The People Cometh

Ricardo Sanin Restrepo

Originally published in http://www..CriticalLegalThinking.com

The contemporary constitutional state is trapped in a fundamental paradox: The ten-

sion between democracy and rule of law, or in other terms, between legitimacy and
validity, or if you will, between the creativity of the political subject and the order and
permanency of constituted power in law. The pressing issue is if democracy defines
the legal order, or is the legal order the shape of democracy. Are the people the au-
thors of the constitution? Are the people unthinkable within the legal system? Or on
the contrary are the people the very condition of existence of law.

These questions compound much more than an academic battle of epic proportions,
they label at least the following aspects that are crucial to any constitutional theory:
1) what is democracy. 2) What is constitutional law? 3) Who has the last word that
ascribes constitutional content? 4) Is the constitution a normative scheme with no
place at all for the political? Which also implies the impossibility of collective forma-
tions such as the people 5) can the collective (common) have a sense beyond a
simple sum of individual wills frozen by law in particular acts absent any unity of
action? 6) Are “we the people” a fallacy, a piece of constitutional decoration that is in
fact suppressed by an auto-referential normative system? 7) May law incorporate con-
stituent power as a legal category? More punctual questions follow the aforementioned:
when a strong leader invokes a majority as proof of his popular and thus democratic
legitimacy is he/she invoking an authentic political subject or is he/she abducting con-
stitutional language and therefore supplanting the political being of the people?

Within the perspective of law is there a Being called the people, can “we” the people
think herself in her own terms? Is
“we” a true being?

Hans Lindahl will put forward a very

sophisticated thesis about the reflex-
ivity of the popular Being that derives
in the true existence of the people, but
only as a pattern of the legal, Lin-
dahl´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 retrospectively, a past
moment as the constituent act. Our opposition to Lindahl will be multiply linked
through radical critique, excursions through philosophy of science and phenomenolo-
gy 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”.

Clearly our purpose is to demonstrate that the category of the people is a pre-
condition of validity of any legal order that claims to be democratic.

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 as a mainstream in Latin-American jurisprudence (Lopez, 2004) collective
acts only have meaning when the true action of an individual is attributed to a col-
lective by virtue of the law. Attribution is therefore the link, the artifice that allows
us to think the collective “being” (Kelsen, 1965). 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 as a subject 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 of the origin of words, the inaugura-
tion 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, difference would not exist
if the words of the law do not ascertain them so.

The “we” of the People of Colombia, Ecuador, and Bolivia etc. exists only as the fic-
tion 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 ex-
ists comes to being by the grace of the legal order, there is no outside the legal order,
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 addi-
tionally, that such authorization means that every collective creation e.g. Courts,
Parliaments, are in reality lacking any will and are but a fiction, where only legal
attribution allows such creations to bear any meaning.

For Kelsen the only legitimate exercise of power is the power exercised according to
law, in the sense that that the will of “we” the people is in fact outside the law, it can-
not be included within the frontiers of the legal and is therefore unconceivable,
unthinkable. But beyond it, even if the “we” could break through Kelsen´s resistance
and legal totalitarianism, it would be read as a monstrosity, for it would have to be
demonstrated that the people is a real Being, that possesses an autonomous will ca-
pable to establish its own identity and political unity.

Kelsen and his epigones, do not only rebuff the people´s constituent power as a cre-
ative and authentic phenomena of legal creation, furthermore said thesis
metastasizes in the loins of the legal order, the people do not exist within the legal
order due to its lack of will and being, so it is not only the passive subject of the or-
der, but her acts are submitted and conditioned to the fact that individual acts
receive legal attribution that transform them into collective acts.

The questions that are now taking shape are of this sort: Is law only viable as a sum
of individual and uniform wills, and does the sum only have meaning through legal
attribution? Can will only be preached of individuals? Does the legal order presup-
pose the disappearance of the people?

It is at this point that the short circuit between liberalism with its well ordered insti-
tutions and aspiration to uniformity and order as a central value of its categories on
one side, and diffuse, traumatic, uneven, inarticulate categories such as the people,
on the other, are more than visible. As the scenery is set, and before “the problematic
people” (Gordon, 2005) the liberal project will always collapse itself in the order of
orders: the state.

Only the state can provide the necessary order and unity to contain the people as a
docile creature and return it as copies of its own postulates. The closure of liberalism
is that there are no collectives outside the individuals that fashion the state. Every
collective act is just a fiction of individual attribution, so the collective being to
which constituent power is attributed can only be recognized within the language
created by said act, where the language may only be legal and henceforth the act of
recognition may only be retrospective.
Hans Lindahl: The Being And Time Of The People
Schmitt’s strong claim is that what´s impossible is a legal order that does not stem
from a collective political act (Schmitt, 1998). The constitution cannot be reduced to
a mere legal proposition, but on the contrary the political unity of the people pre-
cedes the constitution. Though it is true that Schmitt agrees with Kelsen in that no
community can refrain from some kind of representation, it is also clear that the
constituent power can only be exercised in representation of Self, therefore, the
people are present to themselves as a pure political subject, as an inflexion of their
own wholesome and in-transferable Being.

Kelsen´s attribution is regressive in two separate but parallel ways. First the pri-
mary source of legal validity is a supposition that is not verifiable within the
complex of its own normative logic. Second, as Hans Lindahl (2007) points out
lucidly all and every act off attribution of a specific legislation to a collective is
before all an act of self-attribution.

