The People Cometh: From Popular Existentialism to Anarchy

Abstract

The un­der­taking of this art­icle is to as­semble an eth­ical and polit­ical meaning of the people as ne­ces­sary to any legal order that re­putes it­self demo­cratic. The chal­lenge is then set to think dif­fer­ence and mul­ti­pli­city not from legal or­ders but from the demo­cratic abyss, ant­ag­onism not from con­sti­tu­tional law but from con­stituent power. Asserting that the an­ni­hil­a­tion of con­flict is the back­bone of con­sti­tu­tion­alism which means the direct elim­in­a­tion of politics; the ob­jective is there­fore to re­store con­flict as the order of being of politics. The place of con­stituent power is then crisis, mani­fested in the im­possib­ility of syn­thesis between con­stituent power and con­sti­tuted order, demon­strated through the in­ter­de­pend­ence of ex­ter­i­ority and in­ter­i­ority as the con­tin­gent logic of democracy.

Put against the mo­nu­mental hurdle of lib­er­alism, ac­cording to which the ex­ist­ence of an autonomous, ori­ginal and con­stituent col­lective “being” is un­think­able, the art­icle will fuse to­gether phe­nomen­o­logy of co­lo­ni­ality, de­con­struc­tion and various rad­ical the­ories to pen­et­rate the hard shell of the im­possib­ility, and thus pur­port a solu­tion to the fun­da­mental ques­tion of the place of enun­ci­ation of the people. At this point the key is to es­tab­lish the “being” of the people in­sofar it com­prom­ises the very ex­ist­ence of demo­cracy that rad­ic­ally im­poses the dis­junctive: Is demo­cracy pos­sible? Or is it a great il­lu­sion cre­ated by a legal mega-​text as an ideo­lo­gical con­di­tion of lib­er­alism? I be­lieve the ques­tion for the pop­ular “being” defines the very pos­sib­ility of legal creation. 

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UPDATE OF AN OLD DISPUTE
Democracy sans-​common and legal totalitarianism

For Kelsen the people is an im­possible, a de­ceit. For this ver­sion of pos­it­ivism, that has ran main­stream not only in Latin-​American jur­is­pru­dence (Lopez, 2004) but that has been in­cor­por­ated as a normal state of af­fairs glob­ally (Brown, 2011, Pp 44) (Kramer 2004) col­lective acts only have meaning when the true ac­tion of an in­di­vidual is at­trib­uted to a col­lective by virtue of the law. Attribution is there­fore the link, the ar­ti­fice that al­lows us to think the col­lective “being” (Kelsen, 1965 Pp 101). The people are there­fore only vi­able as law´s cre­ation, as a sign in­scribed in, and de­term­ined by the legal order. In other words, the people can only be veri­fied as a sub­ject in sub­mis­sion to law. As far as words lack proper or con­tex­tual meaning if they are not de­term­ined by law, the people are the result and not the origin of con­stituent cre­ative activity.

According to legal pos­it­ivism, law is ground zero in the origin of words, it’s the in­aug­ur­a­tion of the system. The order of law is all that there is, law is an auto-​referential and self-​constituted order; law is the origin of the dif­fer­ence, so dif­fer­ence would not exist if the words of the law do not as­cer­tain them so (Kelsen, 1965, Pp 172).

The “we” of the People of Colombia, Ecuador, and Bolivia etc. ex­ists only as the fic­tion that power, the only power that is law, has at­trib­uted “we” a col­lective ex­ist­ence, but such ex­ist­ence is not think­able as an autonomous and isol­ated cat­egory out­side the law. What sur­faces is that the people are but a mirage that is con­ceiv­able only in the ha­bil­it­a­tion or pro­cre­ation of law. Without law, people do not exist.

The lib­eral set­tle­ment is of a double nature. The first nature in­sists that all that ex­ists comes to being by the grace of the legal order, there is no out­side the legal order, (Kelsen, 1965, Pp 104) and the concept of the people in a demo­cracy lacks any meaning if legal ca­pa­city and unity is not awarded by the law. The second nature pin­points that the cre­ation of any field of senses and know­ledge de­pends, not only on legal au­thor­iz­a­tion, but ad­di­tion­ally, that such au­thor­iz­a­tion means that every col­lective cre­ation e.g. Courts, Parliaments, are in reality in lack of a true will, and are but a fic­tion, where only legal at­tri­bu­tion al­lows such cre­ations to bear any meaning.

Kelsen´s at­tri­bu­tion is re­gressive in two sep­arate but par­allel ways. First the primary source of legal validity is a sup­pos­i­tion that is not veri­fi­able within the com­plex of its own norm­ative logic. Second, as Hans Lindahl (2007, Pp 16) points out lu­cidly, all and every act of at­tri­bu­tion of a spe­cific le­gis­la­tion to a col­lective is be­fore all an act of self-​attribution.

Hans Lindahl (2007) will put for­ward a very soph­ist­ic­ated thesis about the re­flex­ivity of the pop­ular Being that de­rives in the true ex­ist­ence of the people, but only as a pat­tern of the legal, Lindahl´s proof is that the people, through an act of self-​attribution of the law, re­cog­nizes her­self when it sets in mo­tion op­er­a­tions within a con­sti­tuted legal order, when the people re­cog­nize, within the in­sti­tuted and so ret­ro­spect­ively, a past mo­ment as the con­stituent act.

Hans Lindahl (2007, pp 14 – 16) ar­gues that the “Being” of the con­stituent phe­nomenon has to be un­der­stood in its re­flexive iden­tity and not as iden­tity as syn­onymous of self­ness. According to Lindahl, there are two in­tim­ately re­lated con­cepts that define iden­tity, idem and ipse iden­tity. While idem pur­sues the ques­tion of “what am I?” ipse seeks to solve “Who am I?” this has been the fun­da­mental ques­tion in Western thought from Augustine to Heidegger (2001); for the latter “be­ings” are, well a who (ex­ist­ence) or a what re­duced simply as an ob­jective ex­ist­ence in the plainest of senses.

In Lindahl´s words “Whereas the iden­tity of a thing can only be es­tab­lished in terms of what it is, the iden­tity of a human being is also re­flexive in that this being relates to it­self as the one who acts and who is ul­ti­mately at stake in such acts”(Lindahl, 2007, Pp 15 – 16). We agree with Lindhal that pop­ular iden­tity would there­fore have to be loc­ated in an ex­ist­en­tial level. On one side, iden­tity as the being that acts, but above all, the being that acts com­pletely and ut­terly com­mitted to her action.

The iden­tity of the people as a being is not ex­hausted in an em­pir­ical de­scrip­tion of “what it is”. As an ob­ject, it cannot be re­solved with an ex­ternal re­cog­ni­tion of the guise: “there it is”. Identity must be re­flexive, it re­cog­nizes her­self as ex­ist­ence. The people are the people, for it is whom acts in her own name and her own be­half. Being is being in direct re­la­tion to the own being. The cor­rect ques­tion would there­fore have to be: when are the people a true being? Therefore, it is not “what” are we? But, “who” are we?

The sharpest ques­tion put forth by Lindahl, is de­rived by the para­dox­ical and dis­turbing place of the con­stituent; for the con­stituent is not solely the col­lective or the common as the actor of an ac­tion, but also the direct ob­ject of that same ac­tion. It is in this paradox of constituent/​constituted power where re­flex­ivity can be ob­served with all intensity.

When is the being of the people?

The re­verse of Kelsen´s thesis is offered by Schmitt (2009) when he af­firms that the polit­ical is polit­ical only if it is cre­ated by a col­lective that de­term­ines it so. Following Lindahl´s ar­gu­ment, Schmitt´s thesis comes apart when it be­comes evident that in order to preach the at­tribute of a “being” to the “we” the col­lective must be so aware of her ex­ist­ence that this aware­ness al­lows her to es­tab­lish that it is the unity of her qual­ities and at­trib­utes what fash­ions the col­lective being; and not the col­lective being which de­term­ines her own qual­ities and at­trib­utes (Lindahl, 2007, Pp 17). According to the latter thesis, for a col­lective to act as such, it must be char­ac­ter­ized with an­ti­cip­a­tion with cer­tain con­tents, qual­ities and at­trib­utes that dis­tin­guish her, if this is not so, the col­lective turns into a col­lective by the means of a prior polit­ical de­cision, which would there­fore be the place where her con­tents and dif­fer­ences would be fixed and settled, in other words, the place of the constituent.

