of the group. It will be argued that sovereignty is corporate that is, invisible and external to the group rather than constantly present, as Schmitt takes it to be. It is incarnated only during constitutional episodes such as declarations of independence, revolutions, amnesties, referenda, and states of emergency. The enactment of constituent power implies the temporary and partial suspension of constitutional constraints the rule of law, separation of powers and human rights and the dissolution of individual autonomy during the constitutional episode. The incarnation of sovereignty and the concomitant suspension of the constitutional order can assume different degrees of intensity in different constitutional moments. Some of these moments of sovereign presence will be considered in Part III below. Once the proposed model of absent sovereignty has been expounded, the essay turns in the final section to comment on Ackermans and Negris theories of constituent power.

The corporate body and the communal body

The work of Frederic William Maitland and Ernst H. Kantorowicz on the history of the Crown in common law, heavily influenced by Henry Sumner Maine, suggests the association of sovereignty with corporate entities. Legal anthropologists and historians single out two main features of corporate bodies: immortality and sovereignty.13 Corporations
13 A seminal exposition of the anthropological theory of the corporation can be found in Meyer Fortes, Kinship and the Social Order (Chicago: Aldine, 1969) [Fortes, Kinship]. On corporation theory in Europe, see Florian Linditch, La rception de la thorie allemande de la personnalit morale de ltat dans la doctrine franaise in Olivier Beaud & Patrick Wachsmann, eds., La science juridique franaise et la science juridique allemande de 1870 1918 (Strasbourg: Presses universitaires de Strasbourg, 1997) 179. On the Crown as corporation in modern law, see Sebastian Payne & Maurice Sunkin, eds., The Nature of the Crown (Oxford: Oxford University Press, 1999). On the centrality of the corporation in social and political thought around the turn of the twentieth century, see David Runciman, The Personality of the State (Cambridge: Cambridge University Press, 1997).



are immortal because their continuity is not hampered by the deaths of individual organs. The corporate personality of the state is sovereign because the king is obliged to defend and augment its inalienable possessions they are not his own an obligation that receives its clearest expression in the coronation oath.14 I would like to supplement this basic characterization of corporate bodies with the following claims.

While immanent approaches place constituent power in the hands of the living, the authority of the corporate body belongs to the dead. The examples of the family and the state suggest that the corporation is identified with the person of a founding ancestor of a descent group, such as the mythical, heroic founder of a Roman family, the founder of a royal dynasty, or the founding fathers of modern nation-states. The symbols and names of descent groups often refer, directly or indirectly, to their real or fictional founding ancestors. The modern state came into being through a gradual appropriation of ancestral authority. The corporate familys role of postulating origins and stories of descent has been increasingly overtaken and almost monopolized by the state.15 It is arguable that the rise of civil religion above the different historical religions, its increased capacity to administer the most important rites of passage in the citizens life cycle and to render death for the sake of nation beautiful and exemplary, were made possible by the political appropriation and monopolization of ancestral authority.

Through its corporate personality its mythical ancestors and their multiple totemic representations the group articulates itself for itself. According to G.W.F. Hegel and Emile Durkheim, notwithstanding the
14 Maine makes this point in his discussion of the Roman family: the Pater familias embodies the abstract legal personality of the family and is in charge of its affairs. He can act only in the name of its immortal interests, not out of his own passing interests and desires. Henry Sumner Maine, Ancient Law, 1866 (New Brunswick, NJ: Transaction, 2002) at 1859. On the coronation oath see Ernst H. Kantorowicz, Inalienability: A Note on Canonical Practice and the English Coronation Oath in the Thirteenth Century (1954) 29 Speculum 488; Enid Campbell, Oaths and Affirmations of Public Office under English Law: An Historical Retrospect (2000) 21 Leg.Hist. 1. 15 On the increasingly diluted reference to descent in the identity formation of modern nuclear families, see Fortes, Kinship, supra note 13 at 276. On the state as a unit of kinship, see Lior Barshack, The Holy Family and the Law (2004) 18 Int.J.Law, Poly & Fam. 214 [Barshack, Holy Family].

192 UNIVERSITY OF TORONTO LAW JOURNAL differences between their theories of religion, societys self-representation is its object of worship. If the corporation is associated with ancestral figures and ancestral law and constitutes the self-representation of the group, it cannot fail to be sacred. Furthermore, corporations, like the gods, are transcendent: they are absent and act through representatives.16 The religious dimension of political systems and families inheres in their corporate structure. National and domestic totemic symbols designate corporate entities and authorities; civil and domestic religions worship the corporate bodies of the state and the family respectively.

Corporations come into being through the projection of sacredness from within the social onto a transcendent realm.17 Corporate formation secularizes the social: once sacredness is projected outside the group, a temporal realm of pragmatic interaction can be established. While the corporate body of the state is a sacred object of civic worship, its sacredness attests to the secularization of everyday politics.18 When sacredness is immanent to the group, ancestralcorporate authority and law are not recognized. Sovereignty then vests in the private body of a divine king, which is neither sanctioned nor constrained by a superimposed ancestral law. Divine kingship may be highly effective in periods of foundation and transition but is hardly consistent with stable and continuous structures of rule. Thus, once foundation has been accomplished, the sacredness of divine kingship is projected onto the newly founded ancestralcorporate body.19 From this moment onward, sovereignty vests in the corporate, as opposed to the private, body of the king, in the dynasty and the constitu16 Otto Friedrich von Gierke held an immanent, communitarian, conception of the corporation as a spontaneous, horizontal association of individuals. Berman convincingly criticized Gierkes conception for the lack of a vertical dimension. Harold J. Berman, Law and Revolution (Cambridge, MA: Harvard University Press, 1983) at 220. 17 Contractarian foundation narratives, such as Hobbess and Jean-Jacques Rousseaus, according to which the state originates in the voluntary transfer of natural rights and freedoms to the sovereign, capture the process of projection on which social structure is premised. As Hobbess account suggests, the founding projection is not a single founding event but a constant process of re-foundation of the polis by its individual members. 18 See E.W. Bckenforde, The Rise of the State as a Process of Secularization in ErnstWolfgang Bckenfrde, State, Society and Liberty, trans. by J.A. Underwood (New York: Berg, 1991) 26. 19 The process of evolution of law-bound authority out of the lawless, charismatic authority exercised in transitional periods is indicated by ample historical and anthropological evidence. For a classical analysis of a number of examples, see Luc de Heusch, Pour une dialectique de la sacralit du pouvoir in Luc de Heusch, crits sur la royaut sacre (Bruxelles: Universit de Bruxelles, 1987) 215.



tion. The king is seen as an ordinary mortal, an organ of a sovereign corporate order the dynasty and his rights as grounded in ancestral law rather than in personal charisma.

By the notion of the communal body I refer to the group as a simple, inarticulate, immanent unity, generated through the dissolution of interpersonal boundaries. The communal body is the sacred fusion of group members that comes into being in rites of passage, carnivals, natural disasters, fascist regimes, wars, revolutions, referenda, elections, and other instances of communitas. During these episodes the group, permeated by sovereignty, contains and enacts its own unity.20 The concept of the corporate body, too, refers to the group as a single, sacred, collective body, but one that dwells outside the social. The projection of sacred communal fusion outside the group and its transformation into a transcendent corporate body allow for an advanced degree of interpersonal separation and individual autonomy within the
20 The construct of the communal body can be elucidated by reference to psychoanalytic concepts such as the body-ego or the body-image. During communitas, the ordinary, individuated body-image disintegrates and gives way to an image of oneself as an extension of a collective body. The individualistic body-image can endure as long as the imaginary collective body inhabits the corporate realm. In such normal circumstances, as much as during communitas, the individualistic body-image is articulated in relation to an absolute collective body, a Leviathan from which it descended, and in which it is contained, but that withdraws into itself to allow for a social realm comprising difference and plurality. There are various psychoanalytic theories of the body-ego and body-image. Notwithstanding differences between these theories, it is widely assumed that the conscious and unconscious body-image is a source of the selfs fictional unity and separateness and an object of narcissistic love, and that it underlies higher capacities such as critical thought and autonomous judgement. On the egos constituent narcissism, see Sigmund Freud, On Narcissism: An Introduction (1914) in James Strachey, ed., The Standard Edition of the Complete Psychological Works of Sigmund Freud, vol. 14 (London: Hogarth, 1957) 67. On the bodily ego see, e.g., Sigmund Freud, The Ego and the Id (1923), in James Strachey,ed., The Standard Edition of the Complete Psychological Works of Sigmund Freud, vol. 19 (London: Hogarth, 1961) 12 at 267. The Lacanian concept of the moi designates the imaginary unity acquired by the self in the mirror stage through importation of the perceived unity of the body. Jacques Lacan, The Mirror Stage as Formative of the Function of the I in Jacques Lacan, Ecrits: A Selection, trans. by Alan Sheridan (London: Tavistock, 1977); Jacques Lacan, The Ego in Freuds Theory and in the Technique of Psychoanalysis: The Seminar of Jacques Lacan, Book II, 19541955, trans. by Sylvana Tomaselli (Cambridge: Cambridge University Press, 1988) at 166. On the imaginary identification of the group with a single, all-embracing body, see, e.g., W.R. Bion, Experiences in Groups (London: Tavistock, 1961) at 162; Didier Anzieu, The Group and the Unconscious (London: Routledge, 1985) at 1204; Otto Kernberg, Regression in Groups in Otto Kernberg, Internal World and External Reality (Northvale, NJ: Aronson, 1980) 211.