Hans Lindahl argues that the “Being” of the constituent phenomenon has to be un-
derstood in its reflexive identity and not as identity as a synonym of selfness.
According to Lindahl, there are two intimately related concepts that define identi-
ty, idem and ipse identity. While idempursues the question of “what am I?” ipse seeks
to solve “Who am I?” this has been the fundamental question in the West from Augus-
tine to Heidegger (2001); for the latter “beings” are, or 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). Popular identity would therefore have to be located in an existential level. On
one side, identity as the being that acts, but above it all, that the being acts com-
pletely and utterly committed with his/her action.

Popular identity would have to be placed in an existential level. On one side the
identity of a being that acts, but more importantly as the being committed to her
marrow with said 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 ex-
ternal recognition of the guise: “there it is”. Identity must be reflexive, it recognizes
herself as existence. The people are the people, for it is who acts in her own name
and her own behalf. Being is being in direct relation to her 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 dis-
turbing 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 constitution the work of the people? Is it in the mo-
ment of creation of the constitution or is it gained by retrospective appropriation?
The most acute question is therefore when a collective subject can, claim, without a
doubt that the act belongs to her?

When is the being of the people?

Lindahl adequately denounces that the problem with Schmitt´s criticism to the vi-
cious cycle described by Kelsen is that the latter ultimately rests in the unity of the
people as the basic ground of legitimacy for the work of the constituent power. Polit-
ical existence is existence if it is made out of a unique and identifiable subject called
“people”. What is highly problematic in this affirmation is that it trusts political ori-
gin to a unanimous and concentrated will of the “we”, but for the “we” to exist a
previous unity must already exist as a formula of order. For there to “be” a “we” there
must be a prior definition of the “being”.

The reverse of Kelsen´s thesis is offered by Schmitt when he affirms that the politi-
cal is political only if it is created by a collective that determines it so.
Notwithstanding, 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 collec-
tive being; and not the collective being the one who determines her own qualities
and attributes (Lindahl, 2007). 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 collec-
tive 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, in order for the constituent political subject to exist, there must be a
previous act that institutes it, that attributes it identity and unity of action, in so
doing, therefore the existence of an original and creative collective being is shattered
instantaneously, hence such identity and unity would fall directly in a kelsenian me-
taphysical regression where we would have to “suppose” the unity as a hypothesis for
the existence of the constituent power.
The death trap of liberalism is to glue on every speculation surrounding the
people the intransigent design that it’s an impossible discussion that turns on
its own axis, and that therefore, lacking any pragmatic support, it must be
abandoned. This is an illusion that must be deconstructed; Lindahl strives to
evade the trap and re-writes the dispute.

Unity as consensus is not at the heart of the political act. The people may only
represent them(our)selves as a “presence”. The first constituent act would therefore
have to be the constitution of the “being” of the constituent, which logically precedes
the primary or original action. The problem is thus to establish: 1) How to deter-
mine such “Being”? 2) Before the necessity of determining the primordial political
“being”, how could it be determined, avoiding at the same time, that the descriptive
gesture crushes all signs of legitimacy of the constituent power.

Like the use of light in quantum mechanics, the descriptive gesture can disavow the
place of enunciation of the people; either because it creates the necessity of a consti-
tuent “split second” of unity prior to the constituent, or because it slips to a Point de
capitón that retreats in Kelsens “supposition” or because it neutralizes the constitu-
ent 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 pa-
radoxical 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 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 conformation of a political
unity and thus the people would be an amorphous sum lacking any capacity to
break the veil of silence, and therefore 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” are
impossible. The problem is as such centered in when the people become a people.

How to recognize the primal act? How not to confuse said act with a representa-
tional, procedural or encroached act? But our quest is ever further reaching,
according to Lindahl, the people must be a unity if it pretends to genuinely claim
the status of a being, hence a disenfranchised multitude, a chaotic mob may nev-
er be a being in the sense of creating political discourses and realities.

Lindahl suggests an enclosed space of possibilities, starting off with Lefort (1988)
he 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 politi-
cal 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 col-
lective 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 ex-
ists 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 “noso-
tros 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 rep-
resentative action, an “I” summoning the “we”. The being is being because (s)he
acknowledges being as own and proper, she or he recognizes him/herself in be-
ing, therefore being cannot be summoned from outside her/ his 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 recogni-
tion 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 retros-
pective 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 refined 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 de-
termines “who” has a place within the community. This primordial act has the
direct effect of identifying and empowering the individual members of the com-
munity, but also, and here is the nervous centre of his thesis, such
identification/empowerment can only be successful if individuals identify them-
selves, retrospectively as political members of the constitutional act, when they
employ or execute the powers recognized by the constitution.

As a reflexive act, the collective subject can only be recognized as a legal subject
through retrospection, from within the unity of a legal order.

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. 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 pretends to over-

shadow a political tradition inscribed in anachronic 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 (s)he
trusts and applies the rules of the constitution. Every action, writ, every election
day, every gathering of the institutions is a form in which the collective being af-
firms the original constitutional moment. In affirming the constitution, the
people affirm themselves. 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).
The revolutionary origin and the instant of democratic creation are only verifia-
ble within the constituted order by individuals that distinguish such past as the
key moment of their unity.
Are the people conmensurable to law?
Lindahl´s theory intents to evade the liberal Clockwork that separates popular col-
lective action from its own content, in contraposition, thrives to discover in
collective identity the key to determine 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). Let us explore at least five places where Lindahl´s very re-
fined theory lets popular democracy and constituent power slip right through his
fingers.

