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The Paradox of ConstitutionalismConstituent Power and Constitutional Form$

Martin Loughlin and Neil Walker

Print publication date: 2008

Print ISBN-13: 9780199552207

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199552207.001.0001

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The Exercise of Constituent Power in Central and Eastern Europe

The Exercise of Constituent Power in Central and Eastern Europe

Chapter:
(p.211) 11 The Exercise of Constituent Power in Central and Eastern Europe
Source:
The Paradox of Constitutionalism
Author(s):

Ulrich K. Preuss

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199552207.003.0012

Abstract and Keywords

This chapter considers the ways in which constituent power performed a role in the reconstruction of post-communist states of Central and Eastern Europe. It argues that the peculiarity of constitutionalism in this region lies precisely in the fact that in such well embedded political communities its traditional constitutive role is unnecessary, but that it nonetheless remains vital as way of allocating and checking power. Paradoxically, such a one-sided constitutionalism may face significant opposition from those embedded forces of community which make its constitutive role redundant.

Keywords:   Central and Eastern Europe, constituent power, constitutionalism

The analysis of the mysteries of constituent power does not primarily pursue the historical or the sociological interest in knowing who exactly was the creator of a particular constitution of a particular country. The main interest is, of course, a philosophical one which deals with the significance of the constituent power for the binding force of a constitution. Important questions are involved. Why is a—frequently time-honoured—constitution the supreme law of the land to which all legislative acts of the elected body of the citizens are inferior? Why has the present generation the duty to respect the high hurdles which the founding generation has inserted in the constitution in order to encumber any changes to their creation? What, in other words, is the ultimate source of the normative validity of a constitution? Is its authority rooted in the authorship of the creator of the constitution, or is it ultimately rooted in its inherent reasonableness? And if so, what is the relationship between the political will power of the author and its substantive quality as the embodiment of political reason?1

At a first glance these questions do not seem overly difficult to answer if we suppose—what is hardly avoidable—that modern constitutionalism requires that a constitution must be authored by the people.2 If the constitution is an instrument of popular self-rule and hence can only be created by the people, it follows that it is the authority of the people which bestows validity and binding force upon the constitution—the constitution is binding because it is the incarnation of the people's will. On closer inspection, however, it turns out that this explanation raises more questions than it is able to answer. What is the meaning of ‘the people’? Is it the people of the founding generation or is it each generation (p.212) which lives under the constitution? Moreover, which conditions must be fulfilled in order that it is ‘the people’—and not merely a group of individuals who happen to be in power—which we can recognize as the true author of the constitution and, consequently, as the ultimate source of its normative validity? In other words, we need rules of recognition of the people as constituent power.3 The identification of such rules is an issue of political philosophy and, since the constitution is a legal entity, of jurisprudence.

But there are also questions involved which have an empirical dimension and point to the socio-political conditions under which ‘the people’ is able to act as a constituent power. As Bruce Ackerman has suggestively submitted, ‘constitutional moments’—the creation of a constitution undoubtedly being the most unequivocal one—are historically rare occurrences of intense popular mobilization.4 Obviously the profound regime changes in East and Central Europe which resulted from the erosion and eventual dissolution of the Soviet Union were events of that kind. After all, they precipitated the end of the communist rule. This is why it is justified to call them revolutions, although they differed considerably from the European revolutions of the eighteenth, nineteenth, and twentieth centuries which eradicated the anciens régimes of the pre-democratic age.5 But were they moments in which the constituent power of the peoples of Hungary, Poland, Czechoslovakia, Bulgaria, etc. was exercised?

This chapter deals with the particular character of those revolutions in the perspective of constitutional theory. In the first section I develop some general aspects of the idea of the constituent power, focusing on the role of the people in the exercise of its constituent power and trying to find explanations for some seemingly paradoxical elements which accompany it. In the second section I will analyse the particularities of the revolutions in East and Central Europe with respect to the exercise of constituent power. Finally, in the concluding section, I return to a more general view on the relationship between constituent power and revolution. Historical examples teach us that constitutions are inherently political devices which respond to the individual's quest for liberty against the oppression of tyranny. Yet the transformations in many of the East and Central European countries opened the path for an ethnification of politics. This gives rise to the question of whether those revolutions did in fact mobilize the constituent power of the peoples or whether they established constitutions without constituent power.

(p.213) ‘The People’ as the Subject of Constituent Power

The creation of a constitution is an inherently revolutionary act. It includes the power to create the basic structures of a polity; in fact, it is tantamount to the power to create an entirely new polity.6 Thus we may understand the exercise of the constituent power as a constitutional revolution where political energies are transferred into legal institutions.7

This suggests the omnipotence of a god-like creator who can invest his imagination into the invention of a new social edifice and impose it upon a passive multitude of individuals who only by this very act come into being as a political community.8 Of course, in a worldly context the issue is much more complicated. The often-observed conceptual paradox of the relation between constituent power and constitutional form lies in the assumption that in our secular world it is the people who assume the position of the god-like and omnipotent creator and who by the act of constitution-making create themselves as a collective subject, as a political ‘We’. How can it be explained that the unorganized, atomized, and hence impotent mass of individuals—in fact, the opposite of a ‘We’—is vested with the capacity to transform itself into an organized political entity? Or, to put it differently: if the constitution is a device which empowers a multitude of individuals to act collectively and to develop the capacity of self-determination, how can the preconstitutional un- and disorganized multitude arrogate the capacity of constituting themselves as a Self?

