A Political Reading of the Constitution

American Literary History, 2023

Houppermans, Sjef / Sneller, Rico / Zilfhout, Peter van (Hrsg.): Enduring Resistance: Cultural Theory after Derrida (La Résistance persévère: la théorie de la culture (d’) après Derrida), Amsterdam / New York 2010: Rodopi, S. 139-166, 2010

Today constitutions are a self-evident matter of course. Hardly any state can be found forgoing a "written" or "unwritten" constitution. As set of legal rules constitutions determine those institutions and procedures which enable the preparation and implementation of binding decisions in a political community. As memory of societal beliefs of order they make preliminary decisions which -seemingly being unequivocal -not only precede the political process and make it possible at all, but also restrictively react upon it. Similar to Odysseus who decided to tie himself up to the mast of his ship before passing the island of the luring Sirens, a political community has to bind itself in a "lucid interval" by the means of a constitution in order not to give in to the temptations of a "suicidal behavior" when "falling into a rage" (Vorländer 2004a, 13; 2006c, 247). This essential role of constitutions in modern political communities can be comprehended as gradual triumph of a "constitutionalist" model of order -a triumph which may derive its origin from the social contract theories of early modern times and which latest impetus came about after 1989 with a "constitutionalization" of Eastern Europe (Vorländer/Hermann/Schaal 2004). Consequently, the constitution is central for modern political orders and appears to performs the same crucial task which in former times has been fulfilled by other order-generating agencies. 1 Without a constitution, it seems, the stability and the validity of a state's legal order cannot be guaranteed.

The modern constitution is predominantly understood as a way of instituting and limiting power, and is expected to contribute to (societal) stability, certainty, and order. Constitutions are hence of clear sociological interest, but until recently they have received little sociological attention. I argue that this is unfortunate, as a sociological approach has much to offer in terms of a complex and historically sensitive understanding of constitutions and constitutionalism. Constitutional sociology has particular relevance in contemporary times, in which the meaning of constitutions and constitutionalism is uncertain, and subject to contestation, and possible transformation. The constitutional sociology developed here is phenomenologically inspired and stresses the importance of understandings of the modern constitution as ‘embedded’ in constitutional imaginaries. Rather than as a visible and rationally designed construct, constitutional sociology understands constitutionalism as ultimately a ‘field of knowledge’. The suggestion is that this field of knowledge or ‘modern constitutional horizon’ is characterized by a tension between two ultimate markers, in terms of what Castoriadis has identified as the social imaginary significations of mastery and autonomy. Mastery and autonomy form prominent constitutional orientations, historically taking the form of solidified, instituted meanings, identified here as the modernist and the democratic imaginaries. In the last section, the two instituted constitutional imaginaries will be ‘unpacked’ in specific components (state sovereignty, absoluteness, fabrication, endurance, and distrust regarding the modernist imaginary; indeterminacy, creativity, dynamism, self-government and popular sovereignty regarding the democratic one). In conclusion, I suggest that constitutional sociology might significantly help elucidating the potential losses and heteronomous tendencies that may result from the contemporary uncertainty and possible metamorphosis that affects the modern constitution.

Political Studies, 1996

The Political Theorj of the Constitution a r t i~l e ' .~ Paine's distinctionwhose meaning is obvious within the context of his polemic against immemorial constitutionsgives rise to two possible misconceptions. By assuming an essentialist definition of the constitutionthe 'thing' in the form either of a material document or of the more abstract rules/ form of the stateone risks preempting philosophical discu~sion.~ By taking a semantic approachtreating the 'constitution' and the correlated semantemes in the main European languages merely as lexicographic objectsone may fail to engage in the philosophical argument altogether. The approach here adopted instead views the constitution as a complex political conceptthe product of stratified socio-historical conceplionswhich I shall discuss analytically, rather than by a reconstruction of the historical development of the conceptions themselves. According to a standard definition. the constitution is both the act and/or the norms that constitute a political body, and the structure and/or characteristics that define a constituted political body. This set of meanings suggests that the idea of a constitution. as the fundamental 'rule' of the state, involves both constitutive and regulative functions.s Each function is also open to a variety of constructions, depending respectively on whether a constitution is meant as the basic norm or the basic order of a society. Although these two dichotomiesof normative and descriptive meanings on the one hand, and constitutive and regulative functions on the otherremain the fundamental distinctions according to which ideas of the constitution can be classified, I believe they both need supplementing. The Meanings o j the Constitution General classifications of the meanings of the constitution have no more than a heuristic value,6 so the classification proposed here is intended only to elicit the political ideas which each meaning expresses. From this perspective, we can distinguish between four general meanings of the constitution, referred to here as the positive, the absolute (either in the normative, the positivist, the voluntarist, or the organic sense), the functional and the instrumental. I take the interpretations of the constitution underlying these meanings to be clearly distinct and, so to speak, autonomous. The positive meaning of the constitution is the most obvious one, but no less controversial for that. Paine's reference to the constitution as a 'thing... in fact' ' T. Paine (B. Kuklick, ed.). Political Writing3 (Cambridge. Cambridge University Press, 1989), ' Cf. K. Loewenstein. 'Reflections on the value of constitutions in our revolutionary age' in A. J. Zucher (ed.), Constitutions and Consiitrrtiortal Trrnds since World War I I

