Constituent Power : A. Kalyvas

Marsilius’s originality rests first of all on the appropriation of the ancient figure of the legislator, in order to rework it in the direction, not of a mythical lawgiver and founder of cities, but of an actual community, “the multitude of the needy,” the “assembled multitude.” The “primary legislator” is a “primary authority,” and the multitude is always the legislator because it has the supreme power to establish and abolish its governments and depose its rulers. Correspondingly, the laws derive their authority from the legislator, that is, from the multitude.

With this synthesis he brings together the legislator, the sovereign, and the multitude in the new form of a collective power of the many to constitute their political world. The many, the poor, and the vulgus are names interchangeably used to describe the sovereign as a collective founder who can decide the political form of its common existence, either in a primary assembly of all through majority rule or by its elected representatives.²⁶

Moreover, by expanding the faculty to constitute to include the power to form and establish governments, Marsilius suggested a crucial distinction, differentiating between two separate acts: the act of making laws and the act that institutes a government. The latter designates a founding moment, temporarily and ontologically prior to any government. It is the source of authority, the legitimacy of ordinary laws, and the final judge. The distinction between the legislator and the government points to a differentiated binary concept of power divided between the universitas civium of the multitude and the pars principans of the government. It is in this way that Marsilius anticipates the key distinction between a constituting community and the constituted commonwealth, which will become central in later doctrines of modern constitutionalism as pouvoir constituant/pouvoir constituée.

Marsilius, furthermore, asserted the superiority of those who participate in the establishment of a government over those who rule, legislate, and command within a given institutional framework.²⁷ The act of establishing/forming is superior to the act of commanding. One important reason is that the common life of the multitude does not emanate from or depend on the rulers or the government. It is a shared life that proceeds immanently and self-sufficiently from the many, that is, autonomously from the state form. There is a dimension of externality of the multitude in relation to its institutions as it is recognized as a political subject that can exist outside positive law. While the many can exist apart from the state, the state cannot live apart from the multitude.

Additionally, ruling depends on and is inferior to constituting; deploying Aristotelian categories of causality, because, Marsilius considers the former to be subordinate to the later in the same way that a cause is always prior and superior to the effects it generates. Moreover, the supremacy of the many over the few is supported by the logic that “every whole . . . is greater in mass and in virtue than any part of it taken separately.” Finally, he also echoes Aristotle when he claims that the multitude is also superior in terms of its wisdom, better than any part taken separately.²⁸ In this elaborate defense of the principle of popular sovereignty, the many are treated as supreme because they are antecedent to all constituted authorities, self-sufficient, capable of virtue and wisdom, and for this reason, the authors of their political forms. Marsilius is the first author to define popular sovereignty in terms of the power of the multitude to constitute.

There is one last word to say on the alleged theological provenance of constituent power, powerfully captured by Carl Schmitt’s influential claim that it is merely another secularized theological concept of modern state theory.²⁹ Marsilius’ incipient invention of democratic sovereignty challenges this politico-theological narrative and breaks away from metaphysical and transcendent medieval notions of power and politics. His intervention situates the beginnings of modern democracy apart from the religious monotheistic imaginary of Judeo-Christianism. His theory of popular sovereignty operates strictly on the plane of immanence. It is an affirmation of the powers of this world that dispenses with external causation. He understood constituent politics as, “those methods of establishing governments which are affected by the human will.” The existence of government is not divinely ordained nor does it rest on ideas of sin and biblical transgression; rather, it emanates materially from the actual social activity of the multitude that desires a free, peaceful, and sufficient life.³⁰

^{26. Marsilius, Defensor Pacis, 53, 27-28, 52, 54-55, 48, 64, 87-88, and 45-46. Marsilius also anticipates the revolutionary idea of the constitutional convention.↩}

^{27. Alan Gewirth, Marsilius of Padua, 167-225.↩}

^{28. Marsilius, Defensor Pacis, 46 and 49-55.↩}

^{29. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge: The MIT Press, 1988), 51 and 36; Carl Schmitt, Constitutional Theory, 126-28; Ulrich Preuss, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution,” in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, ed. Michel Rosenfeld (Durham: Duke University Press, 1994), 144-45.↩}

^{30. Marsilius, Defensor Pacis, 29 and 89-97.↩}