194 UNIVERSITY OF TORONTO LAW JOURNAL group and for the emergence of secular spheres of interaction. This process amounts to a social acceptance of division and absence, plurality and autonomy. The communal body is projected outside society and kept away from it through the legal institution of numerous divisions and subdivisions between social groups, classes, spheres of interaction, and branches of government. By implementing individual rights and duties, the law confronts the expansionist aspirations of the communal body. Similarly, the principal purpose of the constitutional separation of powers is the expulsion of sacred omnipotence of the collective body and its constituent power outside the group. The power over life and death, traditionally considered as the epitome of sovereignty, is rendered acutely visible with the enactment of the communal body. Freuds identification of the death drive behind the aspiration for dissolution of boundaries suggests that through the incarnation of the communal body the group temporarily surrenders to death. The communal body seeks to annihilate the individual because individuality calls into question communal oneness and presence. Episodes of sovereign presence cannot last long because of their inherent tendency to result in bloodshed. Thus, the projection of the sovereign body outside the group in the regular course of social life reconciles sovereignty with individual life.

In earlier work, I proposed to read into V.W. Turners distinction between social structure and communitas two sub-distinctions that Turner himself did not consider.21 The first is the psychoanalytic distinction between relations of mutual recognition among separate individuals and relations of violent fusion.22 Enhanced interpersonal separation is characteristic of
21 See, e.g., Barshack, Holy Family, supra note 15; Lior Barshack, The Corporate Body, the Communal Body and the Clerical Body: An Anthropological Reading of the Gregorian Reform in Lawrence Besserman, ed., Sacred and Secular in Medieval and Early Modern Cultures: New Essays (New York: Palgrave, 2005) 101 [Barshack, Corporate Body]. On the distinction between structure and communitas, the locus classicus is V.W. Turner, The Ritual Process (Ithaca, NY: Cornell University Press, 1971). 22 In Melanie Kleins terms, symbiotic object relations among group members re-enact primary relations of violent fusion with the maternal body. For Erich Fromms account of authoritarianism as a state of violent communal fusion, see, e.g., Erich Fromm, Escape from Freedom (New York: Farrar & Rinehart, 1941) at 141; Erich Fromm, Man for Himself (New York: Holt, Rinehart & Winston, 1947) at 151. According to Fromm, the weakly individuated self seeks empowerment simultaneously through fusion with powerful figures and through assertion of violence, whether as the perpetrator of violence or as a victim who is empowered by becoming a passive extension of violent aggressors. On recognition and individuation, see generally Axel Honneth, The Struggle for Recognition (Cambridge: Polity Press, 1995).



social structure, violent fusion of communitas. Another distinction that can be read into Turners dichotomy is the theological distinction between absence and presence. Social structure can be seen as a state of absence, communitas as one of presence. The combination of these two characterizations entails an account of communitas as presence of violent fusion namely, as a communal body and an account of social structure as the absence of fusion, that is, as a corporate structure. The distinction between social structure and communitas corresponds, then, to the distinction between corporate and communal bodies. In the course of communitas, the group enacts its communal body, whereas in the course of social structure the groups collective body is projected, transformed into a corporate body, and worshiped from afar by separate and autonomous individuals. Interaction in social structure takes place between separate individuals and is mediated by differentiated normative social roles that anchor interpersonal separation and dissolve in communitas. In the course of communitas every individual partakes of the communal body and is thereby consecrated. Absence and promise give way to excess and immediacy. No boundaries are recognized between self and other, life and death, sacred and profane, or between different spheres of interaction, such as society and state. Social stratification, legal mediation, and conflicts of status and interest, which in social structure enhance individual autonomy and the alienation of the subject from his own and other selves, give way to an experience of universal twinship. The personal self expands and coincides with the collective self. The group is pervaded by constituent, seemingly boundless power and claims freedom from superimposed laws and constraints. Communitas is an essentially lawless form of interaction: the normative system that structures everyday life is, in communitas, suspended, challenged, and sometimes reformed. Fundamental interdictions are violated and traditional authority replaced by a charismatic leadership devoid of legal sanction.

The presence of the communal body in communitas produces an experience of temporality to which anthropologists refer as mythical time. The term is somewhat misleading, because communitas allows for neither mythology nor time. Mythical time designates an atemporal liminal experience, rather than the ordinary historical time that stretches between the mythical time of origins and the mythical construct of an ever-postponed salvation. Like time, mythology dissolves in communitas. Myth remains in force only as long as a corporate structure is intact; then it provides the group with prototypical representations of its absent corporate body and story of foundation. Sharing a mythology indicates co-membership in a single corporate group, since myth postulates a

196 UNIVERSITY OF TORONTO LAW JOURNAL collective identity by means of reference to common ancestors and founding episodes. It constitutes a super-narrative on which all historical, biographical, and literary narratives are modelled,23 consolidating and perpetuating absence by seducing the subject to cling to the pleasures of fiction. Through myth, ancestral/corporate authority exercises its sovereignty over the present and leads society toward a promised future. Myth sets history in motion by infusing individual actors with action-orienting historical consciousness. It postulates the division between past and future, separating and linking the two horizons in an overarching narrative. History stretches between the meta-historical poles posited by myth: the founding moment, in which the ideals to be unavailingly pursued by society were set, and the moment of final redemption, in which they will be fully realized. By shaping historical consciousness, myth mediates access to history: the learned and critical study of the past, as well as philosophical and literary utopias, is premised on the temporal framework laid down by myth and seeks to answer the questions posed by myth. As much as synchronic relations among social positions in social structure give rise to the diachronic, historical dimension of social life, the presence of the communal body in communitas generates an atemporal experience of an eternal present. Mythical time is self-sufficient and carefree, a time of complete and immediate realization. The exuberance of the founding episode coincides here and now with the promised bliss of salvation. In the eventual passage from communitas to a corporate structure, the sacred events and figures of mythical time are relegated to the realm of mythical memory and representation, and historical time is launched anew.

In the passage from communitas to social structure, from an immanent communal body to a transcendent corporate body, from divine to constitutional kingship, law steps forward. The group secularizes and structures itself by transforming its sacred communal body into a superimposed sacred law. The law is generally conceived as prescribed by the corporate/ancestral authority of the group, and hence cannot be easily found in the course of communitas when the corporate body dissolves into a communal body. Lawgiving is the predominant function of corporate/ancestral authority: the more an authority is transcendent, the more its function is reduced to that of lawgiving.

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



The corporate structure begins to crystallize with the recognition of law and persists through its enforcement. Legal categories divide society into independent institutions and alienated groups and individuals in order to prevent it from embodying its own unity, which finds refuge in the corporate realm. Corporate structures are premised on the complementary principles of separation of powers and rule of law: separation of powers guarantees the absence of ultimate, constituent power and the consequent subjection of all living members of the corporate group to the rule of a superimposed ancestral law. Insofar as the law divides the group, it becomes also the source of its unity. As the agent of division, the law itself functions as a common reference for the different segments of social structure. It is in relation to the law, for example, that the different branches of government are defined one formulates the law, another interprets it, and the last executes it and thus it is in the law that the unity behind the separation of powers resides. Furthermore, the unity of a corporate group consists in the unity of the law that defines and regulates it, because the groups corporate-ancestral authority manifests itself primarily through its laws. Contrary to Schmitts view, the law constitutes the unity of the group to which it applies, rather than being freely endorsed by a pre-existing group.

Spectres of sovereignty

The view of sovereignty as vested in the groups collective body entails a theory of constitutional moments. According to such a theory, while sovereignty remains absent in the normal course of affairs, it is reincarnated during intense constitutional episodes. In the course of these episodes the rule of law and the separation of powers are suspended, to different degrees, as a sovereign and seemingly boundless power is exercised by the group. The theoretical argument for the regular absence of sovereignty is strengthened by observation of a variety of historical instances of coincidence between exercises of sovereignty indicated by the relaxation of the rule of law and separation of powers and passages from social structure to communitas. The alternation of sovereign presence and absence largely corresponds to the alternation of social structure and communitas, order and disorder. Thus the historical study of constitutional moments can complement the argument for absent sovereignty sketched in the preceding section. In the present section I will briefly discuss some of the principal categories of constitutional moments in order to illustrate the idea of constituent power as alternately corporate and communal. Certain constitutional episodes are more turbulent than others, but all can be characterized in terms of a partial suspension of the rule of law and the

198 UNIVERSITY OF TORONTO LAW JOURNAL separation of powers, brought about by the enactment of the sovereign body.24 Other essential features of social structures, such as the private/public distinction, become faded with the effusion of constituent power and the concomitant transformation of structure into communitas. During most episodes of sovereign revelation, however, society abides by the general principles of the corporate form and of its own particular political form in Schmitts terminology, the form brought into being by the founding constitutional decision if not by the details of the constitution.

