The power of a ‘relatively activist’ judiciary

In my inaugural lecture from May 2017 (introduced in Finnish here), I tried to argue for a slightly modified notion of judicial power. Section 99 of the Constitution of Finland (731/1999) seems to understand a ‘separated’ judicial power as not much more than the courts’ exclusive duty and right to ‘administer justice’, that is, to apply the law in individual cases. This deceptively clear-cut definition was recently reduplicated in Article 3 of the Courts Act (673/2016) which, in turn, makes a direct reference to the powers of the judiciary as they are defined in the Constitution. There is little about the courts’ role in the general control of the constitutionality of the activities of the political branches, although Section 106 of the Constitution did specifically create a new duty for the courts to abstain from applying primary legislation that is ‘in evident conflict’ with the constitution. The Finnish tradition of constitutional review has traditionally emphasised the role of parliamentary preview preferring a more restraint understanding of judicial power.

In my inaugural lecture, I wanted to suggest that such a simplified notion of a ‘deferential’ judiciary may be making way for a more proactively tuned idea of what judicial power is and could be. A few general observations supported my claim. First, ever new areas of social life had been brought under state or transnational regulation. This, in turn, meant that the duties of the courts to adjudicate had consequently expanded, as well. So, for example, the state had through regulation taken on new obligations to provide for welfare services that, if left undelivered, would enable claims from dissatisfied ‘clients’. Second, the primacy of EU legislation had, to quote my predecessor Kaarlo Tuori, given new prominence to a requirement of ‘normative coherence’ in the adjudication of national courts in addition and alongside the more traditional notion of ‘logical consistency’ (see Tuori 2011: 145-172). So, for example, the authority of ECtHR jurisprudence certainly gave national adjudication a certain principle-based tint that prioritised interpretations that were unambiguously compatible with constitutionally embedded human rights.

The University media services wrote a short interview piece that was meant to function as an introduction to my lecture. Perhaps unaware of the rather obvious reference to popular culture, they decided to give the interview the title: ‘The judiciary says “no”!’ Implying that the courts that had traditionally taken a democratic backseat and been content to merely apply laws passed by the legislature may on occasion feel reluctant to do so in the future. To me, it was a question about how poorly developed the Finnish notion of a separation of powers was, especially in light of the parliamentaristic emphases of the 1999 Constitution, and how, as a consequence, the potential complexities of judicial power had never really been investigated. The constitutional definition of judicial power seemed almost like a tautology. Neither the inaugural lecture nor the interview attracted much attention, and the same can be said about the two academic articles that I had written on the subject in Finnish (Minkkinen 2015; Minkkinen 2016). The whole idea of ‘judicial activism’ in any shape or form was apparently just too far-fetched.

Constitutional traditions vary. And even if similarities can be detected here and there, there are good reasons to steer clear from the universalising excesses of mainstream constitutional theory. But we should be allowed to extract general arguments from some specific court cases even if they originate from jurisdictions other than our own.

Photo: Neil Hall/EPA-EFE/Shutterstock
Anti-Brexit campaigner Gina Miller (C) speaks to media as she leaves the Supreme Court after the ruling on 24 September 2019.

R (Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland ([2019] UKSC 41) is such a case. It is, of course, a landmark case for several UK-specific reasons. But here I am more interested in its general implications that concern the role of the judiciary in neoliberal democracies. Already at the Supreme Court hearings, legal representatives for the Government had argued that proroguing Parliament was a controversy for politicians to settle, and that judges should think twice before ‘entering the political arena’. Following the ruling, disappointed Brexit-supporting commentators further rhetorically suggested that UK constitutional culture had entered a new era, and that the role of the judiciary should, perhaps, be re-modelled more on the American ideal with Supreme Court justices appointed by the executive after political hearings.

Much of this is, of course, merely a rehashing of age-old ‘law/politics’ controversies. But in trying to outline this new idea of judicial power that I had in mind, I wanted to address the controversies in a few interrelated ways.

The first is what one could, perhaps, call the ‘epistemic fallacy’. An argument persuading the judiciary to refrain from entering the realm of politics assumes that what is political can be convincingly distinguished from what is properly legal. In the light of, for example, the Finnish constitutional norms in question – and any subsequent legislation that refers back to the constitution – no such criterion of distinction has been provided. Hence we cannot ‘know’ what is law and what is politics. In fact, the definitional tautology of judicial power seems to work the other way around: whatever the courts take on as the ‘administering of justice’ falls under the constitutional category of judicial power. A disagreement in substance with other branches of government (like the one in the UK Supreme Court case) does not alter that. If the court itself decides that something is justiciable, then it by definition belongs to the realm of the law and judicial power. In the German context, one could, perhaps, run such a dispute between constitutional branches as an Organstreit case in the Federal Constitutional Court, but in this case no such mechanism exists.

A second point referred to the ‘relative’ nature of judicial power. As one third of the trias politica, the judiciary uses a power that is supposedly ‘separated’ from the powers used by the two other ‘persons’ of the trinity. The separation of powers doctrine that we claim to extract from the writings of a Locke or a Montesquieu is premised on the idea that concentrating too much power into the hands of a single branch will potentially lead to authoritarian tendencies. Hence ‘checks and balances’ (even though the reality of everyday government may look more like powers ‘shared’ than ‘separated’). Over the last few decades, and in most neoliberal European democracies, we have, however, witnessed the gradual concentration of power in the executive branch leaving the legislative branch, the supposed primus motor of democratic governance, more into the sidelines. There may be several reasons for this development. In some cases, it may have had to do with the terrorist attacks of 2001 promoting security into an overriding constitutional principle, while in others, it may have simply been a reflection of traditional tripartite designs gradually morphing into efficiency-oriented and ‘managerialist’ Westminster models where the executive acts like a parliamentary CEO pushing for a particular legislative agenda.

Whatever the reasons, this shift strengthening the power of the executive at the expense of the legislature has also had an effect on the ‘balance’ that a separation of powers implies. One could, perhaps, argue that the shift has created a deficit or a democratic vacuum that the judiciary has been in a position to fill. In other words, we are not really witnessing a rise in judicial activism per se, or at least not in activism that would be motivated by the political ambitions of the judicial actors themselves. The overall changes have more to do with the relative power of the judiciary increasing as it takes on duties relating to democratic scrutiny that a now weakened legislature was previously primarily responsible for. So, for example, the factual inability of the legislature to authoritatively assess the legitimacy of the executive’s political agenda opens possibilities for the judiciary to strengthen its own democratic role.

My third point wanted to find a plausible theoretical explanation for these changes, in so far as they had actually taken place. Research requires recorded data, and my argument would have made more sense if I could have presented more cases like Miller 2 to support my hypothesis. Because if we simply look at available and published court cases, we would not be able to detect many instances of open disagreement between the judiciary and the political branches. For the most part, the judiciary does seem to play along in a well-mannered way. But judicial power seldom manifests itself as open confrontation. Instead, courts exercise a more subtle authority, and one important manifestation of that authority is the judiciary’s ability to temper government without actually having to intervene. So instead of actual confrontations, we have potential ones. The potentiality of the judiciary confronting the executive produces a fragile equilibrium of sorts that one could, following deterrence theory, call a ‘balance of fear’: the executive refrains from excesses because it is reluctant to deal with the reaction of the courts.

The final point in this chain of arguments was a related development. I wanted to look at some of the ways in which a modern judiciary had taken on a more proactive role in democracy, something that it had, perhaps, previously shunned away from. So how does a judiciary, then, exercise its ‘enhanced’ socio-political authority if the definition of judicial power had nevertheless remained unchanged?

One response was the media which has – and with good reason – also been called the ‘fourth branch of government’. One task of the ‘fourth branch’ is to contribute to democratic scrutiny within the same ‘checks and balances’. A democratic media would, then, also oversee the activities of the judiciary in ways that would secure the legitimacy of the courts’ activities. The media oversight of judicial activities can be illustrated with two metaphors. As a gatekeeper, the media decides what judicial information is circulated in the public domain, and it chooses the broader narrative frameworks around which this information is structured. The media will by and large decide which legal issues are socially and politically relevant and which are not. An example of the media gatekeeper’s influence would be the disproportionate prominence of criminal cases in mass media reporting. On the other hand, the media also operates as a watchdog that safeguards the integrity of government even in relation to the judiciary.

But the judiciary will also itself want to participate in increasing the transparency of its own decision-making. In this case, ‘media’ is understood literally as a set of tools and artefacts that the judiciary itself uses to ‘mediate’ a chosen message. To an ever larger extent, the judiciary is a media actor in its own right that attempts to control the flow of information and, consequently, also its own relationship with society. As media actors, the courts will have their own information strategies in which the outlets and principles of media output are defined, as well as designated media officers to execute these strategies. The resulting transparency will, no doubt, also contribute towards the public’s perception of enhanced democratic values, but the central motive for the judiciary to handle its own media is, nonetheless, its wish to influence information that may be misrepresented by a gatekeeper-media or to manage its own public image in relation to the watchdog-media. These are important ways in which the judiciary exercises its authority and, if my hypothesis was correct, elements in a more developed notion of judicial power.

To this extent, we have started to put together a corpus of norms, recommendations and guidelines on judicial media activities that have been issued either internally by the judiciary itself or externally by ministries or other government bodies. Our aim is to complete a comparative survey of such material before defining the more detailed research questions of a project. If you are a media officer for the judiciary or are otherwise involved in judicial media activities, please don’t hesitate to either be in touch or to leave your comments below.


