Regarding the Concept of Constituent Power

Abstract

This Tribune by Josu de Miguel starts from the recent publication of the Spanish translation of Egon Zweig's book, titled The Theory of Constituent Power (Tecnos, 2023). The book, published in 1909, in the context of the renewal of Austrian and European public law being undertaken by names like Hans Kelsen, Walter Jellinek, or Adolf Merkel, provides from the perspective of the history of ideas a detailed report on the emergence, development, and consolidation of the traditional notion of constituent power. For this, the author undertakes a fascinating, labyrinthine, and extremely complex journey from classical Greece to the final throes of the French Revolution.   From some reflections on the book, Josu de Miguel delves into the analysis of the concept of constituent power, trying to "show that in the context of postmodernity it is no longer possible to draw an archetypal constituent power that, like a demiurge, can lift a new political city". And this is because, as the author tells us, evoking Koselleck, "The society of singularities, the density of the law realized outside the walls of the State, and the weight of consolidated interests and rights, make it more convenient today to open up to a meliorist paradigm that, in a way, places the constituent power on a conceptual plane that looks more to experience and the present than to expectation and the future. Fundamentally, this is a consequence not only of the changing relationship of the Constitution with time but of the increasing incapacity of Law as an effective discipline to direct a reality that is becoming more complex and elusive."