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2 - Sovereignty and Constitution

Published online by Cambridge University Press:  05 August 2013

Antoni Abat i Ninet
Affiliation:
ESADE, Barcelona
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Summary

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 religious-civil 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.

Type
Chapter
Information
Constitutional Violence
Legitimacy, Democracy and Human Rights
, pp. 8 - 39
Publisher: Edinburgh University Press
Print publication year: 2012

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