1. His theoretical structure depends on the idea of complete, systematical

and shuttered legal order
2. It suspends the traumatic dimension of politics to the plenitude of law
3. His thesis presuppose 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)
5. His theory depends on a formation of the Being in Heideggerian terms
that annihilate alterity and collective precariousness as the authentic
formation of Beings, especially in colonial terms.

May the constituent be thought in its own terms?

In a recent article (Sanin, 2009) I sustained that “Democracy is anti-origin in the
sense that it is its own proper origin and does not tolerate a supplement that ex-
plains it or restricts it… constituent power cannot be contained by any transcendent
order, there cannot be any legal frame which determines its instances or forces its
concretion, there is simply no previous etymology to the constituent moment. On
the contrary, it is precisely the constituent power that attributes sense and meaning
to the order it inaugurates. The constitution as a place of concretion of such unli-
mited power originates a moment that not even the constitution may authorize”.

Emilios Christodoulidis (2007) 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 or-
der 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 con-
stituted and constituent power and collapses the origin in the consequence, the
political in the legal. 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. For liberalism, while constituent
power in its nude presence is incomprehensible, constituted power matches perfect-
ly within the internal logic of legal order, for it is its own reflection. Hence it is
simpler to throw constituent power amongst the representational space of consti-
tuted order and entangle it in its own proportions.

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, consti-
tuent is the creative subject of those acts, objects and presences (Christodoulidis,
2007) (Wall, 2009).

One of the distinctive features of modern jurisprudence is to show itself as a discip-

line fashioned from the ideal of coherence, consistency and order. 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 legal order and system, how it pierces through the models of contention and res-
ists being broken down to the force of the code (Sanin, 2009). Constitutional
jurisprudence is a theory of experts in language and internal liturgies, initiated in
Theodicy, a club of exclusive members and founders of praxis in open contradiction
with a convulsive and vibrant political reality.

When the people appear as a marginal and malign subject that wounds the surface
of order; law as epitome of a scientific or religious community deals with the anoma-
ly in diverse ways:
 1. The people are rejected as phenomena which is utterly irrational, an exogen-
ous phenomenon according to Jellineck, or an impossible one according to
Kelsen. The main lot of theories, including Latin-American’s self-proclaimed
as the most avant-garde, place the phenomena slight the city of legal reason,
outside its precious technique and ethical poverty. Rejection maybe direct or
it may hide under the disguise of displacing the problematic entity to anoth-
er system, for example politics or sociology, in order not to reckon with the
anomaly which contaminates the systematic order.
2. The anomaly is translated to codes dear to the system so it can be absorbed.
The acceleration, the scandalous and ex nihilo creativity of the people is re-
composed in the gentle logic of language, under law´s secular pretention to
control every display of time and to capture the future as a stable proposi-
tion.
3. The anomaly is integrated as a controlled innovation, but there is already a
systemic predefinition of what counts as relevant information, the legal text
labels which are the circumstances that authorize the apparition of surprise,
of what counts as new and what doesn’t (Christodoulidis, 2009). In Luh-
man´s terms the law intensely re-activates known territories, it establishes
the canons that may be altered, it decides in a selective manner the oppor-
tunities of change. Cultural and social contexts are circumscribed from the
law, law is not a context; rather well the context is created legally.

Once the law is the law, the people are transformed into a simple number, a set of pos-
sibilities prescribed by the law itself. The “mass” the “multitude” the “commons” are
altered in a singular legal body, a compact devoid of differences and fissures. The Be-
ing of this singular body is only a derivative being, a thing lodged in the loins 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 the instrument itself.

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, mutilates any chance of emancipation.

Any of the “institutionalist” answers means the jamming and closure of the constitu-
ent 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 it is not allowed to step out of the protocols of
law, and annuls any possibility of strategic or resistance discourses (Christodoulidis,
2003). According to Luhman the stability of the system depends on its capacity to
confront multiplicity and any kind of variation that dazzle the linearity of law. In this
symbolic simulation antagonism is frozen to rigid qualifications where popular de-
mands are disenfranchised or postponed and the possibility that the weak or
invisible 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 labour of capture and re-
duction where its contents are contained and skimmed to prevailing scientific lines
of demarcation. In this methodological closure the metaphysical ingredients of reali-
ty, its residues and esoteric problems are reincorporated as measly theorems.

In the process of taming the traumatic dimension proper to politics, liberal jurispru-
dence 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 modali-
ties of defense against some traumatic experience in psychoanalytical terms.

Is objectivity a Constitutional must?

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, for the people to recognize themselves can only be
achieved 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 com-
pleteness, as a way to occlude and vanquish the problematic that always remain hidden.

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
create the inside in dependence to a frontier line of the outside. The perfect example
is Fanon´s “Racial line” (in 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 inside is signed by a difference that is displaced from
the inside to an imaginary outside.
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 exteriori-
ty 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).

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 (Der-
rida, 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 particu-
lar and a universal.

As Laclau, we understand that no totality is completely a totality; the residues pol-

lute the closed space. The “specter” of the people haunts the present with its
intemporal 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. “All that can be es-
tablished or not” is the power of the constituent (Wall, 2009).

