Emilios Christodoulidis, The Redress of Law: Globalisation, Constitutionalism and Market Capture (Cambridge University Press, 2021). Page reference in brackets refer to the book.
The Redress of Law is a major achievement. Major in every sense. It is large, a blockbuster. It bridges disciplines, it overflows with ideas, it is a laboratory of juridical and political experimentation. It is elegantly written, at times almost poetic. Against the rather clichéd structure of legal theory books, it moves forward like a complex novel or an intellectual detective story. It unravels in formal symmetry. The Redress of Law has four parts of four chapters each with the two middle parts mirroring each other. The first presents its critical methodology founded on the phenomenology of work. The second is a reconstruction of what constitutionalism used to be when grounded on the separation and coupling between constituent and constituted power. The third presents and laments the capture of domestic and global constitutionalism by the market. The last offers the fundaments, if not the hope, of a new political constitutionalism. The plot moves symmetrically. The first two parts set the scene by presenting theories, methods, values. The third moves to the peripeteia, the travails and deformations that have beset the building blocks of the first two. The last offers the resolution or catharsis: the return to political constitutionalism, where the plot started, with the redress of radical politics correcting the deformation. Constitutionalism moves outward from the text to the world, from constituted to constituent, from law to politics. This is an academic book with something out of Paul Auster’s novels and George Perec’s Life: A User’s Manual.
The book forms a grid or chessboard. Yet the orthogonal structure is populated by a trinitarian logic. There are three major referents in the subtitle — globalisation, constitutionalism, market capture. Three schools of thought organising the narrative — phenomenology, systems theory, Marxism and radical philosophy. Three heroes move the plot along: Simone Weil and the ethics of work, Karl Marx and political economy, Niklas Luhmann, semiotics and structure. Putting them next to each other seems incongruous, a trinity with no spiritual connection. Yet this is not a holy but a dialectical trinity. The three systemic dimensions of the social, the material and the temporal lead from the political constitutionalism of the beginning to the reconciliation of a radical constitutionalism at the end. It is not an inevitable, predicted or even likely outcome. As political constitutionalism retreats captured by the market and chased by neoclassical economics, critical theory becomes a long reflection on the ‘distribution of contingency and the meaning of necessity’(4). From Baruch Spinoza to Louis Althusser and Alain Badiou, the affirmation of contingency and the event have opened historical opportunities. The wager of political constitutionalism does not depend on the perfection of argumentative technique or the forward march of law-like history. It calls for knowledge, belief and commitment.
The Redress of Law offers a thesaurus of concepts and an assemblage of authors, all treated generously including those Christodoulidis disagrees with. Some are part of the constitutional vocabulary, others external to the discipline, others serendipitous encounters with superficially unrelated topics. Tragedy, the bible of phenomenology, is at the heart of the early peregrinations: it marks the disclosure of human possibility in the face of overwhelming necessity that does not thwart however the human spirit. Take Euripides’ Helen, his penultimate minor comedy of errors. The Helen who travelled to Troy was a ghost, the real lady was in Egypt. When her husband Menelaos is shipwrecked, accompanied by Helen’s ghostly double, the betrothed recognise each other and plan their escape. All this suffering in Troy for nothing? Gods and men have no answer to the conundrum, everything is doubled up, meaning escapes, reason fails, contingency triumphs.
It is this minor play that helps develop the link with Simone Weil, the least known of the book’s heroes. Weil, the philosopher and radical activist, worked in factories because only this way she could speak for the workers. She learned nature’s ways from fishermen, taught night classes to workers, fought in Spain and worked with the French resistance in England, all in 34 short years. For Weil, work and its dignity are the foundation of action; the solidarity of self-governing workers the promise of emancipation; moral categories central to political action. But capitalism imposes unnecessary suffering on workers. Against this avoidable tragedy, dignified work and resistance emerge unexpectedly and restore the relationship between thought and action. Subjected to the discipline of the factory and the injustice of exploitation, the collective action of working people preserves their self-respect. Weil insists that we act with courage in the face of worldly adversity. For Marxism, the struggle for freedom is facilitated by the insight into necessity. Weil finds in the Iliad, the workers struggles and self-organisation, the courage and strength that ‘makes humanity appear in its vulnerability’ (69). It is the courage of hopelessness, the belief in the dignity of labour and the quest for a necessary but perhaps impossible redemption that fires up Christodoulidis’ work.
