Realist theory and Constitutional Politics

Transcription

1 Realist theory and Constitutional Politics * This research conducted by the support of the European Commission under the Marie Skladowska Curie Individual Fellowship. It is part of a larger project, which reconsiders constitutional changes in the Middle East from the perspective of realist political theory. * This paper is presented in IPSA World Congress, July, Brisbane Acar Kutay, Associate Professor and Marie Skladowska Curie Individual Fellow Faculty of Law, University of Copenhagen Karen Blixens Plads 16, 2300 København S, Søndre Campus, Building: 6A-4-34 Acar.Kutay@jur.ku.dk Introduction Unedited early draft! Does realist theory have a concept of change? Realists value peace and order. But, would this imply status quo? Is realism able to reflect upon founding moments and constitutional changes? If it would do so, would this have an implication on the key concepts in realist theory including the autonomy of politics, power, and judgement (or decision)? In order to answer these questions, in this paper I propose a dialogue between realist theory and constitutional thought. Such dialogue integrates the notion of change into realism as a conceptual epicenter and, to this end, reconsiders theoretical issues that is either contested or tenuous in the present literature. They include the ontology of the political, the concept of power, and the relationship between fact and norm. The argument in this paper is that we must need to consider constitutional moments in political terms. Constitutional change and a constitutional moment pertain to the political in the sense that competing interests, projects, and ideologies find institutional and discursive channels with the purpose of articulating their political demands in such moments. This means that constitutionmaking and a constitutional moment are to be seen as a field shaped by the conflictual dimension of politics. Such focus also requires us to see constitutional proposals, amendments, and interpretations as key sites of the (re)constitution battle of the state. 1 For constitutions are not simply guidelines to settle legal disputes; they also (re)constitute the political entity. (e.g. realist also suggests that politics is about creating a legitimate political authority) The paper starts elucidating the need to consider a focus from stability and order to change. Next two sections further expand two theoretical issues necessary for developing this argument. The first one expounds the two major ontologies of the political (those of Arendt and Hobbes) and their 1 See: Mouffe for making of collective identity and a moment of enclosure of the multitude for the purpose of demarcating the boundaries between us and them. Mouffe (1993: Return of the political; 2005: On the political)] 1

2 implication on continuing debates about legitimacy, consent and coercion. The following one discusses contested notions of power and its connection to norms and facts. After this section, the debate turns to constituent power as realist theorizing may help reconsidering an immanent approach to constituent power. Building on this conceptual argumentation, the paper then discusses thinking about constitutional change, informed by two competing political ontologies and their possible relation to realist theorizing. The final section offers concluding remarks. Realism: from order to change Realism has developed a frontal critique of idealism and moralist accounts in political theorizing, and it is currently well-established in the field. It has also sparked new debates, pushing the methodological and thematic boundaries of political theory. The central tenets of realist theorizing, or its key desiderate to use Enzo Rossi s words, are now fairly familiar in the literature. Realism opposed liberal moralism in arguing that it determines norms and principles external to politics. Idealists, such as John Rawls 2 and Ronald Dworkin, claim that laws must follow some universal moral principles. In contrast, realism refutes the idealists claim that there can be uncontested ideals that can ground consensus and regulate politics in the real world. Realism suggests that a political and legal theory must consider power relations, as well as historical and sociological context. 3 These criticisms provide to be powerful. But, when it comes to the question of whether it is possible to consider norms solely emerged from the field politics, their point is either found less convincing or is often confused with non-ideal theory. Realism challenges liberal justification that requires justification of political authority to all individual members of the political community by rational argumentation. Sleat, for instance, suggests that Bernard Williams does not offer a satisfactory answer in his criticism concerning prerequisites of liberal legitimacy. For Sleat, Williams, like liberals whom he opposes, also proposes the endorsement of the political authority to citizens. Then, Basic Legitimation Demand (BLS) of Williams does not really hit the nail so as to raise a serious criticism. Hall responded to this criticism and argued that realist theory does not need to draw upon principles imported to politics from other fields such ethics (e.g. utilitarianism and Kantian moralism) and economy (e.g. neoclassical economics). 4 He argues that one needs to interpret the ideas of Williams in its whole in order to understand that what he meant by consensus cannot be thought of without the elements of contingency and legitimation of power. I think Hall s interpretation is correct, though I also think that the ideas of Williams would make sense when we critically engage with the writers and schools of thought that inspired Williams. In this paper, I will not do that but engage with other thinkers such as Ernesto Laclau and Chantal Mouffe who are inspired by the same sources including Machiavelli, Hobbes, Weber, and Nietzsche. My primary concern is suggest a shift in the outlook of realist theorizing from order to 2 Rawls, J. (1993). Political Liberalism. New York: Columbia University Press.. 3 Galston, W. (2010). Realism in Political Theory. European Journal of Political Theory, 9 (4); Williams, B. (2005). In the Beginning was the Deed. Cambridge: Cambridge UP. 4 Hall

