Founding Acts. Serdar TekinЧитать онлайн книгу.
puts the point in a compelling way in the Philosophy of Right, first published in 1821, when the memory of the French Revolution was still fresh everywhere in Europe. The passage is worth quoting at length:
the usual sense in which the term “popular sovereignty” has begun to be used in recent times is to denote the opposite of that sovereignty which exists in the monarch. In this oppositional sense, popular sovereignty is one of those confused thoughts which are based on a garbled notion of the people. Without its monarch and that articulation of the whole which is necessarily and immediately associated with monarchy, the people is a formless mass. The latter is no longer a state, and none of those determinations which are encountered only in an internally organized whole (such as sovereignty, government, courts of law, public authorities, estates, etc.) is applicable to it. It is only when moments such as these which refer to an organization, to political life, emerge in a people that it ceases to be that indeterminate abstraction which the purely general idea of the people denotes.17
To be sure, Hegel’s defense of constitutional monarchy as the sole form of the rational state has been long outdated (in fact, it was hardly tenable even in his own time18). Yet his complaint about “the people” has a much broader purchase.
Hegel does not take issue with the basic normative insights underpinning the doctrine of popular sovereignty. On the contrary, his philosophical account of the modern state is structured around the idea of freedom as self-determination and its realization through an institutionally mediated web of interactions among equal citizens.19 His point is rather that popular sovereignty is exercised in and through the institutional edifice of the state, and hence does not apply to the founding of this edifice. Without the constitutional state as an “internally organized whole,” the people is either a “formless mass” or an “indeterminate abstraction,” that is unable to carry out any positive or constituent action.20 In other words, popular sovereignty makes sense only in the context of an established political order by virtue of which the people already exists as an organized community. This is a view that widely resurfaces, albeit in different ways and with different twists, in contemporary treatments of constitutional democracy.
According to János Kis, for example, as we already quoted in the previous chapter: “Popular sovereignty is a feature of political regimes rather than something actually exercised prior to the establishment of political regimes. The question is not whether it was the people that created the state for itself by some original act but what the practice of authorization is like in the state, once it has been established.”21 Stephen Holmes makes a similar point when he insists that we can meaningfully speak of popular sovereignty as a democratic principle only within the framework of constitutional restraints that establish procedures of decision-making and enable the practice of self-determination. Echoing Hegel’s complaint about the “garbled notion of the people,” Holmes writes: “A collectivity cannot have coherent purposes apart from all decision-making procedures. The people cannot act as an amorphous blob.”22 Working through the difficulties of the concept of constituent power, Ulrich Preuss likewise comes to the conclusion that it is not the people who make the constitution but the other way around. Since “constitutions are instruments of collective self-organization,” Preuss maintains, “the idea of a constituent power which creates a new order ex nihilo is a (perhaps necessary) fiction”—that is to say, “the constitution gives birth to the people in the sense in which this notion has been developed for the concept of democracy.”23
Whatever its merits may be in other respects, this line of argumentation does not squarely face up to the paradox of founding. Arguments locating popular sovereignty within the constitutional democratic state and taking it in relation to the structure of the regime rather than its pedigree do not make the paradox disappear or save us from the vexing issues involved in it. What they do instead is to shift the emphasis from the primacy of the people to that of the constitution. However, such a move raises more questions than it actually answers. Several issues come to mind immediately. If it is the constitution that makes the people, then, who makes the constitution? How are we to understand the making of the democratic constitution anyway? If the people themselves cannot act in a constituent capacity and exercise popular sovereignty prior to the making of the democratic constitution itself, who speaks in the name of the people and with what title? At any rate, how do we know (or can we ever know) whether a constitution actually and authentically stands for the people? I do not think that democratic theory can afford to ignore such questions. Even when one concedes that the people cannot underwrite their political organization through an original exercise of popular sovereignty—as Kis, Holmes, and Preuss seem to suggest in their own ways—what this would signify for the concept of democracy in general and for the formation of a democratic political community in particular is still far from self-evident and stands in need of elucidation.
All in all, there is something deeply unsatisfactory in dismissing the paradox of democratic founding as a category mistake about the proper application of popular sovereignty. Such an approach leaves the issue of founding simply intact. Hegel is again illustrative here. At one point in The Philosophy of Right, he takes up the question of constitution-making, but only to dismiss it immediately: “It is at any rate utterly essential that the constitution should not be regarded as something made, even if it does have an origin in time. On the contrary, it is quite simply that which has being in and for itself, and should therefore be regarded as divine and enduring, and exalted above the sphere of all manufactured things.”24 One cannot help but infer that Hegel’s ultimate response to the question of constitutional founding is that one ought not to ask that question!25
Despite Hegel’s best efforts to efface it, the question has proved to be persistent. The paradox of democratic founding is a recurring theme in contemporary political theory, and theorists working in different traditions have picked up on it from a variety of angles, unpacking its implications in their own ways. In what follows, we will look at these contemporary restatements more closely in three consecutive steps: our first stop is Jacques Derrida’s reformulation of the paradox of founding through the lens of speech act theory; next, we turn to recent interpretations of Rousseau’s paradox, particularly those offered by William Connolly and Bonnie Honig; and finally, via Frank Michelman’s writings, we will focus on the procedural version of the problem and explore the ways in which it is brought to bear on the deliberative conception of constitutional democracy. Before moving on, a final reminder is in order: these three sections are primarily intended to be expositional. The reader will find a critical discussion at the end of the chapter.
Founding Acts and Speech Acts: Jacques Derrida
Beginning with a short but provocative essay on the American Declaration of Independence, the paradox of founding comes in focus in Jacques Derrida’s work via linguistic means of analysis derived from speech act theory. At the center of Derrida’s reading of the Declaration is the seemingly neat distinction between “constative” and “performative” utterances, developed (and later abandoned) by J. L. Austin in How to Do Things with Words. According to Austin, a constative is a verifiable utterance, the paradigm of which is the traditional proposition. It is meant to state some fact or to describe some state of affairs, and it must do so either truly or falsely. A performative is also an utterance, but of a very different kind. It does not describe a state of affairs, it brings about one. When I say “I promise,” I do not describe myself as promising, I perform the act of promising. Austin rightly observes that such utterances are not subject to verification in the same way as constative ones because actions cannot be “true” or “false.” Nonetheless, there is success or failure in the performance of an action, which prompts Austin to suggest that a performative utterance can be “felicitous” or “infelicitous” depending on whether it succeeds or not in doing what it says.26
Reading the American Declaration of Independence through Austin’s distinction, Derrida asks a basic question: does the Declaration make a constative utterance or a performative one? “Is it that the good people have already freed themselves in fact and are only stating the fact of this emancipation in the Declaration? Or is it rather that they free themselves at the instant of and by