The constitutional paradox
Constitutionalism and sovereignty descend from the legacy of ‘political theology’. As Carl Schmitt puts it, ‘all the important concepts of modern state theory are secularized theological concepts. And this not only because of their historical development: they were transferred from theology to the theory of the state, where, for example, the almighty God became the almighty legislator, but also because of their systematic theological structure, the recognition of which is necessary for us to be able to look at them sociologically.’1Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. G. Schwab) (Chicago: University of Chicago Press, 2005), 36. The omnipotence of God was transferred to emperor, king or, after the revolutions, to the people (USA) or the nation (France). The sovereign legislates and governs. Modern law is positive, legislated by political power. In the nineteenth century, the great fear of the rising bourgeoisie and liberal ideology was that universal franchise and unrestrained political power could lead to the abolition of property and class privilege. The law emanating from politics was asked to limit political and protect social power. As Dieter Grimm puts it, ‘the very essence of constitutionalism is the submission of politics to law.’2Dieter Grimm, Constitutionalism: Past, Present and Future (Oxford University Press, 2016), 200. Logically a self-limiting law must come from a source higher than the transient legislating majority. This almost magical feat happens through a relentless doubling process: constituent and constituted power, the people before and after the constitution, the constitutional text and ordinary legislation, presence and representation. The constitutional paradox is an answer to liberalism’s generative fear. The opposite tradition of decisionism condemns representative politics because it destroys the unity of the people. Carl Schmitt, the strongest exponent, assumes that the existential unity of the people precedes its constitutional incarnation and is undermined by democratic representation.
The paradox raises constituent power into the nominal source of all power. However, it ‘must present itself as conditioned but this means that it is sovereign on condition that it is not’ (152). In constitutional terms, power comes from the people and is exercised with their consent. The people are sovereign, but their sovereignty is limited. As a result, political decisions often frustrate popular will. If the nation is an ‘imaginary’ community created through memory, tradition and narration, the people is a constitutional construction. At the constituent moment of its maximal expression, popular power is transferred from presence to institutional representation. Representatives gather and transmit popular interests and demands to the institutions. The constituent, like the sun in a rainy day in Glasgow, has been ‘eclipsed’ in Christodoulidis’ felicitous phrase and the people have not done much better (180). This is the logical outcome of a philosophy which places the unity of the sovereign — Hobbes’ Leviathan as ‘mortal God’ — at the centre.
The absence haunts parliamentary democracy. We can bookend this effacement with Jean-Jacques Rousseau and Pierre Rosanvallon. Rousseau mocked the Englishman who considers himself free because he can vote for his representatives: ‘But he is wrong. He is free only when he elects members of parliament. Once elected, slavery returns.’ Similarly, for the conservative De Maistre, the people are ‘a sovereign who does not exercise his sovereignty.’3Joseph de Maistre, ‘Study on Sovereignty’ in Works (ed., J. Lively) (London: Allen & Unwin, 1965), 93. Three centuries later Rosanvallon concluded that our democratic regimes are ‘marked by deception, as they incarnate a betrayed and disfigured ideal’ (quoted at 220). Chris Thornhill, in his Sociology of Constitutions, summarizes the history: ‘the notion of constituent power, the normative basis of the political system, was founded not in the external factual will of the people but in a complex of norms by means of which the political system excluded the people … Once declared by its representatives, the will of constituent power fell fully silent, and the people were conclusively expelled from further exercise of power’.4Chris Thornhill, A Sociology of Constitutions (Cambridge University Press, 2011), 219. The parliamentary system allows the representation of the population as a singular person with common will and nominal sovereignty. But this ‘people’ is a purely formal figure without social characteristics, a legal fiction.
The sovereignty of the people may sound good in political speeches. It may act occasionally as a regulative principle in adjudication. This united and sovereign ‘people’ occludes the divisions and dominations that crisscross the social body. It legitimises the representatives and delegitimises popular initiatives and direct democracy. The constitutional sovereignty of the ‘people’ marginalises the ‘many-headed hydra’ of the people.