Like the use of light in quantum mech­anics (Marion, 1998), the de­scriptive ges­ture can dis­avow the place of enun­ci­ation of the people; either be­cause it cre­ates the ne­ces­sity of a con­stituent “split second” of unity prior to the con­stituent, or be­cause it slips to a Point de cap­itón then re­treats in Kelsens “sup­pos­i­tion”, or be­cause it neut­ral­izes the con­stituent as a static por­tion of the con­sti­tuted order.

The main ques­tion put forth by Lindahl is, when are the people “the people”? under a double un­der­standing 1) that on­to­lo­gic­ally the people as a col­lective sub­ject are a para­dox­ical being and; 2) that the an­swer to said ques­tion is the only way to de­termine the place of ori­ginal con­stituent power. Henceforth, to de­termine the place of the people is in­dis­pens­able to define the exact mo­ment when the people are the people.

Who may claim the place of the people?

According to Lindahl (2007, Pp 12 – 15) no sin­gular sub­ject may claim the place of the people, to do so would be an en­croach­ment, but if nobody does, no ori­ginal act could exist and so there would be no pos­sib­ility of unity of ac­tion, or of cre­ation of a polit­ical unity, and thus the people would be an amorphous sum lacking any ca­pa­city to break the veil of si­lence, and there­fore un­able to create the polit­ical. Whoever speaks in the place of the people would oc­cupy a rep­res­ent­a­tional space alien to the pop­ular being, but the other ex­treme is no less prob­lem­atic, if no one speaks, the “we” of the people be­comes im­possible. The problem is as such centered upon the problem of when the people be­come a people.

Lindahl, fol­lowing Lefort (1998) con­cludes that a polit­ical space re­mains open on the con­di­tion that no one claims it in his/​her name or of a col­lective; and that the only pos­sib­ility of polit­ical cre­ation is the per­man­ency of such open­ness. Consequently, the price of rad­ical open­ness is the loss of con­stituent power, it is so be­cause con­stituent power sup­poses the filling of that open space through the af­firm­a­tion that a col­lective oc­cu­pies it, the problem is that for such col­lective to exist it must be called upon by a sin­gular sub­ject. As a result the paradox is that the polit­ical space ex­ists only if nobody claims it as its own, but without such in­voc­a­tion, no legal order may ever be founded.

The de­cree of a con­stituent as­sembly, as a sin­gular enun­ci­ation of the col­lective is nothing short of an in­di­vidu­ality enoun­cing a col­lective “We the people” or “noso­tros el pueblo” or “noso­tros y noso­tras el pueblo soberano de Ecuador”. Such in­di­vidual enun­ci­ation of the col­lective breaks the dif­fer­ence between “pres­ence” and “rep­res­ent­a­tion”, between being as a thing and being as ex­ist­ence, hence the place of enun­ci­ation and in­voc­a­tion of the “col­lective being” would re­quire a rep­res­ent­ative ac­tion, an “I” sum­moning the “we”. The being is being be­cause she ac­know­ledges being as own and proper, she re­cog­nizes her­self in being; there­fore being cannot be summoned from out­side her own being.

Lindahl´s solu­tion is then a re­gressive strategy, where the origin, as past, has never been present so it is formed as a ret­ro­spective act of fi­delity and re­cog­ni­tion of a former act as form­a­tion of the will. The ori­ginal mo­ment of cre­ation of law would never be present to it­self; tem­por­ality is thus in­ar­tic­u­late, in the sense that only in a place in the fu­ture, may the col­lective re­cog­nize a common past as the form­a­tion of the con­stituent act. We are hence­forth dealing with the ret­ro­spective ap­pro­pri­ation of a con­sti­tu­tion by a people; the people re­cog­nize cer­tain point in the past as the con­stituent of their legal being.

For Lindahl there is no at­tri­bu­tion without ret­ro­spec­tion of the ori­ginal act to the past; neither can there be at­tri­bu­tion without the pro­jec­tion of the com­munity to­wards the fu­ture, in a way that what is said to have happened is only to come.

We can boil down Lindahl´s thesis as follows:

The para­dox­ical as­so­ci­ation between con­stituent and con­sti­tuted power sug­gests that the at­tri­bu­tion of le­gis­la­tion of the con­stituent power to a cer­tain col­lective al­ways takes the form of col­lective self-​attribution. The act of the con­stituent power in­sti­tutes a polit­ical com­munity and in doing so, not only does it define the common in­terests to all the mem­bers of the com­munity, but fur­ther­more de­term­ines “who” has a place within the com­munity. This prim­or­dial act has the direct ef­fect of identi­fying and em­powering the in­di­vidual mem­bers of the com­munity, but also, and here is the nervous center of his thesis, such identification/​empowerment can only be suc­cessful if in­di­viduals identify them­selves, ret­ro­spect­ively as polit­ical mem­bers of the con­sti­tu­tional act, when they em­ploy or ex­ecute the powers re­cog­nized by the constitution.

The ex­ist­ence of the ori­ginal col­lective being of demo­cracy is proofed when the act of re­flexive self-​attribution de­rives in the fact that in­di­viduals in­side the legal order ex­er­cise the powers “re­cog­nized” by the con­sti­tu­tion (Lindahl, 2007, Pp 14 – 17). What we are dealing fi­nally with is a per­form­ative in­di­vidual act that forms the “us” of “we the people”.

It is within this “Ontology without re­ific­a­tion” where Lindahl (2007, Pp19) pre­tends to over­shadow a polit­ical tra­di­tion in­scribed in the ana­chronism of me­di­eval theo­logy and dis­solved in its own pre­ten­tions, in order to make the def­inite leap unto modern politics, where the col­lective being defines “self” in a con­sti­tu­tion. Insofar, the work of con­sti­tu­tional tribunals, rather than being a denial of the demo­cratic prin­ciple, is their ex­plicit af­firm­a­tion. The people exist every time that she trusts and ap­plies the rules of the con­sti­tu­tion. The bottom line is that the col­lective being must trust a past that was never present and a fu­ture that will never ar­rive (Lindahl, 2007).

ARE THE PEOPLE CONMENSURABLE TO LAW?

We sub­scribe to Lindahl´s pro­gnosis of the ne­ces­sity of a re­flexive being in demo­cracy. Nonetheless, we dis­agree with his de­fense of a ret­ro­spective re­cog­ni­tion of the people in the con­sti­tuted. Lindhal in­tends to evade the lib­eral device that sep­ar­ates pop­ular col­lective ac­tion from its own con­tent, in con­tra­pos­i­tion, he thrives to dis­cover within col­lective iden­tity the key to de­term­ining the con­stituent mo­ment. Notwithstanding, his on­to­lo­gical af­firm­a­tion pre­sup­poses an ana­tomy of the pop­ular that con­tra­dicts openly with demo­cracy. He achieves the pur­pose of res­cuing the pop­ular at a very high price (Wall, 2009, Pp 53 – 65). Our op­pos­i­tion to Lindahl will be mul­tiply linked through rad­ical cri­tique, and phe­nomen­o­logy of co­lo­ni­ality. We will search the pos­sib­ility of the “being” of the people and the “mo­ment” in which it ex­ists from the place of enun­ci­ation of the col­lective common of the “we”.

Let us ex­plore at least five places where Lindahl´s theory lets pop­ular demo­cracy and con­stituent power slip right through his fin­gers back into the lib­eral groundwork.

