Chapter

Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood

Hans Lindahl

in The Paradox of Constitutionalism

Published in print August 2008 | ISBN: 9780199552207
Published online January 2009 | e-ISBN: 9780191709654 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199552207.003.0002
 Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood

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This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of the legal-normative and the political as exemplary of influential and opposing positions in constitutional theory, it argues (against both) that collective identity is reflexive identity, that self-constitution is constitution both by (political) and of (legal-normative) a collective self, and that the paradoxical relation of constituent power and constitutional form — of democracy and legality — is in a certain sense specious. The chapter sets a frame for addressing the arguments of the papers that follow.

Keywords: collective identity; reflexivity; self-constitution; Kelsen; Schmitt

Chapter.  8374 words. 

Subjects: Jurisprudence and Philosophy of Law

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