[Paper originally presented at the ASLCH 2020 conference at Quinnipiac Law School.]
It is a strange paradox: if one perceives the profound absence of escape, the profound absence of goal and meaning, then — but only then — the mind liberated, we approach practically, lucidly, practical problems.
– Georges Bataille (Bataille 2015: 225)
Over the last few decades, constituent power has become a common staple of scholarly debates on political and legal phenomena. The term refers to the ultimate power of ‘the people’ as the foundation of popular sovereignty and, consequently, of democracy, as well: the state’s central institutions and practices of government are an outcome of the exercise of a constituent power, and so they owe their existence to ‘the people’, and not vice versa (e.g. Wenman 2013; Arvidsson – Brännström – Minkkinen 2020 [forthcoming]).1 This focus and the various attempts to resolve the apparent dilemma when a radical democratic rule by ‘the people’ and democratic institutions and principles clash have left the other side of the coin, namely constituted power, temporarily a bit more in the sidelines. This term, in turn, refers to the ‘end-product’, to the institutions and practices that ‘the people’ has entrenched into its constitution as the relatively permanent cornerstones of its political existence. These include the legal and political institutions that allow democracies to function: the legislature, the judiciary, various levels of public authorities, and so on. But despite their membership in the seemingly almighty ‘people’, individuals live out most of their everyday lives within the confines of institutionalised power relations that they have little access to or, perhaps, are even barely aware of.
[Paper originally prepared for the SLSA 2020 conference in Portsmouth that was later cancelled due to the pandemic.]
Knowledge vs truth
Most of us involved in the social sciences and the humanities have in one way or another resigned to some variation of postmetaphysics. The work that we do does not address ‘truth’ in any profound sense of the word even if we may insist that it can uncover ‘facts’ or produce ‘knowledge’. Indeed, the fact that we call it ‘work’ already says as much. Perhaps this reflects the kind of defeatism typical of modernism that William Connolly called the ‘primacy of epistemology’ (Connolly 1995: 1-40). So we would probably be more comfortable arguing that the looming climate crisis is a ‘fact’ rather than a ‘truth’ even if the cataclysmic end-result is the same in both cases. It seems that in the postmetaphysical world, only art and literature remain the privileged domains of truth.
But occasionally we may come across something that crosses over and blurs the supposedly established demarcation lines that separate science from art, fact from truth. So momentarily, even as ‘mere’ scholars, we may speak about truth without feeling overtly embarrassed about it. As a young undergraduate, I remember how many of my professors and mentors regarded Asylums (Goffman 1961), Erving Goffman’s collection of essays, as such a cross-over phenomenon. ‘On the Characteristics of Total Institutions’, the opening essay of the book, identified a set of recognisable traits that were distinctive of all total institutions, and, mutatis mutandis, we became aware of totalising traits in institutions like schools that we were not accustomed to measuring with the same yardsticks as, say, mental hospitals or prisons. These were, perhaps, Goffman’s factual merits.
[Paper prepared for the ICON-S 2019 conference in Santiago, Chile.]
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’.
[Paper originally prepared for the ICON-S 2018 conference in Hong Kong, later developed further for a seminar in Gothenburg.]
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.
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.
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 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.
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 this project, I’ll be drawing on Henri Lefebvre’s well-known ‘conceptual triad’ of space (Lefebvre 1991: 33, 38-39) to account for the different ways in which these spaces of constituted powers, or constituted 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).