Quantum Constitution
Systemic integrity is not only a legal myth; science determinist structure collapses on
the apparition of quantum mechanics, in particular with Heissenberg´s uncertainty
principle (Marion, 1998). According to the principle, the position and velocity of a
particle cannot be measured at the same time, any initial appraise is always insecure
and uncertainty surpasses any capacity to anticipate it or to establish any measure.

The macro-order will depend on the micro-chaos of the intimate processes of mat-
ter, which, in turn means the direct impossibility to define time and space as
absolute and stable categories. There is no model prior to its demonstrative necessi-
ty, which means there is not objectivity, in consequence, any method is a result of the
scud of the facts that press theoretical frames and push them until we unveil their
intimate inconsistencies.

Philosophy of science captured two elements that dismantled the pretention of

scientific fullness, two concepts that permitted a double gesture of humility and au-
dacity of scientific communities without which the deciphering of DNA chains, the
creation of complex cybernetic systems and digital technology would have been un-
thinkable.

Incommensurability (Feyerabend, 1992) (Kuhn, 1998) means that the language of a

given “paradigm” is irreducible to a language provided by a parallel “paradigm”. Ac-
cordingly, it is impossible to demonstrate the validity of a practice outside the
theoretical model that announces it as true. So when two rival theories have a stake
on the same object it cannot be proven outside their own theoretical semantic con-
fines; where truth is only truth within a closed field of reference.

Complementarity, Niels Bohr verified that two separate and contradictory logical
postulates can be complementary (Feyerabend, 2009). For example, if a field of
knowledge needs to prove that a system is integrated by X elements (waves) and
another affirms that, on the contrary, it is formed by Y elements (particles); where
X=Y is logically contradictory, and according to classic physics only one can be valid.
Complementarity, according to the Copenhagen interpretation, shows that each field
can be valid in accordance with the vision and specific function of the observer of
the system. Thus two different experimental fields can obtain diverse results on a
same object (Feyerabend, 2009). That light may be composite of particles in one
field, and waves in another, does not only mean that both have to be accepted as
complementary, but such complementary conclusions are necessary to describe real-
ity as such. In lieu of the aforementioned, no description may be discriminated as
false in order to understand or even build reality.

Is the concept of the people inconmesurable to law?

Truth is contingent; it depends on a concrete historical situation, ergo the truth of the
situation. But in each concrete and contingent historical situation there is a truth that
once articulated and expressed functions both as the coefficient of itself and the false-
ness of the field it subverts. The “barbarian” is only barbarian from inside; there is no
universal preceding format that demands the objective need of his existence.

Law, in its rush to shut down the frontiers of its discourse, in order to avoid the nat-
ural decomposition that accompanies critical objects like “the people”, desperately
tries to demonstrate that the creative political action is extreme and incommensura-
ble before the language of law. Logical necessity is none other than contingency and
ideology masquerading as absolute truth.

Moment Of Enunciation. I ennounce! We exist?

Let’s observe from now on the unfoldment 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 demonstrate 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 enounce “we” the people. In linguistic terms “we” cannot announce our-
selves 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 lan-
guage 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) when the “we” is announced
from an alien position, the “we” cannot be recognized but after the invocation
is validated, registered; which at its turn means that it is a latter moment of
enunciation which defines the manifestation of the “we”. The lapse of time be-
tween the invocation and popular answer determines the logical impossibility
of saying “we the people”. We will always be, like in the kelsenian example, an
attribution, but not an internal attribution of the legal system.
Se Mettre En Scene
Christodoulidis (2007) points out a nature of double inscription or double founda-
tion 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 ap-
pears 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 sum-
mons 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, 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 conse-
quence 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 al-
ready constituted.

Christodoulidis affirms that Lindahl places collective action in the fringe of consti-
tuent 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 temporali-
ty of the political act is not a secondary or adjacent category but a primordial one. If
recognition is retrospective, the only possibility is then that it can only happen with-
in the logic and the language given by the institutional frame and so the collective
would be a form of adaptation to the constitution and its mere appendix. On the
other side, if the moment is original, then it transcends and redefines not only insti-
tutional but collective language as well.

In Lindahl´s terms the collective would be condemned to a perpetual reformist action,

always dependant on the established categories of constituted power as its supplement
and so 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) 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 “recogni-
tion”; 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
discloses 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?”. The epistemological line can
only work consistently within a predetermined order; it is 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.

But even beyond Wall’s sharp insight, there is a definite element that proves Lin-
dahl’s mistake 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. The-
reupon the representation of the people is 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 dis-
course. 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 possi-
bility: to intervene as a constituted power before and within the institution; but
specifically the power to maintain her constituent power alive, notwithstanding the
institution.

Famously put by Derrida (1989) “In absence of a centre or origin, everything be-
comes discourse”.

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 question of the rising of a leader or the
necessity of one is as simple as knowing that democracy creates leaders tailored
made by the people, and its denial is a people tailored made by the leader.

“Do I belong to the We? As a question made by an individual, is impossible to for-

mulate at the level of formation or enunciation, it is only a viable question after the
invocation of the “we”. It is the same temporal economy that inhibits the “we” to say
“we”. The “we” is subject to the actualization in time of a collective formation. The
individual summoning that carries no echo does not develop into a collective forma-
tion. 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.