The most obvious constitutional episode in which constituent power is enacted is the inauguration of a new constitutional order. Whether the act of foundation is revolutionary or recognized by the former government of the land, legal continuity is interrupted and a normative void opens up. The communal body is celebrated, leaving little room for rule of law and separation of powers. The force of new constitutions, whether written and formal or not, partly depends on the ritual intensity of their inauguration, the sanctity of the founding act.25 When a founding moment is too calm and orderly, the genuine moment of foundation may be deferred until a constitutional crisis takes place. If the constitution successfully survives such a crisis, it is imputed with the requisite mythical authority. The transient nature of sovereign presence in founding moments has been the subject of dispute in one of the most consequential decisions of the Israeli Supreme Court, dealing with the Courts power to review Knesset laws in light of the Basic Laws recently enacted by the Knesset itself. Justice Cheshin argued that the constituent assembly, which was elected upon the foundation of Israel and failed to produce a formal constitution, is tantamount to a fleeting divine apparition that occurs at
24 The fuller the enactment of sovereignty, the less justiciable the sovereign action. According to E.J. Sieys, ... a nation is independent of any procedures; and no matter how it exercises its will, the mere fact of its doing so puts an end to positive law, because it is the source and the supreme master of positive law. E.J. Sieys, What Is the Third Estate? (London: Pall Mall, 1963) at 128 [Sieys, Third Estate]. According to Schmitt, ... the constituent power is not tied to legal forms and procedures; it is always in the state of nature when it appears in its inalienable character. ... it never constitutes itself through constitutional laws. Schmitt, Thorie de la constitution, supra note 9 at 215; Schmitt, Verfassungslehre, supra note 10 at 79. 25 It is the sanctity of the founding act by which the polity has been created which imputes to the constitution the authority of the supreme law. U.K. Preuss The Political Meaning of Constitutionalism in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, UK: Avebury Press, 1996) 11 at 21. For a parallel argument see Hannah Arendt, On Revolution (Harmondsworth, UK: Penguin, 1990) at 204.



rare historical turning points.26 He concluded that the Israeli parliament, like any other, cannot regularly wield constituent power, that its Basic Laws cannot claim to enjoy constitutional entrenchment, and that the Supreme Court is thus unauthorized to review Knesset legislation except on grounds of manner and form. The majority of the judges, however, recognized the ongoing constituent power of the Knesset and the Supreme Courts review powers. The characterization of founding moments in terms of normative void must be qualified in two ways. First, the dissolution of the law is not complete. A state of utter lawlessness can occasion neither the foundation of a new legal order nor the re-establishment of an old order. It would seek not the substitution of one social structure by another but the total destruction of law and structure.27 A group entirely devoid of an incipient legal form cannot assume a stable legal structure. For a constitutional order to be established, the law must be inscribed in the founding disorder. In the dialectical cycle of structure and communitas, each phase harbours the seeds of the next. A moment of foundation cannot close itself to the past or to the future that it intends to shape. It cannot be a moment of sheer, stagnant presence, ignorant of past and future, a mythical time to the extreme.28 Total presence, if at all conceivable, would have entailed the groups complete self-annihilation and deaths final victory. The future constitutional order is imprinted in the founding moment through the traces of a law which descends from the past. Hegels critique of the French Revolution demonstrates the dire consequences of a revolutionary attempt to eradicate all ties with the existing ethical life, the pre-revolutionary law. Second, institutional design during the drafting of a constitution must respect elementary forms of social structures and legal systems. Some constitutional principles, such as the separation of powers and the rule of law, belong to the essential corporate form of social structure a form abstract enough to accommodate a diversity of political forms and must be recognized by any constituent body. Through the rule of law and
26 CA 6821/93, Bank Hamizrachi v. Migdal, (1995) Isr. S.C. 49(1) 221 at 485. 27 On the self-destructive aspiration of Nazism, see J.L. Borges, Deutsches Requiem in D.A. Yates & J.E. Irby, eds., Labyrinths (Harmondsworth, UK: Penguin, 1970) 173. 28 In his essay on Antonin Artaud, Jacques Derrida argues for the impossibility of pure presence: ... the theater of cruelty neither begins nor is completed within the purity of simple presence, but rather is already within representation ... Presence, in order to be presence and self-presence, has always already begun to represent itself, has always already been penetrated. Jacques Derrida, The Theater of Cruelty and the Closure of Representation in Jacques Derrida, Writing and Difference, trans. by Alan Bass (Chicago: University of Chicago Press, 1978) 232 at 2489. On the impossibility of pure presence, see also Jacques Derrida, Force of Law: The Mystical Foundation of Authority (1990) 11 Cardozo L.Rev. 920 at 991, 1011.

200 UNIVERSITY OF TORONTO LAW JOURNAL the separation of powers, for example, constitutions secure the transcendence of the sovereign collective body and acknowledge the cultural necessity of the absence of omnipotence.29 Disregard of these principles would perpetuate communitas and thwart any attempt to found and elaborate a constitutional structure. Other natural principles other fundamental principles of the corporate structure can be invoked, but their content is, for the moment, less important than the fact of their existence.30 Like revolutions and other acts of foundation, constitutional reforms occasion incarnations of sovereignty. Some constitutional amendments often those of a more technical nature attract little public interest and proceed, barely noticeable, according to the established rules. By contrast, substantial and contested amendments call for incarnation of the sovereign communal body, which differs each time in its intensity. Reforms that instigate dramatic constitutional moments do not necessarily involve a formal amendment of an entrenched constitutional text.31 Contested decisions of exceptional historical consequence are often made by ordinary branches of government. Decisions over the territorial identity of the body politic, for example, can stir a constitutional moment without being recorded in the formal constitution. Fundamental constitutional principles may be anchored in ordinary legislation, to the effect that no distinct constitutional procedure has to be activated for their reform. There is thus only a partial overlap between formal amendments of the constitution, on the one hand, and reforms that kindle constitutional moments, on the other.32
29 The staunchest advocates of absolute monarchy in the sixteenth century conceded that the king is bound by the two Salic laws: the order of inheritance and the inalienability of the realm; Quentin Skinner, The Foundations of Modern Political Thought, vol. 2: The Age of Reformation (Cambridge: Cambridge University Press, 1978) 261 at 293. The Salic laws were universally recognized because they articulate premises of the corporate structure: descent as the source of rights and duties and the impersonal, corporate nature of sovereignty. 30 In Barshack, Holy Family, supra note 15 at 21434, I argue that the independence and dignity of the family constitute another such natural principle. 31 For a critique of the view that constitutions evolve through formal amendments, see K.N. Llewellyn, The Constitution as an Institution in Max Radin & A.M. Kidd, eds., Legal Essays in Tribute to Orrin Kip McMurray (Berkeley: University of California Press, 1935) 277. 32 The concept of amendment must be read as broadly as that of the constitution in order to cover the diversity of constitutional amendments, a particularly rich category of constitutional moments. For example, legal systems recognize reforms of a more modest effect than that of an amendment, such as temporary legislative overrides of the constitution. On overrides generally, see Franoise Leurquin-de Visscher, La drogation en droit public (Bruxelles: Bruylant, 1991).



In constitutional moments, decisions are not fully authored by the official legal bodies that sign them, be they ordinary branches of government or parliament in a constituent or semi-constituent capacity. During such moments it is the communal body of the group that makes the decision. Its constituent power is inalienable. A representative body can adopt or amend a constitution only if it is empowered at the moment of adoption or amendment by an engaged public and thus operates as an extension of the communal body. While adopting or amending the constitution, the parliament operates as a constituent assembly, and its members function as extraordinary rather than ordinary representatives, in Sieyss terms.33 The latent shift in the function of the parliament from a representative body to an immediate extension of the communal body may give rise to juridical unease. Several legal systems do not tolerate this discrepancy between the parliaments representative function and its role in constitutional moments. Thus article 195 of the Belgian constitution ordains the dissolution of the acting parliament as part of the process of constitutional amendment. The Indian Supreme Court opted for a more radical solution. In one of its groundbreaking decisions, the Court ruled that the parliaments amending power, granted by the constitution, does not permit even the most sweeping majority in Parliament to modify the basic structure of the constitution.34 The court argued that the term amendment covers only changes of the constitution that do not alter its essence, implying that reforms of basic constitutional structure must be consummated outside the walls of Parliament. The more exuberant the sovereign presence, the less bound is the collective body by formal amendment procedures where such procedures apply and by the non-amendability of certain constitutional principles. Theoretically inelegant as this result may be, the binding force of constitutional procedure varies in every constitutional moment in proportion to the intensity of sovereign presence. This principle applies to constitutional moments of different types, such as constitutional reforms, referenda, and states of emergency. When the communal body
33 The ordinary representatives of a nation are charged with the exercise, under the constitution, of that portion of the common will which is necessary to maintain a good social administration. Their power is confined to governmental affairs ... A body of extraordinary representatives takes the place of the assembly of the nation. It does not, of course, need to be in charge of the whole of the national will; it needs only special powers, and those only in rare cases; but it is in the same position as the nation itself in respect of independence from any constitutional forms. Sieys, Third Estate, supra note 24 at 1301. 34 Kesavananda , supra note 8. For a detailed analysis of the decision, see M.P. Jain, Indian Constitutional Law, 5th ed., vol. 2 (New Delhi: Wadhwa, 2003) at 1907.

