publicado originalmente en CriticalLegalThinking.com,
Ricardo Sanín Restrepo
The contemporary constitutional state is trapped in a fundamental paradox: The tension between democracy and rule of law, or in other terms, between legitimacy and validity, or if you will, between the creativity of the political subject and the order and permanency of constituted power in law. The pressing issue is if democracy defines the legal order, or is the legal order the shape of democracy. Are the people the authors of the constitution? Are the people unthinkable within the legal system? Or on the contrary are the people the very condition of existence of law.
These questions compound much more than an academic battle of epic proportions, they label at least the following aspects that are crucial to any constitutional theory:
- What is democracy?
- What is constitutional law?
- Who has the last word that ascribes constitutional content?
- Is the constitution a normative scheme with no place at all for the political? Which also implies the impossibility of collective formations such as the people
- can the collective (common) have a sense beyond a simple sum of individual wills frozen by law in particular acts absent any unity of action?
- Are “we the people” a fallacy, a piece of constitutional decoration that is in fact suppressed by an auto-referential normative system?
- May law incorporate constituent power as a legal category?
More punctual questions follow the aforementioned: when a strong leader invokes a majority as proof of his popular and thus democratic legitimacy is he/she invoking an authentic political subject or is he/she abducting constitutional language and therefore supplanting the political being of the people?
Within the perspective of law is there a Being called the people, can “we” the people think herself in her own terms? Is “we” a true being?