The Case of the French Revolution

To answer this question we may be inclined to presuppose a pre-political collective Self with a distinctive identity that somehow breeds the will to form a polity. This hypothesis comes to mind when we read Carl Schmitt's definition of the constituent power as ‘political will, i.e. as concrete political existence’.9 He claimed that in the modern era—i.e. in the age after the French Revolution in which only the people or the nation can be recognized as the author of the constituent power—the ‘doctrine of the constituent power presupposes the deliberate will to political existence, i.e. a nation’.10 Schmitt rightly emphasizes that the French Revolution promoted a profound reconceptualization of the idea (p.214) of political community and that in the perspective of constitutional theory the French Revolution did not occur on 14 July (the spectacular assault of the masses on the Bastille), but on 17 June 1789 when the General Estates declared themselves to be the French National Assembly.11 This was tantamount to the birth of the French nation, i.e. the transformation of the French society into a united political body. But Schmitt neglects the individualistic twist of this process. The nation is not a mere conversion of a pre-political association of people—an ethnos—into a political entity. Rather, its construction presupposes a society of free and equal individuals who constitute themselves as a collective body in the sphere of politics. Therefore, the key concepts of the French Revolution were nation and citizenship.12 Individuals are only free and equal when they rule themselves, i.e. when they are co-authors of the laws to which they are subject. This is the essence of citizenship;13 hence, the nation is the community of citizens.14

When we use the concepts and the language of politics we have always to bear in mind that it is rooted in an underlying social structure and the social forces which determine the logic of the political. The social underpinning of the nation as it was proclaimed in 1789 was that of a competitive market society and its basic institutions of private property, free markets, an autonomous civil sphere, the predictability and certainty of the law, individual rights, etc. Of course, in 1789 all this was a mere vision and no empirical reality; the nation had still to be created. The only socio-political force which could claim to represent the whole society was the rising productive class of industrial and commercial entrepreneurs. Not only were their interests best served if the society was built upon the universalist principles of freedom, equality, and humanity (in the sense of universal civilization) but, conversely, the society could flourish only if its basic institutions were adapted to this minority's interests. Due to this correspondence of interests and institutions those who in the framework of the ancien régime were just a fraction of the society—the ‘third estate’—could now claim to be the whole. Although in terms of numbers in fact they were only a small minority, they could rightly claim: ‘We are the nation’. In other words, the new commercial and industrial class could identify with the nation, act on behalf of the nation and at the same time pursue its interests as a social class without hypocrisy and pretension. It could transform its strength as a particular social class into a power which propelled the idea of a common interest of the nation.

(p.215) Sieyès’ distinction between constituent power and constitution served this new political logic.15 It had the implication that the sovereign power of the state, hitherto appropriated by the monarch, could now be attributed to the nation and designated to serve the interests of the nation. Those interests consisted in the safe establishment of the basic elements of a competetive market society enumerated above; they required, that is, a limitation of the sovereign state power. The nation had to become sovereign in order to establish a regime of limited power—this paradox reveals the logic of the separation of the constituent power from the constituted powers. The sovereignty of the nation does not mean omnipotence including the power to any kind of arbitrary action; rather, it is embedded in the context of the self-constitution of the nation as a political order which creates and guarantees the conditions for a society of free and equal individuals. The inherent rationale (and limitation) of the constituent power is the creation of a constitution which fulfils this objective. Therefore the famous avowal of Article 16 of the Declaration of the Rights of Man and Citizen 1789 (‘A society in which the guarantee of rights is not secured and the separation of powers is not determined has no constitution’) does not contradict Sieyès’ assignment of unlimited power to the nation. Rather, it is its consequence: only a nation which disposes of sovereign power is able to organize itself according to the interests of the whole society and to free itself from the rule of particularistic forces, i.e. from tyranny.

Hence we should dismiss the widespread judgment that the constitution is a device to domesticate the wild, abysmal, and potentially destructive constituent power and to disempower the people (in its own best interest, to be sure).16 The reverse is true: the constitution empowers the people to make use of its capabilities as a collective actor and to depart the state of a disorganized and powerless mere multitude. The lack of established rules and institutions which could guide the multitude's self-transformation into a collectively acting entity leaves them in a state of powerlessness. But if the constitutionless people is powerless, we cannot conceive of the people as being the creator of a constitution unless we discover a condition which empowers the multitude to seize the constituent power which metamorphoses them into what Sieyès baptized a ‘nation’ and we would prefer to call a ‘polity’.

The Empowering of the Powerless Multitude

This empowering condition can be found in the role which active political minorities play in the downfall of the previous political order. In the history of constitutional revolutions—the relevant examples being, of course, the American and the French Revolutions at the end of the eighteenth century, but equally (p.216) relevant is the German revolution of 1918–19 which engendered the Weimar Constitution—there had always been more or less well organized minorities which had assumed the leadership in the disputes and struggles which necessarily surface when the old order is waning. At no point could one find a blank sheet of paper on which a completely new rule could be drawn after the fading of the previous regime. From a sociological point of view, the emergence of the constituent power is the product of the demise of the old regime and of the concomitant political struggles about the character of a new order. Here the role of active minorities comes into play. In the history of constitutional revolutions those political forces conquered power which were able to convince the passive majority of the society that they acted on behalf of the interests of the whole society. Consequently, after their triumph, they attributed their revolutionary power to ‘the people’ or ‘the nation’.

Of course ‘the people’ or ‘the nation’ are no empirical entities; they are social constructs which embody the aspirations, the ideals, and the unity of the society and which are purified from all traces of its more trivial and disuniting attributes like self-interested, myopic, and irresponsible individuals and their relentless struggles for material goods, power, and esteem. It is this ideal quality of ‘the people’ or ‘the nation’ to which the revolutionary power is attributed (the revolutionary vanguard would never transfer their power to any other empirical agent); through this attribution the real power of the revolutionary minority is converted into an attribute of ‘the people’ and now attains itself an ideal quality—this conversion gives birth to the constituent power. Somewhat pathetically we may call it the marriage of will and reason, the two essential elements of politics. Thus, the constituent power has an ambivalent character: its material resources flow from the empirical power of the prevailing active revolutionary minority, whilst its moral character derives from its association with the ideal construct of ‘the people’ or ‘the nation’.

