Constituent Power and Revolutionary Legitimacy

Constituent Factor

Constituent Factor: Attached to the individualistic model, particularly with regard to the social contract. The nation exercises the constitutional (constituent) power especially when it decides (vuole) a new social and political order that replaces the old. It is not limited to creating greater certainty and safety for the exercise of individual, natural rights and liberties; it is also configured as an accomplished political fact that states the goals to reach, linking citizens and identifying individual enemies to combat and isolate.

The nation or people of the French Revolution is a clear political concept of a combative nature. When the revolution began, the first problem was to defend it from its enemies: conspiracies of aristocrats and factions hostile to the dynamic, progressive unity of the people and the nation. This prevented the revolution from remaining within the traditional limits of the foundations of public authority that had previously secured rights and liberties in the existing state of nature.

It could not be contained within the boundaries of Lockean natural law, nor within the British binomial liberty and property, because it presented a blueprint for the future to be made by the constituent power of the people or nation. The presence of a constituent power of the people or nation could be a formidable instrument of legitimation from below for the legislature, but it could also threaten or destroy existing authority, creating the problem of the relationship between constituent power and legislative power.

Citizens' Constituent Power and Political Freedom

Similarly, the question emerges of the constituent power of citizens, understood as an original, fundamental political freedom: the freedom to choose (volere) a certain, global political order. The response of the revolution was simple: the legislature cannot infringe those rights and liberties, because the constituent power of the people embodies the general will of the nation.

Challenges: Guaranteeing Rights and Liberties

The weakness and most problematic aspect of the revolution is the guarantee of rights and liberties. All ideologies that underpin the revolution come to the conviction that general, abstract law (rather than case law, as in the British system) is the most suitable instrument for guaranteeing rights and liberties. But at this point a critical problem opens: ensuring those guarantees may require a legislator as powerful and authoritative as that presented by the French Revolution. How can one defend against the assumption that the legislature will become the worst enemy of freedom?

This is a culture deeply oriented in an individualistic and contractarian sense, but it tends to blend at decisive points with a statist focus on the problems of rights and freedoms. At the same time, the revolution cannot be totally dominated by a statist imprint. It appears at this moment more strongly that there was essential injustice under the Ancien Régime (AR): personal links and dominations rooted in basic value structures that shaped and constrained the individual as such.

Key Tensions

• Legitimation from below: Constituent power can authorize new constitutional orders and legitimize legislative acts.
• Threat to authority: The same constituent power can threaten or dismantle existing authority.
• Law as guarantor: General, abstract law is seen as the instrument to secure rights, but it may require concentrated legislative power.
• Individualist vs. statist impulses: Revolutionary culture mixes contractarian individualism with statist mechanisms for protecting the collective order.

Constituent power therefore operates both as a source of political renewal and as a central paradox: it legitimizes new forms of authority while simultaneously posing a challenge to liberty if concentrated in an unchecked legislative body.