CONSTITUENT POWER AND

LONDON’S ‘SUMMER OF RAGE’?

ILLAN RUA WALL
05/April/2009

There has been much discussion and fear-mongering about this expected summer of rage. The
idea is put forward by the media and political classes that we must expect the worst. However, in
the light of the recent resurgence of the left and the countervailing ideology perpetuated by
mainstream politics and the media, it is worthwhile to consider what we might call the boundaries
of democracy. I don’t mean this in the straight-forward manner which is often discussed today.
Raising this question usually demands that we conjure up the ‘exceptional’ threats that
‘democracy’ (read Western capitalist democracies) project in order to establish their
precariousness. Once this precariousness is established then those measures to ‘defend the
state’ are both facilitated and legitimated. We find these boundaries of democracy mapped out in
a myriad of political, legal and disciplinary manners: The limits of the concept of ‘refugee’; the
policing of the European border; the projection of the terrorist, envoirmentalist or anarchist other.
Equally the limits of democracy are mapped out in the domestic and European courts on issues
of free speech, freedom of association, labour rights and beyond. However, the questioning of the
boundaries or limits of democracy that I propose is neither a question of when the constituted
order is entitled to silence its opponents, nor where the democratic state is entitled to declare war
upon its internal or external ‘enemies’. Instead of these direct questions on the nature and extent
of the current liberal, democratic and capitalist state, I would prefer to ask the question what are
the limits of democracy in a meta-political sense. At the heart of every democratic constitutional
order lies the paradox of authority, this paradox is constitutive of the democratic State or the
democratic order.

As a constituted order, representative democracy demands that political action and speech must
fall within settled lines and channels. There are processes to be followed, authorizations to be
obtained, clearance to be received from the offices of the state, the police, the local authority, etc.
Settled channels of speech also exist: No one must incite, propose or undertake violence; The
suggestion of extreme anger or hatred against a certain grouping, even bankers and politicians, is
prohibited. Ultimately, we are told that change within a democracy must come from the authorized
channels. Either the populace will manage to leverage enough pressure upon their
‘representatives’ or the option is open to any nascent political organisation or individual to stand
for election, even to enter government. Thus, democracy provides both the means of change and
the boundaries within which this change is organised and legitimated. However, it is here with
these channels or boundaries of the legitimate action and speech that we find the paradox of the
liberal democratic form itself. It lies precisely in the notion of a ‘democratic order’.

The paradox of this order is of course that it relies for its legitimacy upon a fundamentally
disordered event: the people. Elections are understood as the political class being determined by
the people. Yet we know in our every fibre that this is not the ‘voice of the people’. In the most
banal of senses, when a politician or political party gets 50% of the vote, this is usually 50% of
50% (i.e. 25%) of the voting population. The true purpose of elections is shown most beautifully
by Jose Saramago’s novel Seeing. There, for no apparent reason, an unknown city casts blank
ballots. The reaction of the government is to treat the city as contagious, to seal it off, to oppress
and attempt to destroy this terrible event. Elections are the stuff of public Right, they are the event
upon which the system bases its legitimacy. Without elections, even the mirage of the sovereignty
of the people cannot be maintained.

The premise of elections is popular sovereignty. This is rooted (historically or mythologically) in

an original event where public Right is seized by the people. This is the moment where the
democratic state is formed. In constitutional scholarship the term used for this event, this siezure
of sovereignty, is constituent power. Constituent power is the power to create and determine
political relations on a macro-level. The term was first coined by the Abbé Sieyes in the run up to
the French revolution. Sieyes saw that constituent power belonged the nation. Because it
undertook all of the economic and social functions within France, it should also control the state.
Along with Rousseau and all the other thinkers of that revolutionary age, Sieyes argued for a
sovereign people. This is the fundament of democracy: power to the people. Some may object
that only a very few states have had a revolutionary event which established the people at the
heart of the state. Britain’s revolution and early republic was overturned, and in its place came a
gradual alteration of the status quo. However, this misses the point that once democracy is
placed at the heart of the state, once the people is the basis of legitimacy, the revolutionary event
is posed as an ever present possibility. This is demanded by the term itself: democracy. The right
to revolution lies at the heart of democracy. Milton frames it well: “since the King or Magistrate
holds his authoritie of the people, both originally and naturally for their good in the first place, and
not his own, then may the people as oft as they shall judge it for the best, either choose him or
reject him, retaine him or depose him though no Tyrant, meerly by the liberty or right of free born
Men, to be govern’d as seems to them best.” The people may overthrow their leaders if they
become tyrants. Thus, as Derrida saw, revolution is a spectre which haunts democracy.
Revolution is the eternal possibility of democracy.