This ambivalent character of the constituent power may explain some of its paradoxical elements. For instance, at a first glance it is surprising that the vote of the agent of the constituent power—be it ‘the people’ in a constitutional referendum or a Constitutional Assembly (Convention)—about the constitution is taken with a simple majority, while constitutional amendments usually require a stronger majority (mostly two-thirds of the amending assembly), associated with further obstacles to a pure majority vote. If the exercise of the constituent power is an act of a people's self-determination through which a new polity, not just a new government, is established, we should expect the requirement of a unanimous vote. This is, of course, impossible. But should we not compromise between the ideal requisite of a 100 per cent vote and the facts of real life and at least call for a qualified majority? Does not a simple majority appear thoroughly inappropriate? In other words, how can we find a solution to the problem that the exercise of the constituent power has to meet three conditions which do not necessarily fit together: namely that (1) as a foundational power of a people it has to be (p.217) all-inclusive; (2) as an act of self-determination of that people it has to be a free and voluntary act of every involved individual; and (3) that it has to accept, or at least tolerate, dissenting votes? Dissenters meet the second requirement, but do they fit the criterion of all-inclusiveness?

John Locke discussed the same problem when he explained the foundational character of the social contract, and was confronted with the question of how to deal with the dissenters.17 Among his reflections, the argument of tacit consent has become particularly prominent because it seems to offer a convincing theory of the compatibility of all-inclusiveness, voluntariness, and tolerance for dissent. In our context the argument claims that participation in the constitution-making process includes the consent of every participating individual to accept the result of the majority vote even if he or she dissents from the content of the constitution itself. As a consequence, dissenters are also obligated by the constitution. Unfortunately we cannot content ourselves with this solution to the problem. Apart from the objection that this hypothesis does not hold for those individuals who with a reasonable excuse did not participate in the process of constitution-making it would entail the exclusion from the constitutionally founded polity of those who participated in the process for the sole purpose to voice their disagreement with the draft constitution; counting them as co-founders of the polity would fulfil the first of the above-mentioned conditions, but it would violate condition (3), and it remains an open question as to whether condition (2) would be satisfied.

Another answer to the question of how the simple-majority-requirement of the constituent power and the duty of the outvoted minority to comply with the constitution is to be explained, reads as follows: if the constitution contains basic human and civil rights like the right to free speech, freedom of press, of assembly and association, the right to vote, and the right to a fair and free participation in the struggle for political power it offers the overruled minority the fair chance to become itself the majority in the future and to shape the political process.18 According to this argument the binding force of the constitution emanates from its reasonable and unbiased substance. However, there is one fundamental weakness in it: if the just and fair character of the constitution is the ultimate reason for its binding character, why, then, should it not be possible that a progressive vanguard imposes its righteous project of a new polity upon an unenlightened society? Obviously this option would be incompatible with the concept of constituent power and violate condition (2).

In the search for a solution which meets all three of the above-mentioned requirements of the exercise of the constituent power we should bear in mind the ambivalent character of the constituent power. Whereas in its quality as the (p.218) empirical power of an active minority it could be used to force the minority's will upon the society, it would lack any constituent character without its attribution to ‘the people’, which means that it must assume the perspective of a hypothetical general will of ‘the people’. The powerless multitude is empowered only and exclusively through this act of attribution which creates a moment which is both logically and chronologically prior to the state of normal politics. This moment calls for an attitude of the involved individuals which transcends mere aggregation of preferences. What the individuals who make up the multitude are required to do is to act according to second-order preferences: which preference would I prefer if I voted not as a self-interested individual but as a associate of a polity which pursues the well-being of all its members? This is the perspective of the ‘generalized other’19 which embodies the inherent reasonableness of the individuals who come together in order to transform themselves from a mere multitude into a polity. It is not by accident that this perspective has some similarities with the individuals reflecting behind the Rawlsian veil of ignorance,20 although the reasonableness of the ‘generalized other’ is of a less strategic character than the attitude of the Rawlsian individuals.21

What does it mean to act as a reasonable person? It is ‘reasonable’ to be aware of and to take into consideration the fact that a society without a constitution is doomed to a passive and subaltern mode of existence, subject to an unenlightened rule of some kind of oligarchy without any instrument of self-reflection and learning. The situation after the collapse of the previous order is that a constellation of powerlessness and eventual oppression by individuals or groups impose their power upon the society, unless the individuals form a collective will and establish institutions which ensure that the power remains theirs. It is in this moment that the powerlessness of the disorganized multitude turns into the power of a collective body—the constituent power which is subject to no other power and hence tantamount to sovereign popular power. But because it is based upon the charisma of a revolutionary situation, it is a transitory power which exists only in an evanescent moment of history. Only institutionalization can turn this moment into the permanent power of the people, which is precisely what constitutions do.22 Thus the constituent power embodies supreme power only under the condition of its self-abolition through its self-transformation into a constitution. In other words, the constitution is the annihilation of the constituent power and at the same time its perfection.

It is this amazing feature of the constituent power which explains the striking fact that the two incarnations of the constituent power—the constituent assembly (p.219) and the people acting in a plebiscite—make their decisions by simple majority votes, while amendments of an existing constitution usually require an enhanced majority. The reason is this: the persistence of the constituent power as constituent power amounts to its self-abdication because, due to its ephemeral character, it can perpetuate its existence and consummate its mission only by creating a constitution. This is, as it were, its objective meaning. The constituent power must be transformed into a state of constitutionality lest its social meaning be destroyed. The most obvious rule which precludes the constituent power's self-paralysis is the unqualified majority rule since it cannot produce unclear situations or deadlock: it will always generate a decision and that is what constitutional moments and constituent powers are essentially all about.