202 UNIVERSITY OF TORONTO LAW JOURNAL asserts itself in the amendment of a constitution as intensely as it was involved in its original adoption, it is hardly bound by constitutional procedure at all and hardly subject to judicial review over the constitutionality of the amendment.35 The disregard of amendment procedures does not interrupt constitutional continuity. As Schmitt argued, as long as the general political form of the state is affirmed by the communal body, we can still speak of a reform rather than an abrogation of the constitution. Historical examples of constitutional amendment attest to the presence of a sovereign body that is free from the procedures laid down in the constitution. The amendment of the French constitution in 1962 through the referendum initiated by Charles de Gaulle over the form of presidential elections took effect in violation of the amendment procedure established in art. 89 of the constitution of 1958.36 This is perhaps the best-known modern example of a faulty amendment procedure. Contrary to the view of authors such as Ackerman, it is not the democratic principle of popular sovereignty that places popular will above constitutional procedure, but the fact of sovereign incarnation and the concomitant relaxation of all principles. The communal body wields supreme legislative power whenever it is enacted, in democratic as well as non-democratic contexts and rituals. Violations of procedure in constitutional moments can be divided into two categories. In the first group of cases, the constitutional text is amended in violation of the prescribed procedure. In the second group of cases, the constitution is flagrantly violated by some branch of government a capacity which Schmitt considers to be a mark of the sovereign branch37 with a view to reforming the constitution, but no attempt at a formal amendment is made. Unconstitutional acts of state are not always intended to reform the constitution by setting a constitutional precedent. Whether or not such an intention exists, unlawful state actions often betray the presence of sovereignty. As Schmitt writes, in the theory of the faulty act of state ... legal validity is attributed to a wrong and faulty decision. The wrong decision contains a constitutive element precisely

35 Where fundamental constitutional principles are anchored in ordinary legislation, their reform threatens to relax the applicable ordinary procedures. 36 De Gaulle acted on the basis of art. 11 of the constitution, which was designed not to regulate constitutional amendments but to define the presidents general authority to initiate referenda. Bruce Ackerman argues that the reconstruction amendments and the New Deal were accomplished through violation of due constitutional procedure; see Bruce Ackerman, We The People: Transformations (Cambridge, MA: Harvard University Press, 1998) at 8994 [Ackerman, Transformations]; see also Bruce Ackerman & Neal Katyal, Our Unconventional Founding (1995) 62 U.Chicago L.Rev. 475. 37 Schmitt, Thorie de la constitution, supra note 9 at 246.



because of its falseness.38 When the constitution is breached in the name of the collective body, the unconstitutional act of state can be regarded as a valid expression of sovereignty. Schmitt refers to sovereign violations of the constitution as derogations.39 Different constitutional rules and principles can be subject to derogation. A faulty amendment procedure, such as the one employed by de Gaulle in 1962, involves a derogation of the constitutional rules of amendment. As illustrations of derogation, Schmitt invokes a presidential decree dissolving the parliament and a law extending the legislators term of office, both in frontal violation of the constitution. The US Supreme Courts decision in Bush v. Gore can be viewed as an instance of a judicial derogation of the constitution. The majoritys assertion that their reasoning was limited to the present circumstances40 betrays its unprincipled, if not partisan, basis. 41 According to Schmitt, the concept of derogation covers sovereign violations of the constitution that are necessitated by abnormal circumstances and thus do not challenge the general validity of the constitutional rules and principles that they infringe.42 However, when the faulty act of state is perceived as authorized by the collective body to set a constitutional precedent, the case is one of reform of the constitution through its sovereign violation. Thus, the 1962 referendum on the form of election of the president of France, in addition to amending the text of the constitution by an ill-founded procedure, may have established a constitutional precedent, a new amendment procedure to be utilized in future cases. According to such a reading, the constitution was doubly amended in 1962: both the form and the outcome of the referendum received constitutional recognition.43 In a similar vein, Ackerman proSchmitt, Political Theology, supra note 4 at 31. Schmitt, Thorie de la constitution, supra note 9 at 238; the German term is Durchbrechung. 531 U.S. 98 at 109. The plausibility of such an interpretation of Bush v. Gore is enhanced by the fact that it was advanced not only by adversaries of the decision but also by its advocates, such as Richard Posner, claiming the existence of an emergency situation that warranted the suspension of general principles. See Richard Posner, Bush v. Gore as Pragmatic Adjudication in Ronald Dworkin, ed., A Badly Flawed Election (New York: New Press, 2002) 187. In his introduction to the volume, Dworkin argues that behind the pragmatic adjudication lauded by Posner lay mere partisan considerations. Ronald Dworkin, Introduction in Ronald Dwarkin, ed., A Badly Flawed Election (New York: New Press, 2002) 1 at 37. 42 Schmitt, Thorie de la constitution, supra note 9 at 238, 2458. 43 In 1969 de Gaulle attempted another amendment of the constitution through a referendum held according to art. 11 of the constitution of 1958, which defines in general terms the authority to initiate referenda, as opposed to art. 89, which fixes the amendment procedure. Since 1969 art. 11 has not been used as an instrument of amendment. On constitutional conventions that contradict the express wording of the constitution, see John Bell, French Constitutional Law (Oxford: Oxford University Press, 1992) at 5863. 38 39 40 41

204 UNIVERSITY OF TORONTO LAW JOURNAL poses a view of the New Deal not only as a reform accomplished by suspicious means but also as a rudimentary elaboration of a new amendment procedure (based on the initiative of a president elected for a second term in the context of a constitutional debate among the different branches of government), a precedent to be followed in future cases.44 The possible disregard of procedure in constitutional moments does not render constitutional procedure redundant, since one of its purposes is to build up, rather than regulate, genuine constitutional moments by ensuring that constitutional issues will not be too easily decided by professional politicians behind the back of the people. Procedure necessitates the mobilization and engagement of the general public, even if eventually it is not strictly observed. As we shall see in the discussion of elections that follows, the strength of a constitutional order lies in its capacity to orchestrate constitutional moments, to institute and tame communitas.

Every constitutional order, once established and stabilized, is relaxed in rituals of suspension and reconfirmation. Unlike constitutional reforms and revolutions, rituals of confirmation do not alter the constitutional order. The communal body asserts its power to overthrow the constitution but eventually confirms the existing order. The purpose of the ritual relaxation of the constitution is to release anti-constitutional forces in a way that will tame them. The corporate, constitutional order emerges from its ritual suspension invigorated. As Georges Balandier writes, The supreme ruse of power is to allow itself to be contested ritually in order to consolidate itself more effectively ...45 Rituals of suspension and confirmation often stage expressions of contempt for the ruling elite. Through this defiance of the ruling authorities, the entire constitutional order and the very principle of the rule of law are challenged. Placed somehow above the group, political leaders embody a constitutional order superimposed on the group in such a way that a public denial of their authority places the group as a whole in a position of anarchic rebellion. Contrary to our democratic intuitions, elected leaders derive part of their authority from an ancestral/corporate authority that they are taken to represent and to which they always remain answerable. Consequently, attempts to depose leaders, even on palpable grounds of corruption or treason and in the name of the existing constitution, always appear as lawless usurpations.

44 Ackerman, Transformations, supra note 35at 415. 45 Georges Balandier, Political Anthropology (London: Allen Lane, 1970) at 41.



Political anthropologists have recorded a wealth of examples of anarchic rituals in which representatives and symbols of power are scorned. Rituals of suspension and confirmation may take place spontaneously, at prescribed times, during an interregnum, or when leading politicians and officials face trial. Across different periods and civilizations, deaths of kings have presented opportunities for plunder and destruction and for the expression of anarchic aspirations. In many cases, the chaos is in fact fairly organized and brief, leading to the restoration of the former constitutional order.46 The Sed ritual of Pharaonic Egypt illustrates another category of rituals of suspension and confirmation. In this ritual, which took place regularly when the Egyptian king accomplished thirty years of reign and reached an advanced age, the king had to prove his ability to rule, and renew his authority over the land, through a ritual running. The king succeeded with the help of the gods, whose care for the realm was thereupon lauded and prolonged. It is generally thought that the Sed gave vent to attitudes of doubt and hostility toward the king, exhausted them, and renewed the legitimacy of the dynastic regime and of the rule of law generally.47 One of the best-known examples of a ritual of suspension and confirmation is the Incwala ritual of the Swazi, described by Hilda Kuper in her book African Aristocracy:
The words of the Incwala songs are surprising to the European, accustomed, at national celebrations, to hear royalty blatantly extolled, the virtues of the nation magnified, and the country glorified. The theme of the Incwala songs is hatred of the king and his rejection by the people.48

Max Gluckman famously described other African rituals during which the king is publicly humiliated and temporarily deprived of authority. Gluckman considered democratic elections as a modern version of the rituals of suspension and confirmation familiar from traditional societies: In our society the parliamentary system and local government provide two among many secular mechanisms to express opposition overtly.49 Gluckman refers to these various rituals as rituals of rebellion and distinguishes them from revolutions:
46 On customary pillaging after the death of popes in the Middle Ages, see Agostino Paravicini-Bagliani, The Popes Body (Chicago: University of Chicago Press, 2000) at 99106. 47 See Bruce G. Trigger et al., Ancient Egypt: A Social History (Cambridge: Cambridge University Press, 1983) at 48. 48 Hilda Kuper, African Aristocracy (Oxford: Oxford University Press, 1947) at 206. 49 Max Gluckman, Rituals of Rebellion in South-East Africa in Max Gluckman, Order and Rebellion in Tribal Africa: Collected Essays (London: Cohen & West, 1963) 110 at 135. Gluckmans account of ritual rebellion and the ensuing agonic understanding of democracy entails a liberal rather than communitarian or republican conception of democratic politics.


