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 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 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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