Minkkinen, Panu (2015) ’Valta, sen jakaminen, ja parlamentarismi – PL 3 §:stä Walter Bagehotin valossa’ [‘Power, its separation, and parliamentarism: on Article 3 of the Finnish Constitution and Walter Bagehot’], Lakimies, No. 1/2015: 3-27.

Minkkinen, Panu (2016) ’”Vähiten vaarallinen valtioelin”? Tuomiovalta, vallanjako ja demokratia’ [‘”The least dangerous branch”? On judicial power, the separation of powers, and democracy’], Politiikka, Vol. 58, No. 3: 224-237.

Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate.

Seats of power: ethnographies of constituted space

Below you’ll find the paper that I prepared for and presented at the ICON-S 2019 conference in Santiago, Chile. If you prefer to download a pdf, you can find it here.


Constitutional ethnography

In a lead article for a special issue of Law & Society Review, Kim Lane Scheppele (Scheppele 2004) brought together a number of contributions that focused on the particularities of state-specific and transnational constitutional phenomena as ‘comparative constitutional ethnography’. Unlike constitutional theory that often universalises its claims beyond plausibility, Scheppele claimed that the issue’s contributions expanded from their concrete (and often national) objects of study towards more general definitions by contextualising the phenomena in question both comparatively and historically. So the defining characteristics of, say, a national constitutional court would stand out better against contrasts that comparative and historical insights can provide. At the same time, we gained a better understanding of the institution of constitutional review in general and how it can be implemented in different environments. For Scheppele, such a methodological ethos could be dated back to many socio-legal classics ranging from Montesquieu to Weber, but it had later been abandoned in favour of more nationalistic and state-specific research agendas. The aim of constitutional ethnography was to reclaim some of that lost tradition.

What could, then, such a constitutional ethnography be? Provisionally Scheppele defined it as ’the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape’ (Scheppele 2004: 395). As provisional as that definition was, it was one of the few attempts in recent times to focus on what ethnography as a method may be able to offer the study of constitutional phenomena (see also Bevir – Rhodes 2010).1 For now, I am mainly interested in the latter part of Scheppele’s definition and will consider some methodological options that may be appropriate for the study of that ’lived detail’.

Quite a few years later, Scheppele (Scheppele 2017: 56-59) returned to constitutional ethnography and its compatibility with a phenomenological sociology of constitutions. In her second instalment, Scheppele mentions three specific ethnographic approaches. First, in traditional fieldwork, the researcher immerses herself into the environments that she wishes to study by, for example, observing particular constitutional actors and institutions (e.g. Schatz 2009; Greenhouse 2010). Second, immersive archival work is a form of historical ethnography involving the analysis of historical records in more or less the same way as in historical research proper, but with the addition of an identification with historical actors through the records that they have left behind. If successful, archival immersion allows the researcher to consider meanings that the historical actors themselves may have given to their own practices, albeit as approximations at best (e.g. Merry 2002; Zeitlyn 2012). Scheppele calls her third ethnographic approach the study of ’traces’, that is, of non-curated cultural ’raw material’ such as popular artefacts (e.g. commemorative coins as in Gorski 2000), affective objects invested with special meaning (e.g. gifts that heads of state receive as in Ssorin-Chaikov 2006), as well as specific linguistic practices (e.g. professional jargon as in Mayr 2008). While Scheppele’s two first mentioned approaches are more or less in line with ethnographic conventions, her third approach, the study of traces, may be offering something new (see however Geiger – Ribes 2011). I propose to call this third approach ichnography, a term appropriate in terms of both etymology (íkhnos, meaning ’track’ or ’footprint’) and, in light of this particular paper, its architectural reference (Vitruvius’s ’ground-plan’, see Vitruvius 1931: 25 [i.2.2]).

The aim of this paper is to consider Scheppele’s three approaches as parts of a more focused method suited for studying the ways in which power is experienced as the ’lived detail’ of a constituted space. Individuals namely experience the constitutional arrangements under which they live as, among other things, spatial contours within which they negotiate their relationships to power and domination (e.g. Elden 2009; Crampton – Elden 2007). These power-related spatial contours are especially discernible in the architecture and urban planning of cities that are specifically designated as seats of power (e.g. Gordon 2006). What can these spatial contours, the architectural solutions and city plans, understood now as the containers and conduits of our lived experiences of politico-legal power, tell us about the constitutional arrangements themselves?

Constituted space

In her original article, Scheppele insisted that what made ethnography a distinct field of research was its commitment to collecting whole specimens of social life, that is, particular phenomena, but fully contextualised into unitary wholes (Scheppele 2004: 397). Henri Lefebvre has created a heuristic outline, his well-known ’spatial triad’, that allows us to consider the spatial contours of constituted power as such a whole specimen. The triad requires a brief description here. Its three dimensions are, in phenomenological terms, conceived space, perceived space, and lived space (Lefebvre 1991: 38-39).

Conceived space is the dimension that best reflects the official order of the state. As such, it also offers the most convenient starting point for any power-related analysis. It refers to the way in which space is imagined by scientists and technocrats, by urban planners and architects, that is, to the space of all who conceive it with the help of science and knowledge. The technocrat’s conceptions support notions of space that can be rendered into an image such as a map, a blueprint or a floor plan, but also an organisational chart representing, for example, a particular constitutional design. Perceived space, on the other hand, refers to the everyday practices with which social actors position themselves into capitalist relations of production as they regularly work and consume. Regularity provides continuity and reinforces positions until action stabilises into something with a perceivable spatial outline. For the most part, such action follows the conceived designs of spatial technocrats in the sense that space is usually used for its designated purposes and in designated ways. Finally, lived space is the counterpoint to, or possibly even a contestation of, the technocrat’s spatial conceptions, that is, of the urban plans, the architectural designs, the cartographer’s maps, and so on. As such, it refers to the real-life experiences of users and inhabitants, their manifold ways of ’existing’ in space and giving it their proper meanings in spite of the sometimes overpowering conceptions and perceptions that might be attached to it. These are undoubtedly the most difficult aspects of Lefebvre’s triad, but politically the most important.

If we adopt Lefebvre’s triad as an ideal-typical matrix for an ethnography of the spatial contours of constituted power, our methodological shopping cart may include both familiar and more exotic items, but all finding an appropriate counterpart from Scheppele’s three approaches. The study of conceived space would most likely resemble an archival immersion in which the ethnographer qualitatively analyses document sets such as Pierre Charles L’Enfant’s plan for Washington DC (see Gutheim – Lee 2006; Glazer – Field 2008) or the ’Plano Piloto’ of Lúcio Costa for Brasília (see Plano Piloto 1991; Holston 1989). As designs for capital cities, both plans are attempts to conceive of constituted power in spatially relevant ways. Fieldwork, on the other hand, would seem to be best suited for, for example, ’tracking and tracing’ the ways in which civil servants, citizens and other actors go about their daily routines within the conceived outlines of constituted power in, say, Washington or Brasília. Through observation, the ethnographer may be able to verify whether and how these positions gradually coagulate into the regularities of perceived space (see Bernstein et al 2011; Shore et al 2011). Finally, Lefebvre’s lived dimension of space, perhaps best reflecting Scheppele’s more general notion of the ’lived detail of the politico-legal landscape’ as a whole, allows us to develop the ichnographic idea of studying traces further. What I have in mind as traces in this instance are, for example, Brazilian pichação graffiti that, especially in a UNESCO world heritage site like Brasília, can only exist strained either as a stain in a protected patrimony or as state-sanctioned ‘street art’ (e.g. Zanella 2017).

Embodied engagements with power

How does one, then, retrace the outlines of the spatial contours of constituted power?

As lived experience, these outlines are in no way exclusive to someone or something external in relation to the researcher. Indeed, the epistemology of contemporary ethnography is mostly of a ’non-positivist’ or ’interpretive’ character (e.g. Geertz 1983; Bevir – Blakely 2018) in the sense that the ethnographer is always embedded in the world that she studies. So no radical separation between ethnographer and her object of study is either possible or desirable. Even so, the starting point of most ethnography, ’interpretive’ as it may be, still differentiates the researcher from an éthnos, if you will, albeit both belonging to a shared world.

Charlotte Aull Davies (Davies 1999: 14-15) uses the term ’de-differentiation’ to describe the gradual process in which the ability to separate observer from observed, researcher from world, has been increasingly questioned. De-differentiated ethnographies are less likely to make strong claims about the ability of fieldwork observations to represent a reality that is radically external in relation to the observer. Ultimately, as the distinction between observer and observed becomes ever more difficult to make, ethnographers can be said to create their objects of study rather than to discover them. Unable to make claims about phenomena that are sufficiently external in relation to herself, the ethnographer as author is also more intimately bound to her particular ethnographies. The resulting self-reflexivity produces research that is more about the ethnographer herself than her alleged object of study ridding her of the privileged voice of scientific authority.

To a large extent, this discussion about ethnographic self-reflexion was triggered by the challenges that so-called ’poststructuralist’ positions presented the social sciences more generally (e.g. Van Maanen 2011). Perhaps the discussion was also evidence of a more general tension between the Anglo-American tradition of anthropology and its ’ethnological’ variation in France.2 But rather than trying to somehow appease possible tensions by synthesising interpretive starting points with poststructuralist critiques into an epistemologically more acceptable midway position — Davies herself attempts this through Roy Bhaskar’s ’critical realism’ (Davies 1999: 17-24; see also Aunger 2004: 130-144) — the self-reflexivity can also be embraced and developed into a fully conscious ‘autoethnography’ that ’blends the practices and emphases of social science with the aesthetic sensibility and expressive forms of art’ (Ellis 2004: 30).