  1. His the­or­et­ical struc­ture de­pends on the idea of com­plete, sys­tem­at­ical and shuttered legal order, where the key issue will be the ca­pa­city of the law to ex­clude. As we will re­cog­nize the ex­cluded is the place of the con­stituent power.
  2. It sus­pends the trau­matic di­men­sion of politics to the plen­itude of law.
  3. His thesis pre­sup­poses the de­pend­ency and sub­mis­sion of the people to law.
  4. He trans­forms the problem of the people to an epi­stem­o­lo­gical ques­tion of knowledge/​judgment (Wall, 2009, Pp 59).
  5. His theory de­pends on a form­a­tion of the Being in Heideggerian terms that an­ni­hilate “oth­er­ness” and col­lective pre­cari­ous­ness as the au­thentic form­a­tion of Beings, es­pe­cially in co­lo­nial terms.

CAN THE CONSTITUENT BE THOUGHT IN ITS OWN TERMS?

Emilios Christodoulidis (2007, Pp 193) defines con­stituent power as the power that may not be es­tab­lished ac­cording to in­sti­tuted rules, or that it may con­form to models and pro­ced­ures pre­scribed in any norm. All that is in­sti­tuted without pre­vious frames that dic­tate a cer­tain type of con­crete de­riv­a­tion is then the order of the con­stituent. Therefore, whatever is es­tab­lished ac­cording to in­sti­tuted rules cannot be in the order of the constituent.

Constituent power es­capes every prob­ab­ility of being un­der­stood within the normal forms of a legal order, its form is in­con­sistent to order, and inas­much as con­stituent power is the cre­ator of order, order cannot fully ac­count for it.

Liberal con­sti­tu­tional tra­di­tion, when put against this co­lossal hindrance mixes con­sti­tuted and con­stituent power and col­lapses the origin in the con­sequence (Sanin, 2009 Pp 86 – 100), the polit­ical in the legal (Negri, 1999Pp 18) (Schmitt, 1988). This mis­place­ment al­lows lib­er­alism to main­tain a facade of pre­sumed in­ter­locking and con­sist­ency in the lan­guage of the in­sti­tuted legal order. Constituent power chal­lenges order at its very core. Hence for lib­er­alism, while con­stituent power in its nude pres­ence is in­com­pre­hens­ible, con­sti­tuted power matches per­fectly within the in­ternal logic of legal order, for it is its own re­flec­tion. Therefore it is sim­pler to throw con­stituent power amongst the rep­res­ent­a­tional space of con­sti­tuted order and en­tangle it in its own pro­por­tions; this is the sheer de­struc­tion of democracy.

The pres­ence of the people is a con­stant hazard to con­sti­tuted order, since the people are not barely an arith­metic equa­tion or a mere pro­cess which al­lows us to define it as a block of vis­ible acts, ob­jects and pres­ences, but on the con­trary, the con­stituent is the cre­ative sub­ject of those acts, ob­jects and pres­ences (Christodoulidis, 2007 Pp 191 – 200) (Wall, 2009).

One of the dis­tinctive fea­tures of modern jur­is­pru­dence is to show it­self as a dis­cip­line fash­ioned from the ideal of co­her­ence, con­sist­ency and order (Scalia & Garner 2008) (Dworkin, 1978). Far from being so, what lies at the heart of its true func­tion is a simple tech­nique of re­duc­tion of con­flict to standard codes and pro­ceed­ings, mul­tiple ways to muffle an­om­alies, of con­taining in­nov­a­tions, com­plex cir­cuits drawn to treat sur­prise as a patho­logy and a full deck of prin­ciples to ex­er­cise an in­tense ideo­lo­gical con­trol over bodies, words and things.

THE PROPHETS OF WHAT WAS TO BE

We have shown how the concept of the people dis­turbs and un­settles the myth­o­logy of sys­tem­atic and com­plete legal or­ders, how it pierces through the models of con­ten­tion and res­ists being broken down to the force of the code (Sanin, 2009). Constitutional jur­is­pru­dence is a theory of ex­perts in lan­guage and in­ternal litur­gies (Negri, 1999 Pp 111), ini­ti­ated in Theodicy, a club of ex­clusive mem­bers and founders of praxis in open con­tra­dic­tion with a con­vulsive and vi­brant polit­ical reality.

Once the law is the law, the people are trans­formed into a simple number, a set of pos­sib­il­ities pre­scribed by the law it­self. The “mass” the “mul­ti­tude” the “com­mons” are melted to a sin­gular legal body, a com­pact devoid of dif­fer­ences and fis­sures. The Being of this sin­gular body is only a de­riv­ative being, a thing lodged in the belly of legal pre­scrip­tions. The en­ergy of the people is of spon­tan­eous com­bus­tion, it is con­sumed in the same act of cre­ation of the con­sti­tu­tion. This means that the only role of the people is to create an in­stru­ment and im­me­di­ately sur­render to it (Negri, 1999 Pp 128).

Once the law is the law the people are un­able to verb­alize their own his­tory and its vari­ations, turning thus into a grey zone, a mon­ster without words. The law also means the do­mest­ic­a­tion of vi­ol­ence, the in­ser­tion of the polit­ical con­flict in rigid codes, which, along with the con­ver­sion of politics and ideo­logy into mere prob­lems of tol­er­ance (Zizek, 2001, Pp 187), mu­til­ates any chance of emancipation.

Any of the “in­sti­tu­tion­alist” an­swers means the jam­ming and closure of the con­stituent that block any pos­sib­ility of con­test­a­tion. Any such an­swer deals with the direct im­pos­i­tion of the limits of what is leg­ally ne­go­ti­able, and a defin­i­tion from in­side the system of what and who is in­cluded in the dis­cus­sion. This line of dis­course cre­ation can only de­rive in con­sensus, hence no one is al­lowed to step out of the pro­to­cols of law, and an­nuls any pos­sib­ility of stra­tegic or res­ist­ance dis­courses (Christodoulidis, 2003.Pp 404). In this sym­bolic sim­u­la­tion ant­ag­onism is frozen to rigid qual­i­fic­a­tions where pop­ular de­mands are dis­en­fran­chised or post­poned and the pos­sib­ility that the weak or in­vis­ible to use a dif­ferent lan­guage is crushed.

This is why Kuhn (1998) makes evident that in normal sci­ence, the nov­elty, the an­om­alous is sup­pressed by a con­ser­vative sci­ence. Wherever reality over­whelms the­or­et­ical frames, an­om­alies are sub­mitted to an in­tense labor of cap­ture and re­duc­tion where its con­tents are skimmed to pre­vailing sci­entific lines of de­marc­a­tion. In this meth­od­o­lo­gical closure the meta­phys­ical in­gredi­ents of reality and its eso­teric prob­lems are re­in­cor­por­ated as measly theorems.

In the pro­cess of taming the trau­matic di­men­sion proper to politics, lib­eral jur­is­pru­dence sus­pends the po­ten­tial of un­stable­ness of the polit­ical. Law is a kind of de­fense mech­anism and its ty­po­logy can be es­tab­lished with ref­er­ence to the dif­ferent mod­al­ities of de­fense against some trau­matic ex­per­i­ence in psy­cho­ana­lyt­ical terms (Legendre, 1979 Pp 97).

DEMOCRACY AS CONTINGENCY

The re­flexive iden­tity of Lindahl, in the end, de­pends com­pletely in the whole­ness and closure of the legal order, it de­pends on an in­side and an out­side that lack any con­tact at all, two worlds cut apart and isol­ated within their own di­men­sions. Its open­ness is only ap­parent, the only way the people may re­cog­nize them­selves can only be within a tractatus of time, from a de­term­ined present to a de­term­ined past, fixed by the same legal order in its same dimension.

The whole­ness of sys­tems, es­pe­cially norm­ative sys­tems is an ideo­lo­gical spur and not an ob­jective reality. Here we per­ceive order and unity, a tra­di­tion that trusts and drives on com­plete­ness, as a way to van­quish the prob­lem­atic that al­ways re­main concealed.

The re­la­tion between in­side and out­side of a system (or whatever pre­tends to pose as a system) is al­ways con­tin­gent and prob­lem­atic. A norm­ative system af­firms its own iden­tity through a series of ex­clu­sions, through a com­bin­a­tion of senses that cre­ates the in­side in de­pend­ence to a fron­tier edge of the out­side. The per­fect ex­ample is Fanon´s “Racial line” (Gordon, 2005), where the term “white” only makes sense in the in­ven­tion of “black”; “civ­il­ized” in the cre­ation of “bar­barian” and so on in a con­tinuum that re­veals that the in­side is signed by a dif­fer­ence that is dis­placed from the in­side to an ima­ginary out­side. The “bar­barian” is only bar­barian from in­side; there is no uni­versal pre­ceding format that de­mands the ob­jective need of his existence.