The conflict of the constitution with itself
Another understanding of constituent power approaches it not as a logical way out of the paradox of self-limiting political power. Most important constitutions and political systems of modernity (the constituted power) are the result of revolution, liberation, overthrow of dictatorships and totalitarianisms, of an exercise of what Abbé Sieyès first called pouvoir constituent. ‘It is the source of everything. Its will is always legal; indeed, it is the law itself.’5Abas Sieyès, What is the Third Estate? (trans. M. Blondel) (London: Pall Mall Press, 1963), 124. Its exercise in Philadelphia, Paris or Troizina is a collective political act that changes the world.6Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12(2) Constellations 224. It is ontological and performative: when the American revolutionaries declare at the beginning of the Declaration of Independence ‘We, the People’, they make a double claim: ‘who’ we are (the constituent part) and ‘what’ we will become (the constituted).
A variation on the theme is found in the Critique of Hegel’s Philosophy of Law by the young Marx. ‘The conflict between the constitution and the legislature does nothing but ignore the conflict of the constitution with itself, a contradiction in the very heart of the constitution.’ Against Hegel’s advocacy of state sovereignty, Marx finds in the democratic constitution of the French Revolution a ‘completely opposed notion of sovereignty’. Democracy is ‘the resolved riddle of all constitutions’, the ‘essence of every political constitution’.7Karl Marx, ‘Kritik des Hegelschen Staatsrechts (1843)’ in Marx-Engels-Werke Band 1 (Dietz-Verlag, 1972) 203–333 quoted in Kolja Möller, ‘From constituent to destituent power beyond the state’, Vol. 9/1, Transnational Legal Theory (2018). DOI: 10.1080/20414005.2018.1425810 The democratic constitution paves the way for collective self-rule that can challenge even dominant social relations. Marx develops this constitutional theme in his political writings. The future will arrive with the assumption of power by the working people. In the Eighteenth Brumaire of Louis Bonaparte, he writes that the social revolution ‘cannot draw its poetry from the past by only from the future’ (173). After the Paris Commune, Marx finds in the ‘self-government of workers’ the revolutionary poetry and institutions that to the future.
Marx understands therefore the ‘constitutional paradox’ as historical and political not logical. Constituent power is the force that changes history. It reproduces social existence and remains hidden but alive in the constitutional text. It emerges in a double movement in which it appears and is hidden at the same time. It establishes a new society but is marginalized by its institutional creations. The constituent is the world making power of popular initiative and democracy. But only the constituted form — constitution, institutions, personnel — becomes legitimate, even sacred. The constituent, which gave rise to it, recedes, but remains active. Similarly, the constituent subject, the demos, the people or the multitude, is an ever-present potentiality: it lies behind every constituted form. Conflict, struggle, antagonism is not pacified by the unifying symbolic logic of the constitution.
This is the path of political constitutionalism: the original distinction between constituent and constituted power persists. Following Niklas Luhmann, Christodoulidis posits the constituent/constituted as the ‘guiding distinction’ of constitutionalism (154). As a critical reader of Habermas, he finds the two poles equally implicated, ‘co-original’. The constituent is a necessary reference for the constituted but cannot be reduced to its logic. Similarly, the constituent finds its limit and measure in law. The constitution is the ‘site of coupling of politics and law’ (153). The different characteristics of the two sides cover every area of public life. Politically, the constituent carries democracy and potentiality; the constituted, institutionalisation and self-reflection. Temporally, the constituent offers acceleration of political time; ontologically, community and presence of the people; socially, openness and potentiality. The constituted, repetition and the fixing of time, operationalisation and representation, the known and closure. The constituent is the pole of popular participation, production and protection (153-5). The constituted organises the legalisation of power and the internal coherence of the law (the Kelsenian moment); it sets its outside limits, (the Schmittian moment) and defensively protects the balance of social power (the demystifying moment). Conflict in its various permutations moves political constitutionalism.
From social to market constitutionalism
Constituent power is both logically necessary and politically marginalised. For legal positivism, it is a ‘political myth that grounds the necessity of the basic norm’, superfluous, unproductive.8Martin Loughlin, On Constituent Power, 12 http://eprints.lse.ac.uk/81566 (June 2017). Yet, it is not exhausted in its transfer to representative bodies and institutions nor is it fully integrated into the constitution. It remains a permanent presence, like an underground current that occasionally breaks through to the surface. This is because political power and legal form rise on the foundation of the ‘material’ or ‘productive’ power of working people to reproduce society through their work. The power and will of self-determination and self-government organizes social reproduction (potentia). This ‘material’ part condenses and expresses also the domination that marks social power (potestas). There is no direct passage or determination however of political by social power. The constitution is relatively independent vis-à-vis social domination. Its social ordering takes place however within the parameters set by social power.
