Recovering constituent power : the constituent role of judges in globalised states

Abstract

We will devote the first two chapters to a more historical approach to constituent power. The first chapter deals with the early history of this notion in a time where the latter had not yet been coined. Through the Greek and Roman civilisations and until the decadence of the feudal system and the rise of the Westphalian state, we will look at the notions of authority, norm and society; and to the way they relate to one another, while looking for the traces of constituent power. It is then in chapter two that constituent power appears thanks to the political changes undergone through the English, American and French revolutions. At this stage, we will present in depth the meaning with which the notion was born and how it evolved (as we will see, not much) until the present day. As the thesis proceeds we will identify three different generations of constituent power. In this second chapter, we will have the opportunity to present the first two. The first form of constituent power has an exclusively political dimension; it is about who is the sovereign (the people and not the King). The second adds a socio-economic layer because it is no longer just about who is the sovereign but what it means to say that the people are sovereign (with their associated rights and obligations). Finally, this chapter will also allow us to present how constituent power as a metaphor of the people’s sovereignty has some paradoxes attached to its use. Chapter three is somewhat different because instead of presenting the third generation of constituent power, it offers us space to map globalisation, and thus to prepare the context in which constituent power has to be looked at today. By looking at global actors and global phenomena we will give shape to the globalised state and its globalised constituent power. It is then from this perspective that we can approach how we propose to conceive constituent power today. Chapter four, thus, deals with the third generation of constituent power; the proposed notion, we will argue, provides us with a good conceptual tool to identify the sovereign people in a world of overlapping multilevel authorities. This new constituent power, as it will be presented, occurs in multiple times and is borne by multiple actors of the constitutional state (as opposed to the image of constituent power as a constitutional assembly that exists only to perform one single act). In other words, whereas the first generation of constituent power answers who the sovereign is, and the second generation answers what to be sovereign is; the third generation reopens the two questions, for it argues that sovereignty is neither in the hands of one actor nor exercised in a particular manner. Although constituent power so understood will allow us to look inside and outside the state simultaneously, when narrowing down the specifics of this concept we will remain within the state framework. Here, justices provide us with an example of an institution with the capacity to act as a constituent power and it is such a dimension of the judiciary that will be scrutinised in chapter five. Finally, chapter six further concretises chapters four and five by providing three different scenarios (case studies) that enable us to see how constituent power and, particularly the judge as constituent power, is often performed within constitutional polities.