A shift to more autoethnographic positions has, of course, raised further concerns about the traditional virtues associated with ’scientific’ inquiry. Autoethnography is, namely, neither ’objective’ nor ’controllable’ in conventional ways. But, on the other hand, it:

brought heightened attention to human suffering, injustice, trauma, subjectivity, feeling, and loss; encouraged the development of reflexive and creative methodologies through which to navigate the landscape of lived experience; and legitimated unconventional forms of documenting and expressing personal experience in literary, lyrical, poetic, and performative ways. (Bochner – Ellis 2016: 45)

So while the ethnographer ’navigates the landscape of lived experience’, she refers to her own embodied engagements within sensory environments requiring her to ’reflect on these engagements, to conceptualise their meanings theoretically and to seek ways to communicate the relatedness of experiential and intellectual meanings to others’ (Pink 2009: 25-26; also Fasula 2013). The spatial contours of constituted power are a good example of such sensory environments. If its lived experience is accessible through the ethnographer’s own embodied immersion into spaces of power such as, for example, the Federal Triangle in Washington DC (e.g. Tompkins 1993) or Brasília’s Praça dos Três Poderes (e.g. Jenkins 2008: 38-39), then the communication of that experience should somehow reflect the sensory nature of the experience itself. In this sense, Scheppele’s third, trace-related approach, in this case a spatial ichnography, would call for a self-reflexive and sensory ethnography, perhaps even an expressive rather than documentary visual ethnography (e.g. Pussetti 2018).

Construct and constellation

By keeping a sufficient distance in relation to the conventions of political anthropology, Scheppele’s constitutional ethnography includes echoes of what Foucault called his ’local critiques’, that is, ’decentralised’ theoretically oriented research ’that does not need a visa from some common regime to establish its authority’ (Foucault 2003: 6). But the Lefebvrian triadic perspective to constituted space, with each dimension examined through one of Scheppele’s ethnographic approaches, may call for some additional remarks. How will the three approaches be able to gel together into a single interpretation without a unifying ’visa’?

Usually results reached by using different approaches are triangulated because the reliability of an interpretation made using one method is expected to improve if the same research question is examined using a second method. So in this case, the reliability of interpretations made by analysing documents on the spatial planning and design of seats of power could, perhaps, be improved if those interpretations were supported by photographic evidence collected ’on site’. But in this project, the motive for triangulation is the very specific way in which, for example, architectural designs and imagery complement each other rather than whether the latter can improve the reliability of the interpretation of the former.

We can try to bring our three approaches together in at least two ways. We can follow Claude Lévi-Strauss’s sequencing and proceed from an ethnography where data is first collected and recorded, through an ethnological synthesis of that data, to a more general anthropological theorising of the studied phenomenon (Lévi-Strauss 1963: 354-356). But even if this seems like a sound way forward, synthesising possibly disparate data from three different approaches into a single interpretation will not fit comfortably into the ’constructionist’ ideal that usually informs the social sciences. Rather, the three approaches, that is, archival immersion, field observations and the ichnographic study of traces, each corresponding with one dimension of Lefebvre’s triad, cascade into each other in ways that suggest tension, friction, or even incompatibility. Following Walter Benjamin (Benjamin 2009: 34-35) and Theodor Adorno (Adorno 2004: 162-166), such an interpretation should be seen as a constellation (see also Lewandowski 2001) rather than a construct. Viewing the triad as a constellation reflects well the necessarily critical nature of any ethnography of power (Yanow – Schwartz-Shea 2015). As such, each of the three approaches can retain some degree of autonomy, but without being cornered into an isolated and self-sustaining entity either. Juxtaposing the approaches in a constellation may reveal aspects which in a constructionist classification might appear as ’either a matter of indifference or a burden’ (Adorno 2004: 162), nuances which would otherwise be disregarded as insignificant or deemed superfluous. So in conventional models of triangulation, a visual perception of space may all too easily slip into a comfortable relationship with, say, photographic documentation where the image is reduced to functioning as proof. But in a constellation, one can, for instance, explore the more challenging questions that address the relationship between the observer’s subjective sense perception and its self-expression through the imagery of photographic art.

Having ‘been there’?

Finally, what would the outcome look like? What type of scholarly constellation can we expect to achieve by bringing together possibly disparate parts with allegedly low scientific credibility?

I doubt whether the polemical interventions of a Michael Taussig can be regarded as a constellation in this sense. Although many similar ingredients are present, including references to both Walter Benjamin and the constellation as a method (Taussig 2003: 184-185), the interrelations between the individual parts seem too forced. They do not ’fall into place’. To me, a much more appropriate example would be W.G. Sebald’s The Rings of Saturn (Sebald 1998). In the novel, the author’s unreliable narrator explores a North Sea coastal environment while meditating on issues such as memory and identity. Text and image, different literary genres like prose, essay and travel journal, fact and fiction, all intermingle to produce meaning (on Sebald as an ethnographer, see Long 2011). In the well-known words of Clifford Geertz:

The ability of anthropologists to get us to take what they say seriously has less to do with either a factual look or an air of conceptual elegance than it has with their capacity to convince us that what they say is a result of their having actually penetrated (or, if you prefer, been penetrated by) another form of life, of having, one way or another, truly ”been there.” And that, persuading us that this offstage miracle has occurred, is where the writing comes in. (Geertz 1988: 4-5)


1 Jo Shaw (Shaw 2007) is one of the few who has actually taken Scheppele to task and has applied Scheppele’s notion of constitutional ethnography in her analyses of European citizenship.

2 I am here thinking of ethnologists like Pierre Clastres (Clastres 1989; Clastres 2010), as well as Roger Caillois, Michel Leiris and other ’sorcerer’s apprentices’ associated with the ’College of Sociology’ (Hollier 1987; see also Caillois 2001; Leiris 2017). Paul Rabinow being the clear exception in the Anglo-American camp (e.g. Rabinow 2003; Rabinow 2008).


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Scheppele, Kim Lane (2004) ‘Constitutional Ethnography: An Introduction’, Law and Society Review, Vol. 38, No. 3: 389-406.

Scheppele, Kim Lane (2017) ‘The Social Lives of Constitutions’, p. 35-66, in Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism. Cambridge: Cambridge University Press.

Sebald, W.G. (1998) The Rings of Saturn. Trans. Michael Hulse. London: Harvill.

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Brasília: an anthropophagic space?

These notes belong to the same project on constitutional spaces that I have been working on for a while. They represent my first attempt to look at the intersections of constituted power, architecture, and urban planning. A very early version was presented in Hong Kong at the ICON-S 2018 conference, but the notes below are closer to something I discussed with colleagues in Gothenburg later that year.

‘Plano piloto’

Perhaps the most iconographic ‘new capital’, that is, a city that is specifically built to be a seat of power, is Brazil’s federal capital Brasília.

Source: back cover of journal Brasília (Vol. 2, Nr. 1, 1957).

The plan to move the capital from Rio de Janeiro on the coast to the inland plateaus closer to the country’s geographical center was already initiated in the early 19th century. But it was only President Juscelino Kubitschek who began to put the plan into effect in the 1950s.

Lúcio Costa (r) with Oscar Niemeyer, Rio de Janeiro, 1958. Source: unknown.

In 1957, architect Lúcio Costa won the design competition with his entry known as the ‘Plano Piloto’ (Plano Piloto 1991). The entry consisted of only 15 freehand sketches and 23 handwritten paragraphs, the sort of nonchalance that only a celebrity architect could afford. After winning the competition, Costa invited his former assistant and internationally renowned compatriot Oscar Niemeyer to design the capital’s major administrative buildings for which Brasília is, perhaps, best known. In addition, Roberto Burle Marx, a landscape architect and avantgarde artist, designed the gardens of many of the most important buildings.

In Costa’s entry, the first sketch of the city plan is simply two lines drawn into a cross. The administrative buildings were to be built on the vertical line called the ‘monumental axis’. In the subsequent sketches, the horizontal line of the cross would curve slightly upwards. This ‘residential axis’ would host a total of 108 superblocks or ‘superquadra’ to provide for housing for the capital’s politicians and civil servants. A large bus terminal would be built at the intersection of the two axes, and multi-lane motorways with vast curving interchanges would cross them both.

Sketches by Lúcio Costa (Plano Piloto 1991: 21).

At the bottom of the monumental axis, a triangular area marks a plaza, the ‘Praça dos Três Poderes’ (‘Plaza of the Three Powers’), hosting the buildings of the three main government branches: the National Congress Building, the presidential Palácio da Alvorada, and the Supreme Federal Court. Note once again how the plan suggests a design in which the three powers can be seen to check and balance each other. From there the monumental axis stretches upward as an ‘esplanade’ where the ministries and agencies of lesser importance are situated.

A sketch of the Plaza of the Three Powers by Niemeyer (Jodidio 2012: 57).

Areal view of the Praça dos Três Poderes. Brasília, 1960. Photo: Marcel Gautherot/Instituto Moreira Salles.

National Congress Building. Brasília, 1958. Photo: Marcel Gautherot/Instituto Moreira Salles.

The Esplanade of the Ministries under construction. Brasília, 1958. Photo: Marcel Gautherot/Instituto Moreira Salles.

Palácio da Alvorada. Brasília, 1962. Photo: Marcel Gautherot/Instituto Moreira Salles.

The aerial view

When looking at the city from above, its planned outline resembles a bird, a dragonfly, or maybe an airplane as the city centre is colloquially known (‘avião‘). This choice can be explained through several narratives, but one is particularly persuasive.