The Redress of Law combines Marxist political economy with a humanistic interpretation of work as species generative and non-alienated labour as ‘constitutively cooperative’ (74). Simone Weil’s dignified labour and her belief in auto-gestion completes the anthropological perspective. These are the values of the social constitution. The social constitution aims to meet human needs and realises the value of solidarity. During the post-WWΙΙ marriage of convenience between capitalism and democracy, social rights were the result of victories by trade unions and the left as well as a concession of capitalists worried about domestic militancy and Soviet expansion. However social rights remained antithetical to capitalist structures of risk, opportunity and reward. When the market allocates resource, distributions aiming to meet need are irrational. After the exit of communism the attack on the social constitution intensified, globalisation was consolidated, the social state was side-lined. The ‘post-political’ condition placed knowledge above normativity, technocrats and experts above politicians, fake consensus above the disagreement and conflict of politics. As Wolfgang Streeck argued, the financial markets replaced the ‘sovereign’ people, democracy was fully subjected to capitalism.9Wofgang Streeck, How Will Capitalism End? (Verso, 2016), Chapter 5.
The political constitution was undone by the market capture. The road was paved by the turn to a facile constitutional ‘pluralism’ domestically and cosmopolitan constitutionalism globally. Pluralism limits the state’s legal competency and subordinates it to civil society with its concentrations of economic power. The state becomes dependent on those it is supposed to regulate. Various doctrines and legal theories have developed to justify the side-lining: the ‘golden’ rule and balanced budgets, the (non) justiciability of social rights, Sen’s theory of capabilities and the ubiquitous ‘proportionality’. Rationality and ‘reflective’ argumentation, the spill-over of doctrine and legalisation of social areas by stealth, replaced constitutionalism’s balancing act between law and democracy. Normativism and rhetorical references to the rule of law displaced politics and democracy. Human rights proliferated and colonised ever expanding areas of policy; they have marginalised social justice and have become both the site of conduct and the reward of politics. In an age that class and most other forms of struggle have been declared finished, political conflict has been transferred to the lawcourts.
Market constitutionalism interprets its contribution to the common good as facilitating capital’s access to all aspects of social life. Consumer choice has become the justification and simulacrum of constitutional ‘pluralism’. Postmodern ‘liquid’ work practices imitate fluid financial products and forms: the flexibilization of work, zero-hours contracts, uninsured and underpaid work, the undermining of unionism and collective action. The Laval and Viking line of European jurisprudence has confirmed the trend. The political right to free association and collective bargaining, the social right to workers’ solidarity were trumped by the right of movement and establishment of the enterprise and the individual right to disassociate from and undermine union protection. Social justice has been abandoned at the European level and was sent back to the largely impotent domestic politics creating popular resentment and xenophobia. The alienation of citizens from politics proceeds apace. This was the trajectory from liberal to political and market constitutionalism. Is there a way out?
The redress of politics
The Redress of the Law is formally a grid or chessboard. According to Rosalind Krauss, the grid is the ‘emblem of modernity’. Its organised flatness provides ‘the means of crowding out the dimensions of the real and replacing them with the spread of a single surface’.10Rosalind Krauss, ‘Grids’, October, Vol. 9 (Summer 1979), 52, 51. It works both centrifugally and centripetally. Christodoulidis’ grid can move outwards opening to the world, abandoning the rationalisms of law and disclosing possibilities of new radical practices in politics and critical theory. Or, it may contract inwards allowing the reassembling of its pieces into new and unexpected combinatories. Christodoulidis strategy is to move outwards, from law to politics, from the constitution to the people.
