Constitutional spaces

Constitutions have a multifaceted relationship with spatiality. In addition to an overabundant use of spatial metaphors (e.g. ‘constitutional architecture’ or ‘constitutional design’ as depicting horizontal and vertical power relations), I can imagine at least three perspectives worth investigating.

Territorial space. Constitutional theory will normally adopt its spatial starting points with reference to the territoriality of the state (Minkkinen 2016). It will first identify a state from surrounding spaces as a territory and then more or less equate the constitution with the state so understood as the traditions of legal positivism will require. Different transnational arrangements including the European Union have, of course, set the premises of this initial positivist starting point into play. But this is, I would argue, still what we find in most accounts: a constitution represents the foundation of a legal system that is identifiable with a territorially delimited state.

Schematic space. Another spatial starting-point may include the analysis of the ‘body politic’, state branches and organs, and public administrative units as a schematic where, to simplify things for the sake of illustration, these branches and units are layered hierarchically together with the norms of competence regulating their interrelations in a way that resembles the Kelsenian Stufenbau: the legislature/elected branches at the summit, the judiciary and state bureaucracy somewhere in between, local entities such as councils and municipalities at the bottom. This type of hierarchical schematic, representing an organizational diagram, but perhaps most memorably illustrated in Abraham Bosse’s frontispiece for Hobbes’s Leviathan, is, in Michel Foucault’s terms, also the kind of sovereignty-based juridical representation that we must break away from by ‘beheading the king’ if we wish to understand how power operates in contemporary societies (e.g. Foucault 1990: 90). This ‘beheading’ applies to vertically schematized constitutions, as well.

Modal space. Finally, recognizing the limitations of traditional territorial and schematic approaches, the spatiality of constitutions can be analyzed as a multidimensional set of modalities that are all present at once. In a forthcoming paper that I’ll be working on for ICON-S 2018, I’ll try to draw on Henri Lefebvre’s well-known ‘conceptual triad’ of space (Lefebvre 1991: 33, 38-39) to account for the different ways in which constitutional spaces interact both with one another and with political life. Lefebvre’s triad has three dimensions: a mental one, a physical one, and a social one (presented here in an order slightly different to Lefebvre’s).

  1. Representations of space, or ‘conceived’ space, refers to how space is mentally constructed with the help of codifications and symbols and with the knowledge (savoir) that reinforces these. In terms of constitutional theory, this dimension would contain, among other things, constitutional norms and established constitutional practices as well as standard accounts of ‘constitutionalism’ the aim of which is to bring further cohesion to the whole. These are the charts and buoys that direct and regulate the flow of political life within a constitutional framework.
  2. Spatial practices, or ‘perceived’ space, refers to the aesthetically sensible and physically identifiable space in which political life takes place. Physical space may refer to any ‘palaces of justice’ or ‘corridors of power’, usually already mentally constructed in the above-mentioned codifications and symbols, that, e.g., funnel political challenges to the existing order into innocuous routines. In the triad as applied to constitutional theory, representations of space and spatial practices together provide the constrictive framework of capitalism that funnels political interventions into the stream of everyday government.
  3. Spaces of representation, or ‘lived’ space, represents, finally, the social aspect of space in which the constrictive framework, first both mentally conceived and physically perceived, is now lived as experience. It is, however, also modified over time as it is invested with new meanings and symbolism (connaissance) that those who ‘live’ that space carry with them as social and political actors. So ‘lived’ space accounts for the factual dynamism in a seemingly mechanical constitutional framework, and it is the locus where, for Lefebvre, ‘ephemeral’ democratic politics can take place.

There is still a lot to unpack here, and even more so because I wish to look into how Lefebvre’s triadic account of space might possibly resonate with Rancière’s notion of aesthetics (Rancière 2004). I’m still not even sure how the triad would be able to explain phenomena like constitutions that do not have a self-evident physical dimension, so there is a danger of reducing everything to the metaphorical level of ‘constitutional architecture’ and the like. Moreover, distinguished interpreters of Lefebvre like Stuart Elden (Elden 2004) would regard such a use of the triad as resolutely non-Lefebvrian because it omits his Marxist understanding of history in the overall analysis. So, for Elden, Lefebvre as both space and history will have to be taken on board kit and caboodle or not at all.

Two counterarguments.

First, as even Elden will readily admit, it is extremely difficult to boil Lefebvre down to any unitary interpretation. His texts are extremely rich, cryptic and even contradictory. Even if one remains true to his Marxist undertow, they will still allow for numerous avenues of exploration. Second, the type of interpretation that Elden advocates bears with it the danger of shifting emphasis from an object of study – like constitutional phenomena – to the theorist framing the analysis. So in this case, instead of shedding light on constitutional phenomena and their study, the analysis will become an exposition of – and a justification for – Lefebvre’s work. I feel that any such ‘dogmatism’ would even go against the explicit political underpinnings of the triad. It is a mirror image of the way in which the analytical value of the work of Carl Schmitt the theorist is annulled with reference to the political escapades of Carl Schmitt the individual, a debate that even Elden himself has participated in (Elden 2010).

So without wanting to deny the possible merits of a more comprehensive ‘spatio-historical’ study, in this case the conceptual triad functions more like Weberian ideal types or heuristic tools with which one can illustrate the complexities of the spatial dimensions of constitutional phenomena.

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PS. Just as I’m finishing these words, I hear that Kaius Tuori has received his second consecutive ERC grant (now Consolidator) for a project called ‘Law, Governance, and Space (SpaceLaw)’. Sounds familiar. I mean not only the spatial bit. Didn’t he once apply for a job at the Faculty of Law?

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Elden, Stuart (2004) Understanding Henri Lefebvre. Theory and the Possible. London: Continuum.

Elden, Stuart (2010) ‘Reading Schmitt Geopolitically: Nomos, Territory and Großraum’, Radical Philosophy, No. 161: 18-26.

Foucault, Michel (1990) The History of Sexuality. Volume I: An Introduction [1976]. Trans. Robert Hurley. New York, NY: Vintage Books.

Lefebvre, Henri (1991) The Production of Space [1974]. Trans. Donald Nicholson-Smith. Oxford: Basil Blackwell.

Minkkinen, Panu (2016) ‘The Container and the Septic Tank: Statism, Life, and the Geopolitics of Territoriality’, p. 389-409, in Jarna Petman (ed.), Finnish Yearbook of International Law. Vol. 23, 2012-2013. Oxford: Hart.

Rancière, Jacques (2004) The Politics of Aesthetics. The Distribution of the Sensible. Trans. Gabriel Rockhill. London: Continuum.