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University of Toronto Law Journal 56.3 (2006) 185-222

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Constituent Power As Body:

Outline Of A Constitutional Theology

To the memory of Jim Harris

I Schmitt on sovereignty and constituent power

Insofar as theology forms an integral part of religion, civil religion comprises not only the political myths and rituals studied by sociologists but also a civic theology. Political theology is concerned with the nature of the civic God, the sovereign, and finds its natural institutional setting in learned constitutional discourse. Constitutional lawyers such as Carl Schmitt recovered the lost awareness of the theological models that shape constitutional discourse. In particular, constitutional reflections on the concepts of sovereignty and constituent power seem to reproduce theological arguments and invite the application of general theological outlooks. Contemporary constitutional theories, such as Antonio Negri's and Bruce Ackerman's, rarely approach the question of constituent power from the standpoint of political theology. While Schmitt's own political theology may seem flawed, and thus incapable of yielding a satisfactory account of constituent power, the quest for a theological, or semi-theological, understanding of constituent power deserves to be continued. Without ever explicitly challenging Schmitt's political theology, Ernst Kantorowicz's study of The King's Two Bodies suggests an alternative theology. My aim in this essay is to reconstruct and develop this alternative political theology, as well as the constitutional model it entails.

The issue that divides Schmitt's and Kantorowicz's conceptions of sovereignty can be framed in terms of immanence versus transcendence, notwithstanding that neither author employed these terms. While Schmitt seems to advocate an immanent account of sovereignty, Kantorowicz offers a transcendent one. According to immanent conceptions of sovereignty and constituent power, sovereignty vests in living members of the body politic. An immanent sovereign is an individual, or a group of individuals, who perpetually validates the constitution, rather than being [End Page 185] empowered by it, and who is therefore unfettered by any constitutional separation of powers. The paradigmatic example of an immanent conception of sovereignty is Thomas Hobbes's. The authority of the Hobbesian monarch derives from the actual efficacy of his rule, not from a constitution that could constrain political power. Hobbes deposits divine omnipotence in the hands of a living human being, giving a philosophical articulation to a political phenomenon known to anthropologists, historians, and students of mythology as 'divine kingship.' By contrast, theories of transcendent sovereignty place the authority to validate the constitution outside society. Like immanent sovereignty, transcendent sovereign power is indivisible. It precedes the separation of powers and gives unity to the constitutional order and to the political group, but it dwells outside the group.

This essay criticizes theories of constituent power, such as Schmitt's and Negri's, according to which constituent power is permanently present within society or the state. The following section argues that constituent power vests in the imaginary collective body of the group and that this body normally resides outside the group to which it belongs. Only during dramatic constitutional moments is the collective body enacted by the group and rendered present. I will use the terms sovereignty and constituent power interchangeably to designate the power of the group as an absolute unity, a single collective body, to author and breach the constitution.1 By the notion of the communal body I will refer to the sovereign collective body in the moment of its enactment by the group. The notion of the corporate body, by contrast, will be used to designate the collective body in its other dwelling place: as an absent body residing outside the group. Both concepts, the communal body and the corporate body, refer to the group's imaginary collective body, but in different positions that it can occupy in relation to the group. The collective body can, in fact, exhibit different degrees of distance from the group, different degrees of absence and presence. Certain constitutional moments occasion a more intense presence of the collective body than others. Thus the concepts of the corporate body and the communal body designate the theoretical...


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