While the decision procedure is simple, its substance requires an extraordinary degree of reflection and deliberation.23 This is so because people have to think about the experience of the past and their visions of the future—after all, a constitution determines the scope of politics and of the instruments available to the society for its self-observation and self-determination.24 However, this is not a matter of an either/or decision which the simple majority rule suggests. How can we explain this conundrum? First and foremost, since the constituent power is sovereign there is no superior body which could impose a decision rule. The constituent power is an autonomous body whose members are equal. Will formation among a group of equals can only occur according to the simple majority rule.25 But a further reason may apply. Decisions of the constituent power are different from mere aggregations of preferences—they include an existential choice about the essential elements of the polity. This is why it is ‘the people’—the politically united body—and not a parliament which represents the diversity of the society which is endowed with the constituent power. ‘The people’ cannot discuss, negotiate, and make compromises like a parliament or any other constituted entity—it is a diffuse collectivity on its way to constitution. Hence it can only respond to questions which have been submitted to it for approval or disapproval: it can only say ‘yes’ or ‘no’.26 This can only be done via the unqualified majority rule.

Radical–Democratic and Institutionalist Constitutions

Among the possible alternatives which have to be submitted to the final verdict of the people is one which points to a fundamental issue of constitutionalism, namely the telos or inherent rationale of constitutions. There is a basic choice (p.220) between what I call a radical-democratic and an institutionalist notion of constitutionalism.27

Historical experience teaches us that there are mainly two different modes of how revolutions may shape constitutions: on the one hand, the major forces of the revolution endeavour to ‘congeal’ the achievements of the revolution, particularly the new distribution of political power, in a constitution, i.e. in a legal document which carries the unequivocal authority of a written text superior to all other laws of the land. On the other hand, the revolutionaries seek to sustain the high-spiritedness and openness of the revolutionary moment as long as possible, be it by proclaiming the permanent revolution and dismissing all kinds of institutionalization whatsoever, be it by fixing their supremacy in a document which is a mere image of the revolutionary situation itself. This latter case is, respectively, epitomized in Marx and Engels’ concept of a permanent revolution, which they developed after the failed revolutions of 1848 and which was later adopted and revised by Leon Trotsky, and in the ‘constitutions’ of the soviet-type communist countries, which explicitly established the leading role of the Communist Party and its allies.

The former case, however, is the response to the revolution which we may recognize as reflecting ‘genuine’ constitutionalism. The transmutation of the creative, unorganized, and untamed power of the revolution into the constituted powers of a particular political regime—this is the very meaning of the concept of ‘constituent power’—bears the implication that after the creation of the constitution there is no place for any kind of extra-constitutional power. By making a constitution, the revolutionary forces are, as it were, digging their own graves; the constitution is the final act of the revolution. The subsequent political process is not controlled by the revolutionaries, but by the constitution. More precisely, it is controlled by social forces which are the beneficiaries of the revolution without having necessarily participated in initiating or waging it.

According to the conventional understanding of the role of the constituent power, the constitution which it eventually creates liberates social forces which had been suppressed by the old regime—these are the ‘transformative’ forces that I shall discuss later. The revolutionary forces are not only able to destroy the old regime but to create a new order according to their vision of the society. But it is also possible—in fact quite frequent—that the constitution crafts the political and institutional preconditions for the emergence of totally new social and political actors. These possibilities are reflected in two distinct concepts of constitutions and of constitutionalism, a ‘radical-democratic’ and an ‘institutionalist’ one.

The former can be regarded as a constitutionalist surrogate for the aforementioned options of a permanent revolution or of the congealing of the supremacy of (p.221) the leading revolutionary forces. According to this ‘radical-democratic’ conception constitutions sanctify democratic revolutions in that they solemnly confirm that through their revolutionary actions the people have recaptured their constituent power, which is regarded as unrestricted by any rules, institutions, or superior orders, directed only by its unrestrained will power. In this understanding, constitutions are the authentic embodiment and expression of the revolutionary people's will. The constitution aims at the perpetuation of the major achievements of the revolution and tends to incorporate a great number of social promises.

Since not all political issues can be included in the constitution, the framers are anxious to devise an institutional order which makes the will of the people the ultimate arbiter in all relevant political conflicts which will necessarily emerge in the future. The people are supposed to become the truly reliable guard of the revolutionary achievements and their preservation in the future. This is easily understandable if we recognize that the revolutions which generate this kind of constitution mostly involve at least some elements of a social revolution, associating the term ‘people’ more or less consciously with the lower classes, the poor, and miserable.28 Hence, usually constitutions of this ‘radical-democratic’ type not only promise relief of the people's misery, but establish the institutional superiority of the elected representation of the people over the other branches of government. In order to achieve the most possible congruity of the actual popular will and that of its representative body, additional safeguards are provided: proportional representation, some sort of imperative mandate to the elected deputies, and plebiscites are the most familiar characteristics. Whenever major social and political conflicts arise, their solution must be delegated to the people, because obviously in a ‘genuine’ democracy there is no superior wisdom than that of the people. Consequently, ‘radical democratic’ constitutions aspire to preserve the revolutionary high-spiritedness of the people and rely more or less explicitly on the very same civic virtues which have engendered the revolution in the first place. Ideally, they are committed to keeping the spirit of the revolution alive and to levelling the difference between revolutionary and normal politics. Not surprisingly, constitutions which focus on the people's will by making it the ultimate source of social and political order are rather vulnerable to the volatility and, so to speak, disorderly passions of politics. As the case of the French Revolution displays, they have proven rather unstable.

