Tweaking history to make sense of democracy: 
On the use of constituent power and other ideas in legal theory

Lucia Rubinelli

Fellow in Political Theory, Department of Government, LSE

Legal theorists recently turned their attention to the idea of constituent power. Especially, scholars are invested in claiming that the idea of constituent power, as developed historically, reminds us of the forgotten but truly democratic meaning of popular sovereignty. Not only does it speak directly of the real and ultimate bearer of the political authority, the people, but it also attributes it a range of powers that vastly exceed what we normally associate to the idea of sovereignty. Constituent power is thus mobilised because of the insights it offers into the true and original meaning of popular sovereignty.

As Martin Loughlin maintains, the history of the idea of constituent power showcases the essence of “real or political sovereignty” (The idea of public law, 85). This interpretation of constituent power, I argue, is historically and conceptually false. A brief overview of the history of the idea will allow me to demonstrate that, since its introduction during the French Revolution, constituent power has never been used as a definition of popular sovereignty. By contrast, it has mostly been mobilised by thinkers who, for reasons I will explain in some detail, found the notion of sovereignty problematic, either theoretically or politically. They thus relied on constituent power to put forward a definition of the people’s political authority that departed from contemporary ideas of sovereignty.

This reveals a contradiction in the way in which contemporary scholars use the idea. Although they claim to have recovered constituent power’s truly democratic meaning by looking at the history of the idea, they completely misread the relation that connected it to the notion of sovereignty. This contradiction, I argue in the paper, not only reveals a historiographical problem but also, and more interestingly, raises questions about contemporary uses of the idea of constituent power in legal theory. Why do scholars vehemently claim to have recovered in the history of constituent power a truly democratic definition of sovereignty, if this is clearly not the case? In the paper, I propose to answer the question with three possible explanations that will, hopefully, help to shed light on some of the unspoken concerns of contemporary legal theory. 

Lucia Rubinelli is Fellow in Political Theory at the LSE. Before joining the School, she was a doctoral candidate at the University of Cambridge, Magdalene College, where she wrote a dissertation on the idea of constituent power as developed historically from the French Revolution up to contemporary political theory. She holds degrees from the LSE and the EHESS in Paris.