Fidelity to The “Event”

For Alain Badiou (2003) the difference between truth and knowledge is that
while truth occurs as novelty, as an occurrence that shatters the space of predic-
tability; knowledge is continuous repetition, it is the transmission of codes and
formalized protocols within a given language. Truth is beyond established
knowledge; it does not depend on preexistent semantic networks and cannot be
defined by actual knowledge. The determination of truth is as matter of thought
and not of judgment. Thence, truth depends upon an unfounded decision, a dis-
located decision that lacks any reference in the world of knowledge. In order for
truth to assess its novelty it requires an unpredictable and incalculable supple-
ment, such supplement is an “event” which interrupts repetition and collapses
the established system, because it overflows the system´s capacity to inscribe it.

If established knowledge allows the definition of the conditions of occurrence of

the truth of the event, then the situation is not an event, for it is measurable
within a field of reference. The decision that assures that the event is truth is
therefore outside any situation provided by knowledge, outside any existent lin-
guistic narration. The event turns into truth with the subjective decision to
assert –without any frame of reference- that the event has happened.

The fidelity of the collective subject to an event inaugurates the process of the
verification of truth within the situation of the event, and henceforth exceeds
the frame of any existent knowledge. The affirmation of the event, the fidelity to
the event is what constitutes the political subject.
Democracy does not survive without self-determination, hence it is self-
determination the mark of the political being, and so, political action is the onto-
logical basis and presupposition of the collective being. The Being defines politics
and politics define being, it is an undividable union. 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.

Thus, the subject emerges from action and her action of recognition of the
event is the only measure of the present.

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 centre of the liberal sanctuary, the shadow that tor-
ments 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 ave-
nues 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. The vomit in their exquisite porcelain, timeless physiologi-
cal repugnance to the “smell” of the people that exudes unmemorable
resistances, abhorrence to the being 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. When liberalism understands, with no place for epiphanies, that the di-
rect 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 “animal that has ten thousand feet and cannot walk” as
Montesquieu would say, must be contained, the beast may not be freed of its
own bestiality. Modern law is the liberal “cure” for the trauma of the people.
Memento Mori
Following Negri (1999) Wall (2009) puts forth the Aristotelian term of Potentia as a
defining element of constituent power. Potentia(potentiality) is the essential possibility
proper of a thing to become something else according to its own condition. The poten-
tial of a child to become a man, of the seed to become a flower, etc. things are potential
given that they can ensue or not. According to Wall, the very idea of “Potentia” forces us
to push the limits of the possible and the impossible.

Potentia ceases to be such when it becomes an actuality. Thus, the potentiality of

the constituent is found in its potential to create or not to create; if it constitutes
it is therefore an actuality and the constituted loses all signs of potentiality. Hen-
ceforth, Potentia may not be described within a predetermined order given that it
essentially means the possibility to become or not to become. Lindahl´s argu-
ment is fully able to describe the constituent in terms of actuality, which in its
own logical terms does not belong to the world of constituent potentiality. The fact
that Potentia constitutes anything is an empirical datum isolated from its own identity.
Off course Potentia and its creations may be described, but such description does not
exhaust or capture its fundamental elements. Potentia/potentiality as opposed to ac-
tual/act is permanent, essential, nontransferable; it is a constant aptitude to become.

Regardless of the fact that the constituent power exercises her potentiality and the
outcome is the constitution of said power, this does not imply that the constituent re-
lents the potentiality to become something different. As in physics, Potentia is not a
commodity, as in physics Potentia is nontransferable from one object to the next. Ac-
cording to Derrida (1999) the trace of constituent power remains. Thus, while
constituted power is act/actuality defined in its own physical dimension as a creation,
the constituent defines the act from her own potentiality; while one is presence, the
other is the absence that fashions completely the possibility to be or not to be, respond-
ing only to her own Potentia.

Wall takes us to Heidegger (2001) in order to understand how even ourselves, as

individuals are deranged, unhinged, out of time, projected to the future, attached to
the present and being trace and sketches of the past. The past cannot be exorcised,
detained, controlled, its being is always confronting the present stabbing its bounda-
ries, inhibiting the present to cluster time in itself. As in Igmar Bergman´s Fanny &
Alexander, the return of an unappeasable, implacable and brute past taunts the
present, it remodels it constantly, there is no stillness, no closure no redemption.
The present is never just present to itself; the present is a constant reallocation of the past,
the ghost and flesh of the past defines any present possibility. The constituent as Poten-
tia/ghost is the voice in the ear of the constituted whispering thickly: “Memento mori”

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, 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 com-
ponent, 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 dif-
ference between BEING and beings.

Heidegger´s most daring accusation is that western philosophy discarded every pre-
tention 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. 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 manipula-
tive 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” did.

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 authen-
tically 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 possi-
ble 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 achiev-
ing authenticity and becoming a true Being.

Following the Nelson Maldonado Torres (2006) we understand that the danger en-
tailed 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 her own existence, the ques-
tion 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). For this being death is
always present, we do not await for it as a remote place, being 87 and sur-
rounded 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, appearing behind every street corner, 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 person-
al 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, what Heidegger overlooked is that the concept

of man is not only problematic for her metaphysical nature, but especially be-
cause 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 citizen-
ship and memberships, citizens of first class and non-humans, civilized and
barbarian, illustrated and analphabets; 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 co-
loniality: 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 factory
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 oth-
ers 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 dis-
placed, 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

the rational, isolated and autonomous Kantian individual, but the first person
singular as any person, from the hegemonic to the colonial is then translated un-
to the ontological suspension that allows the openness of subjectivity, hence
lacking infinite dependency on objects that are born in some glorified and artifi-
cial 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 al-
lows us to understand that social relations are all contingent and knitted together
in an antagonism whose denouement is not decided before hand.
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.