In contrast, ‘institutionalist’ settlements of revolutions use the revolutionary civic spirit for the creation of institutions which allow the people to return to normal life and normal politics once the goals of the revolution have been achieved. They rely on the ‘wisdom’ of institutions and on the proper operation of social mechanisms rather than on the immediate will power of the people (and the continuance of their civic virtues characteristic of the revolutionary period). (p.222) The framers are reluctant to include substantive policies in the constitution because this may complicate and in fact hinder the adjustment of policies to new circumstances and thus weaken the creative capacity of political institutions. In this conception, rather than providing solutions to problems, constitutions are seen as institutional instruments of problem-solving; they are ‘possibility-engendering’29 rather than devices that aim at the consolidation of specific policies willed by the people under particular conditions. The people submit themselves to rules (for instance, the separation of powers) which, though not determining the outcomes of politics, guarantee that the actual political outcomes are consistent with what the people would have willed in the revolution if it had anticipated the new circumstances. ‘Institutionalist’ constitutions ‘congeal’, as it were, neither the actual empirical nor the future hypothetical will of the revolutionary generation; rather, they institutionalize the capacity of the people to form and to enforce their will in post-revolutionary times of ‘normal politics’ without being forced to permanently revitalize the spirit of the revolution and to adjust it to ever changing social and political circumstances.30

‘Institutionalist’ constitutions embody a sceptical and even suspicious view on the very revolution from which they originate.31 They determine the close and the definite breaking off of the revolution and set a clear-cut hiatus between revolutionary and normal politics. Institutionalist constitutions are created by reluctant revolutionaries who after the making of the constitution tend to become hostile to any attempt to re-invigorate its revolutionary founding spirit. They are confident that the constitution provides mechanisms which guarantee political outcomes that have the same or even better effects than revolutionary politics, without being as costly.

The Constituent Power in the Central and East European Revolutions

Against this background, how do the regime changes in the Central and East European (CEE) countries after 1989 fare? Did the processes of constitution-making which occurred there right after the collapse of the old regime echo the experience and the theoretical insights of the earlier revolutions of the eighteenth and twentieth centuries?

The mass demonstrations in the streets of Budapest, Prague, Warsaw, Sofia, Bucharest, and Leipzig in the fall of 1989 provide impressive evidence that the peoples of the then still communist countries had reclaimed the power taken away (p.223) from them by the communist party oligarchies after the end of World War II.32 Undoubtedly those mass rallies represented the political will of the overwhelming majorities of the respective countries. They were, as I stated earlier, revolutions and frequently became the starting point of constitution-making processes.33 However, these revolutions were quite special. What distinguishes them from the paradigmatic case of the French Revolution—and also from the Russian Revolution of 1917 and of the German Revolution of 1918–19 which entailed the Weimar Constitution—is the absence of actors who represented socio-economic interests which could identify with the interest of the society at large without being rejected as particularistic and purely class-based. I refer here to the distinction between ‘systemic’ and ‘political’ revolutions offered by Zygmunt Bauman.34

Systemic and Transformative Forces

According to Bauman's distinction, political revolutions adjust a political regime to the requirements of the socio-economic system and are launched by agents who represent more or less established collective ‘transformative’ interests which cannot find an appropriate institutional expression in the extant political structure; these interests will immediately gain from the change of the political regime. In contrast, the agents of a systemic revolution not only dismantle an old regime, but also find themselves in the situation where a new society, its interest structure and actors remain to be established.

I take it that it is this ‘systemic’ brand which characterizes the regime transitions in the post-communist societies of CEE. In none of those countries did the old regime generate interests and actors that could easily slip into the institutional forms hastily created after the breakdown of the old regime. While the freedoms of, say, private property, the press, or of contract were written down in new constitutional documents, the actors who could use these freedoms in a meaningful manner or who even yearned for these new modes of action were absent.35 This had several important implications.

First, the forces which brought the old system down are not likely to be those which will benefit from the ‘revolution’, because they represent merely the dissatisfaction with the old regime which, in contrast to the conditions of a political revolution, does not yet bear the new order in its womb.

(p.224) Second, it is unlikely that those combined forces will continue to be united in the vision of a new order or will be satisfied with the outcomes which the new order yields for them. In other words, there is no determinate relation between the forces which dismantled the old regime and the character of the emerging new order.

Third, systemic revolutions create an empty space which is left over after the fall of the old regime and into which the new order has not yet had the chance to inscribe its brand. In this extremely open situation the actors are truly acting behind a veil of ignorance: they have no knowledge about the actual distribution of power, about the motives, interests, and actions of other (internal or external) actors, and they find themselves in the situation where huge masses of people are easily mobilized, without knowing the focal point of mobilization other than the purely negative resentment against the old regime. Thus, actions and decisions which in the situation of a political revolution would be ephemeral and negligible because they do not meet the requirements of the ‘transformative’ constituencies and interests may acquire disproportionate relevance.

