Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood

Abstract

This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of the legal-normative and the political as exemplary of influential and opposing positions in constitutional theory, it argues (against both) that collective identity is reflexive identity, that self-constitution is constitution both by (political) and of (legal-normative) a collective self, and that the paradoxical relation of constituent power and constitutional form — of democracy and legality — is in a certain sense specious. The chapter sets a frame for addressing the arguments of the papers that follow.

Towards a Theory of Unamendability

“…A constitution always bears a 'relational account', 189 and never acts in a pure vacuum. 190 Additionally, constitution-making takes many different forms. 191 Some constitutions were formed in revolutionary circumstances, breaking the previous constitutional order.…”

Freedom of Religion and the Politics of the Liberal Public-Private Divide

“…74 On this view, political community is constituted by virtue of a legal act that identifies and empowers individuals as its members. Yet 'this identification/ empowerment only succeeds if individuals retroactively identify themselves as the members of the polity.'…”

The Autonomy of EU Law: More is Less?

“…See on the paradoxical nature of sovereignty e.g. Lindahl 2007;Walker 2002, 340-341;Heller 2002, 265-279. object that the theory does not reflect actual legal practice. Although there are some signs that suggest otherwise, 48 most judges continue to frame their rulings against the background of their own legal orders.…”