Ernesto Laclau (2005) demonstrates that every system that is reputed to be shut-
tered and self-contained rests on an initial formation of constitutive exclusions. The
idea of completeness of a legal system depends on the eradication of conflict, it re-
lays in making antagonism an impossible category and transforming problematic
beings as the people in derivative beings without real existence.

Again we inhabit known regions. Inside there is rationality and stability, program-
matic answers that solve problems from fixed schemes of predictability. Outside
there is menace, chaos and nonsense. The paradox is that inside can only exist and
survive by declaring the outside, which shows that inside cannot be an absolute to-
tality. In other words, the inside, as an axiom, needs a constitutive opening with the
world it repels. Here is where the constituent subject appears.

Society is not a valid object of discourse, since it lacks any immanent principle that
can determine the field of its difference, no valid element of contrast, no recipe to
determine the implications of its own internal structure. Society is only society as an
image of law.

Total exteriority would imply an absolute compromise with objectivity and the im-
plementation of neutral moral and political mechanisms whose universality would
be proven upon their own existence and henceforth would leave every presupposi-
tion of the system intact, even from any internal confrontation and contradiction.

Universality is nothing else than a singularity articulating a number of differences,

this is the definition of a hegemonic relation (Mouffe & Laclau, 1985) a fundamental
relation to grasp the formation of the political subject of democracy.

The different versions of constituent power we have analyzed, from Kelsen´s to Lin-
dahl´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 else 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 submis-
sion 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 mod-
ern rational mythology starts with this division of theodicy: Nazism outside the
liberal project, “ethnic cleansing” outside any western instance, the debauchery of
the indigenous as a simple sacrifice on a road to evolution and progress. It is precise-
ly 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 theodi-
cy as a way to protect its formal unity.

Why contingency and antagonism are the fundament

of constitutional law. The outcast is the constituent power
The task of antagonism is therefore to break wide open the stable elements of arti-
culation and to create hegemony. Antagonism pervades the basis of articulation and
provokes crisis by contradicting any given order in the very grounds of the presup-
positions of its own existence.

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 con-
structions. When institutionality cannot contain a contradicting language of its
principles, the order is forced to shift its meanings in such a way that the difference be-
tween 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.

Pluralism and multiculturalism betray themselves when they argue that the consti-
tution 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 institutionality 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, he-

gemony is only possible in conditions of antagonism, the contradiction lodged
within the articulation brings about crisis, so change happens within a preexistent
horizon of conditions, but it can only happen in an unpredictable manner.

The idea of a solidly structured consensus as the fundamental ground of the consti-
tution creates the fantasy of a linear and unfettered society that deals with its
problems by simply equating the abnormality to the pretended consensus, with a
subsequent semantic reduction of the anomaly to the formulas of the agreement.
The idea of a constitution as a closed and self-given consensus is the basic mytholo-
gy of liberalism. Notwithstanding, consensus is only possible within a particular
form of communication, only among subjects that exist if they are recognized within
the consensus. Therefore, consensus is the cancelation of democracy through a
structuring of qualifications of who and how may intervene in the discourse.

How to avoid turning The People

into a Universal Value
The homogeneous institutional arrangement is put by Laclau (2005) in two differ-
ent scenarios: An economical scenario where politics is a question of bargaining and
compromises between equals (Christodoulidis, 2009). Here the dispute is defined by
the equality of the parts and the processes are strictly inventoried by the type of dis-
course that is gathered as valid, in other words the observance of the process is a
requisite for belonging. The second type of scenario is given between groups and
individuals previously recognized by the system as “rational” entities, this typically
deliberative model is founded in an argumentative ethics of equality of the parts and
the transparency of the discourse, its formal purpose is to achieve a total consensus,
while in reality the consensus already exists and thus it all turns on a simple way to
validate it time and time again.

The problem is invisibly extended across this type of rationality, where equality and
transparency play as axioms outside any argumentative possibility, outside any poss-
ible contradiction or challenge, in other words, the locus of dialogue is predefined
unilaterally by the order and is prior to any discourse, thus every group is already
formed in a peculiar way by the order. The concept of conflict is regulated outside
any argumentative contention, and transformed into an internal divergence of
words and codes guided by rules that presuppose the absence of conflict itself.

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 ceas-
es 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 genet-
ics of the rational that is built upon annihilation of the outsider.

Popular Mutations
For Laclau, politics, all politics, stems from a contingent construction of the social
link fashioned in the concentration of an empty signifier that is external to the sys-
tem but proceeds from a chain of equivalences formed by demands. A demand is the
basic unit of social analysis and the place where a “people” arise. (Laclau, 2005)

For Laclau every demand begins with a request, this initial stance implies a simple
relation between a particular section of a population and a given official agency and
held together only by a specific topic (housing, utilities, a petition to increase urban
routes of public transportation for example). This simple and one-dimensional rela-
tion would have no true political value whatsoever, because it can be solved within a
closed space of transactions. What becomes politically relevant is how and when this
request turns into a claim. The mutation of a request into a claim involves a whole
different logic, where the crucial point is the emergence of a specific logic of equiva-
lences (concomitant to deficient transportation appears the negligence of public
officials to bring public services to poor parts of the city that is in direct relation with
the satisfaction of corporate interests to which corruption depends upon). When a
singular request has not been fulfilled an expansion of the singular petition beguines
and then connects with other sort of heterogeneous requests that cannot be unilate-
rally confronted by an authority anymore.

