Constituent power's legal form

Abstract

https://doi.org/10.1590/2179-8966/2025/80466 The concept of constituent power has been increasingly used to theoretically address complex phenomena faced by political communities at different levels: reconstitution of democratic orders; formation of supranational political orders; democratic legitimacy of supra-state institutions; international involvement in constituent processes; quests for autonomy by subnational units; and limits of the power of constitutional amendment power. All these analyses share the premise that the concept of constituent power grounds the legitimacy of political orders. This article criticizes this premise. It argues, on the one hand, that the concept is not important in the discussion about the legitimacy of orders established in the past. On the other hand, and against the critics of constituent power, it proposes that the concept is still theoretically relevant in moments of radical criticism of the existing order in which there is concrete possibility of replacing it, insofar as it reflects the tiered structure of the constitutional state and brings to light the problems of legitimation to be faced in constituent processes. Even in these contexts, however, without additional normative arguments, constituent power is unable to function as a legitimating concept. Ultimately, legitimacy emerges from the procedures used to exercise such power or from the outcome of this exercise (the new political order). The argument leads to a new conceptualization of constituent power, as a kind of “tool” available to infuse legal meaning into certain demands and political events, but which is neutral in relation to justification. It gives legal form to a political power oriented towards a specific purpose (the reconstitution of a political order) and, in this sense, presents itself as a legal competence.