3 change, To this end, I would argue that we might need to closely engage with constitutional thinkers and refine our key concepts in realist theorizing including the political and power. In so doing, I raise several questions. Realism brings back political agency and decision into political theorizing. Does this imply voluntarism, either of a kind of individualism or of institutionalism? Is there not a theoretical tension with voluntarism and a realist claim concerning the consideration of political action in the context? Would it not be more meaningful to think about agency as situated and thus align realist political theorizing with interpretive philosophy? My motivation to return to the square one so to speak is that that most realists presume a theory of the political, though they use concepts such as the autonomy of politics and the political freely without having to refine the philosophical implications those concepts may contain. The concept of the political and politics indeed have different meanings even within different realist theorists. Some realists feel a need to use both the concept of the political and politics, while others use either both concepts interchangeably or deny the necessity to have an additional concept of the political when politics suffices to deliver their theoretical premises. The generic vocabulary of politics involves concepts including peace and order, legitimacy, and power relations. Nonetheless, overarching concept of realism that separates it from other fields including non-ideal theory is conflict. This is an argument recently highlighted by Sleat, who argue that conflict is constitutive role in realist theorizing. 5 An argument I completely agree. Though we may still need to refine whether such conflict would be confined within the field of politics or whether could it be extended to the political. If one could do so, will we have a dual interpretation of conflict? Realists endorse a conflictual nature of politics as opposed to consent-centered moralist approaches. Is there a conceptual difference between daily conflicts (e.g. normal politics) and constitutional conflicts? If there is, how can we theoretically reflect upon such differentiation? (e.g. lawpreserving violence and law-making violence). For some realists (e.g. Mouffe), conflict is constitutive of the political. In other words, it has an ontological dimension. Is it possible to consider constitutional as a domain pertinent with the political? The point of realists is that there is no blueprint or a foundation to politics, as politics is built on contingent and conflictual social relations. That is, realist theories presuppose a social philosophy that refutes ahistorical universal normative statements that are grounded on a foundation. Realist theorists thus are not against universal claims such as respect to human rights and resistance to tyranny. But they highlight the social struggles over these values and suggest that there can be multiple ways of thinking about universality. Furthermore, realists argue that universal claims make sense in a particular historical context. After overviewing some of the key issues in the debate, now I come to the key argument that I would like to develop in this paper: namely, suggesting a change in realist theoretical outlook from order to change. Shared as a common denominator by most realist thinkers, as Williams argue, the 5 Sleat

4 first-virtue of politics is order and peace. 6 He acknowledges contingency of stability, meaning that each order is temporary. However, would not this imply status quo? How would realists approach to change? Change is inescapable; it often destructs order, but in some cases, this might be necessary. All in all, what is the concept of history in realist theory? More critically oriented realists approached these concerns from the viewpoint of Ideologiekritikk. 7 Whilst liberal realists spilled much ink about separating themselves from ideal and non-ideal theory, critical realists focused mostly on philosophical and theoretical tools that would best serve examining the ideological nature of liberalism. In common, they both presumed change. Liberals are aware that change is inescapable but intended to delay it in favor of stability; critical theorists demanded change, but have not dealt with relevant theoretical issues such as revolutions and constitutional transformations. Indeed, one may argue that focal point of Ideologiekritikk is change: namely, a change that strives to replace liberal ideology. Nonetheless, surprisingly, such desire to change has never taken a theoretical attention. One way to do is to do is looking at actual changes. Consider revolutions. But, how should we study revolutions, for instance in a realist framework? Revolutions, indeed, are a realist nightmare, namely they bring disorder and instability. Yet, they at the same bring great transformations and often create a legal and political order. In constitutional thought, for this reason, a founding moment is often closely tied to a revolution, as a revolution allows a legitimate break from the old constitutional order. To start with, the notion of change in realism is contingency. Realists though must take the notion of change more seriously. As already mentioned, Williams suggests that the first-virtue of politics is order and peace; it is a first-virtue because it needs to be maintained constantly. 8 Nonetheless, we can also read this statement from another way: contingency implies that change is inevitable, thus stability and order is an exception (e.g. in the philosophy of Hobbes, the order established under the state is an exception because the normalcy in the state of nature is chaos and disorder). 9 Thus argued, if everlasting order is not possible, each political system has a tendency for change, or even has an entropic tendency for disorder and chaos. But, realist theories avoided engaging with change in favour of stability and order. If realism is willing to be more critical and progressive, it must deal with the notion of change. The silence on change is not limited to realism. It is surprising political theorizing in general avoided the notion of change. This must be understandable for liberalism that intends to formulate universally valid statements. But, for realism it is not. It must see order and change as part of the same theoretical framework. Realist theorists so far have concentrated on order. But, is it always undesirable to prevent change in favor or restoring the present order? Who holds the legitimacy for claiming change? How can we understand that legitimacy of the current constitution is exhausted? 6 Williams Geuss 2008; Prinz and Rossi For a reflection of separation of liberal and critical realists see Owen 8 See Williams (2005); Hall; Geuss; for an agonistic perspective see Mouffe (1993; 2005) 9 MacCormick