The market and the fake rationality of homo oeconomicus have defanged constitutionalism. Government and democracy have been replaced by governance, the rule of experts and the market. Social rights are retreating and are replaced by market distributions; workers rights and the protections of labour are under attack by European law. It is this evisceration of democracy and retreat of social rights that political constitutionalism tries to redress. When the constituent is removed from constitutional thought, its democratic and social constituents are gradually vacated. Political constitutionalism returns constituent power to its rightful place as the constitution’s foundation and as democracy’s strength. It counters the hidden theoretical moves that aim to distribute what is rational and to exclude what is not. Constitutional meaning emerges again against the horizon and inspiration of the constituent power (195). Political constitutionalism answers the great constitutional dilemmas by resolving them in favour of democracy. Erring on the side of the people would be its motto. The emancipatory project combines traditional Marxist class-based activism, workers councils and Italian operaismo as well as legal strategies. It is a heady, somewhat uneasy but powerful combination that moves the project along.
The strength of the constituent its strength can return only through the revival of lost radical traditions. Three strategies reinsert politics into constitutionalism: militant formalism, rupture and immanent critique. Radical formalism — abiding to the constitutional text all the way to its reductio ad absurdum – may undermine the normative aspirations of liberal capitalism. It includes social action litigation and different functional ‘couplings’ between legal, political and economic systems following systems theory. But often no legally admissible alternative exists. How can a wrong be corrected if it has removed the language and action to redress it? This is what Jean-Francois Lyotard calls the differend (518). The second strategy involves therefore the negation of the existent and radical rupture. Examples include the emergence of the demos in classical Athens, the insurrection of the Solidarity that changed Poland and its constitution and, mass political strike. Rosa Luxemburg, George Sorel and Walter Benjamin are the theorists of pure withdrawal. The mass strike subverts capital’s demand to produce things and valorise commodities. It is a negation of the capitalism material constitution Worker self-government, on the other hand, becomes the link between constituent power and the social dimension of work.
Finally, immanent critique. It draws on resources the legal system makes available (equality, solidarity, dignity) and mobilises them when the actual practice falls short of the promise. The contradiction between the universality of the categories of law and rights and the partiality of distributions is the moving force. Such is the right to work in a system that creates unemployment or of universal social rights that appear in the constitution but not in life. The moral injunction against suffering and the principle producers of value should determine its disposal are mobilised in the conflict between constitutional inscription and practical non-performance.
There is a sense of sadness, a fin d’ epoche melancholy in this last part of the Redress of Law. A grand period of constitutional experimentation and protection is coming to an end. The world has been unmoored from the great constitutional discourses and practices of the past. It becomes normatively unhinged but minutely regulated. The sense of a constitutional sense of certainty and safety, of a space of protection as well as of opportunities and experimentation no longer holds.
The return of the people?
The ontology of the people as One is not the only camp in political philosophy.11Costas Douzinas, Philosophy and Resistance in the Crisis (Polity, 2013), Chapter 8. Another tradition promotes the ‘multiple’, the ‘multitude’, the Many. It hails from Machiavelli, Spinoza and Marx.12Key references in the theory of multitude include Antonio Negri, The Savage Anomaly Michael Hardt trans. (Minneapolis, University of Minnesota Press, 1991); Insurrections: Constituent Power and the Modern State M. Boscagli trans. (Minneapolis, University of Minnesota Press, 1999); Michael Hardt and Antonio Negri, Multitude (London, Hamish Hamilton, 2004); Paolo Virno, A Grammar of the Multitude (Los Angeles, Semiotext(e), 2004); Paolo Virno, Multitude: Between Innovation and Negation (Los Angeles, Semiotext(e), 2009). The many are not united and do not mimic God. As Antonio Negri has cogently argued the constituent power of the multitude lies behind modernity and its politics. Nicolo Machiavelli, Baruch Spinoza and Karl Marx are the progenitors of the idea.13Antonio Negri, Insurgencies: Constituent Power and the Modern State (University of Minnesota Press, 1999) . For Machiavelli, the historical process develops through the strength and passion of the multitude augmented by struggle. Spinoza moves from history to metaphysics and posits the infinitely expanding cupiditas (desire) of the multitude as the determination of politics and sovereignty. This is the sovereignty of the many, a ’democratic living god.’14Ibid., 304. Spinoza’s multitude is a productive constituent power. Its strength produces the material world; its constitution projects its power into the future. The intersection of production and constitution creates the material, political, and cognitive progress of modernity. Finally, for Marx, the multitude becomes living labor; its constituent power is the productive force that creates every social form.