Brasília town plan by Lúcio Costa. Source: unknown.

Le Corbusier was a major inspiration for Costa and Niemeyer, both before and during the planning and construction of Brasília. The master of the ‘esprit nouveau’ had close ties with Latin America, and he had already earlier supervised the design and building of the Ministry of National Education and Public Health (today known as the Gustavo Capanema Palace) in Rio, completed in 1943. With Le Corbusier as an official consultant, Costa was the main architect of that project, and Niemeyer was a young assistant in Costa’s office. Le Corbusier had originally visited Rio in 1929 on his tour of South America. He had first arrived in Buenos Aires where he met Antoine de Saint-Exupéry. Saint-Exupéry had managed to establish a number of permanent flight routes across the continent on his Compagnie Générale Aéropostale. Le Corbusier, for his part, was mesmerised by the aerial perspectives that his flights on the Aéropostale routes provided.

The ‘bird’s-eye view’ from the airplane inspired Le Corbusier to such an extent that, in 1935, he published a short book called Aircraft (Le Corbusier 1935). Not only is it a modernist praise of the airplane as a technical innovation – the book has lovely photographs of airplanes of the time – but also of the ‘bird’s-eye view’ as a tool of urban planning:

By means of the airplane, we now have proof, recorded on the photographic plate, of the rightness of our desire to alter methods of architecture and city planning. With its eagle eye the airplane looks at the city. … The airplane instills, above all, a new conscience, the modern conscience. Cities, with their misery, must be torn down. They must be largely destroyed and fresh cities rebuilt. (Le Corbusier 1935: 11)

This type of ‘terraforming’, the ultimate weapon of colonisation, if you will, became the key planning ideology of the influential Congrès International d’Architecture Moderne (CIAM) that Le Corbusier founded a year before his trip to Latin America (see e.g. Mumford 2000). The bird’s-eye view was, of course, not an entirely new idea. Already rather ancient surveying techniques allowed cartographers to develop maps that simulated the same effect. Through land surveying measurements, cartography could produce more or less accurate depictions of existing land formations. But it was less useful in planning.

Aerial photography, on the other hand, enabled the process to be fully reversed (see Morshed 2002; Vidler 2003). We could now create something that didn’t exist at all by first designing it on top of a two-dimensional aerial image of a space that we need not even visit. The aerial image reduced all spatial complexities into a flat workable surface after which the design was easier to execute in unprecedented detail. Costa and Niemeyer’s ‘airplane’ (or ‘dragonfly’ or ‘bird’) is an excellent example of such aerial-based creation ex nihilo.

Photograph by Le Corbusier. Caption: ‘Black and sinister tasks, acts of desperate courage; moribund nightmare.’ (Le Corbusier 1935: 69)

Brasília is often presented from this aerial perspective. But what if one entered from ground-level seemingly unaware of how the space had been designed? In 1974, Brazilian author Clarice Lispector wrote an essay based on a short lecture trip that she made to the capital from Rio de Janeiro. Lispector’s relation to Brasília is clearly ambivalent. At the same time as she criticises its man-made quality making, for example, comparisons with the raw and ‘natural’ beauty of Bahia, there is a majesty that she can’t quite turn away from:

Brasília is artificial. As artificial as the world must have been when it was created. When the world was created, it was necessary to create a human being especially for that world. We are all deformed through adapting to God’s freedom. We cannot say how we might have turned out if we had been created first, and the world had been deformed afterwards to meet our needs. (Lispector 1986: 136)

So in Brasília, the order of creation has been somehow set off track. Only God is free to create a world, and if man is to inhabit that world, she must be created only after the world so that she can adapt and ‘deform’ herself appropriately. Brasília, as beautiful as it may be, is, for Lispector, still an empty creation, perhaps because it can only be seen from above.

Anthropophagy vs anthropoemia

In 1928, just before Le Corbusier arrived in Brazil, the poet Oswald de Andrade published a poem called ‘Anthropophagic Manifesto’ (de Andrade 1991) that became extremely influential as the text that, through its cannibalistic metaphor, encapsulated the emerging modernist movement in Brazil. Its effects were not limited to literature because it was seen as a general cultural manifesto. The idea behind de Andrade’s poem was to differentiate Brazil from the west with the cannibalistic analogy that depicts the creation of a modern and cosmopolitan, but still authentically national, Brazilian culture. Relieved from simply reproducing second-rate copies of what the old world values, Brazilian culture would ‘devour’ both western and indigenous influences like a cannibal would ingest a respected enemy and offer instead something completely new:

The struggle between what we might call the Uncreated and the Creation – illustrated by the permanent contradiction between Man and his Taboo. Everyday love and the capitalist way of life. Cannibalism. Absorption of the sacred enemy. To transform him into a totem. The human adventure. The earthly goal. (de Andrade 1991: 43)

Although the main architectural representative of this avantgarde movement was Flávio de Carvalho (see Leite 2004), de Andrade influenced representatives of the modernist mainstream like Costa and Niemeyer, as well. But does Brazilian modernism, as it is represented in the spatial solutions of Brasília, produce something genuinely unique in terms of constituted power? Can we see anything ‘anthropophagic’ in Costa and Niemeyer’s visions of power? Or is ‘anthropophagy’ only present in the experiences of a lived or experienced space that came later? Historically we do know that even Le Corbusier had met some of the anthropophagic movement’s followers in Sao Paulo before he arrived in Rio.

In 1935, Claude Lévi-Strauss moved to São Paulo as a diplomat and doubled-up as Visiting Professor of Sociology at the local university. During his four years in Brazil, he also conducted fieldwork (the only fieldwork he ever did) by accompanying his wife Dina Lévi-Strauss (née Dreyfus) who, of the two, was actually the trained anthropologist.

Lévi-Strauss later systematised his fieldwork notes from Brazil and published them in 1955 as part of the celebrated memoir Tristes Tropiques. In one short section towards the end of the book, Lévi-Strauss questions whether the so-called primitive societies of the Amazonian jungle that practiced cannibalism should be seen as barbarous. If we view anthropophagy as cruel and barbarous, he asked, then how would that society view ours? And so Lévi-Strauss suggests a structural binary between two types of societies:

If we were to look at them from outside it would be tempting to distinguish two opposing types of society: those which practise cannibalism who believe, that is to say, that the only way to neutralize people who are the repositories of certain redoubtable powers, and even to turn them to one’s own advantage, is to absorb them into one’s own body. Second would come those which, like our own, adopt what might be called anthropoemia (from the Greek emein, to vomit). … They expel these formidable beings from the body public by isolating them for a time, or for ever, denying them all contact with humanity, in establishments devised for that express purpose. (Lévi-Strauss 1961: 386)

Lévi-Strauss is here suggesting that what characterises the ‘old world’, ‘our’ world, with its asylums and prisons, is an anthropoemic culture, rather than the anthropophagic culture of de Andrade’s notion of Brasilian modernism. So the question that I would like to develop is, do the spatial solutions adopted in Brasília somehow suggest an antithesis to the, perhaps, anthropoemic practices of European capitalism? If the space of constituted power is based on such an idea of exclusion, of building palaces of power that decisively reject Rancière’s ‘those who have no part’, then do the solutions adopted in Brasília reflect some sort of anthropophagic ‘inclusion’?

Lévi-Strauss made no reference to, or acknowledgement of, de Andrade even though we know for sure that Dina Lévi-Strauss collaborated with members of the ‘anthropophagic movement’ at the time (Lévi-Strauss 1937). An ‘anthropoemic’ neglect? The Brazilian origins of Lévi-Strauss’s binary are also lost on Zygmund Bauman who brings it back to life in his own analysis of modernism (Bauman 2000: 98-104).

An ethnography?

The empirical dimension of a project that would investigate the spatial dimensions of ‘seats of power’ like Brasília could, perhaps, be best described as ‘ethnographies of constituted space’, bringing together the spatial emphasis that anthropologists like Setha Low (Low 2016) have developed with a constitutional ethnography (Scheppele 2004). Brazil has been studied with ethnographic methods before. Anthropologist James Holston’s book The Modernist City (Holston 1989) is a critical assessment of how Brasília betrayed its own modernist ideals, especially in relation to the working class builders that were recruited to complete the construction work.

My focus is, however, different. I’m interested in the institutions of constituted power. In Brasília, the space of constituted power would be studied through Lefebvre’s triad, focusing in particular on the ‘airplane’, i.e. the planned landscape and buildings that represent public power and the adjoining residential areas in Costa and Niemeyer’s original plans. So conceived space refers to the way in which the institutions of constituted power have been designed and organised in the plans for the capital, but also to changes that have taken place later as Brasília has grown from an administrative capital of 140.000 inhabitants in 1960 to a metropolis with a population now at 2.5 million. Perceived space refers to how the institutional framework of constituted power is then solidified (if it is) though and in everyday routines. Finally, in their own experiences of lived space, the inhabitants and users of space appropriate it in order to bypass the designs of urban planners and architects, and even to oppose them (e.g. the political pichação -graffitis which are considered to be a threat to the UNESCO world heritage site).


Andrade, Oswald de (1991) ‘Cannibalist Manifesto’, Latin American Literary Review, Vol. 19, No. 38: 38-47.

Bauman, Zygmunt (2000) Liquid Modernity. Cambridge: Polity Press.

Frampton, Kenneth (2010) Building Brasília. Photographs by Marcel Gautherot. London: Thames & Hudson.

Holston, James (1989) The Modernist City, An Anthropological Critique of Brasília. Chicago: University of Chicago Press.

