Peter Niesen — Exile and Constituent Power

Описание: Peter Niesen (University of Hamburg)

Constituent Power is an internalist category of legitimation in more than one sense. That is part of its appeal and generates parts of its problems. In standard accounts, it builds on the fact that a given collective is exposed to political power, whether we analyze this in terms of the all-subjected principle
or the neo-republican vocabulary of domination, such that the power in question is a reflexive right to the inescapable fate of the governed. The direction of legitimation is bottom-up and inside-out, and it is the collective of the governed who can aspire to write the software for their government,
empowering them to act in certain ways and limiting them from others. This is why it is implausible, at first glance, to have outsiders participate.

Both Rousseau and Bentham thought that outsiders generally outperformed insiders in constitutional design, if not constituent implementation. Exiled nationals appear to have an even stronger claim to articulate and exercise constituent power in their home state. They are not just providing border-crossing input in a cosmopolitan mindset, but share an entitlement to partake in the pouvoir constituant. Before we discuss what this entitlement consists of (consultation, organizing, representation, revolution), we need to clarify what it rests upon, since exiles are not “subjected” to government power in the narrow sense of the term. Their claims must be distinguished from those of governments-in-exile, resistance leaders, and ostracized power holders, as well as from the “internationalized pouvoir constituant” of foreign law professors or other occupying forces. I explore Bauböck’s stakeholder principle under Owen’s idea of a border-defying “constitutional demos,” but
add that there is a specific connection that needs explaining by reference to the transtemporal existence of a historically inflected pouvoir constituant.