By heterogeneous relation we understand the relation that exists between elements

that do not belong to the same representational space (Laclau, 2006). The system of
equivalences differs from a system of differences in the same sense that homogeneity
differs from heterogeneity, even language is a system of differences that supposes
homogeneity, for the identity of each element needs to be differentiated from others,
which at the same time gives the latter meaning. Heterogeneity exists when a series
of elements create an aporia of such a magnitude that the totalizing system cannot
inscribe it within its structuring principles.

The concept of “articulation” puts forth the index of cognitive instability and voids
access to the social apparatus, but furthermore it inhibits any form of social deter-
minism and reduces any interpretative method to social indetermination. Here the
signifier establishes the relation of mediation between the precariousness of the
Real and the self-identity of the symbolic. It is exactly in the impossibility to reduce
the Real to the symbolic where the concept of the people is constituted.

Demands constitute a chain of demands whose unstable equivalence needs a sym-

bolic union: homogenization through an empty signifier as either a passage to
action, or the constitution of something entirely new. Henceforth, the construction
of social identities is only possible if the equivalent relations are established between
heterogeneous elements and if the hegemonic dimension to nominate is heightened.

The chain of equivalences of heterogeneous claims starts to form a demand through

a transformation of language, from a particular language directed to a particular
authority, to a chain of equivalences that not only standardize the claims but erase
any line that should identify an authority. It is in this last sense where the construc-
tion of an enemy, as a discourse, takes place. The face of the enemy by now will have
shifted from a singular entity, recognizable within the economy of power to a com-
plex entity that epitomizes bare institutionality. Demands unveil the filth hidden
behind the spotless power of institutionality as the barriers of law are breached
completely. By now, legal discourse is revealed as insufficient to contain the chain of
demands; at the same time the chain of demands aims not at a specific zone of the
order, but at order itself.

By this point we know that institutionality has been overwhelmed thus it cannot
absorb the demands institutionally, here we have the populist moment.
A new language is formed through the unity of the chains of demands. The con-
densed unit of this social analysis is the category of demand (Laclau, 2005) its
presence implies the heterogeneity of the social group whose unity is obtained
through the articulation of heterogeneous demands.

For Laclau, the only conceivable form of social action is through demands; the social
subject is always a subject of lacking, a subject that emerges between the asymmetry
of the impossibility to obtain plenitude and the particular place of enunciation. This
allows us to fixate the way in which an empty and impossible universal is converted
to a particular which beguines to embody its name, in Lacanian terms, it´s the ele-
vation of the object to the dignity of the thing.

The particular that embodies the universal is no longer the same of the original
demands; hence it has been crossed and saturated by the language symbolized in
other demands. In other words it is now a term whose language originates in a
political discourse that create identities. But furthermore, it has the effect of
shielding the literality of the original demands as it creates an overflow of the
determination of senses that creates an excess that institutionality cannot absorb
without transforming itself.

When demands do not surmount the threshold of mere requests, we are set before a
highly institutionalized agreement that allows the cooptation of the political disarm-
ing the rest of the demands. In this case, the institutionality does not require a single
fiber of its dispositive to suffocate a social movement. But when the threshold is
crossed, and request becomes a claim, we are in the presence of a semi-popular po-
litical production that disturbs the institutional order in such a way that
institutionality is disjointed in order to contain the materials that exceed it. When
relations of equivalences between the pluralities of demands trespass the claim and
are unified around a central idea set forth against the established order, we are in
the presence of the “people” as a historical and universal actor.

In Colombia, for example, the request of displaced people can be simply incorpo-
rated in a literal way; nonetheless their marginalization persists until a
congregation of heterogeneous elements brings the demands to the political sur-
face as a discourse. It is this sum we call the people and it is this type of
universality what we call hegemonization.

Laclau adopts the Lacanian figure of the Caput mortuum (Lacan, 1994) the residue
in the test tube, a non historical presence on which history itself depends upon.
Therefore, in a system of representations, the people emerge before institutional-
ity as a typical example of chance, defined classically as: the intersection of
independent causal series. The aleatory, in opposition to determinism, denotes
full independence from the past and the future. The popular sprout is the rupture
of an act that is incoherent with the logic of its representation, and therefore it
cannot be inscribed within the positive frame of institutional reality. This is what
the popular formation represents to instituted order, an excess that cannot be
lead back to an internal field of analysis and therefore creates the necessity to
restructure reality as a whole.

Constitutional Crisis
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 constitu-
tional aporia is its own synthesis and crisis means the opening to a new formation of
political meanings.

It remains clear that the people appropriates the constitution and its empty signifi-
ers 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 fur-
thermore it becomes the constitutional crisis.

In a constitutional crisis regulations and structures are reflexive, they don’t follow
the logic of conventional discourses, but rather well, they form their own as a com-
plete frame of its expression, constituent power is pure self-reference, pure
representation of itself, and so forth, absolute absence of intermediacy with a supe-
rior frame of linguistic limitations.