... ritual rebellions proceed within an established and sacred traditional system, in which there is dispute about particular distributions of power, and not about the structure of the system itself. This allows for instituted protest, and in complex ways renews the unity of the system.50 ritual rebellion can be enjoyed by tradition, as a social blessing, in repetitive social systems, but not in systems where revolution is possible.51 Periodic civil wars thus strengthened the system by canalizing tendencies to segment, and by stating that the main goal of leaders was the sacred kingship itself.52

Gluckmans distinction between revolutions and ritual rebellions has to be loosened insofar as ritual rebellions generate a normative void of the kind that can be found in revolutions. Even if the suspension of structure during ritual rebellions and other episodes of sovereign incarnation is organized and usually ends in a predictable manner, the experience of communitas remains authentic and never fully domesticated. Even when sovereign presence is brought about by a formal legal procedure, such as democratic elections, the continuity of the rule of law is undermined. Rituals of rebellion are not fully integrated into the constitutional order. Like revolutions, they challenge the existing constitution, even if they apparently proceed under it. Elections not only contest the existing distribution of power but challenge the rule of law and constitutional continuity. General strikes provide another modern example of ritual rebellion. Like elections, general strikes are intended to call into question not only particular distributions but the very idea of structure.53 Another modern version of rituals of suspension and confirmation, alongside elections and strikes, are impeachments and trials of heads of state that take place not in the course of a revolution but within an established constitutional order. The attempt to impeach Bill Clinton struck some observers as a partisan usurpation of democracy,54 but an element of lawlessness is inherent in any impeachment process. Like
50 Ibid. at 122. Gluckman continues, ... since the rebellion is to put a prince, who it is hoped will observe these values, in the kings place with the same powers, a rebellion paradoxically supports the kingship. Further, as the leader of a rebellion is a member of the royal family, rebellion confirms that familys title to the kingship. Ibid. at 129. 51 Ibid. at 135. 52 Ibid. at 131. 53 On the strike as a form of political action intended to defy the governing elite see Edward Shorter & Charles Tilly, Strikes in France 18301968 (Cambridge: Cambridge University Press, 1974) at 343. 54 See, e.g., P.H. Merkl, A Coup Attempt in Washington? A European Mirror on the 19981999 Constitutional Crisis (New York: Palgrave, 2001).



elections, impeachments challenge the representatives of sovereignty the heads of the executive or the judiciary in a way that channels sovereignty into the group. Arguably a tame form of regicide, impeachment occasions a ritual process in which the group embraces its sovereignty. More than a few constitutions deposit impeachment powers in the hands of the parliament, thereby infusing it with a nigh complete sovereignty: the executive is to be judged by the parliament in a way that temporarily excludes judicial power from the scene. In the United States, the appropriation of sovereignty by Congress in the process of impeachment implies that it is hardly bound by established procedures.55 In a sense, the impeaching parliament is temporarily transformed into a constituent assembly.56 Trials of heads of state and high-ranking officials are not the only category of political trials that occasion an incarnation of sovereignty, undermining and potentially consolidating the constitutional structure. In trials of leaders and powerful politicians, it is the fact that one branch of government executive power, the power responsible for law enforcement is put on trial that suspends the separation of powers and the rule of law. In another category of political trials, the separation of powers and the separation between the legal and the political are suspended because the courts function as mere extensions of the dominant political faction. In other words, political and judicial powers coincide. This is the case in show trials of enemies of the state and in military trials of
55 In Federalist 65 Alexander Hamilton argued that impeachments are unsuitable for ordinary courts because they conflate legal and political issues and because their procedure cannot follow strict rules. See James Madison, Alexander Hamilton, & John Jay, The Federalist Papers, ed. by Isaac Kramnick (Harmondsworth, UK: Penguin Books, 1987) at 382. Neal Katyal has argued that in the impeachment process members of Congress are not bound by any original or historical understanding of the Constitution. See Neal K. Katyal, Impeachment as Congressional Constitutional Interpretation (2000) 63 Law & Contemp.Probs. 169 at 170. Michael Gerhardt repeatedly stressed the freedom of Congress, in the exercise of its impeachment powers, from normal checks and constraints such as judicial review and presidential veto. See, e.g., Michael J. Gerhardt, The Federal Impeachment Process, 2d ed. (Princeton, NJ: Princeton University Press, 2000) at 11846. The Supreme Court of Lithuania ruled, in the context of the impeachment of Lithuanian President Rolandas Paksas in 2004, that parliament is entitled not to impeach a president found guilty of an impeachable offence by the court. For general background on the affair, see Terry D. Clark & Egle Verseckaite, PaskasGate: Lithuania Impeaches a President (2005) 52:3 Problems of PostCommunism 16. 56 The special solemn procedures of impeachments and acts of grace (see discussion of amnesties below) in the English Parliament suggest that Parliament was wielding, on such occasions, an unusual power, which can theoretically be equated with constituent power. On the historical procedure of impeachment, see C.S. Lerner, Impeachment, Attainder and a True Constitutional Crisis: Lessons from the Strafford Trial (2002) 69 U.Chicago L.Rev. 2057.

208 UNIVERSITY OF TORONTO LAW JOURNAL resistance forces.57 Ron Christensons distinction between partisan and non-partisan political trials grasps the dissolution of the rule of law brought about by judicial partisanship.58 His distinction fails, however, to capture the source of lawlessness in political trials: it is not partisanship as such that dissolves the rule of law, but any suspension of the respective autonomy of state powers. Thus, military trials and impeachments, for example, may occasion an experience of lawlessness because of the relaxation of the separation of powers that they involve, without being distinctly partisan. A final category of political trials in which the rule of law and the separation of powers are relaxed covers cases in which a historical affair raised in court undermines the courts own claims to legitimate authority. The calling into question of founding political myths in court challenges the courts jurisdiction. By being considered in court, let alone contested, political myths lose their power to legitimize and ground the claims of the legal system in a way that suspends the rule of law. The courts can no longer confine themselves to the application of the law on the basis of an accepted, underlying political mythology but openly take sides in a political conflict, propagating a contested political myth whose social acceptance conditions their authority.59 In the different categories of political trials, the founding moment is re-enacted and the courts law-preserving violence gives way to lawmaking violence, to use Walter Benjamins terms.60 The distinction between the legal and the political is suspended as sovereignty pervades the court. The court finds itself in a relative normative void, entrusted with a historical, almost constituent, task for which its ordinary procedures are poorly suited.

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

57 Where show trials are a regular feature of the legal system, they weaken rather than consolidate social structure by undermining the separation of powers. 58 Ron Christenson, Political Trials in History: From Antiquity to the Present (New Brunswick, NJ: Transaction, 1991) at 26. 59 The trials of Nazi collaborators in France, in which the history of the occupation had to be examined by the same tribunals and judges that operated under the Vichy government, illustrate this category of cases. The myth of the uninterrupted existence of a free France, in the name of which the collaborators were put on trial, was at stake in these trials. 60 See Walter Benjamin, The Critique of Violence in Walter Benjamin, Selected Writing, vol. 1: 19131926 (Cambridge, MA: Belknap Press, 1996) 236 at 243.



divided government, since the work of Parliament is too slow.61 However, the amalgamation of different state powers in war is not merely a timesaving device. It reflects the transformation of a warring society into a single body that cannot accommodate the differences of interest and opinion characteristic of balmier days. Jean-Jacques Rousseau hoped that in states of emergency of moderate gravity state powers could be united without compromising the rule of law.62 However, neither the separation of powers nor the rule of law can be reconciled with the presence of the communal body, and they are jointly suspended in the course of communitas. The fusion of different state powers, individual interests, and rival groups entails the suspension of the rule of law. The source of emergency powers can be located either within or without the constitution. Thinkers as discordant as Thomas Jefferson and Carl Schmitt subscribed to the latter theory. The American framers believed that the constitution should not allocate emergency powers. They admitted that army officers, under military necessity, may be obliged by a moral command or law of nature to violate positive law. But in violating the law they incur the risk of facing justice and can only hope for retrospective indemnification by court or Congress. According to Jefferson,
A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation ... The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling power of the Constitution, and his station makes it his duty to incur that risk ... The line of discrimination between cases may be xxxxxxxxxxxxxxxxxxxx

61 John Locke, Second Treatise in Peter Laslett, ed., Two Treatises of Government (Cambridge: Cambridge University Press, 1988) 265 at 374 [Locke, Two Treatises]. On Lockes influence on the American Constitution in relation to the question of emergency powers, see Jules Lobel, Emergency Power and the Decline of Liberalism (1989) 98 Yale L.J. 1385 [Lobel, Emergency Power]. For a survey of the legal and intellectual history of the state of emergency see Franois Saint-Bonnet, Ltat dexception (Paris: Presses Universitaires de France, 2001). 62 If in order to counteract [danger], it suffices to increase the activity of the government, then it gets concentrated in one or two of its members; this way it is not the authority of the laws that is disturbed, but only the form of their administration. If however the peril is such that the laws as an instrumentality are an obstacle to guarding against it, then a supreme chief is named who silences all the laws and provisionally suspends the Sovereign authority; in such a case the general will is not in doubt, it is obvious that the peoples foremost intention is that the State not perish. Jean-Jacques Rousseau, The Social Contract, ed. by Victor Gourevitch (Cambridge: Cambridge University Press, 1997) at 138.


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

Jules Lobel sums up as follows the Founding Fathers conception of emergency powers:
The following elements were required of official emergency action in violation of the law within this liberal tradition: the presence of an extreme emergency threatening the nation, the termination of the unlawful conduct when the emergency ended, the frank acknowledgement by the official that he had acted unlawfully, review of the unlawful conduct by the Congress of the courts, and the appropriate implementation of legal remedies and congressional indemnification.64

The analogy between Jeffersons position and Schmitts is obviously superficial. Like Jefferson, Schmitt holds that emergency powers do not derive from the formal constitution, but his argument does not rest on the dangers of a constitutional allocation of emergency powers; it rests rather on the inherent legitimacy of these powers. Emergency powers do not need the formal constitution as their anchor; their legality is at least as obvious and fundamental as that of the constitution.65 In Political Theology, Schmitt argues that the binding force of the constitution depends at any moment on a sovereign decision as to whether an emergency situation exists. The sovereign declaration of a state of emergency is unconditionally valid. For the author of Political Theology, the authority of the sovereign to suspend the constitution is built into every type of regime, every political form.66 Emergency powers do not derive from formal constitutional laws and do not depend upon formal recognition. In The Concept of the Political, emergency powers seem even less con63 Letter from Thomas Jefferson to John B. Colvin (20 September 1810), in P. Ford, ed., The Works of Thomas Jefferson (1905) 146 at 1489; quoted in Lobel, Emergency Power, supra note 61 at 1393. Already Locke suggests in his discussion of prerogative in the Second Treatise of Government that legitimate use of prerogative depends in some way upon retrospective approval. Prerogative can be nothing, but the Peoples permitting their Rulers, to do several things of their own free choice, where the law was silent, and sometimes too against the direct Letter of the Law, for the public good; and their acquiescing in it when so done. Locke, Two Treatises, supra note 61 at 377. According to Rousseau, Cicero violated the law in defence of Rome and was subsequently pardoned by the Romans. Rousseau, The Social Contract, supra note 62 at 140. 64 Lobel, Emergency Power, supra note 61 at 1396. 65 Article 9 of Japans post-war constitution, which outlaws the maintenance and employment of armed forces, and the parallel articles in Germanys post-war Basic Law, would have seemed to Schmitt not only suspendable by sovereign decision like all other constitutional principles but contradictory to the very essence of sovereignty and, hence, unconstitutional. 66 Schmitt, Political Theology, supra note 4 at 9. In Constitutional Theory, Schmitt asserts that emergency powers are bound by the existing political form; Schmitt, Thorie de la constitution, supra note 9 at 2489.