5 Liberalism does not have a theory of transformation. It explains the institution of a political and legal order by means of a social contract in order to deduct reasons pertaining to moral justification of political rule and political obligation. 10 Thus, the foundation of political community follows hypothetical agreement on principles and norms that are set prior to politics. When it comes to change, we cannot find a systematic explanation in the social contract tradition, for instance. In Hobbes, a change within the established order under Leviathan implies moving back to the state of nature. Rousseau s understanding of change is not political either; it is a philosophical proposal concerning to dispel the repercussions of modernity and private property on the morals of the self in the sense that he would be able to detach from his self-interests thus discern his higher-self. Locke s philosophy is an exception though; as he argues individuals holds the right to disobey the unjust ruler who does not follow the requirements of the contract involving the ruler s responsibilities concerning the protection of life, liberty, and property. The understanding of change in Locke s view amounts to changing rulers, thus it is not about constituting a political and legal order. This negative view of change does not encompass a positive or productive vision. Grounded on natural law, the legal order of Locke excludes political decision in founding moments. Realists challenged contractualism in arguing that there is never a pre-political or final solution for political questions, and it is the task of politics to maintain order against the conflicting interests in society. 11 In contrast, realism encompasses a notion of change, namely contingency: and, it is political and productive thus key to the philosophical premises of realism. Nonetheless, realist thinkers surprisingly have not treated this aspect in a philosophically meaning manner. Contingency refutes ahistorical philosophical statements that claim to establish universally valid claims. It also refutes linear approaches to history including both its idealist and materialist variants. In this view, neither is historical change is the march of Reason towards perfection of the human mind, nor it encompasses a linear progress determined by the mode of production whose final destination is classless and stateless communist society. A major issue with linear history is that it presupposes that human societies ideationally and/or materially evolve towards perfection, a point of departure of which they will eventually achieve. Nonetheless, linear historical projection intends to exhaust the political with its eschatological understanding (Marxism) or the end of history thesis involves an imperialistic implication (liberal constitutionalism). 12 The proposal concerning the perfection of human condition exhausts the political because it intends to eliminate the conflict. It replaces the political with administration. 13 Conflict is constitutive of the political because of this reason, such that a vision to exhaust conflict at the same time eradicates the political For a philosophical anarchist interpretation of contract, see Simmons, who argues legitimate order requires actual consent. For a critical reflection on political obligation, see Carole Patemen. 11 Sleat James Tully Ernesto Laclau, for instance, refutes Marxism along these lines. But, he also refutes the immanent approaches to constituent power. (I think 2000 article). 14 This view is not only advocated by agonistic theorists including Schmitt, Mouffe, Laclau, Honig, and Connoly. Sleat (2016) also advocates a similar argument in arguing that this is key denominator of realist theory, when he restates the difference of realism from non-ideal theories. With this point 5

6 In the following I focus on two crucial theoretical issues key to integrate the change perspective. I will start with ontology of the political, and then continue with the notion of power. Ontology of the political In order to reflect upon the theoretical tension between stability and change, realists must also negotiate between two contrasting views concerning the ontological dimension of the political: Arendt s consent-oriented change, and Hobbes s conflict-driven change. Both are pertinent to realist theorizing as they run counter to liberal moralism. Mouffe separates politics from the political by loosely borrowing from Heidegger the distinction between the ontic and ontological. 15 To Mouffe, the ontic has to do with the manifold practices of conventional politics, while the ontological concern the very way which society is instituted. 16 To Mouffee politics is the set of practices and institutions through which an order is created, organizing human coexistence in the context of conflictuality provided by the political. 17 There are contesting views on the definition of the political in ontological sense, and these two approaches appear to dominate the debate. The first of these is Hannah Arendt s theory, which envisages the political as space of freedom and public deliberation. 18 The second view sees the political as a space of power, conflict, and antagonism. 19 The ideal new beginning in Arendt must create the conditions of the political, which she considers as the public spiritedness and collective public action. This view must be seen within Arendt s conception of human condition, categorized in three forms: vita laborans, vita contempletiva, and vita active. 20 In this light, Arendt recognizes the specific nature of founding moments. To Arendt, in those moments there is an opportunity for emancipation by virtue of reviving the public spirit. People leave behind their routines and the necessities of the daily life that is brought by the social and revolt. When people occupied the Tahrir, Maidan, and Taksim squares, many joined the masses right after their working time or some even took a time of from their work in order to take part in the revolutions. Many others also disrupted their lives by continuously following these events on the media. The point is any particular social gathering could easily turn into a space of political discussion. In this sense, Arendt is right to assert that one of the key aspects of revolutions is that a collective action reinforces publicness and thus revolutions are often disruptions of the necessities of the life. Arendt in this sense considers revolutions as political moments but Arendt s approach to the political contradicts with conflictual aspect of realism. Arendt sees the political a field of in mind, the argument that I expound here has relevance for realist theory in general, even though it is informed by an hegemony approach. 15 (Mouffe 2005) 16 (Mouffee 2005, p.8-9) 17 (Mouffee 2005, p.9) 18 (Mouffe 2005, p.9) 19 (Mouffee 2005, p. 9) 20 (Arendt 1958) 6