Jodidio, Philip (2012) Niemeyer. Köln: Taschen.

Le Corbusier (1935) Aircraft. London: The Studio.

Leite, Rui Moreira (2004) ‘Flávio de Carvalho: Media Artist Avant la Lettre’, Leonardo, Vol. 37, No. 2: 150-157.

Lévi-Strauss, D[ina] (1937) ‘Société d’ethnographie et de folklore de São Paulo (Brésil)’, Journal de la Société des américanistes, Vol. 29, No. 2: 429-431.

Lévi-Strauss, Claude (1961) Tristes Tropiques. Trans. John Russell. First American ed. New York, NY: Criterion Books.

Lispector, Clarice (1986) ‘Five Days in Brasília’, p. 136-140, in Clarice Lispector, The Foreign Legion. Stories and Chronicles. Trans. Giovanni Pontiero. New York, NY: New Directions..

Low, Setha (2016) Spatializing Culture. The Ethnography of Space and Place. Abingdon: Routledge.

Morshed, Adnan (2002) ‘The Cultural Politics of Aerial Vision: Le Corbusier in Brazil (1929)’, Journal of Architectural Education, Vol. 55, No. 4: 201-210.

Mumford, Eric (2000) The CIAM Discourse on Urbanism, 1928-1960. Cambridge, MA: MIT Press.

Plano Piloto (1991) Relatório de Plano Piloto de Brasília. Elaborado pelo ArPDF, CODEPLAN, DePHA. Brasília: GDF.

Scheppele, Kim Lane (2004) ‘Constitutional Ethnography: An Introduction’, Law and Society Review, Vol. 38, No. 3: 389-406.

Vidler, Anthony (2003) ‘Photourbanism: Planning the City from Above and from Below’, p. 35-45, in Gary Bridge and Sophie Watson (eds), A Companion to the City. Malden, MA: Blackwell.

An empty square

I continue my project on constitutional spaces and begin to develop here something of a template that could work for a series of individual analyses.

In his ‘theses’, Jacques Rancière describes the spatial aspects of the police regime in the following way:

The essence of the police lies in a partition of the sensible that is characterized by the absence of void and of supplement: society here is made up of groups tied to specific modes of doing, to places in which these occupations are exercised, and to modes of being corresponding to these occupations and these places. In this matching of functions, places and ways of being, there is no place for any void. It is this exclusion of what ‘is not’ that constitutes the police-principle at the core of statist practices. (Rancière 2010: 36)

When Rancière speaks of ‘statist practices’, he is referring to the use of public power that takes place within the perimeters of a particular sensory space hosting actors, roles, places and modes of being. Because the dimensions of public power as government are defined in constitutions, that sensory space can be described as the ‘space of constituted power’ or ‘constituted space’. Branches of government, public authorities and state administrators all exercise the powers that are constitutionally assigned to them as competences within that space, that is, the space that the constitution has created for the state’s use of public power. The state’s use of public power – that is, Rancière’s ‘statist practices’ – is equivalent to what he terms the police.

As such, the partition of the sensible that is characteristic of the police is, as Rancière above notes, marked by the absence or lack of void. The partition covers the space completely making it a space that leaves no room. The space is ‘full’ or, to be more precise, ‘complete’ in the sense that even any existing emptiness is already accounted for. This completeness of space symbolises the totalitarian nature of the police regime, or, in other words, of ‘statist practices’ that are not, in Rancière’s terms, properly political, and certainly not democratic.

Constituted space has both a physical and a figurative dimension. Physically the completeness of constituted space can be illustrated through the spatial solutions that have been adopted in cities specifically designed as seats of power, usually as capital cities. I’ll try to expand with an example closest to home.

Soon after Finland became the Grand Duchy of Russia in 1809 after centuries of Swedish rule, tsar Alexander I moved the administrative capital from Turku on the western coast of the country to Helsinki which was closer to Saint Petersburg, the imperial capital. At the time, Helsinki was a small and insignificant town, so the tsar’s decision also required an urban upgrade including a plan to build a new administrative centre. The new centre was to be built in a neoclassical Empire style that echoed the architectural fashion prominent in Saint Petersburg at the time, and its design was commissioned to German-born architect Carl Ludwig Engel (1778-1840) and city planner Johan Albrecht Ehrenström (1762-1847).

From C L. Engel’s letter to Carl Herrlich, dated 4 June 1822 (draft of Helsinki town plan by Ehrenström). Source: City of Helsinki Archive.

The centrepiece of the new capital was to be a city square around which the capital’s main administrative buildings would be built. The sketch above reflects Engel’s interpretation of Ehrenström’s vision. The ‘Grand Square’, as it was known at the time, can be seen in the sketch as a white rectangular area. A red cross to the north marks the place where a new cathedral would be built (Helsinki Cathedral, originally St Nicholas’ Church, completed 1852), while the large red hollow rectangle to the east marks the place of a new government building that would house the Senate (Government Palace, originally Senate House, completed 1822). Finally, a smaller red rectangle to the southeast marks the former home of a wealthy merchant that would be enlarged and redesigned in the Empire style including a new facade with Ionian columns to serve as the residence of the Governor General (originally Bock House, a.k.a. Old Rathaus, redesign completed 1819). In addition to these three original components, the plan also included the enlargement and redesign of several other merchant homes on the south side of the square (e.g. Houses Burtz, Hellenius, Sunn and Kiseleff, redesigns completed in the mid-1830s) as well as the completion of the new building on the west side of the square for the country’s only university that was relocated from Turku at the same time (University of Helsinki, originally Imperial Alexander University in Finland, completed 1832). According to the city plan, the University building’s neoclassical facade would symmetrically reflect the Senate House on the opposite side of the square. A monumental statue honouring the ‘progressive tsar’ Alexander II in the middle of the square was finally added in 1894.

After the north, east and west sides of the square had been completed, the five former residential buildings on the south side would be gradually occupied by key representatives of state power. Bock House on the southeastern corner of the square soon became Helsinki City Hall, and in 1913, soon after the city administration relocated to a former hotel on the south end of the same block, the Helsinki Magistrate’s Court moved in. At about the same time, the four remaining buildings on the south side were transformed into government offices and would mainly house the regional Crime Police Centre and units of the Helsinki Police Department.

The Senate Square. Source: Helsinki City Town Plan.

The south side of the square has since been assigned other functions related to culture, retail and tourism. But this was the design of the square by the time of Finnish independence in 1917. There are eight buildings in the same neoclassical Empire style situated on the four sides of the square, and they all represent some aspect of state power: the executive, the judicial, public security, the ecclesiastical, and the epistemic. In addition to the architectural uniformity of the neoclassical style, the plan of the square reflects an ideal of balance in which the different powers are set to oversee and temper each other. As an image, it resembles the figurative organisational charts that are used to depict constitutional designs in which even hierarchically layered state powers are balanced against each other. There are two curiosities in this seemingly harmonious plan. First, the statue of the tsar in the centre of the square can, perhaps, be interpreted as a conduit that facilitates the balancing relations between the main institutions. But second and more importantly, the House of the Estates (completed 1891), the only democratic element of the larger constitutional design, and precursor to the post-independence Parliament, was built further away and is only partly visible at one-o’clock on the city plan above.

What about the supposedly empty space that makes up the square itself? In what way does the empty square contribute to the completeness of the partition? In this partition of the sensible, emptiness merely accentuates the power of the institutions on the four sides of the square by allowing the buildings and what they represent to stand out. In this sense, the aesthetic function of the empty space is to remain empty, and so it is not initially available for other uses. This may change temporarily or over time as the partition takes on new characteristics. A common feature of such squares is, for example, to occasionally fill in as parade grounds that frame choreographed troop assemblies with nationalistic and/or military significance. The police-nature of a feature highlighting the coercive infrastructure of statist practices is obvious.

Parade of the Finnish Civil Guard (White Guard) at Senate Square, 1920s. Photo: Olof Sundström. Source: Helsinki City Museum.

In liberal democracies, another common feature of squares is to provide a background for civic action such as demonstrations and rallies. Fitting masses into a confined area signifies the strength and democratic value of popular rule.

Demonstration at Senate Square during the general strike of 1917. Source: The Labour Archives.

But even civic action fails to break the ‘completeness’ of the partition as Rancière understands it. It merely provides a justification for the apparatus surrounding the square, perhaps even suggesting that such action can only take place under the auspices of statist power. In Rancière’s scheme, only politics succeeds to intervene and to oppose this ‘completeness’ and to cater for ‘those who have no space’. So a trade union demonstration may simply highlight a public square’s alternate role as a civic forum legitimising the police partition of which it is part. But the 2017 ‘Ni una menos’ demonstration in Buenos Aires where over 100 women stripped naked on the Plaza de Mayo as part of a flash mob ‘screaming protest’ against gender-based violence may include the level of contestation that politics requires. To oppose violence with public nudity is an exceptional aesthetic statement that certainly intervenes with the monotony of police-based government (see also Hermansen – Fernández 2018). 

Photos: PM
An analysis of the partition of the sensible that applies to constituted spaces in contemporary police environments would have to account for the other ways in which such squares are today both used and experienced. The buildings on the south side of Senate Square have since been renovated into shops and restaurants mainly for the tourism industry. Indeed, the square and its surroundings have been branded as the ‘Historic Centre’ making it the most popular destination for the on-average four million tourists visiting the city annually. Especially during the holiday season, the physical presence of visitors, as well as of the coaches carrying them parked on all sides of the square, add a commercial and consumerist dimension to the constellation of powers included in the partition.

