Redeeming the Still Redeemable: Post Sovereign Constitution Making

Article

DOI: 10.1007/s10767-009-9070-z

Cite this article as:
Arato, A. Int J Polit Cult Soc (2009) 22: 427. doi:10.1007/s10767-009-9070-z

Abstract

My concern here is for the dramatic new method of democratic constitution making, one that I call post-sovereign in the sense that the constituent power is not embodied in a single organ or instance with the plenitude of power, and all organs participating in constitutional politics are brought under legal rules. This method is the democratic alternative to revolutionary constitution making that all too easily steps over the threshold to dictatorship. And, this was the method that was reluctantly adopted in Iraq. Yet, because of what happened in Iraq, future international efforts during military occupations are likely to avoid the instruments used in that country. In this sense, this essay is part a rescue operation, an attempt to redeem the still redeemable. In what follows, I would first like to present the developed new paradigm of constitution making, as it has been first developed in Poland and Hungary and fully realized in South Africa, making the relevant comparisons with the two classical models of democratic constituent power originating in America and France. I would like to show that all components of the model are significant and mutually reinforcing, including the role of the constitutional court that is the most important clue to the newness of what is involved. Next, I would like to argue that, while the application of constitutionalism to the process as well as the result of constitution making seems to be a conscious part of these new efforts, this move in my view does not represent a sufficient solution of the problem of legitimacy. The second part of the essay will therefore focus on that question, trying to formulate a hypothesis that could serve as a beginning point for a normative theory of democratic post-sovereign constitution making. The third part will reconsider the very old problem whether beginnings can be mad legitimate.

Keywords

Revolutionary constitutionPost-sovereign constitutionConstitutional courtConstitutionalismLegitimacy

Copyright information

© Springer Science+Business Media, LLC 2009

Authors and Affiliations

  1. 1.Department of SociologyThe New School for Social ResearchNew YorkUSA