strained and regulated than in Political Theology. They emanate not from the political form of the state, its higher constitution, but from the prelegal self-definition of the group vis-a-vis an enemy. In the name of the willingness of its members to die for a common cause, the group wields sovereignty and in that capacity adopts a certain constitutional form. However, emergency powers remain independent of any particular constitutional form that the group may endorse. They belong to the group as a formless unity, a unity which precedes any political form, and are thus unfettered by any such form. They inhere in a sovereign body that cannot alienate them and whose authority is higher than that of the constitution.67 John McCormick criticizes Schmitts account of the inherent legitimacy of emergency powers, claiming that
[an] emergency provision should be seen as one ... mechanism among many constitutional provisions. It therefore has no privileged link, neither direct nor exclusive, with the original political will a link that Schmitt so dramatically asserts in Political Theology.68

McCormick fails to refute Schmitts account of emergency powers because he separates it from Schmitts general understanding of the constitution. For Schmitt, the author of the constitution is constantly present and never resigns its natural emergency powers to the constitutional order. A criticism of Schmitts theory of emergency powers must tackle his entire constitutional thought. The view of emergency powers as pre-constitutional is convincing even if one does not endorse Schmitts conception of permanent sovereign presence. In the face of danger, constituent power whether normally absent or present comes to the foreground. Societys encounter with death precipitates the dissolution of the corporate into the communal body and of calendrical into mythical time.69 In cases of acute danger, emergency powers do not derive exclusively from the constitution but originate in a pre- or meta-constitutional power. As in other constitutional moments, the enactment of sovereignty and the relaxation of the rule of law and the separation of powers assume different degrees of intensity in different states of emergency. Contrary xxxxxxxxxxxxxxxxx
67 Schmitt, Concept, supra note 11. 68 John McCormick, The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers in David Dyzenhaus, ed., Law as Politics (Durham, NC: Duke University Press, 1998) 217 at 239. 69 The death of a member of the social structure casts the group as a whole into a liminal experience of timelessness. See Arnold Van Gennep, The Rites of Passage (Chicago: University of Chicago Press, 1960) at 146.

212 UNIVERSITY OF TORONTO LAW JOURNAL to Schmitts view in Political Theology,70 the fact that the powers in operation may not wholly derive from constitutional laws does not render them unlimited. When a constitutional structure is relaxed, it can still constrain the purpose and extent of emergency powers. In Schmitts own terms, emergency powers can still be constrained by the political form of the state when constitutional laws become less binding, even in circumstances in which that form itself becomes relatively blurred. The political form dissolves entirely only in extreme states of emergency, which, throughout history, have offered a convenient opportunity for revolution.71 Even the complete dissolution of the states particular political form in such extreme cases of emergency does not result in unqualified legal licence. A society with a dying or dead constitution will still recognize general principles of corporate social structures, if any capacity remains in it to regenerate form and re-found structure.

I would like to conclude this incomplete overview of instances of sovereign presence with a few words on referenda and amnesties. Constitutional moments are characterized by a high degree of public involvement and suspension of factional loyalties. The suspension of party politics allows sovereignty to step forward in referenda.72 In the course of political routine, ideological, religious, economic, geographic, ethnic, and other divisions guarantee that the sovereign collective body remains distant from the group. The dissolution of structural divisions in certain referenda allows them to be experienced and impressed in the collective memory as revelations of sovereignty, of the will of the Nation as a metahistorical city of the living and the dead,73 even if they were decided by a single vote. The capacity of referenda to render sovereignty present is never guaranteed. When referenda are held too frequently without sufficient public interest, or when voting patterns reflect factional loyalties and public discussion is dominated by sectarian campaigns, only
70 Schmitt, Political Theology, supra note 4 at 12. The same view appears in The Concept of the Political: Every norm presupposes a normal situation, and no norm can be valid in an entirely abnormal situation. Supra note 11 at 46; see also 49, 55. 71 The Third Republic emerged from the French defeat of 1870. Defeat also paved the way to the establishment of the Weimar Republic in 1918. On the two events see Eberhard Kolb, The Weimar Republic (London: Routledge, 2001) at 4. In response to such precedents, art. 196 of the Belgian constitution provides that [n]o constitutional revision may be undertaken or pursued during times of war or when the Chambers are prevented from meeting freely on Federal territory. 72 [the] constituent representative body must be set up without regard to the distinction between orders. Sieys, Third Estate, supra note 24 at 137. 73 une cit commune entre les vivants et les morts. Jules Michelet, Histoire du XIXe sicle in Paul Viallaneix, ed., Oeuvres Compltes, vol. 21 (Paris: Flammarion, 1982) at 268, quoted in Benedict Anderson, Imagined Communities (London: Verso, 1991) at 198.



a massive manipulation of the collective memory will make a referendum appear to future generations as an authentic manifestation of the general will. The potential political advantages of the referendum in certain, mostly critical, historical contexts derive from its semi-religious dimension, its capacity to occasion an enactment of the sovereign body. The ritual dimension of the referendum is entirely consistent with its alleged epistemic adequacy for the resolution of certain social dilemmas, since the ability of participants to bracket factional loyalties in a referendum stems from the sanctity of the event. As in other constitutional moments, the intensity of sovereign presence varies from one referendum to another. The fuller the sovereign presence, the more relaxed the constitutional structure and the formal procedure that governs the referendum.74 While the pardoning power is normally regulated by the constitution, its exercise occasions an enactment of a pre-constitutional power, the power to self-impose and suspend the rule of law. The pardoning power interferes with the regular administration of the separation of powers and the rule of law. It has always been enshrouded in mystery and secrecy and associated with divine powers. In Rome, for example, the life of a condemned prisoner was spared if a vestal virgin saw him by accident on the way to the scaffold.75 In contemporary democracies, too, the pardoning power emits the shiniest aura of sovereignty among executive powers. In the exercise of the pardoning power, the head of state declares the exception and brings to naught the deeds of other branches of government. Many advocates of broad judicial review believe that pardons, as exercises of an extraordinary power, should remain barely reviewable.76
74 On the freedom of the people from established procedures in referenda, J.M. Denquin concludes as follows: Nous pouvons maintenant tablir le bilan de la rencontre entre un systme juridique labor et lexpression directe de la volont populaire. Le postulat dmocratique aboutit ncessairement, en droit et en fait, dvaloriser le premier au profit de la seconde. Celle-ci na pas respecter les distinctions poses par lui. Elle est donc matresse la fois de son action et de son champ daction. Elle dtruit, par le fait mme quelle est exprime, toutes les normes logiquement incompatibles avec ses dcisions. Enfin, elle est susceptible de modifier implicitement le droit positif en fondant des coutumes constitutionnelles si du moins on reconnat la possibilit thorique de telles normes et elle est seule jouir de ce privilge. J.M. Denquin, Referendum et plebiscite (Paris: Pichon, 1976) at 301. 75 Plutarch, Numa in Plutarchs Lives, vol. 1, trans. by Bernadotte Perrin, 1914 (Cambridge, MA: Harvard University Press, 1967) 305 at 343. On the theological origins and dimensions of the pardoning power, see Hlne Millet, ed., Suppliques et requtes : le gouvernement par la grce en Occident (Rome: cole Franaise de Rome, 2003). 76 The association of the pardoning power with constituent power sheds light on the meaning of pardons. Constituent power consists in the capacity of the collective body to impose a law, a corporate structure, upon itself. The pardoning power extends the freedom of self-imposition into the established constitutional structure in order to ascertain at any moment that the laws governing society were, and continually are, freely