Inside de­pends on the cre­ation of an out­side as a pre­con­di­tion of ele­ments, ob­jects and ap­pear­ance that are in­teg­rated as a con­stitutive part of the system. Total ex­ter­i­ority is un­think­able; it would imply the com­plete autonomy of the in­ternal system, in­com­men­sur­ab­ility in its purest form. Therefore ant­ag­onism would be im­possible, and total ex­ter­i­ority would be syn­onym of total erad­ic­a­tion of politics (Laclau, 2005, Pp 76).

In Ernesto Laclau´s words “The to­tal­iz­a­tion of a system of dif­fer­ences is im­possible without a con­stitutive ex­clu­sion” (Laclau, 2005). This has a direct lo­gical ef­fect, the di­vi­sion of every ele­ment of sig­ni­fic­ance between the equi­valent and the dif­fer­en­tial. Language is not a sat­ur­ated and com­plete system built upon ele­ments that posse an im­plicit de­cipher­able code; every word has a sig­ni­fic­a­tion only in re­la­tion to other words. So we speak of dif­fer­en­ti­ation when a word is what others are not (like the old Buddhist teaching: What is a squirrel? It’s not an ele­phant) and Deference (Derrida, 1989) inas­much as the sig­ni­fied is not im­me­di­ately ac­cess­ible in the sig­ni­fier. As a result, the concept of iden­tity is of ant­ag­onism and not of ar­tic­u­la­tion. The only pos­sib­ility of sig­ni­fic­ance is trapped in the rhet­or­ical es­sence of a system that names it­self from what it ex­cludes. Significance surges as an un­bal­ance between a par­tic­ular and a universal.

As Laclau, we un­der­stand that no to­tality is com­pletely a to­tality; the residues pol­lute the closed space. The “specter” of the people haunts the present with its ex­tem­poral po­ten­ti­ality, the people are the shadow that defines that reality not only be­longs to us, but that things can be rad­ic­ally dif­ferent. As a per­form­ative en­tity, our quality is not fash­ioned to sus­tain reality but to create it when we de­clare ourselves; to form with no lim­it­a­tion what­so­ever the con­stituent moment.

Law, in its rush to shut down the fron­tiers of its dis­course, in order to avoid the nat­ural de­com­pos­i­tion that ac­com­panies crit­ical ob­jects like “the people”, tries des­per­ately to show that the cre­ative polit­ical ac­tion is ex­treme and in­com­men­sur­able be­fore the lan­guage of law. Logical ne­ces­sity is none other than con­tin­gency and ideo­logy mas­quer­ading as ab­so­lute truth.

THE PEOPLE AS OPENNESS AND LAW AS THEODICY

Do I speak from the law? My own dis­course shat­ters the legib­ility of legal dis­course. In order to demon­strate law´s sys­temic lack and ab­sence of closed fron­tiers I re­sort to an out­side of the law that stems from the root of the legal system it­self. I speak from the edge in which law re­cog­nizes it­self as com­plete and whole­some only by a series of ex­clu­sions that falsify it, but are at the same time con­di­tion of its construction.

The dif­ferent ver­sions of con­stituent power we have ana­lyzed, from Kelsen´s to Lindahl´s, draw­back to an ex­clusive con­fid­ence in the com­plete rep­res­ent­a­tional space of the law. The con­sti­tuted as con­ceal­ment of the polit­ical sub­ject of the people. It is nothing less than the idea of law as system, as com­plete­ness that defines lan­guage as a model and de­term­ines the in­stance of cre­ation of the con­stituent act. Nonetheless, the very idea of law as a system is nothing than the hal­lu­cin­a­tion pro­jected by an order that se­cludes politics and wipes the people from their own con­sti­tu­tion in a single stroke. As af­firmed by Lewis Gordon (2005) the shift of polit­ical con­flict into the severe co­di­fic­a­tions of the law cre­ates vast pop­u­la­tions that are in strict sub­mis­sion to the or­ders of the law, it is the world of co­lo­ni­ality, where con­flict is shuttered in ma­gical for­mulas defined by an elite, leaving the rest of the people in a syn­tactic form of ex­ist­ence de­pendent upon the pro­to­cols de­signed in the words of the law.

The validity in this game of dif­fer­ences between in­side and out­side is sup­ported by a theodicy (Gordon, 2005) the same that proves the kind­ness of god as a re­verse of the per­versity of the world, where evil is ex­ternal and for­eign to god. All and every modern ra­tional myth­o­logy starts with this di­vi­sion of theodicy: Nazism out­side the lib­eral pro­ject, “ethnic cleansing” out­side any western in­stance, the carnage of the in­di­genous as a simple sac­ri­fice on a road to evol­u­tion and pro­gress. It is pre­cisely the be­lief in the com­plete­ness of the system what al­lows its mem­bers to deny the hor­rors that in­habit and are pro­duced by that system (Gordon, 2005). Accordingly, the denial of any in­ternal con­tra­dic­tion makes the modern world jus­tify slavery as a means to­ward freedom; to pro­claim hu­manism des­pite ra­cism and to de­fend the freedom of market des­pite co­lo­ni­alism (Douzinas, 2008) (Gordon, 2005)

The latter clearly il­lus­trates that con­sti­tu­tional con­tra­dic­tions cannot be solved with a mere in­ternal method, since the con­tra­dic­tion be­comes from the con­sti­tu­tional ar­range­ment it­self, when crisis lurks it is proof of the failure of the theodicy that sup­ports it, crisis dis­em­bowels any con­sti­tu­tional agree­ment that re­lies on a theodicy as a way to pro­tect its formal unity.

WHY CONTINGENCY AND ANTAGONISM ARE THE FUNDAMENT OF CONSTITUTIONAL LAW.
The out­cast is the con­stituent power

When we un­der­stand that every order is fixed in re­la­tions of con­tin­gency, we learn that crisis is never ex­ternal to the order, but rather flour­ished from its most ele­mental con­struc­tions. When con­sti­tuted in­sti­tu­tions cannot con­tain a con­tra­dicting lan­guage of its prin­ciples, the order is forced to shift its mean­ings in such a way that the dif­fer­ence between in­side and out­side, is made vis­ible in the very same move­ment that it disappears.

Clearly the con­sti­tu­tion is dy­namic in the sense that it is open. The mar­gin­al­ized and the out­cast of the in­sti­tu­tion are then the con­stituent power.

Liberal plur­alism and mul­ti­cul­tur­alism be­tray them­selves when they argue that the con­sti­tu­tion is sys­temic but at the same time in­clusive ex ni­hilo. If the con­sti­tu­tion high­lights a closed system, then the order is ne­ces­sarily ex­cluding some­thing, if on the other hand, the system is in­clusive it im­plies that the order cannot be closed upon its own bor­ders and there­fore it is not sys­temic. All this would imply that there are no in­ternal con­tra­dic­tions and that the out­side does not exist, where in­ternal con­tra­dic­tions and ex­ternal op­pos­i­tions must be treated as anti-​ethical on grounds of being simple intra-​systemic errors.

Antagonism in­hibits the so­cial to close down on it­self as a sign of its com­plete­ness; there­fore it is the trauma, the gash that avoids so­cial con­dens­a­tion. It is the space of the “Real” that cannot be sym­bol­ized and there­fore keeps the dis­cursive field open and en­ables the up­rising of new polit­ical sub­jects. (Mouffe & Laclau, 1985)

If there­fore it is true that ar­tic­u­la­tion is the on­to­lo­gical con­di­tion of he­ge­mony, he­ge­mony is only pos­sible in con­di­tions of ant­ag­onism, the con­tra­dic­tion wedged within the ar­tic­u­la­tion brings about crisis, so change hap­pens within a preex­istent ho­rizon of con­di­tions, but it can only happen in an un­pre­dict­able manner. (Mouffe & Laclau, 1985).