The transformative effect rarely occurred in the CEE countries over a considerable period of time. Instead, at least in some countries, forces which had been suppressed during the communist period were reawakened—the forces of nationalism. Among the post-communist CEE countries we should distinguish between two types of polity: those which had been created by communism and others which had experienced a more or less venerable national history before communism. Manifestly the German Democratic Republic is the most prominent case of the former group, but Yugoslavia also belongs to this category. Czechoslovakia is a borderline case, since the country was created (in 1918) shortly before communism; but the idea of ‘Czechoslovakism’ as an ideological cement of the state was inseparably connected with the communist regime. The paradigmatic case of the other category is Poland. In the former cases the collapse of communism not only destroyed the political regime, but the polity itself. Hardly any pre-constitutional cohesive forces—such as a common political will to live together, a shared national history, or at least a history of statehood—remained and which could provide a sustainable sense of commonality of fellow citizenship to serve as the basis of the constituent power.36

Thus, in some of the post-communist transformation countries (e.g. Slovakia or Yugoslavia) the ‘systemic’ character of the revolution was even accentuated by the absence of pre-constitutional cohesive forces. This encouraged the resort to nationalism and ethnocentrism as the chief integrative force of the polity. This in turn tended to undermine the role of the constitution as an instrument of founding a new polity.

(p.225) It is a matter of speculation whether this, as it were, unconsolidated constellation of the transition period has affected the structure and the viability of the political orders which were set up in the several Central and East European countries. To what extent did the ‘systemic’ character of the revolutions of the constituent power of the anti-communist movements of 1989–90 shape the feature of the constitutional orders which they eventually set off?

Political and Ethnic Forces

Given the fact that liberal-democratic constitutions have been enacted in all transformation countries, the question arises whether they have helped to establish potent actors able to use the institutional tools which the new constitutions provide. At a first glance the answer is clearly affirmative: there are political parties necessary for the running of a parliamentary system or the promotion of presidential candidates, unions for the system of collective bargaining, independent print media for the development of a public sphere, etc. But this does not mean that consolidated political systems have evolved in all CEE countries. If we look at Serbia, Bulgaria, or Romania it is doubtful whether their constitutionalism guarantees a civilized mode of political rule and, at the same time, economic development. The upsurge of extremely nationalist and ethno-national political forces in Poland, Slovakia, and the Czech Republic offers further examples. This raises the question of whether there are features of constitutionalism and of the constituent power that are characteristic of CEE countries.

As stated earlier, the absence of ‘transformative’ forces produced a period of transition, in which the old regime had more or less collapsed and a new order (in which institutions functioned according to the logic inherent in constitutional order) had not yet been (fully) established. This period is difficult to grasp. Two closely connected interpretations are possible. According to one reading, the collapse of the old regime removed an obstacle and permitted the resurgence of the (allegedly) democratic pre-war political orders displaced by the establishment of communist regimes after World War II. Yet there had been no democratic systems which awaited redemption through the kiss of the prince in the revolutions of 1989 and the following years. All countries of the region had suffered from more or less severe shortcomings of their political systems in the period before World War II.37 Thus, polity-building after the breakdown of the communist regimes was by no means a simple process of de-freezing an intact pre-war political order. Moreover, such an interpretation overlooks the important role which the defeated, but not annihilated, forces of the communist regime played in establishing a new order.

(p.226) According to the other understanding of the transition, the collapse of the communist regimes not only prompted the liberation of the society from an alien tyranny but at the same time stimulated the spontaneous emergence of a free society. This suggests that, through the cessation of the communist system, the CEE peoples retrieved the ‘natural’ state of their political affairs. It presumes that the ‘natural’ state of societies inclines towards an equilibrium of mutually respected freedoms of all members of the society and may even do without politics altogether. Even John Locke, who comes closest to the idea of a self-regulatory free society, would reject this assumption. But he had no knowledge of the concept which promised liberty and order without (or with only a minimum of) politics: ethnos as opposed to demos.38 The ethnos denotes a community whose members are united through pre-political attributes like language, culture, origin, religion, or even race.39 By contrast, the demos consists of the entirety of the citizens who form a community by the bond of common laws.

In Sieyès’ concept of constituent power, this power was bestowed upon the nation, which was tantamount to the demos, namely ‘a body of associates living under a common law, represented by the same legislature’.40 This has remained the common understanding of the concept of constituent power in the Western tradition.41 There are indications that in the CEE countries an ethnic understanding of nationhood and of its constituent power may have prevailed. As Offe has argued, ‘ethno-politics’ or the ‘ethnification of politics’ can be seen as a particular trait of that region—that is, the definition of economic, territorial, social, cultural, and religious conflicts along ethnic lines and cleavages.42 Ethnification has become the starting point for civil wars which in some republics of the former Soviet Union and in Yugoslavia have assumed the character of wars of national liberation. This corroborates Francis’ remark that in Western Europe during the nineteenth century, political freedom ‘meant that the demotic nation took over the government of an existing sovereign state, thereby safeguarding its self-determination. In the freedom movement that spread from Germany east and south, however, the term “self-determination” meant the liberation of a preestablished ethnic society from alien influence and foreign domination.’43 This is in line with Lidija Basta's observation that the two communist federations, USSR and Yugoslavia, were the first to redefine in their constitutions the right of self-determination as the right of ethnic self-determination, with the ultimate (p.227) consequence of ethnically legitimated secession.44 But in other countries as well, for instance in Bulgaria or the Baltic states,45 the overthrow of communist rule has unleashed ethnic and national tensions and hostilities.

Constitution without a Constituent Power?

The ethnification of politics has serious consequences for the character of the constituent power. The constituent power of the demos results from a deliberate act of unification of an amorphous, powerless, and diverse multitude into one political body in the charismatic moment of a revolution.46 This power is intrinsically constitutive of a polity. The ethnos, by contrast, is already united as a pre-political community. Its power does not constitute anything; rather, it is a means of asserting the homogeneity and identity of the ethnos and of preventing what is an essential element of politics, namely the dissent and the conflict about the meaning of the common good. In other words, the constituent power of the ethnos—a contradiction in terms—is an inherently apolitical power.