2015

Extended abstract: What is controversial about the preamble to the new Tunisian constitution is that while it acquires its binding legal force-as a justiciable document and a substantive source of rights-from a peritextual provision, i.e. Article 145 which stipulates that "the constitution's preamble is deemed an integral part of the constitution", it conflicts however with a textual content which strips the preamble of any legal force on account of its vulnerable anchorage in ideology and consensual politics. Clearly, such a dubious status would affect the functionality of the preamble and lower its status to that of a ceremonial-symbolic 2 document, neither relevant nor irrelevant. Using a corpus-based text-linguistic approach, the paper explores the legal status and the social functions of the preamble to the constitution drafted by the first post-revolutionary National Constituent Assembly (NCA) and adopted on 27 January 2014. Section one defines the study's epistemic context in the light of Bahatia's genre analysis as "a recognizable communicative event characterized by a set of purpose(s) identified and mutually understood by the members of the professional academic community in which it regularly occurs" 3 (1993:13). In this respect, the preamble under scrutiny has developed its legal identity not only from its operative language, or from its linear three-move structure – enactment, justification and establishing of rules – but also from the fact that the sender is a binding original authority. The relationship between senders, both direct (NCA) and indirect (the Draft Committee), and receivers-direct (the executive authority) and indirect (citizens, judges, lawyers, the Constitutional Court…)-is governed by the power acquired by the senders to take decisions on behalf of the receivers. Methodologically, this means that we should distinguish between the document's legal and discursive contexts. Given that the approach's emphasis is on the preamble as text-linguistic options and discourse rooted in its macro context of production, our concern with its legal status is restricted to the document's legal functionality as defined in the peritextual above-cited Article 145 of the constitution.

2011

Nowadays, in the West, especially on the European Continent, the legitimacy of the modern state is once again subject to multifarious challenges. Against this background, the article revives one of the most important, though often overlooked themes of the constitutional theory, the relevance of the concept of progressive history for the legitimacy of the constitutional state. It is suggested, that the reappearance of the progressive history brings the supposedly forgotten themes of the objectivist metaphysics, back into the constitutional theory. The conclusion points that, only the accounts of a legal constitution, which reject the connection with progressive history, have the potential to deal with the problematic consequences that the reemergence of the metaphysically charged concept of progressive history may entail, given the contemporary socio-political conditions, characterized by the value and ideological pluralism.

Studia Politologiczne, 2021

The authors substantiate that the mentioned significance of the Constitution makes it clear that constitutional policy in any state should be established and implemented in a manner, obviously demonstrating an attitude towards the Constitution, in the frames of which it is considered as a symbol of a concrete constitutional system. The most important circumstance in this context is to never transform the Constitution (directly or indirectly) from a symbol to an instrument in the hands of both the people and the state power and the whole constitutional policy of the state should be based on the discussed essential idea. Moreover, according to the authors the Constitution should not be subject to amendment parallel to every change of political situation of the state or formation of a new political majority merely conditioned by the mentioned changes. The Constitution has a fundamental role from the aspect of regulating social relations, has symbolic significance and can't be used just as a tool for solving ongoing political problems.

Logos i Ethos

Roman Ingarden the early phenomenologist is regarded as a theorist in the area of aesthetics and ontology rather than being a political philosopher. The aim of the article is to reconstruct a non-existent philosophy of the state, one that could have been developed by Ingarden by taking as a starting point his ontological analysis of the structure of a literary work of art. In his book of 1931 Ingarden defined very broadly the literary work of art, including as its borderline cases among others scientific works, letters, memoirs etc. The thesis of the article is that state constitution may be also interpreted as a borderline case of that work. In reference to Ingarden’s analysis of stage play as the concretisation of a piece of drama, an attempt will be made to reconstruct in terms of his ontology the relation between the state constitution and the state itself.

Problema. Anuario de Filosofía y Teoría del Derecho

En este artículo argumento que algunas partes de los textos constitucionales pueden ser plausiblemente pensadas como textos con un significado que cambie y evoluciona por sí solo. Esta idea es ampliamente rechazada, especialmente, pero no sólo por un grupo de filósofos quienes comparten la teoría de la interpretación constitucional llamada originalismo. En un artículo reciente, el originalista Lawrence Solum ha defendido la llamada "la tesis de la fijación", de acuerdo con la cual el significado del texto constitucional es fijado cuando es promulgado, sin cambios posteriores. Solum rechaza la idea de que el significado del texto constitucional pueda evolucionar, porque no puede identificar una forma plausible en que cualquier texto pueda tener un significado evolucionante. Sostengo que sí existen tales textos, y ofrezco cuentos populares como un ejemplo. Después presento razones del porqué las Constituciones pueden ser consideradas como textos, que similares a los cuentos populares, son textos que cambian sus significados de manera independiente.