7 emancipation; Hobbesian realists argue that key element of the political is conflict. When masses come together in order to get rid of an authoritarian government (or of a general crime, as Laclau would define it such as oppressive capitalism), they wish to emancipate from that crime. But masses must soon establish a new regime. Constitutional moments (the moment of revolting and the moment of getting rid of an oppressive leader) immediately need to deal with a difficult task enacting a new constitution. Those who stood together in the square and marched together in the streets would most like to sit at the opposite sides of the negotiation table, if there is still a room for negotiation. 21 Pace Arendt s notion of the political, I follow the conflictual understanding of the political. However, this does not mean to imply refuting Arendt in a realist project of understanding founding moments. Many radical theorists resort to Arendt in finding norms and values for an agonistic democracy. 22 For the concern of the present paper, I have to underline that Arendt s description of revolutions, as a particular event that disrupts the routine of the daily life is an important point that needs to be carefully reworked. That is, constitutional politics is indeed more intricate and complex. Emancipation during and through participating mass protests may only have temporary ecstatic impact. Political actors strive to regulate conflicts and disagreements through law not during the revolt, but aftermath of the revolution. Once the moment of jubilant emotions are settled, if not oppressed, political actors holding conflicting interests still need to sit and talk together, Though, for doing this, they need to hold political projects worth negotiating, projects which would encompass ideas about constitutional ethos and nomos. A group, or a coalition, advocating such a project would either convince others (hegemony), or political actors would implant political projects and legal nomos that are devised elsewhere. The point is Arendt s view on the political is not a moral or classical liberal position but it is in rife with the key aspect of realism, for her political ontology and ideas concerning revolution are not grounded on conflict. In this light, can we separate a more general framework of conflict from the daily conflict? That is, if the conflict is constitutive of realist theorizing, do we need formulate a more theoretically informed concept? What is more, do not we have different levels of conflict? We may still be fine if we lose some conflicts, but we certainly would not be willing to lose or comprise much in particular kinds of conflicts? Ordinary politics and constitutional politics may be seen from this perspective. Constitutional politics pertains to founding principles and values of a political community, which most would not like to compromise (much) or lose ground. For constitutional principles are not easily reversible. Now let us discuss the second, Hobbesian, ontological position. The conflictual ontology of the political, as advanced by Hobbes, submits to an anthropological presupposition, that men have a structural tendency to do evil things. The anthropological and determinist connotations of this view are unsettling. But we can still use them by redefining from a more post-foundational perspective. 21 Consider for instance the case with the Muslim Brotherhood. The followers of Muslim Brotherhood joined many Egyptians in mass protests. But once the Muslim Brotherhood supporters were among the revolting political agency, they would soon be outlawed or de-legimated. 22 Kalyvas (2005); Honig 7

8 Even it is possible that conflictual social relations will lead to violence and antagonism, such view does not need to be grounded on an anthropological supposition. Inspired by Hobbes, Schmitt for instance presupposes that human beings are by nature dangerous. 23 This may be though read as another kind of foundationalism. We have sufficient historical evidence to validate the claim that violence and chaos is a present possibility. Thus, we may rely on this facticity from an empirical perspective, and this observation would suffice to consider the constitutive function of conflict as a political phenomenon. Nonetheless, it is still possible to back a conflictual ontology from an anti-foundational philosophical perspective. We have already mentioned above how this would be possible: conflict is constitutive of the political because eradication of conflict implies the culmination of the political. What is more, conflict does not work as a regulative structure, such that it determines either the intentions of agents (individuals, or groups) or the consequences of their actions. A structural and reductionist reading of the political would be an apolitical reading because such interpretation does not explain the process through which social relations turn into conflict and antagonism. In short, people are plural thus hold conflicting interests, but this does mean that they cannot prevent antagonism. What an ontological approach to conflict allows us to see that conflict may be thought of either in monist or dualist terms. The difference between agonistic and antagonistic approaches is a case in point. Agonistic views are defended by Honig and Connoly. 24 In common, they suggest an openended contestation in political debate in such a way that no position would be able to close the debate. An antagonistic position advocated by Ernesto Laclau 25 and Chantal Mouffe claim that agonistic contestation may anytime become antagonistic and some positions may be destructive. For this reason, they argue that every political order is hegemonic and this requires closure. By implication, hegemony necessitates exclusion of some positions. Following their argument, enactment of a constitution is indeed a temporary closure: on one hand, the positive law demarcates the boundaries of legally legitimate political action; on the other, the present constitution institutes a political unity through law 26, thereby projects a common sense or a hegemonic understanding about the constitutional ethos and nomos. So, if realists take the notion of change seriously, they need to separate the conflict in ordinary politics and conflict in founding moment neatly. Walter Benjamin s separation of law-making and law-preserving violence may be telling for this purpose. 27 To this end, we may need to negotiate the Hobbesian notion of conflict more seriously within realism. 23 Carl Schmitt, The Concept of the Political, p ). See also Strausss notes on the book,: p Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993); William Connoly: Pluralism (Durham: Duke University Press, 2005) 25 Ernesto Laclau, New Reflections on the Revolution of our Time, Verso: London (1990); Chantal Mouffe, The Return of the Political (1993); The Democratic Paradox (2000); and On the Political, Routledge (2005) 26 Loughlin, Read Thornhill (2006)- 8