In a certain way, exclusion as constitutive of institutionality liberates, for it leaves the

outcasts to follow and create parallel and incommensurate histories that may not be
condensed to institutional spaces of representation. The outcast is considered as such
by the institution after the creation of the exclusion elaborates the field of in-
side/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 nec-
essarily inscribed inside it, for it means the recognition of the Other in absolute
antagonism. From this point of separation, the enemy is divided into two separate enti-
ties, 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 indepen-
dent space and therefore creates a language incommensurable to the system.

Exclusion liberates and at the same time deeply disturbs the ideal of internal cohe-
rence of the system. This are Hegel´s People without history, that shatter the
balance of rational history with their eventuality, with the simple fact of being a di-
alectic residue that never fits in within history and so stain with contingency the
dialectic process and its alleged perfection.

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.

It is in this logic that Ernesto Laclau affirms that social antagonisms are not objec-
tive relations but the bare limit of objectivity. The legal can’t be a completely
objective order, for it depends entirely on a contingent relation. There is no previous
model, nor a unified field where the legal springs out, and “outside” is but a radical
element that cannot be tamed within language, it cannot be symbolized.

We have acknowledged that, first a system cannot become from itself, in an inde-
pendent 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 lan-
guage, 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 homoge-
neous relation. 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 heterogeneous formation of demands.

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, 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. In this line of
reasoning, the direct consequence of antagonism is that the social agent vests cer-
tain objects and words with the features of identity that deny its full identity, it is
here where the empty signifier emerges, in Lacanian terms, it is when the object is
elevated to the dignity of the “Thing” (Lacan, 2004).

A constitutional crisis, in its first stage is an internal discussion, but when a chain of
demands invites the popular subject, the discussion transcends the constitution as a
condition of the redefinition of the constitutional text.

WHO ARE THE PEOPLE?

The radical and defining difference between democracy and any other system of at-
tribution 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 sub-
ject 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 enti-
ty such as the Rule of law or the Gründnorm.

As Jacques Ranciere explains, while in oligarchy, aristocracy or absolutism the polit-

ical 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 enuncia-
tion 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 nev-
er 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 ac-
cording 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 require-
ment to govern (Ranciere, 2001).

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 or-
thodoxy 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
quintaesencial 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 anta-
gonism 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.

The people cannot be a category defined formally and through pre-existing models of
differences, and is in no way a category dependent upon powers constituted by the people
themselves, it is rather a floating concept, an ever changeable and transforming energy, so
the excluded, the four million of Colombian displaced, the outcast are the people.

What is common to democracy is that there is not another construction of the com-
munity that does not take off from the requisite of not being qualified to govern
according to the natural formulas of strength, wisdom or wealth. Democracy decon-
structs the logic of arche as a category that precedes politics as the formula of social
organization. The conclusion brilliantly fashioned by Ranciere is that Demos de-
notes the category of persons that are not taken into account in other forms of
government, the residue that is excluded, 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.

Ranciere warns us that “these expressions should not be interpreted in its populist
sense but in a structural one” (Ranciere, 2001). Majority is always the totality minus
one; this is the gap, the vacuum, the surplus that divides a community as the sum of
the social parts (Guardiola, 2010).

Le compte des incomptes (Ranciere, 2001) that form Demos cannot be understood
as a simple arithmetic aggregate of wills verified in exit polls and surveys, a majority
is just light years away from the people. It is here where it becomes revealing to in-
troduce the difference clarified by Alain Badiou (2003) between politics and the
political or Jacques Ranciere´s (1998) split between politics and policing.
Politics is the institutionalized order of regular negotiation between the included
according to precise procedural standards of the political language anchored basi-
cally in law. In words of Costas Douzinas (2009) “Politics organizes the practices
and institutions through which order is created, normalizing social co-existence in
the context of conflict provided by the political”, what is behind it is the search to
neutralize conflict and antagonism and turn it into an instantaneous solution within
institutionalized processes; while the political is the space where antagonism and
conflict create social meaning.

Politics guarantees the harmony of the institutional establishment and establishes the
game rules that allow the distribution of benefits, rewards and positions within a social
agreement (Ranciere, 2001); it stretches from written constitutional norms to implicit
rules within said balance of power. For politics the fundament is keeping the order and
a controlled defense of the discourses that satisfy an established standard of the Status
quo.

Politics regulates the conflict inside a legal zone of demarcation that reduces claims or-
dering them institutionally. On the other hand, the political is conflict in its primal
form, the excess or residue that institutionalized societies cannot contain. The political
is expressed as the return of the repressed, of everything that was left out by the system,
when the invisible makes his wound visible, when the outcast demands his inclusion in
the establishment, when he challenges the order upfront, the political precedes legal
language, for it is in the political where all language is generated; while politics is mere-
ly the adequacy of the language to the forms that the same language created.

Politics proper is a split of the sensible whose assumption is the homogeneity of the
participant subjects and the absence of gaps in the decision of who is included and
how the inclusion takes part. The force of the political consists in reverting this logic
and making the part of no part sensible; it’s a direct intervention over the harmony
that sustains the mechanism of beliefs and actions of the established order.

The bedrock of democracy is then dissensus and not consensus. Consensus is ready-
made, and “Dissensus is not the confrontation between interests and opinions, but
the manifestation of the distance between the sensible and its enunciation” (Ran-
ciere, 2001). Dissensus is the collision of both worlds: the well ordered world of
political processes and the disruptive world of archaic and crushed subjects that it
creates. Democracy is the struggle of the displaced a discourse pronounced by sub-
jects that are supposed to remain in utter silence.

* * *

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