Arato’s Adventures: between sovereignty and constituent power
In this paper, I will argue that the paradigm of sovereign constitution-making, as described by Professor Arato, is inconsistent with the very notion of the constituent power of the people. What the distinction between the sovereign and the post-sovereign constitution-making models do is to bring to...
Kaydedildi:
| Yayımlandı: | URI:https://journals.openedition.org/revus, |
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| Yazar: | |
| Materyal Türü: | Article ou chapitre numérique |
| Dil: | Anglais |
| Baskı/Yayın Bilgisi: |
Revus
2020
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| Konular: | |
| Online Erişim: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Özet: | In this paper, I will argue that the paradigm of sovereign constitution-making, as described by Professor Arato, is inconsistent with the very notion of the constituent power of the people. What the distinction between the sovereign and the post-sovereign constitution-making models do is to bring to the surface an unfortunate misunderstanding long present in our constitutional traditions. The exercise of constituent power, as I will show in Part 1 below, should have always been non-sovereign if understood as a power that can only belong to the populace. In Part 2, that argument is developed further but, rather than challenging the result of Professor Arato’s fine theoretical and comparative analysis, I propose an alternative route towards the same conclusion. The advantage of this approach, it will be seen in Part 3 and 4, is that it avoids the democratic trade-offs that usually accompany the post-sovereign model, such as the creation of interim constitutions by non-elected entities. This alternative route, however, is inconsistent with the way in which the power of constituent assemblies has been understood in many 20th and 21st century constitution-making episodes. |
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