9 Power, fact and norm The autonomy of politics is so dear to realists but (re)founding moments may require a particular theoretical or analytical care. As recurrently mentioned above, we may not need to separate ordinary politics from that of constitutional politics. 28 If constitutional politics has its own dynamics and can be separable from ordinary politics, then key desiderata of realist theorizing must be valid in both cases. We cannot think of founding movements without conflictual approach to politics, legitimation of political rule, and power relations. But can we expound founding moments by drawing upon the same conceptions of power, conflict, and political legitimations that are used to explain ordinary politics? Realist theories agree that fundamental values of politics are power and legitimacy, but there is no agreement about the definition of political power. Realist theorists are divided between liberal (e.g. which that are influenced by Bernard Williams) and critical approaches (e.g. which that are informed by Raymond Geuss). 29 Their disagreement concerns whether liberalism is worth defending (i.e. by reconsidering its premises along realist desiderata) or whether philosophy must go beyond liberalism. Critical views approach to liberalism as an ideology that masks inequalities in society. What is missing in this debate is that the notion of political power that informs different views is not made clear. Is political power merely to be limited to the political institutions? Or, can one consider a notion of political power that goes beyond the institutions, including the interests of different social groups and considering the implications of the political regime on structuring of power relations in society. These concerns are methodological in nature. If closely scrutinized, they can help answering some of the theoretical tensions within realist theories and between liberalism and realism. Conflict and power relations are constitutive of realist theorizing, as all realists agree. 30 In order to extend political power in the case of founding moments, we might need to reconsider its meaning and use in realist theorizing. In common, all realist theorists strive to bring political power back to political theory. Does this mean that all theorists refer to the same concept of power? In constitutionalism and political theory, political is associated with governance and coercive capabilities of the state. For this reason, the aim of liberal constitutionalism is to restrain power in order to protect fundamental rights of the individuals. While not denying that a political regime must protect fundamental rights, realists take a different starting point and highlight the key role of political leadership and political institutions in maintaining peace and order. Furthermore, they take power as productive and generative. Nonetheless, a peril of such focus is to reduce political power to institutional domain, as it avoids the ways in which political power is connected to social relations. A non-institutionalist understanding of power is found in neo-marxist theories inspired by Gramsci and in Michel 28 Ackerman, B. We the People: Foundation. Cambridge, Mass (1991). Bruce Ackerman defines founding moments as constitutional moments, or revolutionary politics. 29 I think David Owen. 30 See Sleat. 9

10 Foucault s writings. 31 The take away from them is that we must think political power beyond the institutions of the state. The legitimacy of the state is established in civil society (Gramsci) and within the network of social interactions, wherein subjectivities (read: the liberal citizen, the autonomous individual, the loyal nationalist, the worker, etc.) are created (Foucault). Thus, it is not sufficient for a political regime to maintain peace and order: it must also constantly regenerate its legitimacy in times of order. In short, a productive notion of power and the notion of hegemony may offer an answer to the unresolved debate in realist theorizing concerning a political notion of legitimacy. Integrating these aspects to realist theory may also contribute to the debate concerning the tension between consent and coercion. To start with hegemony, it was introduced by Gramsci to resolve some theoretical problems in Marxist economic determinism. In his work, the concept refers to intellectual and moral leadership of a political class and its interests, established through alliances and coalitions in civil society. 32 Realist theorists would find in his writings similar theoretical concerns such as the tension between consent-coercion and legitimacy. Put it a different way, it may be possible to have a realist reading of Gramsci, as Femia argues, he was influenced by Machiavelli as much as he was influenced by Marx. 33 Among others, Gramsci influenced agonistic approaches of Ernesto Laclau and Chantal Mouffe, which largely informed my ideas in this paper. Both in their common and independent publications, they reworked the concept of hegemony. 34 Their work is multi-layered, navigating through Marxist theory, post-structural discursive ontology, and democratic theory. Cross-disciplinary aspect of their theoretical construction is dense and often requires for the reader familiarity with the literature the authors use. Their vocabulary is also unfamiliar for analytical philosophy. Despite these challenges, their interpretation of hegemony can be useful for realist theorizing to explain the possibilities of legitimating a political order without having to rely on a liberal notion of universal consensus. In a very simplistic way, they expound hegemony from the vantage point of linguistic turn and constructive philosophy. So, if their work would inspire realist theory, it would principally be to reconsider the role and influence of political actors and institutions within the wider web of beliefs and meaning-making structures, thus within the discursive field of hegemonic articulation. A constructive philosophical approach to agency complements realism s focus on contextuality and contingency. Another appeal of hegemony concerns its treatment of the relationship between consent and coercion. Realists have not stepped back from their position on the conflictual nature of politics. Though they could not offer satisfactory answers to their critiques when it comes to explaining which norms would justify the creation and maintenance of a political order. At the same time, realists recognized the necessity of coercion. 31 See. Bobo Jessop, State Power, Polity (2007). 32 Antonio Gramsci, Prison Notebooks, Femia 34 Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy, Verso: 1985; Ernesto Laclau, New Reflections on the Revolution of Our Time, Verso: London, New York (1990); Ernesto Laclau, Identity and Hegemony in Contingency, Hegemony, Universality. Edited by Judith Butler, Ernesto Laclau, and Savoj Zizek; Chantal Mouffe, Democratoc Paradox. 10

