The Constituent Power, the Problem of Violence, and a Theory of the Constitution

The basic idea of this contribution lies in building a concept of constitution given the relevance of violence in the foundations of the legal order. The author distinguishes different stages of high-scale conflicts in the configuration of a state’s constitutional system such as the violence perpetrated during state-building, the coercion displayed during the formal constitution-making process, and the use of force in imposing the constitutional principles under emergency circumstances. The link between violence and constitutional formation leads to a material concept of constitution grounded in the decision about the allocation of power. The contribution closes with a normative proposition on the exercise of constituent power which states that the legitimacy of a constitutional creation hinges on the lack of victims (the “no victims rule”) in all the stages concerning the establishment of a new constitutional structure.