This ‘unuseful’ multitude endures. It is a ‘plurality which persists as such in the public scene, in collecting action, in the handling of communal affairs, without converging into a One … multitude is the form of social and political existence of the many seen as being many … The multitudo is the architrave of civil liberties.’15Paolo Virno, A Grammar of Multitude (Semiotext(e)), 21 (italics in original). The ‘motley crowd’ comes together and acts without unification. The many remain unique in their plurality. They are a material entity, a multiplicity of singularities acting in common. Unlike the people or the nation, the multitude cannot be unified except in action. When different people come together and co-ordinate their strength and desires, a political subject emerges in the temporariness and tension of the togetherness of singularities. For the theorists of the multitude, it is the many qua many who create the world and humanity. It is the strength of the multitude, not their unification that reproduces society materially can radically change it.
Antonio Negri, the contemporary heir of this tradition, keeps asking whether legal theory can understand the constituent power of potentia. He concludes that its strength cannot fold back into the constituted and nor can it be reduced to juridical reason (156). He therefore rejects political constitutionalism. What is the alternative? Every exercise of constituent power acquires its identity through its retrospective naming by the constituted.16Hans Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’ in Martin Loughlin and Neil Walker eds, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP. 2007), 9-26. Is there another kind of mediation between the constituent and the constituted that does not end up in the effacement of popular power? The strongest contemporary mediation emerges in popular resistance, uprisings, revolutions. They are the broken middle between constituent and constituted power, people and lawyers, democracy and law. For Immanuel Kant, there is no right to resistance or revolution. The constitution declares revolution both impossible and prohibited, like the psychoanalytical real. Time and again, however, the repressed returns in acts that challenge the ossified and fetishized constitution or laws that attempt to efface the force that lies at their foundation. Since 2010, the have challenged the constituted order in the Arab Spring, in the occupations in Madrid, Athens, the Occupy and Black Lives Matter movements. The insurgent component of democracy, as Etienne Balibar called it, returned as a collective political act.17Etienne Balibar, Masses, Classes, Ideas (Routledge, 1994), xiii, 347. The ‘indignados’ showed that parliamentary democracy must be supplemented with its direct version. It led to citizen participation in constitutional revision processes in Iceland, Ireland, Bulgaria. Referendums of constitutional importance were held in Greece, the Netherlands, Britain, Italy. The Chilean student protests led to the constitutional referendum and the new constitutional assembly. The ‘genie’ of popular power came out of the bottle in which constitutional fetishists had imprisoned it. Power is exercised inside and outside its institutionalized forms by those who seek to reform them in a democratic direction. They invent new forms of political organization or productive reconstruction. Let me mention my own experience in Greece.
The Greek protests of the early 2010s led to the election victory of SYRIZA, a small radical left party, in 2015. I was elected a Member of the Hellenic Parliament and after forty years in London and the University I became an ‘accidental politician’ in Athens.18Costas Douzinas, Syriza in Power, Reflections of an Accidental Politician (Polity, 2017). The relentless direct and indirect constitutionalisation of neoliberalism, that Christodoulidis so carefully records, and the decline of democracy during the economic crisis made the revision of the constitution one of the main tasks of the new government. When Prime Minister Alexis Tsipras announced the initiative to revise the Greek constitution, he recalled the significance of the occupations of squares and direct democracy in the victory of the left. I was involved in the preparation of the revision and presented it in Parliament. We had to confront the institutional delegitimization of politics, the impoverishment of the population through the neoliberal structural adjustment programmes and the economic and cultural bankruptcy of the state. The proposed amendments referred to three broad areas. Institutional design (relations of church and state, strengthening’s government accountability to parliament). Second, improvement and implementation of social and economic rights, including the creation of justiciable rights to health, workers protection and a dignified standard of life. Finally, strengthening parliamentary and introducing direct democratic procedures. They included proportional representation, referenda, popular legal initiatives and procedures for the recall of laws and politicians. Liberal constitutionalists attacked the proposals. They argued that the chapter on socio-economic rights should be removed altogether as a service to honesty, since they could not be implemented under the balanced budget imposes by the EU. They wanted a ‘golden rule’ clause inserted in the constitution to prevent any relaxation of austerity. They also rejected the extension of anti-discrimination rights and the strengthening of democratic procedures. The term ‘institutions of direct democracy’ is wrong at best and misleading at worst because it ‘cultivates the logic of the omnipotence of the people.’