True con­flict arises when ant­ag­onism springs out between un­equal groups, between a sup­posed in­sider con­fined ra­tion­ally and an out­sider that has been ex­pelled and for­gotten, only in this land­scape can we talk about real con­flict. Here, equality ceases to be a pre­sup­pos­i­tion or con­di­tion for dia­logue and is turned into the limit of the dis­course, the gap where the ex­cluded, the ir­ra­tional ap­pear de­mol­ishing the ge­netics of the ra­tional that is built upon the ob­lit­er­a­tion of the outsider.

CONSTITUTIONAL CRISIS AND SYSTEMATIC INCOMPLETION

Constitutional crisis sup­poses that the struc­ture of the lan­guage in­herent to the model is simply dis­solved, ob­jectivity ceases and nothing has a con­crete ex­pres­sion out­side the col­li­sion between the ex­cluded and the in­cluded. In this sense what ap­pears aporetic in a con­sti­tu­tion is its own syn­thesis and crisis means the opening to a new form­a­tion of polit­ical mean­ings (Vidal, 2010).

It re­mains clear that the people ap­pro­priate con­sti­tu­tions and its empty sig­ni­fiers in a per­manent dia­lectic of ho­ri­zontal in­ter­ven­tion with the con­sti­tuted powers, non­ethe­less, this does not mean that the people resign ta­citly to their (our) ori­ginal power, the latter not only re­sur­faces at the mo­ment of con­sti­tu­tional crisis but fur­ther­more it be­comes the con­sti­tu­tional crisis.

In a cer­tain way, ex­clu­sion as con­stitutive of a system lib­er­ates, for it leaves the out­casts to follow and create par­allel and in­com­men­surate his­tories that may not be con­densed to in­sti­tu­tional spaces of rep­res­ent­a­tion (Chatterjee, 2006). The out­cast is con­sidered as such by the in­sti­tu­tion after the cre­ation of the ex­clu­sion elab­or­ates the field of inside/​outside. The out­cast is the enemy at the mo­ment of ex­clu­sion and as such every char­ac­ter­istic it holds are shaped from in­side. Nonetheless, once the um­bil­ical cord is broken between the in­sti­tu­tion and the out­cast, the latter be­gins to live out a par­tic­ular his­tory held to­gether by a lan­guage for­eign to the in­sti­tu­tion. In brief, what we have is, first a dis­place­ment that draws the bor­der­line between friend and enemy; second, the ex­clu­sion of the enemy as that por­tion that doesn’t fit within the in­sti­tu­tion but is ne­ces­sarily in­scribed in­side it, for it means the re­cog­ni­tion of the Other in ab­so­lute ant­ag­onism (Hardt & Negri, 2005 Pp 192). From this point of sep­ar­a­tion, the enemy is di­vided into two sep­arate en­tities, one be­longs to the image that per­sists in­side in­sti­tu­tion­al­ized lan­guage, which is meas­ur­able, the other is not, and hence the out­cast starts to in­habit their own in­de­pendent space and there­fore cre­ates a lan­guage in­com­men­sur­able to the system.

The fact that the out­cast is a product of the in­sti­tu­tion means that the com­plete lock down of the polit­ical is im­possible. The out­cast is cre­ated within the in­sti­tu­tional factory, when he re­turns with his vi­olent lan­guage the sys­tem­atic ar­range­ment is mu­til­ated and it can’t re­turn to its own in­ternal logic, for the vari­ation, the dark ele­ment is now im­plicit to it. In con­clu­sion, the same fact that a system main­tains a con­tin­gent re­la­tion with the “out­side” that is con­stitutive with its own in­ter­i­ority means that the system is it­self contingent.

We have ac­know­ledged that, first a system cannot be­come from it­self, in an in­de­pendent act of self-​creation; second that the cre­ation of an in­terior de­pends on a con­tin­gent re­la­tion of ex­clu­sion and; third that the paradox lies in the heart of lan­guage, without con­tin­gency there is no iden­tity, without iden­tity there is no system.

If the cre­ation of the pop­ular was an ex­clusive phe­nomenon of a system, its logic would be lim­ited to a simple op­pos­i­tion to the con­sti­tuted order in a strict ho­mo­gen­eous re­la­tion (Laclau, 2006). We know we are standing be­fore “a people” for its event res­ists any type of sym­bolic in­teg­ra­tion and be­cause ob­jectivity col­lapses be­fore the ant­ag­onism provided by its heterogeneity.

Law as a for­mula of in­ternal solu­tion of con­flicts is able to guide pro­cesses within the realm of its in­ternal ra­tion­ality, how­ever, it is in­suf­fi­cient when the chal­lenge is of such in­tensity that the de­mands over­whelm its point de capiton (Lacan, 1994), in other words, when we are be­fore con­flict. Antagonism is not in­ternal to the re­la­tion, but is given between the system and the way in which sub­jects are built out­side the system.

The cause of ant­ag­onism is pre­cisely the im­possib­ility of the so­cial agent to find iden­tity within the system, for the latter is built upon such a denial.

I ENOUNCE! WE EXIST?

Let’s ob­serve from now on the ex­pan­sion of polit­ical praxis of a con­stituent power that isn’t blocked or seized by the pre­ten­tion of sys­tem­atic closure and self-​sufficiency of the legal order. It should be evident by now that the con­cern has shifted sub­stan­tially; ini­tially we were char­ging to ex­hibit that the people are at the start of the legal order as its maker, now our in­terest is to prove that the people, within the struc­ture of con­sti­tuted power, is still the people in the ro­bust and whole sense of a con­stituent power. In this sense we chase down the pos­sib­ility of “Being” of the people and the “mo­ment” in which said being ex­ists on the basis of the place of enun­ci­ation of the col­lective “we”.

In his art­icle “Against sub­sti­tu­tion: the con­sti­tu­tional thinking of dis­sensus” Emilios Christodoulidis (2007) re­cog­nizes a strong ob­jec­tion to the pos­sib­ility to enun­ciate “we” the people. In lin­guistic terms “we” cannot enun­ciate ourselves given that there is not a plural first person. The ar­gu­ment is that there will al­ways exist a per­form­ative ele­ment in such an in­voc­a­tion, the act of lan­guage cre­ates what it says to re­cog­nize. The word cre­ates the meaning of “us”, even if “we” have re­mained in utter si­lence: “This ab­sence cannot be re­deemed by in­voking a coun­ter­fac­tual norm of dis­course or prag­matic op­por­tun­ities to con­test the in­voc­a­tion” (Christodoulidis, 2007, Pp 221) when the “we” is an­nounced from an alien po­s­i­tion, the “we” cannot be re­cog­nized but after the in­voc­a­tion is val­id­ated; which means that it is a latter mo­ment of enun­ci­ation which defines the mani­fest­a­tion of the “we”. The lapse of time between the in­voc­a­tion and pop­ular an­swer de­term­ines the lo­gical im­possib­ility of saying “we the people”.

SE METTRE EN SCENE.

Christodoulidis (2007) points out a nature of double in­scrip­tion or double found­a­tion of the people as con­stituent. On one side, the power of self-​determination is com­plete autonomy of the polit­ical col­lective; the “we” is we within her own terms, within her ut­ter­most rad­ical cre­ative freedom. Nonetheless, self-​summoning ap­pears as an il­lo­gical act and the lapse of time between the “being” and the polit­ical act are over­lapped, there is no plural being in the ab­sence of a sin­gular that sum­mons it up: an “I” that says “We”. It is pre­cisely here where Lindahl warns us that “we” can only re­cog­nize ourselves ret­ro­spect­ively, within a given in­sti­tu­tional frame. For Lindahl to act on a col­lective level is to re­spond (2007, Pp 20), there is no self-​determination without a pre­vious in­di­vidual sum­moning; in order to act, a col­lective must ex­haust a prior step, it must turn into a unity of ac­tion, that is to say that the unity is con­sequence of the enun­ci­ation and not its primal ef­fect. The in­di­vidual frame of in­voc­a­tion is the frame where the col­lective springs out from, and it is there­fore the ori­ginal act of the col­lective where the col­lective may only re­cog­nize her­self as already constituted.

