Of Historical and Material Constitutions

The idea that there are some norms that, because of their content, have a fundamental character and should be treated as such by the legal system has a long trajectory in the history of constitutional thought. In the 19th century, it was usually expressed through the notion of the internal (or historical) constitution. The better known of these is the concept of the constitution in the material sense, generally understood as including the norms that establish the basic structure of the state and that regulate the legal relations between state and citizens. This paper explores the notion of the material constitution in the work of several mid-20th century constitutional theorists. The objective will not be to summarise the constitutional thought of these authors but to show the ways in which they understood the relationship between the material constitution and constituent power, and how that understanding affected their views about the limits of constitutional reform.

Dark material(s) and material constitutions: constituent power, institutional aims and productive forms

Debates in constitutional theory are cyclical. Every so often, constitutionalists re-discover some previously influential, but in the meantime neglected, theoretical concept. The same is the case with ‘constituent power’ and ‘material constitution’, the two concepts that many recent scholars have been trying to make great again. This presentation starts from the assumption that this ‘procedure' entails one important disadvantage: while it seems to create the conditions for a more focused debate, it unduly restricted the range of theoretical approaches to a particular concept. Or more concretely: Though we’ll more or less know what to expect when we debate Schmitt’s constituent power or Lassalle’s material constitution, we'll often do so without reflecting on the meaning of the implicit, more basic preconceptions of “power”, “material”, and “constitution”. The aim of this presentation is to explore what might happen if we did otherwise.

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.

The New Caledonian referenda and the strategies of diverting political power into violence

This contribution discusses the circular process that has the effect of disfranchising an identity group by endorsing a paradigm of unity. Under a veneer of normativity the process hides, it would be argued, a series of precarious constitutional assumptions which steer institutional and judicial narratives into a self-referential loop that denies the contextual reasons which justify the normative existence of democracy as a model of governance.
The effect of self-referential use of power on individuals is well covered by critical literature. Benjamin’s analysis on the German word ‘staatliche Gewalt’ is perhaps the best known example of the sophistic circularity of administrative or judicial activities. In the case of Benjamin, it was an attempt at justifying his decision to avoid conscription. However, the circularity of the process in which institutions set the limits of ‘proper’ and then adopt obscene methods to achieve such equanimity has also an effect on groups