The amendments did not survive the election of a right-wing government in July 2019. The strict Greek constitution has taken an insurance policy against major change at the meta-level. Its revision requires the participation of successive parliaments and increased majorities. This has allowed centre right and centre left parties to dominate the revision process and to exclude radical changes. The reforms that went to the core of the balance of power or deepened democracy were summarily rejected. Only those that left the class and political balance of forces intact were tolerated. I wish I had read the Christodoulidis’ suggestions in 2018 when planning the constitutional revision. The constitution and institutions reflect the class and political balance of powers and create strong normative expectations. They reduce contingency, entrench models of social relationships, restrict imaginative alternatives. They are reproduced and guarded by clusters of experts, who promote conservative ‘authoritative’ interpretations and silence the critics. If formal constraints of the revision process are not challenged, the constitution cannot be changed in a progressive way.
Institutions cannot be reformed and expectations reversed without strong political alliances, social mobilization and new interpretations of their conditions of appearance and reproduction. A successful radical revision depends on a change of the constitution’s ideological temporal and material conditions of existence. The reforms must exploit contradictions in normative expectations and test their limitations. Popular and some expert support must be created by turning institutional pledges against their inadequate delivery. When these preconditions are lacking, institutions easily revert to the traditional function. The Redress of Law offers valuable advice not only for the return of political constitutionalism but also for the revision of the constitution. It is question of politics redressing sclerotic law through legal means. Constitutional lawyers, critical theorists and progressive politicians should be grateful to Emilios Christodoulidis for his wise counsel.
Costas Douzinas, Emeritus Professor of Law, Birkbeck University of London
- 1Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. G. Schwab) (Chicago: University of Chicago Press, 2005), 36.
- 2Dieter Grimm, Constitutionalism: Past, Present and Future (Oxford University Press, 2016), 200.
- 3Joseph de Maistre, ‘Study on Sovereignty’ in Works (ed., J. Lively) (London: Allen & Unwin, 1965), 93.
- 4Chris Thornhill, A Sociology of Constitutions (Cambridge University Press, 2011), 219.
- 5Abas Sieyès, What is the Third Estate? (trans. M. Blondel) (London: Pall Mall Press, 1963), 124.
- 6Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12(2) Constellations 224.
- 7Karl Marx, ‘Kritik des Hegelschen Staatsrechts (1843)’ in Marx-Engels-Werke Band 1 (Dietz-Verlag, 1972) 203–333 quoted in Kolja Möller, ‘From constituent to destituent power beyond the state’, Vol. 9/1, Transnational Legal Theory (2018). DOI: 10.1080/20414005.2018.1425810
- 8Martin Loughlin, On Constituent Power, 12 http://eprints.lse.ac.uk/81566 (June 2017).
- 9Wofgang Streeck, How Will Capitalism End? (Verso, 2016), Chapter 5.
- 10Rosalind Krauss, ‘Grids’, October, Vol. 9 (Summer 1979), 52, 51.
- 11Costas Douzinas, Philosophy and Resistance in the Crisis (Polity, 2013), Chapter 8.
- 12Key references in the theory of multitude include Antonio Negri, The Savage Anomaly Michael Hardt trans. (Minneapolis, University of Minnesota Press, 1991); Insurrections: Constituent Power and the Modern State M. Boscagli trans. (Minneapolis, University of Minnesota Press, 1999); Michael Hardt and Antonio Negri, Multitude (London, Hamish Hamilton, 2004); Paolo Virno, A Grammar of the Multitude (Los Angeles, Semiotext(e), 2004); Paolo Virno, Multitude: Between Innovation and Negation (Los Angeles, Semiotext(e), 2009).
- 13Antonio Negri, Insurgencies: Constituent Power and the Modern State (University of Minnesota Press, 1999) .
- 14Ibid., 304.
- 15Paolo Virno, A Grammar of Multitude (Semiotext(e)), 21 (italics in original).
- 16Hans Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’ in Martin Loughlin and Neil Walker eds, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP. 2007), 9-26.
- 17Etienne Balibar, Masses, Classes, Ideas (Routledge, 1994), xiii, 347.
- 18Costas Douzinas, Syriza in Power, Reflections of an Accidental Politician (Polity, 2017).