Christodoulidis af­firms that Lindahl places col­lective ac­tion in the fringe of con­stituent and con­sti­tuted power as a means to skip the paradox of double in­scrip­tion, but in doing so sac­ri­fices the fun­da­ment of polit­ical form­a­tion, where the tem­por­ality of the polit­ical act is not a sec­ondary or ad­ja­cent cat­egory but a prim­or­dial one (Christodoulidis, 2007, Pp 220). If re­cog­ni­tion is ret­ro­spective, the only pos­sib­ility is then that it can only happen within the logic and the lan­guage given by the in­sti­tu­tional frame and so the col­lective would be a form of ad­apt­a­tion to the con­sti­tu­tion and so its mere appendix.

In Lindahl´s terms the col­lective would be con­demned to a per­petual re­formist ac­tion, al­ways de­pendent on the es­tab­lished cat­egories of con­sti­tuted power as its sup­ple­ment and so fated to be forever a lin­guistic de­riv­a­tion of in­sti­tuted power, a kind of dia­lectic trapped in its own re­flexive form. Retrospective re­cog­ni­tion would de­pend en­tirely in a con­sti­tu­tional ha­bil­it­a­tion, a rule that out­right con­tra­dicts the demo­cratic principle.

Illan Wall (2009, Pp 62) demon­strates that what Lindhal searches for in a wrong fashion, as the def­inite mo­ment of polit­ical cre­ation of the con­stituent, mixes and over­turns an ex­ist­en­tial ques­tion with an epi­stem­o­lo­gical one. If the ques­tion is set upon the ex­ist­ence of a polit­ical sub­ject as maker of the legal order, Lindahl es­tab­lishes that the only way to de­termine the pos­sib­il­ities of said sub­ject is a ret­ro­spective “re­cog­ni­tion”; it is here where Wall sus­tains that the problem of the people is trans­formed into a problem of knowledge/​judgment within a par­tic­ular con­sti­tuted order. Wall shows that we are dealing with two dif­ferent kinds of or­ders or cat­egories, on one side Lindahl re­duces the ex­ist­ence and the being of the people to an epi­stem­o­lo­gical ques­tion of the sort “How do I re­cog­nize the people?”. Inasmuch as the epi­stem­o­lo­gical line can only work con­sist­ently within a pre­de­ter­mined order; for it could be a valid ques­tion for the in­ternal ob­server of the legal order, but not for the prot­ag­onist of the polit­ical or even for the ob­server of the en­tire polit­ical order.

DEMOCRACY AS SELF-​DETERMINATION

But even beyond Wall´s sharp in­sight, there is a def­inite ele­ment that proves Lindahl´s in­ac­curacy in his at­tempt to show that the sum­moning of “we” the people is an im­possible mo­ment of autonomy. If I Ricardo Sanin, a madman, should stand in the public square (or Facebook) to summon the mys­ter­ious and elu­sive people, my sum­moning only has an ef­fect if it is ac­cepted, if it is, let’s say, taken ser­i­ously. Thereupon the rep­res­ent­a­tion of the people comes prior to their form­a­tion and not after, as Lindahl claims. What is ret­ro­spective is not the re­cog­ni­tion of the place of aper­ture or be­gin­ning, but the sum­moning, which ceases to be pre­cisely in the mo­ment that the col­lective rises as present to herself.

Within a hindered field of lo­gics, the sum­moning would act as a tran­scendent frame that awards sense to the col­lective polit­ical sub­ject, and there­fore the “autonomy” and “self” of self-​determination would be denied.

Individual sum­moning cannot be pre­scriptive, nor im­per­ative, nor norm­ative; it is not a dis­pos­itive of im­puta­tion of the sort “if A then it must be B”, nor a formal one of the sort “If A then B”. An au­thentic in­di­vidual sum­moning never tres­passes the threshold of the norm­ative and al­ways re­mains as a simple de­sid­er­ative sen­tence. If the sum­moning comes forth by a leader (or any in­sti­tuted order), the sum­moning is al­ways im­per­ative and it in­hibits and con­straints, at its root, the very pos­sib­ility of free choice and fur­ther­more it be­stows a frame, an agency, as de­term­inant of dis­course. If the col­lective fol­lows a leader in the terms of fas­cism or state of opinion, demo­cracy ceases im­me­di­ately be­cause the people lose a con­stitutive double pos­sib­ility: to in­ter­vene as a con­sti­tuted power be­fore and within the in­sti­tu­tion; but spe­cific­ally the power to main­tain her con­stituent power alive, not­with­standing, or even against the institution.

The sum­moning from a pre­scrip­tion or man­date, shaped by a leader or closed group, im­plies the pres­ence of an origin di­verse from the people, the pres­ence of a con­stituent power that is not demo­cratic, that fixes the dif­fer­ence and awards sense to the col­lective from out­side the col­lective and fills it with its own sin­gular fea­tures, this is the ab­so­lute denial of democracy.

The in­di­vidual sum­moning that car­ries no echo does not de­velop into a col­lective form­a­tion. The ac­tion, the mo­bil­iz­a­tion of a col­lective around a calling is what cre­ates the col­lective. Well then, the sum­moning as such is not im­per­ative and only has sense, as polit­ical lan­guage, once it is pur­sued by the col­lective, where the sum­moning is not formed within any given in­sti­tu­tion of prior re­la­tion­ships, but rather where the “we” sub­sti­tutes the “I” as a per­form­ative and al­ways breaching act.

Democracy does not sur­vive without self-​determination, hence it is self-​determination the mark of the polit­ical being, and so, polit­ical ac­tion is the on­to­lo­gical basis and pre­sup­pos­i­tion of the col­lective being. The Being defines politics and politics define being, it is an un­di­vid­able union (Badiou, 2003). The place of the con­stituent is there­fore the fi­delity to its own event; and it can´t be placed neither in the sum­moning –which in its own terms is sense­less– nor in the constituted.

The col­lective polit­ical being and her ac­tion is pre­cisely what lib­eral fear is all about. The people are the agit­ated mon­ster scram­bling in its own ex­ist­ence, the mon­ster that in­habits the center of the lib­eral sanc­tuary, the shadow that tor­ments the post-​illustrated con­sti­tu­tional dream. Liberals flee astray in horror for they know that the pop­ular night­mare can filter its deaf­ening screams through the ar­mored doors of shuttered forums; it can swamp the red car­pets where the mighty float upon, there is no refuge. The people´s text are the av­enues and walls, as op­u­lent as Epicure as ex­treme as Diogenes. This is the neo-​illustrated terror, that such a scrap, such stubble, may con­tam­inate their re­fined taste and man­ners. Timeless physiolo­gical re­pug­nance to the “smell” of the people that exude un­mem­or­able res­ist­ances, ab­hor­rence to those bap­tized with death, the being that is the ex­ten­sion of the pain tat­tooed in its body as a way of existence.

This is the fear of lib­er­alism, from Hobbes, through Montesquieu all the way to Rawls and Habermas. When lib­er­alism un­der­stands, with no place for epi­phanies, that the direct con­sequence of its mo­nu­mental struc­ture rests on its most for­mid­able menace, when it senses that Demos is not only an ar­ti­fice of its blue­print but a deep dis­rup­tion of its in­teg­rity, lib­er­alism tries to cover up its se­mantic spoor, tries to tame the beast and re­turn it to its prim­itive mo­ment, to the cav­erns where it belongs.

THE CONSTITUENTBEINGIS THE DAMNÉ 

If the fun­da­mental ques­tion of the form­a­tion of legal be­ings and hence­forth their ca­pa­city to create polit­ical real­ities de­pends on the form­a­tion of “Being”, then an ap­prox­im­a­tion to Heidegger (2001), in our search of the form­a­tion of the “being” of the people –as a guar­antee to­wards the pos­sib­ility of the demo­cratic legal dis­course– sounds promising.

