Constitutional Violence: Legitimacy, Democracy and Human Rights

By Antoni Abat I Ninet | Go to book overview

2
Sovereignty and Constitution

This chapter provides a critical introduction by establishing an analytical baseline. A fundamental premise of the book’s argument is that current constitutional legitimacy is ultimately based on violence. The first issue of this chapter considers the fundamentally religious character of the secular constitution–which eventually became what we understand as the modern American Constitution–and the undemocratic character of constitutions in general. I contend that the founding of a constitutional doctrine supported by religious language was not fortuitous. This consecrated supra-legitimacy seeks to coerce the freedom of the people by requesting compliance instead of participation. Chapter 2 deals with this new sort of theology and the influences of religious discourse on modern constitutional discourse, as well as the contributions of jus-positivism in the consolidation of this religiouscivil language. This chapter also reviews the concept of sovereignty. The main goal is to provide a comprehensive notion of sovereignty, highlighting some of the fundamental aspects of the work of Hobbes, Rawls, Kelsen, Schmitt and Derrida. The selection of authors and features is based on the relationship that they have with the role of violence. Once the definitions and features are highlighted, the role of sovereignty and its relationship with violence is discussed as a conclusion. Then, by introducing a definition of sovereignty and the conceptual need for genuine democratic legitimacy, I show what type of sovereignty is applied and where its legitimacy originates.


CONSTITUTIONAL THEOLOGY

Then render to Caesar what belongs to Caesar, and to God the things that
are God’s.1

My goal in this chapter is to consider both the fundamentally religious character of what we understand as modern constitutions and the undemocratic character of constitutions in general. Political theology is an old but also a very modern issue.2

Hamilton argued that: ‘the fabric of American empire ought to rest on

-8-

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Constitutional Violence: Legitimacy, Democracy and Human Rights
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1- Introduction 1
  • 2- Sovereignty and Constitution 8
  • 3- Democracy 40
  • 4- Legal Violence 90
  • 5- Comparing Constitutional Violence 114
  • Afterword 171
  • Bibliography 179
  • Index 190
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