Does a society which defines its communal life in pre-political terms such as ethnicity need a constitution? It certainly does not need it as a founding document which creates the polity in the first place. Its political identity lies beyond the constitution. But ethnic identity as such does not provide the capacity of the people to rule themselves, i.e. to develop rules, principles, institutions, and appropriate procedures about the allocation of resources, the distribution of life chances, benefits, and burdens of the community, and about who defines the identity of the community under changing conditions and new challenges. In modern political history, a constitution has turned out to be the single most appropriate device for dealing with these tasks. Although ethnies can benefit from it and establish a constitution, the constitution of an ethnos is a constitution without a constituent power. It is, so to speak, a mere instrument of government of a pre-existing community whose identity does not depend upon the concept of an act—or the myth—of political foundation. On the other hand, the inherently universalist tendency of a constitution may well undermine the coherence of the ethnos in that it provides institutional channels for dissent, conflict, and civilized modes of struggles for power.

(p.228) Thus, the constitution without a constituent power contributes to the fragile conditions of constitutionalism in those CEE countries in which ethnic politics play a significant role: on the one hand the constitution is needed for the operation of a basic structure of governance and, not to forget, for international recognition as a civilized nation; but at the same time the human resources and social energies which are required for the creation of the country's economic, social, cultural, legal, and political infrastructure are closely associated with the ethnic qualities of the community—a community beyond the constitution.47

Ruti Teitel has associated the ‘notable absence of constitutional constituent assemblies’ with the ‘explosion of constitutional courts’ in the post-communist countries, suggesting that the enforcement of rights has gained highest priority because under communism it was so plainly absent.48 This is a plausible hypothesis. However, it does not explain why constitutional courts could render dispensable the establishment of the constituent power; after all, these two elements are not mutually exclusive. The deeper reason may be found in the fact that a constitution, being a ‘profound act of political self-definition’,49 is unnecessary if ‘the people’ or ‘the nation’ exists prior to and independently of any constitution. This is what distinguishes the European revolutions of 1989 from those which we have known since 1649: the widespread spirit which understands them as identity-engendering acts of liberation rather than as processes of a political reconstitution of liberty. Hence, in the revolutions of Central and East Europe which so dramatically changed the world and concluded the twentieth century the constituent power played only a minor role.50

Notes:

(1) Cf. F.I. Michelman, ‘Constitutional Authorship’ in L. Alexander (ed.), Constitutionalism. Philosophical Foundations (Cambridge: Cambridge University Press, 1998), 64.

(2) E.W. Böckenförde, ‘Die verfassunggebende Gewalt des Volkes—Ein Grenzbegriff des Verfassungsrechts’ in his Staat, Verfassung, Demokratie. Studien zur Verfassungstheorie und zum Verfassungsrecht (Frankfurt: Suhrkamp, 1991), 90–112. For more references see A. Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12 Constellations 223.

(3) See Michelman, above n. 1, 77; Kalyvas, above n. 2, 238; the concept of rules of recognition obviously refers to H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 96ff.

(4) B. Ackerman, We the People. Foundations (Cambridge, MA: Belknap Press, 1991), 266ff, 285ff.

(5) Cf. B. Ackerman, The Future of Liberal Revolution (New Haven: Yale University Press, 1992), 5ff, 46ff; U.K. Preuss, Constitutional Revolution. The Link between Constitutionalism and Progress (Atlantic Highland, NJ: Humanities Press, 1995), 91ff; more sceptical with respect to Hungary, see A. Arato, Civil Society, Constitution, and Legitimacy (Lanham, MA: Rowman & Littlefield, 2000), 82ff, 93ff.

(6) This is the reason why a venerable tradition of political reasoning—from Locke through Madison, Sieyès, Paine to Schmitt and Arendt—has been fascinated by the constituent power: cf. Kalyvas, above n. 2, 226ff.

(7) Preuss, above n. 5.

(8) U.K. Preuss, ‘Constitutional Power-making for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution’ (1993) 14 Cardozo Law Review 639–60.

(9) My translation of the German text: ‘Die verfassunggebende Gewalt ist politischer Wille, d.h. konkretes politisches Sein’ in C. Schmitt, Verfassungslehre [1928] (Berlin: Duncker & Humblot, 4th edn., 1965), 76.

(10) Ibid. 79.

(11) Ibid. 78; see also K. Loewenstein, Volk und Parlament nach der Staatstheorie der französischen Nationalversammlung von 1789 : Studien zur Dogmengeschichte der unmittelbaren Volksgesetzgebung (Munich: Drei Masken Verlag, 1922), 20ff, 205ff.

(12) R. Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992), 35ff; G.H. Sabine, ‘The Two Democratic Traditions’ (1952) 61 The Philosophical Review 451.

(13) Cf. J.G.A. Pocock, ‘The Ideal of Citizenship since Classical Times’ in R. Beiner (ed.), Theorizing Citizenship (Albany: State University of New York Press, 1995), 29.

(14) D. Schnapper, La communauté des citoyens. Sur l'idée moderne de nation (Paris: Gallimard, 1994).

(15) E.-J. Sieyès, ‘What is the Third Estate?’ in his Political Writings, M. Sonenscher (ed.) (Indianapolis: Hackett, 2003), 92, at 136ff.

(16) See the more elaborate argument in Preuss, above n. 5, 112ff.

(17) J. Locke, Two Treatises on Government, II. §§ 95–99, 119–122.

(18) For an elaborate version of this argument see J. Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), ch. VI, § 53.

(19) G.H. Mead, Mind, Self, and Society [1934] (Chicago: University of Chicago Press, 1972), 152ff.

(20) Rawls, above n. 18, ch. III, § 24.