Heidegger´s on­to­logy is char­ac­ter­ized by the idea that “being” is not a simple com­ponent, an en­tity or a thing, but rather well, that “the being of being” is the prim­or­dial ho­rizon for the com­pre­hen­sion of all be­ings, thus is the on­to­lo­gical dif­fer­ence between BEING and beings.

Heidegger´s most daring ac­cus­a­tion is that western philo­sophy dis­carded every pre­ten­tion to find in Being the rev­el­a­tion of the on­to­lo­gical dif­fer­ence and in­stead has de­voted it­self in ex­cav­ating meta­phys­ical ori­gins, es­pe­cially di­vine ori­gins that lead to closed al­leys and no way streets. There is only a being for whom the ques­tion for being is rel­evant: the human being that ex­ists. In western tra­di­tion things are just “put there”; truth is just an at­tribute ad­hered to the ex­ist­ence of things that stand the test of both time and lan­guage (Maldonado Torres, 2006, Pp 249). In this tra­di­tion the mis­sion of the sub­ject is then abridged to ap­pre­hend and de­scribe the di­men­sions of the truth in which he lives in and is de­term­ined by.

Dasein is a concept that is beyond the human being and her mov­able and ma­nip­u­lative cat­egories within a dense his­toric pro­cess (Douzinas, 2008). Dasein is the being for whom her own ex­ist­ence is de­cisive, the only one that can un­der­stand what it means to be-​there, the being that is there.

Dasein de­notes being with no need of meta­phys­ical o lo­go­centric marks and traces to which tra­di­tional empty cat­egories as “human” or “man” had.

The ex­ist­ence of being is an ex­ist­ence dashed into con­di­tions of the world that are already cre­ated in his­tory and es­tab­lished so­cially. Hereafter the whole set of values and the realm of reality are already built. Thus, it would seem that the task of this being, even her only al­tern­ative, is to dis­cover what her sub­jectivity is, to re­solve how her sub­jectivity is in­scribed in the Symbolic, which at its turn is an in­finite that does not be­long to the sub­ject but de­notes the sub­jects be­longing to reality.

The fun­da­mental ques­tion is then if Dasein can find au­then­ti­city within her, in­side her sym­bolic mark. Can being re­late with everything in a way that her ex­ist­ence proves to be sin­gular, self-​same and au­thentic, and not a mere mimic or copy of what is im­posed to her by the sym­bolic order? What is there in being that is au­then­tic­ally and sin­gu­larly own? The an­swer is death.

The ex­per­i­ence of death will al­ways be for­eign; death al­ways hap­pens to the other, it is never ours, non­ethe­less, its mag­ni­fi­cent power resides in that it is the only pos­sible out­come of our lives, life is defined by the in­ev­it­ab­ility of death. The an­guish pro­duced by our own vital pre­cari­ous­ness is what al­lows Being to de­tach her­self from everything, from the big Other and des­canter her­self from “them” thus achieving au­then­ti­city and be­coming a true Being.

Following Nelson Maldonado Torres (2006, Pp 252) we un­der­stand that the danger en­tailed by the Heideggerian key is that in a col­lective level, the ex­per­i­ence of death can only be in­carn­ated by war.

In this line of thinking, when being is con­cerned with she´s own ex­ist­ence, the ques­tion begs: Where is the other? Is the other the big Other? The other that is not I? The other I can be­come? The other that ac­com­panies me to be? The sym­bolic order to which being is thrown onto and defined in? Recognition of the being within the being is re­flexive. What am I? Is op­posed to dif­fer­ence in the same way that Who am I? is op­posed to the other.

Nonetheless, for the out­cast, the mar­gin­al­ized, for the dis­placed, for the being of co­lo­ni­ality the ex­per­i­ence of death is not an in­di­vidu­al­izing factor, but the con­sti­tu­tion of reality it­self (Maldonado Torres, 2006, Pp 254). For this being death is al­ways present, we do not await for it as a re­mote place, being 87 and sur­rounded by grand­chil­dren while the so­cial se­curity check bounces in the dining room, this is a far­fetched fantasy, for the dis­placed, death is al­ways crouching in every turn of the body, there are no casual en­coun­ters, death is a con­stant com­panion, it is stuck to the bone, it is at the core of the being.

The col­lective being does not emerge from an in­di­vidual en­counter with her per­sonal mor­tality, her ex­ist­ence is signed by the bios mori, being is built not only with de­sire (Douzinas, 2008) but with the need to evade death, ours and our brothers in ref­er­ence to the ab­so­lute Other.

In co­lo­ni­ality there is an ab­so­lute other, being is being of the other, within the reality cre­ated by the other, being within the rules and in sub­mis­sion to the other.

According to Maldonado Torres (2006, Pp 255), what Heidegger over­looked is that the concept of man is not only prob­lem­atic for her meta­phys­ical nature, but es­pe­cially be­cause of the mod­ernity she finds her­self im­plic­ates that there is no single model of man that is man in every par­tic­ular situ­ation, but rather man is en­tangled in power re­la­tions and struggles that re­create life in­side the logic of mas­ters and slaves. A world split in dense clusters of hier­archies, mov­able levels of cit­izen­ship and mem­ber­ships, cit­izens of first class and non-​humans, civ­il­ized and bar­barian; dis­perse lo­gics that frag­ment each and every pos­sib­ility of achieving stable frame­works. What all this means is that the com­plex mech­anics of Dasein in the modern world imply that the sub­ject of co­lo­ni­ality: the Damné, is in a direct and in­dis­tin­guish­able po­s­i­tion to­wards death.

The iden­tity of the Damné is thus defined by the big Other in a com­plex sweat­shop of rules that submit her by the same means that they ex­clude her. Therefore the genuine struc­ture of ex­clu­sion is deeply para­dox­ical, the out­cast is para­dox­ic­ally in­cluded (Gordon, 2005). Exclusion as in­clu­sion is a struc­turing need of the system. The en­counter with death is hence­forth not only con­stant, but shared with others placed in a po­s­i­tion of ex­clu­sion as in­clu­sion, shared with other and mul­tiple be­ings dis­placed from reality as the very con­sti­tu­tion of reality. So here we see the face and feel the heart of the true other, what joins this mul­tiple others is then a link of solid­arity that of­fers a sense of am­al­gam­a­tion of the pre­cari­ous­ness of life and the ever pres­ence of death. For the out­cast and dis­placed, death does not play games of chess on a Nordic beach, for the out­cast, death is a strategy of resistance.

Phenomenology as the ex­per­i­ence of an amp­li­fied first person, phe­nomena not of a ra­tional, isol­ated and autonomous Kantian in­di­vidual, but the first person sin­gular as any person, from the he­ge­monic to the co­lo­nial is then trans­lated unto the on­to­lo­gical sus­pen­sion that al­lows the open­ness of sub­jectivity, hence lacking in­finite de­pend­ency on ob­jects that come to birth in some glor­i­fied and ar­ti­fi­cial spon­taneity. One of the cas­u­al­ties of this out­come is his­tory; from here we can re-​read his­tory knowing that change is not only pos­sible but de­sir­able, it al­lows us to un­der­stand that so­cial re­la­tions are all con­tin­gent and knitted to­gether in an ant­ag­onism whose de­noue­ment is not de­cided beforehand.

WHO ARE THE PEOPLE?

The rad­ical and de­fining dif­fer­ence between demo­cracy and any other system of at­tri­bu­tion and as­sig­na­tion of power lies in the fact that in a demo­cracy the polit­ical sub­ject both gov­erns (archein) and is gov­erned (archestai) upon. The polit­ical sub­ject is thus marked by a tran­scend­ental and unique split. As we have ob­served there is no sub­ject prior to politics, politics as ant­ag­onism is the place where the sub­ject is cre­ated. Democracy dis­ap­pears when the archein is sub­sti­tuted by a the­or­et­ical en­tity such as the Rule of law or the Gründnorm.