In my presentation at ICON-S 2019 I’ll be trying to develop outlines of an ethnography (see also Scheppele 2004) that would allow me to study the contours of such constituted spaces.


Hermansen Ulibarri, Pablo, and Roberto Fernández Droguett (2018) ‘La foto-etnografía como metodología de investigación para el estudio de manifestaciones conmemorativas contestatarias en el espacio público’, Universitas Humanística, No. 86: 167-196.

Rancière, Jacques (2010) ‘Ten Theses on Politics’, p. 27-44, in Jacques Rancière, Dissensus. On Politics and Aesthetics. Trans. Steven Corcoran. London: Continuum.

Scheppele, Kim Lane (2004) ‘Constitutional Ethnography: An Introduction’, Law and Society Review, Vol. 38, No. 3: 389-406.

The legacy of Liu Xiaobo

More or less immediately following Liu Xiaobo’s death in 2017, I was asked to speak at a seminar bearing the name of this blog post at a time when it was unlikely that many from my home university, i.e. the organisers, would be presenting. Even though I could claim no expertise in either Liu as an individual or sinology more generally, I agreed because I thought that I might have something relevant to say about human rights. As it turned out, my contribution, entitled ‘Why Are Human Rights Important (Even For A Crit)?’ in the programme, fit in surprisingly well. I thank my co-speakers and other participants at the seminar, the real experts, for their encouragement.


In the second main section of Charter 08 on ‘fundamental concepts’, human rights are defined in this way:

Human rights are not bestowed by a state. Every person is born with inherent rights to dignity and freedom. The government exists for the protection of the human rights of its citizens.

It is this type of liberal notion of human rights as some kind of stable substance (“human rights are this-or-that”) that one can somehow ‘have’ or ‘own’ that most critical scholars like me are weary of. For my part today, I would like to suggest another understanding of human rights, one that would not seem to be too farfetched in relation to the struggles that the legacy of Liu Xiaobo represents.

I take my cue from Claude Lefort, a French political philosopher (on Lefort, see e.g. Plot 2013). The main reason why Lefort’s name comes up so often in discussions about political theory is a distinction that he popularized between le politique or politics as a form of regime, usually translated as ’the political’, and la politique or social agency conflict-ridden by opposing and often irreconcilable interests, usually translated simply as ’politics’ (Lefort 1988). While ’politics’ in the second more conventional sense can be understood as the competition for power in all of its usual guises, Lefort’s use of the term ‘the political’, in turn, refers to the way in which a given society represents its own unity to itself as a collectivity. It could, then, be understood as a form of collective identity, a representation of the body politic through which society identifies itself claiming to be, for example, a ’liberal democracy’, or a ‘socialist state under the people’s democratic dictatorship’.

Lefort maintains that ’the political’ not only shapes collective life into more or less permanent social relations, but that it also stages individual interpretations of those relations. So individual interpretations as action require a setting, so to speak. Only these relations and individual interpretations of them can together provide form and meaning. In this sense, the dimensions of ’politics’ and ’the political’ are interwoven into one another so that the antagonistic or conflictual element of political action and activism is always reflected in a given society’s representation of itself. And vice versa. Neither dimension can exist independently of the other. So the human rights activism of Liu as something that we might call ‘politics’ in Lefort’s meaning only makes sense as a part of the collective self-representation of the ‘socialist state under the people’s democratic dictatorship’ to which he belonged.

Lefort elaborated in more detail two archetypal modern political ’regimes’, namely totalitarianism and democracy. As different as these regimes may be, they share a kinship even if they operate in diametrically opposite ways. In both totalitarianism and democracy, the regime of ’the political’ functions as a symbolic constitution in so far as it locates society’s unity at a particular point of power. As regimes, they are both attempts to respond to the same question, namely attempts to come to terms with the empty space that has been left behind after monarchical structures with their claim to the transcendental nature of the monarch’s divine power have lost their capacity to represent the corporeal unity of the body politic. Following the symbolic decapitation of the monarchical ruler, be it a king or an emperor, and the consequent dissolution of the kingdom or empire that he represented, power appears as an empty space. Democracy, in Lefort’s account, leaves that space empty. In the absence of kings, emperors, or, indeed, almighty political parties, those who exercise power can only be mortals who occupy positions of power temporarily or who can invest themselves in it only by force or cunning. Unity is unable to efface social division. This division is, Lefort claims, the true nature of democracy as a political regime:

Democracy inaugurates the experience of an ungraspable, uncontrollable society in which the people will be said to be sovereign, of course, but whose identity will constantly be open to question, whose identity will remain latent. (Lefort 1986a: 303-304)

In other words, the antagonistic and conflictual nature of ’politics’ that keeps the symbolic space of power empty is what characterizes ‘the political’ of the democratic regime. This is why we can depict Liu’s human rights activism as a ‘political’ struggle.

Totalitarianism, on the other hand, is an attempt to fill that space, to unify society by placing society itself in the empty space left behind after the regicide and the nonexistent body politic that dissolved with it. With violence and repression totalitarianism attempts (and I quote again) ’to weld power and society back together again, to efface all signs of social division, to banish the indetermination that haunts the democratic experience’ (end quote), or, in other words, to abolish the ’politics’ that would maintain the emptiness of that space. This describes well the environment in which Liu lived and worked. But please don’t get me wrong here: it describes well neo-liberal regimes, as well.

Lefort’s notion of democracy also has a legal dimension. It:

goes beyond the limits traditionally assigned to the état de droit. It tests out rights which have not yet been incorporated in it, it is the theatre of a contestation, whose object cannot be reduced to the preservation of a tacitly established pact but which takes form in centres that power cannot entirely master. (Lefort 1986b: 258)

Such rights are, indeed, ‘human rights’. Lefort’s position on rights may seem curious for a critical political theorist. And it has a very particular history. Unlike their Anglophone counterparts, French representatives of the so-called ‘post-Marxist’ or ‘radical democratic’ movement entertained a more optimistic view on the revolutionary potential of human rights. After decades of Marxist human rights critique, the discussion in France took this decisive turn in 1980 with Lefort’s seminal article ‘Politics and Human Rights’ (Lefort 1986b). For Lefort, human rights are specifically a politics of human rights equivalent to democratic politics. Lefort could not accept the critique of the early Marx who saw human rights merely as a consequence of the decomposition of society into isolated monadic citizens.

Views in this debate were far from uniform. A fitting counterpoint for Lefort would be his former student Marcel Guachet. Following the publication of Lefort’s article, Gauchet published his own intervention with the provocative title ’Human rights are not a politics’. Gauchet begins with an almost scornful stab at the renewed interest in human rights, a stab that is clearly aimed at, among others, his former teacher and friend:

and so the old becomes new, what was once the very definition of something suspect resurfaces as something beyond all suspicion, and so our antiquated, waffly and hypocritical human rights regain grace, innocence and a sulfurous audacity in the eyes of the most subtle and exigent members of the avant-garde. (Gauchet 1980: 3, my translation)

This stab reflects the rift that developed between political theorists like Lefort who, despite being ’post-Marxist’ in the aftermath of the hugely divisive Solzhenitsyn affair,  still made reference to Marx in their attempts at creating a social theory, and Gauchet who quickly became one of the key figures of the liberal left. Such an interpretation would seem to be at odds with presumed positions on human rights. For surely it would be the liberal’s lot to cherish the human rights that the post-Marxist ‘crit’, for his part, would reject.

The ’state of right’, the État de droit, as Lefort understands it, introduces a ’disincorporation’ of both power and right rather than their complete separation from each other. And so the ’state of right’ will always include within itself an ’opposition in terms of right’:

The rights of man (i.e. human rights; explain) reduce right to a basis which, despite its name, is without shape, is given as interior to itself and, for this reason, eludes all power which would claim to take hold of it whether religious or mythical, monarchical or popular. Consequently, these rights go beyond any particular formulation which has been given of them; and this means that their formulation contains the demand for their reformulation, or that acquired rights are not necessarily called upon to support new rights. (Lefort 1986b: 258)

Democracy is, then, the form of society in which the relationship of human rights to power is always external. In this ’savage democracy’, as it has been called, the law as the institution of human rights is, as Miguel Abensour, another former student and colleague, explains, no longer thought of as an instrument of social conservation, but as a potentially revolutionary source of authority for a society that constitutes itself as the indeterminate entity it is and will always be. In this sense, human rights are always in excess of what they have established. Once instituted in law, a constituent force will always reemerge in order to both reaffirm existing human rights and to create new ones:

A political stage opens according to which there is a struggle between the domestication of rights and its permanent destabilization-recreation via the integration of new rights, new demands that are henceforth considered as legitimate. According to Lefort, it is the existence of this incessantly reborn protest, this whirlwind of rights, that brings democracy beyond the traditional limits of the ’State of right’ [État de droit, Rechtsstaat]. (Abensour 2011: 108, translation modified)

The term ’savage democracy’ that Abensour accredits to Lefort is not a Hobbesian reference. So not a ‘war of all against all’. Nor is it, Abensour further insists, a reference to the political anthropologist Pierre Clastres (e.g. Clastres 1989) whose seminal work on the political structures of so-called primitive societies was a major influence for the young Lefort. Instead, Abensour claims that Lefort’s democracy is ’the form of society that, through the play of division, leaves the field open for the question the social asks of itself ceaselessly, a question in perpetual want of resolution but that is here recognized as interminable.’

