Legislation and Identity: Authorative Representation in Supra- and Infra-National Polities
01 / 2005 - 12 / 2010
The results of the previous sub-programme in legal philosophy, `Sovereignty and Representation in International Legal Developments', can be summarised under four headings, which are in fact hypotheses argued for in key publications: The so-called `paradox of sovereignty' (representing both constituent and constitutional power) is inherent to the bounded character of any legal order. Though its articulations will vary with the shifting parameters of the State, it will continue to pervade the foundation of post-Westphalian legal developments. Both analysing and negotiating the paradox require an account of the intricate conceptual relationships, indeed the interdependence, of constituent and constitutional power, i.e. of the institution (order) of law and the instituting (ordering) of law. This account is a precondition for avoiding two fallacies with regard to legal authority: human rights constitutionalism and political voluntarism. Crucial in such an account (under the twin constraints of `the rule of law' and `democracy') is to make sense of the reflexive structure of the modern polity¿s norm-giving actions as performed by the various agents who claim to represent it. What most theories acknowledge is that the ultimate `rule of recognition¿ for legal authority in Modernity is the Identity Thesis [ID]: both the normativity and the validity of law lie with its subjects being identical to its legislators. What they ignore are the complications of [ID] hailing from a distinction between two senses of identity: sameness and selfhood. A fully-fledged account of legislation as democratic norm-setting under the rule of law requires that one link identity in the sense of sameness (of legislators and subjects) with identity in the sense of selfhood (of the polity), ushering in the idea of legislation as a first person plural commitment. This sub- programme asks what consequences follow from understanding this commitment as involving the representation of a collective self by a multiplicity of agents with diverging interests. Thus the project analyses how there can be binding and sustained unity in utterly pluralist law-making processes, in particular when such unity cannot be hypostatised by the nation principle. This is called the Reflexive Polity Thesis [RP]. Re-reading (parts of) the history of ideas in legal and political philosophy in the light of [RP] provides strong support for theses (i) and (ii). Following up on these results, the present sub-programme aims to enrich and test the underlying theory, in particular in the context of European and international public law.