As Jacques Ranciere (2006, Pp 75) (2001 Pp 14) ex­plains, while in ol­ig­archy, ar­is­to­cracy or ab­so­lutism the polit­ical sub­ject is defined by the enun­ci­ation of whom ever gov­erns, sub­jectivity in demo­cracy is trapped in a mul­tiple and com­plex re­la­tion where the place of enun­ci­ation is within the sub­ject as the primal con­di­tion for the ex­ist­ence of politics. Democracy is pre­cisely where we deem the rup­ture of the logic of a top to bottom or hier­arch­ical enun­ci­ation, Demos-​arche is the paradox of the con­junc­tion that is never present in oliga-​archy or the rest of legal form­a­tions. In the latter who gov­erns defines the po­s­i­tion and situ­ation of the gov­erned, in demo­cracy the sub­ject defines her­self as the cre­ation of politics. Democracy is not barely the rup­ture of the logic of ab­so­lute sep­ar­a­tion between gov­ernor and gov­erned, but the denial of the idea ac­cording to which every ty­po­logy of dis­tri­bu­tion of power means a pre-​existing model, an ar­che­type; in other words that there is a pre­vious dis­pos­i­tion or re­quire­ment to govern (Ranciere, 2006 Pp 78; 2001 Pp 14).

Democracy is pre­cisely the an­nul­ment of any con­di­tion to govern; demo­cracy is the gov­ern­ment of those that lack any quality or dis­pos­i­tion to govern. What lib­eral or­tho­doxy clings on and fo­cuses all its en­ergy is the re­turn to such con­di­tions, the down­right re­jec­tion of demo­cracy that hides a basic creed: the People cannot govern them­selves; we need mas­ters, wise men, strong men that tell us what to do, how to be, how to act and what we are.

While the other forms of al­loc­a­tion of power define them­selves and politics, upon the forms in which to fill the gap of qual­i­fic­a­tions “the wise over the ig­norant, the rich over the poor, the mighty over the weak” all within the pla­tonic tra­di­tion of the nat­ural dis­tri­bu­tion of dif­fer­ences, that are already es­tab­lished in a uni­versal and ne­ces­sary frame; demo­cracy is the de­moli­tion of said logic, for what is im­plied in demo­cracy is the va­cuum, the com­plete ab­sence of qual­i­fic­a­tions to govern, the quint­es­sen­tial sub­ject of politics is there­fore the one that that lacks any quality for archein (Ranciere, 2001).

The people are that part, the ex­cess or de­ficit of nat­ural qual­i­fic­a­tions, and there­fore only demo­cracy can be un­der­stood as true politics. In ol­ig­archy or ar­is­to­cracy, ant­ag­onism has been already solved through the ap­plic­a­tion of nat­ural dif­fer­ences and what fol­lows is merely the ad­apt­a­tion of the model to reality, demo­cracy is the only place where ant­ag­onism has not been re­solved, for it is an ex­cep­tional ac­tion that con­sti­tutes the sub­ject. The lack of qual­i­fic­a­tions is the only re­quisite to ex­er­cise demo­cracy and con­sequently the only means of con­sti­tuting a people.

Democracy de­con­structs the logic of arche as a cat­egory that pre­cedes politics as the for­mula of so­cial or­gan­iz­a­tion (Agamben, 2011, Pp 4). The con­clu­sion bril­liantly fash­ioned by Ranciere is that Demos de­notes the cat­egory of per­sons that are not taken into ac­count in other forms of gov­ern­ment, the residue that is ex­cluded (Ranciere 2006, Pp 81, 2001, Pp 15), the in­vis­ible the ram­shackle, those who speak when not asked to, that move when they are sup­posed to stay still, those that do not fit in the iron rule of the law and its dis­tri­bu­tion of in­terests and desire.

The pur­pose of philo­sophy is not the search of ori­gins or fun­da­mental prin­ciples, but to es­tab­lish the final con­sequences of ac­tion, to think is the first ac­tion, to re­nounce to the dominium of reality the first real theory.

DEMOCRACY AS ANARCHY

Until now what we have gained from demo­cracy and from un­masking the true con­struc­tion of lib­er­alism is a new form of thinking politics and law, the ul­ti­mate ques­tion re­mains: What do we un­der­stand as polit­ical power? To the western tra­di­tion power is real­ized in a typ­ical so­cial re­la­tion, that of order/​obedience, (Clastres, 1978, Pp 24) where co­er­cion marks the spot, and where power is vi­ol­ence ad­min­istered by the state, where the state at its turn is the out­most and su­perior achieve­ment of polit­ical evol­u­tion, and serves as the model to which every polit­ical cre­ation is meas­ured against. But the ques­tion that resides here is: Can we speak of power when there is no vi­ol­ence or co­er­cion. The an­swer is, only in democracy.

Pierre Clastres em­pir­ical find­ings show that co­er­cion and sub­or­din­a­tion are not the es­sence of polit­ical power al­ways and every­where, and are but a par­tic­ular case, a con­crete real­iz­a­tion of polit­ical power in cer­tain cul­tures, like the western cul­ture (Clastres, 1978, Pp 32). Western eth­no­lo­gical nar­cissism trans­forms facts into judg­ments, again the model on which everything is meas­ured is built be­fore­hand by the idea of power proper to western civil­iz­a­tion, thus being the strategy of iden­ti­fic­a­tion as an­ni­hil­a­tion, of re­cog­ni­tion as sub­or­din­a­tion, a sci­ence el­ev­ated to a false uni­ver­sality that fi­nally de­grades it­self to a pre­carious and par­tic­ular ideo­logy (Clastres, 1978, Pp 28).

As put forth by Clastres, the first ges­ture of sci­entific ex­ten­sion is in­ternal to the defin­i­tion of western cul­ture. So, while we can think the polit­ical without vi­ol­ence, what is un­think­able is the so­cial without the polit­ical (Clastres, 1978, Pp 34). The west is only cap­able of thinking the polit­ical as vi­ol­ence, being its last form the state that con­tains and re­arranges the so­cial con­flict. So the lim­it­a­tion is really in­side western culture.

So, true demo­cracy is im­potent power, lead­er­less lead­er­ship, a func­tion that works in the va­cuum, ab­sence of power, power out­side the sym­bolic. Treating the form by which power is con­sti­tuted and the form by which the con­sti­tuted acts leads to the con­fu­sion of being and doing, of power and an over­lap­ping of the em­pir­ical and tran­scend­ental of the institution.

Power as vi­ol­ence is the per­manent threat to the group that is al­ways ready to break the so­cial link, so im­pot­ency of power is the fun­da­mental norm that puts power out­side, knowing that in­side be­comes in­con­trol­lable and against it. Powerless power de­bunks the furtive alibi of dom­in­a­tion; the prin­ciple of ex­terior au­thority cre­ates a leg­ality that is the basic ques­tion of cul­ture itself.

Democracy is thus the only place for the polit­ical (the polit­ical in the sense of Lacoue-​Labarthe & Nancy, 1997) for it of­fers power as a form to res­cind power, the same op­er­a­tion that es­tab­lishes the polit­ical frus­trates its deployment.

If the ex­er­cise of power is to de­cide for the group, then power is the lo­gical neg­a­tion of demo­cracy and so of politics, while the de­cision of the group as a common is the ab­sence of power and so its demo­cracy in its purest sense.

In con­clu­sion if demo­cracy is to be taken ser­i­ously, every legal theory must de­rive in a polit­ical theory and prac­tice, and must in­cor­porate at least this six char­ac­ter­istics that pin­point demo­cracy 1) restoring con­flict as the order of being of the polit­ical; 2) as­cer­tain the im­possib­ility of syn­thesis between con­stituent and con­sti­tuted powers which de­rives in 3) ap­per­taining the paradox of every norm­ative system that af­firms its own iden­tity through a series of ex­clu­sions, through a com­bin­a­tion of senses that cre­ates the in­side in de­pend­ence to a fron­tier edge of the out­side, and thus this is the place of the con­stituent; 4) un­der­standing that in co­lo­nial terms death is a col­lective strategy of res­ist­ance; 5) that demo­cracy is pre­cisely the an­nul­ment of any con­di­tion to govern and 6) demo­cracy is thus the only form of the polit­ical, for it of­fers power as a form to res­cind power .

Ricardo Sanín Restrepo is Professor of legal theory and polit­ical theory at Universidad Javeriana, Bogotá Colombia.

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