Law, Violence and Constituent Power: The Law, Politics and History of Constitution Making

Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
Acknowledgements
Introduction: Violence and foundation
	The origins of constitutional democracy
	Narratives on public mobilization and participation
	The legitimacy grounds of constitutional supremacy
	The definition of violence
	The revival of the discussion on constituent power (and some possible reasons for its previous abandonment)
	Rethinking democratic theories on constitution-making under the shadow of violence
	Hypothesis and empirical challenges
	Notes
Chapter 1 Methodological considerations
	A description on the origins
	Legal positivist theories
	Social contract theories
		Contractualism and history
	Genealogical model
		The ontology of violence
		Counting the deaths
		Constitutionalism and forgotten time
	Notes
Chapter 2 The concept of constituent power and the concept of constitution
	Introduction
	Emmanuel Sieyès, Carl Schmitt, and the legal boundlessness of the pouvoir constituant
	The paradoxes of democratic theory and founding
		Deliberation in constitution-making processes as a strategy to diminish the influence of violence
		Constituent power as a permanent reconstruction
		Looking to the future in order to avoid the view of the past
		Surmounting the debate on constituent power through post-national constitutionalism?
		Provisional conclusions
	Violence and the different phases of constitutional formation
		Violence and the formation of the political community
		Violence during the constitution-making
		Violence and the enforcing of the constitutional regime
	The constitution as a legal translation of a structure of power
	Elite coercion as a prime mover of the constituent experience
	Constitutional transformation vis-à-vis constitutional amendment
	Constitutional transformation and the rule of law
	The “no victims rule”
	Notes
Chapter 3 Violence and constituent power in the creation of the American Republic
	The American experience and the theory of the constitution
	Precedents: the Mayflower Compact and the colonization
	The “dramatic circumstances” and the origins of the U.S. constitutional order
		Slaves
		Indigenous peoples
		Popular classes
	Wars of State-building and constitution-making
	Internal revolution
	The road to the illegal founding
	Framing the U.S. Constitution
	The ratification of the Federal Constitution
	The bill of rights
	Constituent power and beyond: constitutional transformations
	Notes
Chapter 4 Constituent power without “We the People”: The foundation of the Federal Republic of Germany
	Introduction
		Die Stunde Null
	The disintegration of the German nation
		A nation of refugees
		The two Germanies
		Fragmenting the nation through federalism
	Western Allied tutelage in the constitutional framing
	Involvement of elites in the shaping of the German constitutional framework
	Conferring democratic legitimacy to the Basic Law
	The People and the constituent power in Germany’s reunification
	The interactions between the German Federal Republic and the European Union constitutional models: liberalism, rule of law, cosmopolitanism
	Constitutional identity or the return of the German nation
	The voice of the German People
	Notes
Chapter 5 “New constitutionalism” and the emergence of constituent power in some recent experiences
	Constitution-making in modernity
	European Union: Treaty Establishing a Constitution for Europe (2001–2005)
	States’ Constitutions within Federations and constitutional transformations
	Iceland: a never-ending constituent-making process
	Republic of Ireland: from comprehensive constitutional revision to punctual change
	Violence and constitutional change in the hands of temporary majorities: Venezuela, Bolivia, and Ecuador
	Republic of Chile: from sober deliberation to attempted revolution
	Constitutional transformation and authoritarian constitutionalism in Hungary
	Secessionism in Catalonia
	Brexit or the Mulier Sacer
	Paradoxes of the new constitutionalism in higher lawmaking
	Notes
Conclusions
Bibliography
Index