11 Nevertheless, resolving such theoretical tension from a voluntarist/individual centered account seems not plausible without having to resort to norms and principles beyond the field of politics. 35 In my view, abandoning a voluntarist approach would resolve this tension. To this end, realists rightly persist on the claim that disagreements and conflicts cannot be eliminated once for all. But grasping the role of coercion must not require abandonment of consent. A non-voluntarist account of consent is found in hegemony. That is, only those conflictual positions that agree on a common political project that would bring them under a constitution are included in the political regime. Otherwise, following Mouffe, including all positions is not possible. Indeed, Williams has a similar conclusion about the exclusionary dimension of liberal constitution, albeit his apparent philosophical position. 36 Mouffee and Williams recognize that there must be at least a very notion of acquiesce to the constitution; otherwise, a constitutional settlement would collapse. Some authors interpreted this statement as a sign that realism eventually fails in its criticism concerning liberal consent. Nonetheless, such criticism can best be responded by taking realist theorizing as a whole, namely considering its methodological considerations. Williams and Mouffe may thus agree. Both suggest that justification of political authority is necessary, such that political actors that are willing to engage in politics must endorse the system. For Williams this system is liberalism; he deliberately defines liberalism vaguely as a system that recognizes and protects human rights. His Basic Legitimation Demand (BLD) requires liberalism because in the modern world political authority is justified on the grounds of legal-rationality. As Weber observed modernity thus differs from traditional and charismatic forms of legitimation. Williams insists that his notion of legitimacy differs from that of liberal moralist accounts for it takes the autonomy of politics as its starting point. Mouffe as well suggests that a minimum level of endorsement of the political authority and procedures is necessary. Mouffe challenges liberal moralism as well. She proposes an institutional structure that could accommodate divisions in society in such a way that conflicts would not become destructive, or in her own terms become antagonistic. In other words, the institutional structure must prevent divisions to take the form of friend/enemy relationship, and thus regulate caustic effects of antagonism by virtue of keeping social/political divisions at the level of adversarial confrontation. Mouffe defines this project as agonistic democracy The implication of the debate we have thus far elaborated in this section is that, constitutional proposals, amendments and interpretations of the constitutional court become key sites of the (re)constitution battle for competing political projects to establish hegemony in that they articulate key sites of tensions and conflicts during constitutional politics. Considering such hegemonic view to founding moments is necessary because it helps us to understand an important aspect of political legitimacy, the ways in which the comprehensive values and norms of political agents could mobilize groups and their identities in accord with an aim for a new beginning. In short, hegemony approach also contains a dual conflictual understanding, which allows it reflect on constitutional and political changes. 35 See, M. Sleat. 2010, Compare the response of Hall See Mouffem; and Sleat