Thus, by bringing ‘democratic’ and ‘order’ together, we reach the paradox. The democratic order
demands that revolution is the ultimate right of the people, but at the same time when viewed
from the order which it seeks to overthrow, revolution is always illegitimate. The constitution of
this democratic order, as a system of legitimacy, lies on a foundation (the revolution) whose
legitimacy it cannot account for. The original founding moment of the constitutional order is alien
to that order itself. Thus, the paradox is that at the heart of the law there lies a moment which is
not just non-legal but resistant to the very stuff of legality. This ‘paradox of constitutionalism’
replicates itself throughout the legal order: on one side the continuing possibility of the constituent
and on the other constituted state power; on one side the political (understood as broader than
mere politics) and on the other law; on one side the question of change, treason and creativity
and on the other the question of constituted power, authority and calcification.

In a crucial recent intervention entitled On Democracy, Jean-Luc Nancy drew our attention once
more to what Georges Bataille called the ‘headlessness’ of democracy. He points out that
democracy is not a demo-archy, it does not propose an origin (arche) which it would need to be
faithful to. Rather at its heart lies the cracy (force or power) of the demos. ‘‘Democracy’ is formed
by a suffix that refers to force, to violent imposition, unlike the suffix -archy which refers to
founded power, legitimated in a principle.’ Thus, he tells us that at the heart of democracy lies an
an-archy, a lack of origin or an anti-origin. Democracy is the maintenance of the paradox of a
foundation of foundationlessness. The people is the site of this lack, this an-archy. Nancy tells us
that the people do not make a principle upon which the system can be founded. In fact,
‘democracy as politics, not being able to be founded on a transcendent principle [arche], is
necessarily founded, or unfounded, on the absence of human nature.’ The people can never be
a unity, or at least this unity would rely upon some sort of projection along the lines of Ernesto
Laclau’s populism. The people is never present to itself, it can never be like a single unified willing
agent.

To explicate this difficult position, let us briefly look back to Bataille’s analysis of democracy. He
placed the Place de la Revolution/Concorde in Paris at the heart of his imagination of
sovereignty, community and politics. It was there that the French revolutionaries executed the
king, who, in all his majesty, authority and power was sacrificed for the founding of the new
political community. This is the very essence of the revolution for Bataille. ‘As a result of the
revolution, divine authority ceases to found power: authority no longer belongs to God but to the
time whose free exuberance puts kings to death, to the time incarnated today in the explosive
tumult of the people.’ The traditional analysis of what happens in the French revolution simply
transposes the people into the sovereign position of the king. However, Bataille rejected this
simplistic view, because by undertaking this transposition, nothing actually changes. In reality, the
people is not like the king. To put the people at the heart of sovereignty is to alter the very nature
of sovereignty itself. Bataille saw that the symbolic act of cutting the king’s head off was far more
radical than we now understand. The old Hobbesean image of the king as the head of the body
politic is operative. When the head of the king is cut off, the people lose the one figure capable of
uniting them (in subjection). With that, democracy becomes headless. The principle of popular
sovereignty establishes itself with the refusal of the absolute and transcendent truth of subjection
under the monarch.

