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.

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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.