(21) An empirical analysis of constitution-making processes, however, normally show a heterogeneous bundle of interest, passions, and reason as the motivating force, cf. J. Elster, ‘Forces and mechanisms in the constitution-making process’ (1995) 45 Duke L.J. 364, at 376ff.

(22) Böckenförde, above n. 2, 108: ‘Absolute power which wants to remain absolute cannot be transformed into constitution’ (author's translation).

(23) J. Elster, ‘Deliberation and Constitution-Making’ in Elster (ed.), Deliberative Democracy (Cambridge: Cambridge University Press, 1998), 97 at 105ff.

(24) See the similar remarks in Ackerman, above n. 5, 48ff.

(25) H. Kelsen, Vom Wesen und Wert der Demokratie (Tübingen, Mohr, 2nd edn., 1929), 60ff; K. Stern, Das Staatsrecht der Bundesrepublik Deutschland (Munich: Beck, 1984), vol. 1, 611ff.

(26) This does not mean that ‘the people’ can act only by way of acclamation as Carl Schmitt claimed: see C. Schmitt, Verfassungslehre, above n. 9, 84ff. But he is right in saying that the decision of the constituent power is a yes/no decision.

(27) A well-known, if not identical, version of this division is Hannah Arendt's distinction between constitutional and social revolutions, see H. Arendt, On Revolution (Harmondsworth: Penguin, 1977), 21ff, 59ff. See also Michelman's distinction between constitutional populism and liberal constitutional democracy: Michelman, above n. 1.

(28) Arendt, ibid. ch. 2, 59ff; Preuss, above n. 5, 81ff.

(29) S. Holmes, ‘Precommitment and the Paradox of Democracy’ in J. Elster and R. Slagstad (eds.), Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), 195, at 227.

(30) Holmes, ibid., 238ff.

(31) Ackerman, above n. 5, 46ff.

(32) T. Garton Ash, We the People: the Revolution of ‘89 Witnessed in Warsaw, Budapest, Berlin & Prague (Harmondsworth: Penguin, 1990).

(33) In particular, with the establishing of Round Tables: cf. J. Elster (ed.), The Round Table Talks and the Breakdown of Communism in Eastern Europe (Chicago: University of Chicago Press, 1996); see also Arato, above n. 5, 167ff.

(34) Z. Bauman, ‘Dismantling a Patronage State’ in J. Frentzel-Zagórska (ed.), From a One Party State to Democracy: Transition in Eastern Europe (Amsterdam: Rodopi, 1993), 139.

(35) J. Elster, C. Offe, and U.K. Preuss, Institutional Design in Post-Communist Societies. Rebuilding the Ship at Sea (Cambridge: Cambridge University Press, 1998), 11ff.

(36) For the pre-constitutional conditions of constitutions, see D. Grimm, ‘Integration by Constitution’ (2005) 3 Int. Journal of Constitutional Law 193.

(37) Elster, Offe, and Preuss, above n. 35, 37ff; G. Stokes, ‘The Social Origins of East European Politics’ in D. Chirot (ed.), The Origins of Backwardness in Eastern Europe. Economics and Politics form the Middle Ages Until the Early Twentieth Century (Berkeley: University of California Press, 1989), 210.

(38) E.K. Francis, Interethnic Relations: An Essay in Sociological Theory (New York: Elsevier, 1976), 43–115.

(39) M. Weber, Economy and Society. An Outline of Interpretive Sociology in G. Roth and C. Wittich (eds.) (Berkeley: University of California Press, 1978), 385ff.; A.D. Smith, The Ethnic Origins of Nations (Oxford: Blackwell, 1986).

(40) Sieyès, above n. 15, at 97.

(41) See Böckenförde, Kalyvas, both above n. 2.

(42) C. Offe, ‘The Rationality of Ethnic Politics’ (1993) 3 Budapest Review of Books 6.

(43) Francis, above n. 38, 78.

(44) L. Basta, ‘Nation-State and Minority Rights. The Case of Yugoslavia Reconsidered’ in L. Mincheva-Grigorova (ed.), Comparative Balkan Parliamentarism (1995), 88–99.

(45) See R.V. Vassilev, ‘Post-Communist Bulgaria's Ethnopolitics’ (2001) vol. 1 no. 2 The Global Review of Ethnopolitics 37; V. Pettai, ‘Ethnopolitics in Constitutional Courts: Estonia and Latvia Compared’ (2002–03) vol. 4 no. 1 East European Constitutional Review 101.

(46) Cf. Hannah Arendt's definition of politics as dealing ‘with the coexistence and association of different men’ in H. Arendt, ‘Introduction into Politics’ in Arendt, The Promise of Politics in J. Kohn (ed.) (New York: Schocken Books, 2005), 93.

(47) Cf. Anthony D. Smith's idea of ‘the nation beyond the state’: A.D. Smith, Nationalism and Modernism: a Critical Survey of Recent Theories of Nations and Nationalism (London: Routledge, 1998), 73ff.

(48) R. Teitel, ‘Post-communist Constitutionalism: A Transitional Perspective’ (1994) 26 Columbia Human Rights Law Review 167, at 172.

(49) Ackerman, above n. 5, 47.

(50) This may explain why constituent power is not even mentioned in an edited book dedicated to constitution-making in Eastern Europe:A.E.D. Howard (ed.), Constitution Making in Eastern Europe (Washington, DC: The Woodrow Wilson Center Press, 1993). A profoundly different approach to the post-communist transformations is pursued by Ruti Teitel, who dismisses the paradigm of revolution and new beginning and instead suggests ‘narratives of transition’: see R. Teitel, ‘Transitional Rule of Law’ in A. Czarnota, M. Krygier, and W. Sadurski (eds.), Rethinking the Rule of Law after Communism (Budapest: Central European University Press, 2005), 279.