12 Constituent Power: Between Fact and Relation At this point, we must refer to the concept of constituent power, which is widely discussed by constitutional and political theorists alike. How would realism reflect upon the concept that is by definition a vital threat to a constitutional order that is dear to realist theorists? The concept is a form of power beyond the established institutions. So the question is whether it is a concern for realist theorists because it amounts to a form of power beyond the present constitutional form. Furthermore, it is a potential threat to order because it implies that the people can anytime invoke their power in order to create a new constitutional order. 37 The concept of constituent power has come to play a prominent role in democratic politics. The concept pertains to institution of a political and legal order. Normativist legal thinkers approached the concept skeptically or refuted it, suggesting that it has no legal relevance. For them, legal scholarship must study an established legal order, but constituent power is metaphysical or political. Both natural law thinkers 38 and positivists alike 39 excluded the concept from legal scholarship. Recently, legal scholars reclaim the concept. 40 Political theorists dealt with constituent power more enthusiastically in order to search for a democratic potential of participatory democracy. 41 They often explained the potential of the constituent power with its immanent power to produce and create. Hardt and Negri took a more radical position in this debate, arguing that productive potential of the multitude must be unleashed and all that which emerges from this potential is required for a democratic struggle. Kalyvas adopted an eclectic position; he espoused the productive potential of constituent power, but debated such potential in terms of Arendt s philosophy. 42 Kalyvas also persisted on immanent character of constituent power. Criticisms concerning constituent power, apart from the obvious normativist position, addressed the pitfalls of featuring constituent power on the grounds of its immanent character and reducing the concept to body-politic. 43 For these criticisms, constituent power follows a political theology in the sense that replacing the king s body with that of the people. Following Lefort and Arendt, Arato suggested that such space must not be filled but remain empty. This would require searching for alternative theoretical models beyond sovereignty and populism. Loughlin s relational approach follows a similar reasoning to that of Arato. He follows Lefort as well, but Loughlin connects Lefort s empty space with that of Rousseau s notion of political right, which refers to founding a political unity through a legal order. For Loughlin, this resolves the theoretical problem inherent in Schmitt s notion of the pre-political conception of the people. Someone or a group often claims to define the boundaries of the people and to determine the ethos and telos for the political community. Arato and Ackerman would like to prevent this. Mouffe and 37 Andras Kalyvas Dyzenhaus 39 Kelsen 40 Loughlin 2014; Loughlin and Walker 2007; Colon.Rios 41 Kalyvas; Hardt and Negri 42 Kalyvas Laclau 2004; Arato

13 Laclau strategically invoke the people as a way of creating an alternative hegemony. They describe such strategy as populism, but underline that the people stands as an empty signifier in their theory. This means that people as a concept does not hold a substantive meaning such as a nation, an ethnic or a religious group. It has meaning only in the case of establishing a chain of equivalence among the groups that gather together in order to create a hegemonic bloc against an unjust regime. Thus none of the groups, such as the new social movements that became influential after 1960s, brands its dominance over others in their common struggle against a common crime (e.g. neoliberalism). This populist strategy has proved to work in countries like Greece and Spain for reclaiming political power. But, can it also work for constitutional politics? It may be an effective electoral strategy because populism in this case directs changing policies within the established constitutional framework. In founding moments and constitution-making processes though the empty signifier must dissolve itself and the members of the chain of equivalence must express their own selfinterest during lawmaking process. This moment closes the distance between Arato (and Loughlin) and Mouffe (and Laclau). Both underline pluralism and undesirability of considering the people in substantive and holistic terms. The difference is that Arato, following Arendt, takes pluralism as multiple voices that could learn how to live together harmoniously. This argument is a careful reconsideration of Ackerman s view that suggests the necessity of leaving behind self-interests during the constitution-making process in favor of common good. The agonistic argument of Mouffe though suggests that pluralism has a divisive nature; different positions are often conflictual and even such conflict turn into antagonism. But, this does not mean that divisive positions cannot live together. This is possible on the condition that groups recognize each other as an opponent. Furthermore, in search of a final agreement of on the common good for all individual members of the political community is a futile attempt because this would only be possible under a hegemonic articulation. Therefore, instead of avoiding hegemony, instituting democratic politics requires an alternative structuring of power relations. Ackerman and Arent s ideal revolution brought hegemony of propertied class. The French Revolution was successful because bourgeoisie presented its interests as common interests of all through political rights and national citizenship (see Gramsci; Laclau). Thus, Laclau suggests that an institution of new legal/political order requires a hegemonic articulation of a group that transcendences its particular interests thus acts as a group for itself to introduce a new order (e.g. similar that of a proletarian revolution), thereby going beyond acting as a group in itself in simply negating an unjust regime without an alternative strategy. For Laclau, a political action must involve such moment of transcendence. Invoking the constituent power of the people in such way for the purposes of progressive politics and under the condition of hegemony must not be confused with an attempt to regenerate the people along the lines of ethnicity and religion. Laclau and Mouffe strongly refutes this and their hegemonic struggle is indeed regulated by the procedures of agonistic democracy. That hegemonic articulation cannot eliminate liberties or be used to create a tyranny, and a group would eventually seek legitimation of its political authority. With this debate in mind, in my view, realists must challenge equally immanent power as they challenge transcendental moralism. Realists discard moralism as intends to guide, explain and understand politics external to the political. Theorizing about the symbolic power of the constituent power (referring either to the people or to the multitude) to produce political entities and fundamental laws do not tell much about how those entities and laws came in the first place. 13