What then does this mean for us as we face into this summer of rage? Firstly, we must not forget
that at the heart of democracy lies disorder not order. The constituent power of the people cannot
be exhausted by periodic elections. It is within the power of the people to alter the nature of the
meta-political relations at any given moment. When the press warn us that anarchists and
environmentalists are going to cause damage and do violence in this summer of rage, we must
remember that it is not as simple as ‘good and evil’ transposed onto ‘order and disorder’ because
at the heart of democracy lies violence and disorder. To reject this out of hand is to reject
‘democracy’ and side instead with ‘order’. The channelling of popular will into accepted modes of
expression is all too often a pacification of popular sentiment. Constituent power cannot be bound
by any transcendent ordering.

Secondly, constituent power is ever present. But it is a very different type of power to that which
is exercised by the state. The state has the monopoly on the use of force. As the old Marxist
critique goes, when a policeman beats someone with a truncheon that it reasonable force, when
a worker strikes back with a fist, a stick or a stone that is unacceptable violence. The state utilises
force/violence on an everyday basis whether it is stop and search powers, incarceration or riot
police with tear gas. This is the power of the state. The people on the other hand holds a very
different form of power. In romance languages the distinction is drawn between these two types
of power: in Latin potentia and potestas; in French puissance and pouvoir; in Italian potenza and
potere; in Spanish potentia and poder. The power held by the state is a potestas, that is a power
over others, ordering, dominion or rule. It is the power to exercise its violence as it sees fit.
Potentia on the other hand is better understood in the sense of capability, possibility or
potentiality. It is the power or possibility to create, to make or to do. Constituent power is precisely
this power to create new forms of political relation. It is this form of power which lies at the heart
of democracy. When the newspapers attack the protestors this week, when they say that they are
disorganised, violent and anti-social. When they attack them for not having an alternative and
also for thinking only of violence and disorder, it is necessary to remember that this is precisely
the critique levelled at the revolutionaries in France, Haitii or America. The constituent must
always be illegitimate from the subject position of the order which it rejects. Without dealing here
with any of the possible projections of a future world, we can say that democracy must retain this
sense of the constituent. It is the system which is radically opened to its becoming otherwise.
Democracy without the possibility of the return of the constituent is not democracy. As far as the
protestors go: Nancy tells us that ‘Invention is always without model and without warranty. But
indeed that implies facing up to turmoil, anxiety, even disarray. Where certainties come apart,
there too gathers the strength that no certainty can match.’

This does not mean that in a liberal move we should simply tolerate the protestors as a necessary
evil. Rather it means that we must think, and think again. We must think again about our
disciplinary system; we must think again about surveillance; about the safety net provided for
banks; about the aggressive international wars; about the maintenance of an international
economic system which places and maintains the west above the rest; we must think about debt,
famine and all of the inequities and injustices of the world. And when we do, we may perhaps join
the forces of the constituent and be angry at the way things are. At the end of a beautiful short
film, Ken Loach has his protagonist say: ‘Saint Augustine said Hope had two beautiful daughters,
Anger and Courage. Anger at the way things are and Courage to change them.’

To finish then, the recent financial crisis has woken us as though from a dream. The structures
and systems which appeared natural and immutable are a mirage. There is no end of history
where liberal, capitalistic democracy is established in perpetuity. The world is falling apart and
given the current injustices, perhaps that is not such a bad thing. It is in these times of crisis that
the new emerges. It is now that the world is remade. This is what is at stake with the G20. Who
are we to say that the people should not also have its say. Their anger at the tyranny of liberal
capitalism should not be rejected as nihilism or nonsense. The anger of the people is what makes
democracy. Their cracy is the potentia to make the world. A summer of rage? Nancy again:
“Anger is the political sentiment par excellence. It brings out the qualities of the inadmissible, the
intolerable. It is a refusal and a resistance that with one step goes beyond all that can be
accomplished reasonably in order to open possible paths for a new negotiation of the reasonable
but also paths of an uncompromising vigilance. Without anger, politics is accommodation and
trade in influence; writing without anger traffics in the seductions of writing.”