So human rights can play a dual role both as a question being asked and as a mechanism that enables the asking. They’re certainly not some kind of stable substance, something that we could be born with and ‘have’, or nail down on a table and observe as if it was a ‘thing’. Human rights do not have a stable ontology. And through the politics of human rights they introduce further instability into any regime, ‘liberal democracy’ or ‘socialist state under the people’s democratic dictatorship’, that is in danger of coagulating into totalitarian structures.

This is the type of legacy that Liu’s human rights activism represents. Perhaps the emphasis is on ‘activism’ rather than on ‘human rights’.


Abensour, Miguel (2011) Democracy Against the State. Marx and the Machiavellian Moment. Trans. Max Blechman and Martin Breaugh. Cambridge: Polity.

Clastres, Pierre (1989) Society Against the State. Essays in Political Anthropology [1974]. Trans. Robert Hurley. New York, NY: Zone Books.

Gauchet, Marcel (1980) ‘Les droits de l’’homme ne sont pas une politique’, Le Débat, No. 3: 3-21.

Lefort, Claude (1986a) ‘The Image of the Body and Totalitarianism’, p. 292-306, in Claude Lefort, The Political Forms of Modern Society. Bureaucracy, Democracy, Totalitarianism. Trans. Alan Sheridan et al. Cambridge: Polity.

Lefort, Claude (1986b) ‘Politics and Human Rights’ [1980], p. 239-272, in Claude Lefort, The Political Forms of Modern Society. Bureaucracy, Democracy, Totalitarianism. Trans. Alan Sheridan et al. Cambridge: Polity.

Lefort, Claude (1988) ‘The Permanence of the Theologico-Political?’, p. 213-255, in Claude Lefort, Democracy and Political Theory. Cambridge: Polity.

Plot, Martin (ed.) (2013) Claude Lefort: Thinker of the Political. Basingstoke: Palgrave Macmillan.

Alain Supiot’s ‘dogmatism’

As part of our attempt to ‘reboot’ the research culture of the law school with the help of a more socio-legal approach, we set out to go through Alain Supiot’s book Homo Juridicus (Supiot 2007) in a reading group. Originally I could see three different motives for doing so.

First, the book itself is a ‘law in context’ type of theory that should cover all the different sub-disciplines that we, as colleagues in a relatively large Faculty, are divided into. So it shouldn’t really matter whether your interests are primarily in company law or in constitutional law because the focus of the book is general enough. Although some colleagues find Supiot’s ‘Gallic grandeur’ slightly off-putting, I think that this first point worked out well. Supiot was by no means an obvious choice. But it was one possibility among others at the time that this idea of reading groups was put forward. We had to start with something, and I trust that people will work through their own reading interests as we go along.

The second motive had more to do with a certain work ethos that reading groups can provide. The Achilles’s heel in contemporary academia is that we feel so pressured to produce measurable outputs that we forget the importance of reading. Many of my younger colleagues seem to equate ‘research’ with ‘writing’. And taking into account the pressures that they work under, I don’t blame them for doing so. But hopefully regularly functioning reading groups will eventually alleviate the situation somewhat. So a notion of reading broadly and regularly will hopefully become a natural (and pleasant!) routine for thoughts to develop into more tangible outcomes such as publications and research proposals.

The third and final motive behind this initiative is interrelated to the second. It was an attempt to address the concern of many colleagues who complained about the lack of community at the workplace. We don’t know each other very well, and we aren’t very aware of each other’s work. Not that Supiot could bring any such sense of community. But, once again, what was important was not so much the individual text that we were reading, but the way in which we were supposed to read it. Over thirty colleagues expressed an interest in taking part in these reading groups which, I think, was primarily a response to this final motive. So instead of having one huge group that could not possibly function as an intimate reading group, we now have three groups all going about their Supiots in slightly different ways.

And what about Supiot’s Homo Juridicus, then?

One development was telling. Nearly all ten or so members of my group showed up for the first session (chapters 1-3), but in the second session (chapters 4-6) there were only four of us. The book starts off from interesting premises. But as soon as Supiot focuses on particular ‘sectoral’ phenomena, one tends to loose interest. In addition to the ‘Gallic grandeur’ mentioned above, I think there are a number of reasons for this loss of interest.

First, the analyses skim through their subject matter with much too much haste. In addition to the premises outlined in the first sector, any single subsequent chapter – be it on technology, statism, or human rights – could and should have been expanded into a full book in its own right. Instead the text now makes rather sweeping claims from a very small amount of research, claims that would have required much more elaboration. The bold arguments seem to be ‘decorated’ with footnotes referring to disparate sources that have been added after the text has been written because the full argument is difficult to put together by interconnecting those sources.

Second, although the original French edition of the book was apparently published in 2005, one can’t help but feel that some of the ‘theorizing’ has hopelessly passed its best-by date. Personally I got this impression especially as I was reading the technology chapter where Supiot talks about html coding, ‘hypertexts’, and ‘networks’ as if they had just been invented.

But as said, I found the premises of the book intriguing. The title of Part 1 (chapters 1-3) refers to legal ‘dogma’. One should pause here for a moment. When used in association with law, my compatriots will associate the word ‘dogma’ with the German tradition of ‘Rechtsdogmatik‘, i.e. doctrinal legal studies, with its French equivalent of ‘la dogmatique juridique’. Supiot’s use of the word ‘dogma’ has, however, a completely different origin. He is here referring to the French historian of law and psychoanalyst Pierre Legendre (Legendre 1997) whose work has been made known by legal scholars like Peter Goodrich (Goodrich 1996) and the late Cornelia Vismann (Vismann 2008, which, by the way, is a much more convincing analysis about the interconnections between law and technology). For Legendre, and by extension for Supiot, dogma refers to belief systems that are generally considered to be in opposition to reason and knowledge. And yet, reason and knowledge would be impossible without such belief systems. Supiot’s interest here lies specifically in a philosophical anthropology of law, i.e., the human being as it is constituted in and by law. He writes:

‘The concepts of subject and object, person and thing, mind and matter are defined by mutual opposition, each conceived in relation to the other. Positive science is entirely reliant on these concepts, and its own activity would be impossible without the postulate of a human being capable of rational thought. This postulate is precisely not the result of scientific demonstration, it is a dogmatic affirmation, developed in the history of law and not the history of science.’ (Supiot 2007: 11)

As we discussed in our group, there is something reminiscent here of Donald Kelley’s The Human Measure (Kelley 1990). The idea of having to recourse to postulates in knowledge is, of course, at least as old as Kant. But Supiot’s proposition that these postulates are specifically legal is interesting. So no knowledge at all without the dogma of the homo juridicus that law institutes.

From there Supiot outlines this dogma as the ‘Holy Trinity’ of the individual, the subject, and the person, each reflecting the godlike qualities of man as Her image. So just like God, man as individual is unique, man as subject is sovereign and autonomous, and man as person is a spiritual entity. But all these godlike traits in man are tainted with their opposites. As an individual, man may very well be unique, but so is every other individual. So unique and identical. As a subject, man may be sovereign and autonomous, but she is, at the same time, literally ‘subjected’ to the very same laws that she has autonomously legislated. So sovereign and yet subjected. Finally, as a person, man is both spirit and matter:

‘The notion of person is what allows us to think matter and spirit in their unity and not as two radically distinct universes. … Personality is therefore not a biological given like genetic makeup or blood group, it is a dogmatic construction which would collapse if people could treat it simply as they pleased.’ (Supiot 2007: 27)

Most of us like me who dabble in matters metaphysical mysteriously always find explanatory force in such ‘Trinities’, three being some kind of magical number. Here too the taxonomy of man as individual, subject and person is a bit too clean cut to be entirely plausible. Nevertheless it does work as a working hypothesis for a philosophical anthropology where the tainted nature of these specular reflections of God – man is but ‘godlike’ – gives us a fragile dogma over which anything we can possibly ‘know’ about the human world has to be built.


Goodrich, Peter (1996) Law in the Courts of Love. Literature and other Minor Jurisprudences. London/New York: Routledge.

Kelley, Donald R. (1990) The Human Measure. Social Thought in the Western Legal Tradition. Cambridge, MA: Harvard University Press.

Legendre, Pierre (1997) Law and the Unconscious. A Legendre Reader. Trans. Peter Goodrich, Alain Pottage and Anton Schütz. London: Macmillan.

Supiot, Alain (2007) Homo juridicus. On the Anthropological Function of the Law. Trans. Saskia Brown. London: Verso.

Vismann, Cornelia (2008) Files. Law and Media Technology. Trans. Geoffrey Winthrop-Young. Stanford, CA: Stanford University Press.

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.


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?


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.

Bits and bobs in a framework

So neither norm nor fact, neither law nor politics, but the tension between the two in an in-between zone.

My predecessor (Tuori 2011) argued something along these lines as an internal legal tension between the rationality or reason (ratio) of law and law as the expression of a political will (voluntas). But because the perspective here was intra-legal, it felt to me that the arguments often emphasised – and, at the same time, normatively validated – the constraining functions of legal rationality. So the actual description and assessment of the tension took a backseat.

This project aspires to look at the whole from a slightly different angle. The democratic position of the judiciary, to take one example from my current work in progress, can’t be set on a binary scale between, say, ‘restraint’ (i.e. judicial decision making as an extension of the legislature’s political will) and ‘activism’ (i.e. judicial decision making as defining the legal limits of the legislature’s political will). Political constitutional theory would claim that this is a false dichotomy, and as such, it does not accurately describe the ways in which the judiciary works. Any ‘restrained’ decision that seems to conform with the legislature’s will can also be viewed as an ‘activist’ affirmation of the political values and principles that underlie that will. Conversely, a seemingly ‘activist’ definition of the legal limits of the legislature’s political will can also be seen as not much more than a legitimisation of government policies.