14 Therefore, one needs two separate theorizing: one that brings the fore the productivity of the constituent power (i.e. the power to make laws resides in the multitude), and one that takes on the contingent aspect of a process through which a constitution is being written, consolidated, amended or challenged. In other words, a positive power to found a political community resides in a collective entity that is yet-to-exist. The people as a concept thus is regenerated from within the empirical multitude. For Laclau, such act of regeneration is a hegemonic political act; for Loughlin a representative relationship. A Realist Notion of Change This section looks into the possibilities of discussing constitutional change considering conflictual political ontology. It follows Hobbes s conflictual approach and focuses on decision and hegemony because such approach involves a dual understanding of conflict. In this view, conflict and power relations are elaborated to depict a categorically chaotic and pessimistic picture about politics. It does not imply might makes right or a macho understanding, either. Most post-structural theorists shy away from any normative commitment in founding moments in arguing that there is violence behind each founding. 44 Thus, it is not much important how a legal order is instituted. When it comes to realism, it has been thus far silent about founding moments. Realism does not directly address the issue of founding moment of a political community or a constitutional order. The understanding of historical change in realist theory is contingency. It is true that contingency presupposes change. But the concept has limited capacity to expound how realists deal with constitutional politics and constitutional change. Engaging with the dualistic notion of politics (normal politics and constitutional politics) 45 is thus a critical test for realism. Realists are said to advocate status quo by advancing order and peace as their first-order principle. How would then realists approach to change, or constitutional change? Founding moments trigger or unleash the potential of the political. To recap, for Arendt, the political is a space of liberty and emancipation and implies collective action and public participation that recognizes the plurality of human beings. In Arendt, founding moments promise a new beginning. For Mouffe, the political is a space of conflict and pertains to an ineradicable nature of antagonism in human relations, and it determines the friend/enemy relation. Mouffe argues that such view runs counter the liberal theory s expectation of harmonious co-existence of differences. For her, the political requires exclusion and enclosure. The ever present possibility of antagonism is connected to hegemony and thus the absence of final foundation and undecidability. Mouffe argues that Arendt s interpretation of the political does not capture either the antagonistic dimension of the political or hegemonic character of every order. 44 Bonnie Honig; Wydra; see also the difference between law-making and law-preserving violence in Walter Benjamin. 45 Ackerman, B. We the People: Foundation. Cambridge, Mass (

15 The objective of Mouffe is to institutionalize this hegemonic struggle and contestation. For Mouffe, hegemony is the inescapable because contingent nature of social relations requires a political decision. Nonetheless, agonistic theory of Mouffe as well requires a constitutional restraint. Mouffe agrees that there must be a certain level of consensus to political authority as well as to constitutional order, which in her theory aims at structuring conflicts in adversarial terms. Such order excludes groups that refuse playing the game according to these rules in the sense that groups that deny the legitimacy of other groups and that do not recognize others as opponents are excluded from constitutional order. Mouffe argues that citizenship requires exclusion, as a democratic polity must enclose its boundaries in order to provide substantive equality to its members. This implies that boundary problem is part of the political and hegemonic struggle at once. This has a political dimension because citizenship requires, for Mouffe, differentiating from others. Mouffe suggests that there are various ways of doing this. Mouffe s agonistic theory refers to institutional and constitutional way of establishing political unity and in this sense there is a certain level of convergence with Habermas s constitutional patriotism, despite the apparent methodological differences between two thinkers. (i.e. difference between deliberative and agonistic theory). The hegemony view allows approaching power relations in a dualistic manner. A dualist approach to conflict and power relations find resonance in other thinkers as well. Foucault is monist when it comes to power because for him power is immanent and ubiquitous. Nonetheless, Eagleton suggests that certain issues have far-reaching consequences and thus be dealt with in a different way than power relations we encounter in our daily relations. 46 Following hegemony view, I argue that if social divisions and identity positions in society are constantly rearticulated, and sometimes in antagonistic terms, a constitutional change, too, can be studied as another, maybe the ultimate, battleground for competing hegemonic projects in shaping the identity and future of a political community. 47 For constitutions do not merely involve the foundational legal norms and values of the polity in question; they also (re)constitute the political entity. 48 The founding moment is thus necessarily a political moment. In a political conception of the founding moment, political projects conceive, or create, a constitutional moment to implement their own goals and struggle against old power structures. Theories concerning political and legal change needs to espouse the conflictual nature of politics and the ever possibility of antagonism. Plural political interests in society may be directed into bargain, compromise, and negotiation for enacting a new constitution. But this process can always lead to the clash of different forces (old and new), locked in a constitutional battle, which has as its object both identification with the constituent power of the people and the forms of the constituted powers (political regime): in other words, the 46 Terry Eagleton, Ideology; See also Warren 47 Laclau, Ernesto, and Chantal Mouffe. Hegemony and socialist strategy: Towards a radical democratic politics. New York:Verso, (1985). 48 Castiglione, Dario. "The political theory of the constitution." Political Studies 44, no. 3 (1996):