214 UNIVERSITY OF TORONTO LAW JOURNAL General pardons, unlike pardons proper, involve a thorough appropriation and incarnation of sovereignty on the part of the group. Generally issued by parliaments,77 amnesties involve not the assertion of particularendorsed. Positive law must appear to each individual, and to society as a multitude of individuals, external and superimposed. The externality and superiority of the state vis-vis society objectifies the externality of the law. However, in its relation to the collective body, to the group as a cross-generational unity comprising ancestral authorities represented as lawgivers, the law should appear self-imposed. Since monarchs and presidents, as epitomes and personifications of the state, stage the externality of the law in relation to the group as an aggregation of individuals, they can re-enact, by wielding the pardoning power, the founding self-imposition of the law on the part of the collective body as a whole. While, in the passage from pre-constitutional, charismatic authority to constitutional structure, power is impersonalized and bureaucratized, the pardoning power remains relatively personal. (On the impersonalization of authority in the process of constitutional consolidation, see Barshack, Corporate Body, supra note 21). Without the pardoning power, the law would have been perceived as imposed upon humanity by an inhuman, alien force unintegrated into social structure, as an allembracing, domesticated cosmos, a persecutory deity threatening the human order of things. The pardoning power thus testifies to a deep-seated sense of human domestication of and reconciliation with the world. Davis McMullen notes the cosmic significance of the pardoning power in his interpretation of Chinese imperial ritual: Ritual occasions enabled the emperor to affirm the benevolence of the cosmic order and of his own role in mediating between it and the human hierarchy. The great ritual celebrations were customarily followed by acts of grace (she). In these, the emperor might extend pardon to criminals in all categories of wrong-doing ... Davis McMullen, Bureaucrats and Cosmology: The Ritual Code of Tang China in David Cannadine & Simon Price, eds., Rituals of Royalty: Power and Ceremonial in Traditional Societies (Cambridge: Cambridge University Press, 1987) 181 at 217. On the cosmological and political grounds behind the Chinese practice of amnesties, see also B.E. McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu: University Press of Hawaii, 1981). The abolition of the pardoning power during the French Revolution attests to a sense of alienation between humanity and the world and to a veneration of a persecutory, inhuman deity. It reflects the hatred of the personal and the particular which was rooted, according to Hegel, in the revolutionary ideal of abstract reason and which resulted in revolutionary terror. A humanistic ideal of the rule of law combines ideas of the laws self-imposition and superimposition. On the revolutionary abolition of pardon, see Jacques Foviaux, La Rmission des peines et des condemnations (Paris: Presses Universitaires de France, 1970) at 91. On the Terror as expression of a drive to eradicate particularity resulting from the revolutionary attempt to actualize abstract reason, see G.W.F. Hegel, Phenomenology of Spirit, trans. by A.V. Miller (Oxford: Oxford University Press, 1977) at 3579; G.W.F. Hegel, The Philosophy of History, trans. by John Sibree (New York: Wiley, 1944) at 450. 77 On the solemn Acts of Grace of the English Parliament, see M. Radin, Legislative Pardons: Another View (1939) 27 Calif.L.Rev. 387 at 392 [Radin, Legislative]. While, according to art. 17 of the French constitution, Le prsident de la Rpublique a le droit de faire grce, art. 34 states that only the parliament can grant amnesty. This distinction can be found in the constitutions of Austria (art. 65), Greece (art. 47), and Spain (art. 62) and in many other constitutions. An exception can be found in art. 24 of the constitution of Denmark, which accords the king the power to grant amnesties.



ity and grace in the face of universal laws neither the grantor nor the grantee is an individual but the public interest and political decision. Despite their generality and democratic legitimacy, amnesties involve a harsher compromise with the rule of law than ordinary pardons. While, as Hegel pointed out, pardons proper annul neither the law nor the fact of its infringement,78 amnesties obliterate all traces of the crime. They require the exercise of sovereignty because they rescind a general law retroactively, rather than merely remitting a penalty on the basis of individual circumstances. Like amendment and impeachment, amnesty transforms the parliament into a constituent assembly. In amnesties the communal body asserts its sovereignty in order to put an end to rebellions, civil wars or disturbances,79 and generally in order to celebrate and renew its integrity.80 Thus, amnesties have been triggered by each of the familiar occasions of sovereign presence, including military triumphs, coronations, declarations of independence, and other political rites of passage such as royal entries, marriages, and births.81
78 Pardon is the remission of punishment, but it is not a cancellation of right. On the contrary, right continues to apply, and the pardoned individual still remains a criminal; the pardon does not state that he has not committed a crime. This cancellation [Aufhebung] of punishment may be effected by religion, for what has been done can be undone in spirit by spirit itself. But in so far as it is accomplished in this world, it is to be found only in the majesty [of the sovereign] and is the prerogative of [the sovereigns] ungrounded decision. G.W.F. Hegel, Elements of the Philosophy of Right, ed. by A.W. Wood, trans. by H.B. Nisbet (Cambridge: Cambridge University Press, 1991) at 326 (addition to paragraph 282). 79 Radin, Legislative, supra note 77 at 392. 80 On the use of amnesty to protect national unity in critical moments in French history, see Stphane Gacon, Loubli institutionnel in Dimitri Nicoladis, ed., Oublier nos crimes (Paris: Autrement, 1994) 98. See generally Stphane Gacon, Lamnistie : de la commune la guerre dAlgrie (Paris: Seuil, 2002). Gacon points out the special role of the president in prompting parliamentary amnesties. It seems that presidential involvement signifies in two ways the communal authorship of amnesties, that is, their origin in the authority of the group as a single body. While parliaments display plurality and difference, presidents represent national unity (and are thus given the power to announce a referendum by a number of constitutions). Presidential involvement further suggests the suspension of the separation of powers and the unified agency of all branches of government. The wave of transitions to democracy in Eastern Europe, Africa, and South America in the last decade propelled a massive use of amnesties of different types, devised to protect the fragile nascent democracies from social division and anti-democratic opposition forces. See, e.g., Alexandra Barahona De Brito, C.G. Enriquez, & Paloma Aguilar, eds., The Politics of Memory and Democratization (Oxford: Oxford University Press, 2001); John Hatchard, Muna Ndulo, & Peter Slinn, eds., Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (Cambridge: Cambridge University Press, 2004) at 262 ff.; Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities (1996) 59 L.&Contemp.Prob. 197. 81 On royal amnesties on the occasion of coronation or royal entry, see R.A. Jackson, Vive le roi: A History of the French Coronation from Charles V to Charles X (Chapel Hill: University



Two contemporary theories

Bruce Ackermans and Antonio Negris theories of constitutional authorship count among the most comprehensive contemporary constitutional theories. In its broad contours, Ackermans theory is consistent with the proposed understanding of constituent power as alternately present and absent. His discussion revolves around the distinction between normal and constitutional politics, the latter potentially leading to higher lawmaking. According to Ackerman, constitutional authorship is discontinuous and sporadic. It is confined to rare moments of constitutional politics, during which citizens are less focused on their private concerns than they are in the course of normal politics, and more attentive to the general good.82 Constitutional politics allows the will of the people to be formed and pronounced83 and breathes new meaning into the constitution, whether through a formal amendment of the constitutional text or through a revision of constitutional practice and interpretation84 Article V of the American Constitution, according to Ackerman, has repeatedly obstructed the peoples capacity to express its will, to the effect that major constitutional reforms in American legal history deviated from the amendment procedure it prescribes.85 In the course of normal politics, constitutional reforms cannot and should not be undertaken. According to Ackerman, the courts role in the ordinary course of political life is to execute the will of the People as it crystallized in past episodes of constitutional politics. The American Constitution instituted an elaborate division of powers that makes it impossible for any of the different branches of government to be innovative on constitutional issues in the course of normal politics. The ramified division of powers guarantees that any attempt to reform constitutional practice will face institutional opposition. A conflict between institutions over constitutional reform and the ensuing constitutional impasse signal a passage from normal to constitutional politics.86 The
of North Carolina Press, 1984) at 98. On pardons and amnesties upon royal entries and births, see L.M. Bryant, The King and the City in the Parisian Royal Entry Ceremony: Politics, Art and Ritual in the Renaissance (Geneva: Droz, 1986) at 25. Recent examples include the general pardons declared in Belgium upon the crown princes marriage and in Morocco upon the birth of King Mohammed VIs first son. Presidential elections in France are still customarily followed by amnesty laws. Bruce Ackerman, We The People: Foundations (Cambridge, MA: Harvard University Press, 1991) at 2723 [Ackerman, Foundations]. Ibid. at 1712, 263. Ibid. at 52. Ackerman, Transformations, supra note 35 at 8994. On constitutional impasse see Bruce Ackerman, Higher Lawmaking in Sanford Levinson, ed., Responding to Imperfection (Princeton, NJ: Princeton University Press, 1995) 63; Ackerman, Foundations, supra note 81 at ch. 10.

82 83 84 85 86



people is then called to decide the constitutional issue that divides the rival institutions. Popular movements can also initiate a passage to constitutional politics and invite citizens to engage in a process of collective will formation. Ackermans theory is based on the principle that higher laws can be enacted only in constitutional moments during which the will of the people pronounces itself. The American ideal of private citizenship, Ackerman argues, allows citizens to concentrate on their private concerns until some signal invites them to take part in a collective decision.87 This is a compelling principle, but Ackermans model misses much of its raison dtre by regarding modern democracy in particular, American democracy as its exclusive realization. The collective body of the people asserts its will and makes law in constitutional moments in different types of regimes; democratic institutions are not the exclusive setting in which the people can speak and make law. Ackermans construction of an ideal of private citizenship, affirming both citizen involvement during constitutional politics and citizen indifference during normal politics, captures the alternation of social life between phases of structure and communitas, segmentation and convergence. This alternation characterizes social and political life under all types of regimes. The principal concepts employed by Ackerman normal politics, constitutional politics, constitutional moments, and higher law-making are readily applicable to non-democratic constitutional orders. Ackerman distorts the theoretical import of these concepts by reading into them a local legal history. Ackerman depicts constitutional politics as at the same time too tame and too unruly. Constitutional moments are too lawless because, for Ackerman, the will of the people is not subject to any legal constraints.88 The spontaneous will of the people is the exclusive, self-identical, and absolute source of higher law. Ackerman envisages constitutional moments as episodes of radical creation ex nihilo. As suggested above, the group can conceive a constitutional order only when it recognizes certain legal constraints as pre-given, only if the law-giving authority of the people is not fully incarnated by the living but partly exercised from the past, from below or above the group. Constituent power, as Sieys wrote, is constrained by natural law even at the moment of foundation, in which it appears more powerful than ever.89 While Ackerman views the will of the people as an ultimate, boundless law-making authority, he does not perceive an inherent conflict between
87 Ackerman, ibid. at ch. 11. 88 Ibid. at 1113. 89 The nation is prior to everything. It is the source of everything. Its will is always legal; indeed it is the law itself. Prior to and above the nation, there is only natural law. Sieys, Third Estate, supra note 24 at 124.