Assuming that this overall framework is plausible, here is a sketch of how the individual pieces written so far might fit together.

1. Starting points

  • Minkkinen, Panu (2009) Sovereignty, Knowledge, Law. Abingdon: Routledge.

Many funding schemes begin by asking how the proposed project fits into the earlier work of the applicant. This monograph would be my reply. It wasn’t necessarily ‘constitutional theory’ in any conventional sense of the term but, rather, an exploration into the many uses and abuses of the word (I’m not comfortable calling it a ‘concept’) ‘sovereignty’. I identified three ‘streams’ for the exploration. The first was jurisprudential, if you will, where the main protagonists were Kant and neo-Kantian legal thinking. The second ‘stream’ was extracted from international law and international relations, and Schmitt and Foucault provided the starting points for my  ‘contrapuntal  reading’. The third ‘stream’ investigated the way in which the term ‘sovereignty’ had been understood in modern French theory, and the chapters dealt mainly with Kojève, Bataille and Lacan.

My whole idea was that even though these ‘streams’ seemed to be detached from each other, they included common themes and could be brought together in a single reading. I don’t know whether I succeeded (my reviewers probably thought I didn’t), but the idea still makes sense to me today. As said, this was not exactly ‘constitutional theory’, but the individual close-readings opened up a space for developing something along those lines.

2. The Elements

So from there it might be worth while to see how the individual pieces fall into place.

2.1 Territory/Land

  • 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.

This is the only text on territory and space that I’ve published so far. I hope to be continuing along these lines by looking especially into the work of Henri Lefebvre and working together with colleagues in geography (e.g. Anssi Paasi and his project The Relational and Territorial Politics of Bordering, Identities and Transnationalization RELATE from Oulu).

2.2 Nation/People

  • Minkkinen, Panu (2016) ‘”Electoral Shenanigans”: The Constituted Electorate, the Constituent People, and the Porous State’, p. 72-83, in Anne Griffiths, Sanna Mustasaari and Anna Mäki-Petäjä-Leinonen (eds), Subjectivity, Citizenship and Belonging in Law. Identities and Intersections. Abingdon: Routledge.

Once again, only one published work so far in which I try to depict the ‘constituent’ quality of casting blank votes in an election through a reading of José Saramago’s novel Seeing. One piece, still under work, is called ‘”Enemies of the People”? The Judiciary in Claude Lefort’s “Savage Democracy”‘. This piece examines the democratic pedigree of the judiciary through Claude Lefort’s notion of human rights.

2.3 Sovereignty/Power

  • Minkkinen, Panu (2013) ‘Political Constitutionalism versus Political Constitutional Theory: Law, Power and Politics’, International Journal of Constitutional Law, Vol. 11, No. 3: 585-610.
  • Minkkinen, Panu (2015) ‘Valta, sen jakaminen, ja parlamentarismi – PL 3 §:stä Walter Bagehotin valossa’ [on shared and separated powers], Lakimies, No. 1/2015: 3-27.
  • Arvidsson, Matilda, Leila Brännström and Panu Minkkinen (eds) (2016) The Contemporary Relevance of Carl Schmitt. Law, Politics, Theology. Abingdon: Routledge.
  • Minkkinen, Panu (2016) ‘The Juridical Romanticism of Friedrich Dürrenmatt’s The Execution of Justice’, p. 78-90, in Matilda Arvidsson, Leila Brännström and Panu Minkkinen (eds), The Contemporary Relevance of Carl Schmitt. Law, Politics, Theology. Abingdon: Routledge.
  • Minkkinen, Panu (2016) ‘”Vähiten vaarallinen valtioelin”?: Tuomiovalta, vallanjako ja demokratia’ [on judicial activism], Politiikka: Valtiotieteellisen yhdistyksen julkaisu, Vol. 58, No. 3: 224-237.
  • Minkkinen, Panu (2017) ‘Mikä on poliittinen valtiosääntö?’ [on Schmitt’s ‘metapolitics’], Tiede & edistys No. 3/2017: 140-147 (in print).
  • Minkkinen, Panu (2018) ‘Rancière and Schmitt: Sons of Ares?’, p. 129-149, in Monica Lopez Lerma and Julen Etxabe (eds), Rancière and Law. Abingdon: Routledge (in print).
  • Minkkinen, Panu (2018) ‘Martin Loughlin and the Tragic Politics of Public Law’, in Michael Dowdle and Michael Wilkinson (eds) Questioning the Foundations of Public Law. Oxford: Hart Publishing (in print).

Perhaps not surprisingly, most of the already published texts fall under the ‘element’ that was closest to the starting point, as well. Although there are overlaps and common themes, the individual pieces haven’t been written in a way that would make it easy to rewrite them into a single narrative. Perhaps some of the texts that are still in the making can provide the blueprint of that narrative. Two unfinished manuscripts are provisionally entitled ‘”The Coldest of All Cold Monsters”: Nietzsche as a Constitutional Theorist’ and ‘Cephalous vs. Ganglionic Constitutionalism’ (on Herbert Spencer and vitalism) suggesting some common denominators.

  • Minkkinen, Panu (2010) ‘The Legal Academic of Max Weber’s Tragic Modernity’, Social & Legal Studies, Vol. 19, No. 2: 165-182.
  • Minkkinen, Panu (2013) ‘”Here I Stand, I Can Do No Other”: Politics, Violence, and Ends in Themselves’, Law and Literature, Vol. 25, No. 2: 226-243.

Finally, this last ‘elemental’ section includes an excursus of sorts into Max Weber. And although I know that it fits in theoretically quite nicely with the other bits, I’m not sure how to use it in the overall scheme of things.


Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate.

An early attempt at consolidation

A month has passed, and my intentions of blogging on work have, perhaps, not borne all the fruit that I originally hoped for. I could bullet-point a long list of valid excuses but won’t.

The project that I mainly wish to get some structure into has a name: ‘political constitutional theory’. It is the same name that we gave (probably on my insistence) to a network of researchers from Finland and Sweden that has been together since 2013. The name of the network, and of my own research project that accompanies the network, dates back to an article published that same year (Minkkinen 2013). In the article I tried to make my previous engagements with Carl Schmitt (mainly in Minkkinen 2009) as ‘mainstream’ as I could in the hope of creating an interface connecting the type of critical work I was doing with the work of colleagues in other traditions of constitutional theory. The main idea behind the name ‘political constitutional theory’ was to differentiate my position from the ‘political constitutionalism’ that was dominating the discussions. My slightly hyperbolic argument was that there wasn’t anything particularly ‘political’ about political constitutionalism, and that Schmittian arguments could be used to both demonstrate this and to develop a more plausible position.

At this time I also submitted a few unsuccessful applications for funding (“Yes, it’s all very good, but this Nazi fella …”) that attempted to frame my ideas into a coherent project. The applications all invited to rethink the statist paradigm that informed constitutional theory, and they were designed around what is known as the ‘three elements doctrine’ of the state, commonly attributed to 19th century German constitutional lawyer and theorist Georg Jellinek (Jellinek 1919): the three constitutive elements of the state are territory, nation (that slippery German word Volk), and sovereignty. So if one wished to rethink state and to ‘free’ constitutional theory from the traditional statism that had restricted scholarship for over a century (if not longer), then one should or could begin by rethinking the three elements that are thought to be constitutive of it.

This is all very nice and proper, but it was still testimony of my ‘disquieting fascination for dead German men’, as Peter Goodrich kindly commented my work in the public defense of my doctoral thesis. There was a certain way out, I thought, even if 19th century German public law was the starting point. Jellinek was, namely, an early representative of what we might today call socio-legal scholarship, or even ‘sociological constitutionalism’. In Jellinek’s scheme, all three elements had both a factual dimension and a legal dimension. Constitutional theory incorporated both. The three named constitutive elements of the state, i.e. territory, nation, and sovereignty, belonged to the latter. Their factual counterparts were land, people, and power (see Minkkinen 2016). It was unclear to me whether Jellinek’s ‘doctrine’ represented an evolutionary position in which constitutional development was seen as an historical transition from the factual (‘society’) to the legal (‘state’). But the general identification of both a factual and a legal dimension resonated well with my Schmittian starting points: no territory without land, no nation without people, and no sovereignty without power.

But rather than falling back on a reductionist conception of any ‘primacy of the factual’, I proposed that political constitutional theory could work its way forward from the pressure points where the legal and the factual collide. So schematically (with a few amendments to the original):

If the factual and the legal are not part of a naive historical scheme where the latter (‘state’) is qualified as a ‘developed’ form of the former (‘society’), and if the two dimensions are present contemporaneously, then there would always be a tension between the two: a geopolitical tension between state territory and land, a democratic tension between a constituted nation and a constituent people, and some amorphous political tension between sovereignty and power that I haven’t found a good name for yet.

In terms of consolidating the already published bits and bobs, as well as introducing the manuscripts still waiting on my hard drive to be dragged out into the daylight, I need to decide whether this is still a plausible framework for presenting the whole.


Jellinek, Georg (1919) Allgemeine Staatslehre [1900]. 3rd ed. Berlin: Julius Springer.

Minkkinen, Panu (2009) Sovereignty, Knowledge, Law. Abingdon: Routledge.

Minkkinen, Panu (2013) ‘Political Constitutionalism versus Political Constitutional Theory: Law, Power and Politics’, International Journal of Constitutional Law, Vol. 11, No. 3: 585-610.

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.