Founding Acts by Tekin Serdar;

Author:Tekin, Serdar;
Language: eng
Format: epub
Publisher: University of Pennsylvania Press
Published: 2016-08-15T00:00:00+00:00

  Chapter 6

Law and Democracy in Founding Moments

Deliberative Constitution-Making

Hannah Arendt’s insistence on the modality of the founding act as an immanent source of authority—more specifically, her argument for a process of constitution-making carried out in “mutual promise” and “common deliberation”—appears to suggest an elective affinity with deliberative democratic theory. In one sense, there is nothing wrong with this appearance. From the standpoint of deliberative democratic theory, the process of constitution-making is as important as its outcome, or “how” the constitution is framed matters as much as “what” it prescribes. Yet, there are also crucial differences. And they, too, are worth emphasizing. As we have already seen in the previous chapter, Arendt does not see the importance of constitutional pedigree through the lens of a proceduralist conception of normative validity. And she certainly does not thematize the value of deliberation in terms of a theory of rational discourse. Her interest in deliberative constitution-making has rather to do with the experience of public freedom. As such, it is grounded in a phenomenological rather than a normative mode of theorizing. By contrast, deliberative democratic theory has first and foremost a normative agenda in which questions of rights and justice, legitimacy and justification, are of central significance. The present chapter aims to explore what follows from this agenda with regard to the problem of democratic founding.

The basic issue we shall focus on is the relationship between law and democracy in the context of foundation. In the previous chapter, we have already seen with Arendt why the notion of constituent power, located in a juridical state of nature as a potestas legibus soluta, is deeply problematic. But what happens when the appeal to legal resources turns out to be circular, as it typically does, at moments of constitutional founding? Its merits notwithstanding, Arendt’s argument for an act of foundation carried out in “common deliberation” does not squarely face up to the question of legal rupture. In her story of the American Revolution, she could avoid this question only by virtue of the historically contingent aspects of the American case. Can we find a better answer in deliberative democratic theory now?

After all, a central tenet of deliberative democratic theory is that law and democracy belong together, or that they presuppose one another at a fundamental level. In Between Facts and Norms, Jürgen Habermas has developed this point into a full-fledged theory of legitimacy structured around the thesis of “co-originality.”1 Simone Chambers sums it up aptly: “There is no People’s will to speak of without rights and there are no rights without some theory of popular sovereignty to create an original justification. The relationship between constitutional rights and popular sovereignty mirrors the relationship between law and democracy. The rule of law is inherent in democracy and democracy cannot function without the rule of law. We are legal persons protected by rights only to the extent that we are authors of those laws. We are authors only to the extent that we are persons under the law.”2 But then,

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