218 UNIVERSITY OF TORONTO LAW JOURNAL constitutional politics and constitutional procedure. Even if past constitutional moments in American history triggered violations of the amendment rules established in the constitution, the conflict between legality and legitimacy can be avoided, according to Ackerman, through the introduction of new procedures.90 Like any other part of the law, these new procedures may one day become too rigid, but they can reconcile procedure and popular sovereignty in the foreseeable future. There is nothing in the process of collective will formation that is inherently antagonistic to procedure.91 The foregoing account of constitutional moments suggests, contrary to Ackermans view, that constitutional moments cannot be fully regulated by law. Sovereign presence involves collective participation, but one that is festive and liminal rather than bound to procedure. The appropriation of constituent power by the group can be largely manipulated and domesticated by democratic institutions, but it remains essentially anarchic and lawless.

Antonio Negri is the prominent contemporary exponent of the view that denies the distinction between normal and constitutional politics. While Negri and Schmitt epitomize diametrically opposed political positions, their constitutional theories bear an alarming affinity. For Schmitt, we have seen, the validity of the constitutional structure depends at any moment on the implicit assent of a present, embodied sovereign and can be at any moment retracted by sovereign decision. In Negris words, Schmitt dissolves the distinction between constituent and constituted power,92 because the latter never breaks free from the former. For Negri, too, constituted power is an immediate expression of constituent power and is never durably independent. It forms part of the total matrix of interactions and situations Negri identifies with constituent power. Only when constituted institutional formations become petrified and repressive do they enter into collision with constituent power.93 Such a conflict between state and society, between constituted and constituent power, is hardly envisaged by Schmitt. Negri is far more hostile to the state than Schmitt and far more doubtful of its capacity to manifest constituent power. But in many respects Negris account of constituent power
90 Contrary to Ackermans proposal, there is no need to recognize new procedures of constitutional amendment, since the established procedure is in any case relaxed in genuine constitutional moments. The proposed reform will unduly expose constitutional principles to partisan and populist challenges in moments that are not sufficiently intense to apply, or violate, the established procedure. 91 Ackerman, Transformations, supra note 35 at 417. 92 Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. by Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999) at 8. 93 Negri, ibid. at 3, 4, claims that it is impossible to lock constituent power within a static system of representation.



remains close to Schmitts. Indeed, Negri affirms the permanent presence of constituent power more explicitly than Schmitt ever did. In Negris distinctive terminology, constituent power is born of the marriage of multitude and strength.94 This encounter produces a power that is unlimited and independent of any existing institutional frameworks, revealing itself through fluid and changing media. Constituent power is a dynamic totality that casts itself constantly toward an unknown future, dissolving on its way distinctions between time and space95 and between the social and the political.96 Negri defines constituent power as love of time and celebration of temporality, and as an endorsement and affirmation of the crisis inherent in a genuine experience of time.97 Constituent power is the lack of a clear constituted framework or purpose, a permanent revolution98 gushing toward an open future.99 As we saw, anthropologists refer to such an experience of temporality as mythical time. Negri denounces any concept of externality to the social and the concomitant idea of a constitution. While constituent power consists in the permanent presence of democratic strength Negri refers to it as a living God100 the constitution attempts to deprive the people of its powers. Let me quote two long passages in Negris own words:
... democracy means the omnilateral expression of the multitude, the radical immanence of strength, and the exclusion of any sign of external definition, either transcendent or transcendental and in any case external to this radical, absolute terrain of immanence. This democracy is the opposite of constitutionalism. Or better, it is the negation itself of constitutionalism as constituent power a power made impermeable to singular modalities of space and time, and a machine predisposed not so much to exercising strength, but, rather, to controlling its dynamics, its unchangeable dispositions of force. Constitutionalism is transcendence, but above all constitutionalism is the police that transcendence establishes over the wholeness of bodies in order to impose on them order and hierarchy. Constitutionalism is an apparatus that denies constituent power and democracy.101

Ibid. at 318, 320, 330. Constitutive strength dislocates and transvalues space into time ... Ibid. at 3178. Ibid. at 327. Ibid. at 3189. Ibid. at 24, 334, 335. The political is ... production par excellence, collective and non-teleological. Innovation constitutes the political; constitution cannot but be constant innovation. Ibid. at 28. Thus, for Negri, constituent power cannot be associated with utopia. Utopia, he says, is not a genuine, traumatic experience of time but a linear movement toward a determinate future. Ibid. at 322. 100 Ibid. at 28, 322. 101 Ibid. at 322.

94 95 96 97 98 99


Whereas constituent power had always been defined (in the terms of modernity) as an extraordinary power with respect to the ordinary legitimacy of the constitution, here any extraordinariness is taken away because through its reduction to the social (animated by living labor) constituent powers ordinary capability of operating in ontological terms is recognized. Constituent power is a creative strength of being, that is, of concrete figures of reality, values, institutions, and logics of the order of reality. Constituent power constitutes society and identifies the social and the political in an ontological nexus.102

At the end of his book, Negri suggests how his ontology of constituent power might illuminate concrete political developments. The mystification of the constitution and of its institutions is designed, according to Negri, to rob constituent power of being, but rigid constitutions are bound to be sooner or later overthrown by fermenting constituent power:
This appearance of exhaustion is the effect of the mystification that the practices of constitutionalism stage in order to block the investment of the social and the political in being.103 A political world, many political worlds, in the West and the East, are collapsing because they have exhausted constituent power.104

Contrary to Negris remarks on constituent power and time, immanence betrays a hatred of time and change, a quest for a perpetual present. It amounts to a repudiation of the authority of the past and of duties to the future, an extermination of ancestors as well as future generations. Despite Negris critique of Schmitt, the parallels between their positions are striking. Like Schmitt in Constitutional Theory, Negri locates constituent power in the hands of the group and conceives of it as an immanent radiant power free from any normative constraints. Both Negri and Schmitt identify the political not with regulated activity within given institutional frameworks but with the exuberant vitality of the peoples constituent power. Negris account of democracy as absolute government and as a living god seems to coincide perfectly with Schmitts.105 Admittedly, Negri portrays constituent power as far more
102 103 104 105 Ibid. at 327. Ibid. Ibid. at 335. Constituent power is this force that, on the absence of finalities, is projected out as an all-powerful and always more expansive tendency. Lack of preconstituted assumptions and fullness of strength: this is a truly positive concept of freedom. Omnipotence and expansiveness also characterize democracy, since they define constituent power. Democracy is both absolute process and absolute government. Ibid. at 14. Only in the multitude, insofar as it is capable of expressing living labor, lies the truth of the constitution. Democracy, a real democracy of right and appropriation,



dynamic, plural, and scattered than Schmitt takes it to be: according to Negri, constituent power cannot support for long a single, hegemonic institutional structure and is made of plurality and difference. Negri believes that the immanence of sovereignty can be reconciled with plurality and individual autonomy. Schmitts political anthropology, associating sovereign immanence with social uniformity, seems at this point more convincing, at least according to the account of corporate and communal bodies proposed earlier. Schmitt perceived the inconsistency of the permanent presence of sovereignty with plurality and division. When the collective body assumes the form of an immanent communal body, it is all-embracing and undivided. Negri ignores the threats to individual autonomy posed by his model of immanent constituent power and absolute democracy. He does not acknowledge any correlation between the empowerment of popular forces and the loosening of the rule of law, on the one hand, and the violation of individual liberties, on the other. For him, immanent constituent power is nothing but cooperation among free individuals:
Cooperation is in fact the living and productive pulsation of the multitudo. [...] Cooperation is innovation, richness, and thus the basis of the creative surplus that defines the expression of the multitudo. Command is constructed on abstraction, alienation, and the expropriation of the cooperative creativity of the multitude. Command is privilege: the fixed and unified appropriation of constituent power. It is constituted power and constitution. The world is thus inverted: command precedes cooperation. But this reversal and the rationality and logic that exalt it are in themselves contradictory and limited because they do not possess the force of their own reproduction.106

Negris words reveal here a deep-seated aversion to the idea of the rule of law.107 His model of absolute democracy is stripped of central features of liberal or republican democracy: the rule of law and the division
equal distribution of wealth, and equal participation in production, becomes the living god. In it subject and structure, strength and the multitude become identical. Ibid. at 28. 106 Ibid. at 332. 107 The same sentiment surfaces in the following description of constituent power: [the] movement [of constituent power] is uninterrupted, a construction from below that traverses the singular emergences by coordinating their action. In this process general and abstract rules are not applied, but, rather, constellations of interests, agreements, and relations are continually constituted and verified. If procedural rules exist, they themselves are each time verified. Cartographies of the connections and the interrelations of the relations and initiatives are constructed. The frame is that of a continual expansion of entrepreneurial activities, cutting through the social and the political, the juridical and the institutional. Sovereignty never separates from its origins and is organized in the relations between origin and exercise. Ibid. at 330.

222 UNIVERSITY OF TORONTO LAW JOURNAL between private and political spheres. These principles entrench individual autonomy by securing the absence of the sovereign collective body. Democracy is particularly vulnerable to the expansionist attempts of the communal body. Like Schmitt, Negri advocates an understanding of popular sovereignty, which turned democracy into a hothouse for fascist ideas and movements. Contrary to Negris account, only democratic institutions that secure the transcendence of sovereignty allow for diversity of opinion and pluralism of conflicting loyalties. The more episodic and fleeting is sovereign presence, the safer are individual autonomy and human rights.