The People Cometh: From Popular Existentialism to Anarchy

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 façade 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 CONSTITUENT “BEING” IS 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 dénoue­ment 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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