H17(b) - Political Theory and the Founding of States
Date: Jun 6 | Heure: 10:30am to 12:00pm | Location: SWING 121
Chair/Président/Présidente : Travis Smith (Concordia University)
Discussant/Commentateur/Commentatrice : Travis Smith (Concordia University)
Declarations of Independence as Proto-Legal Performatives: Catherine Frost (McMaster University)
Abstract: The modern idea of democracy says the political order should reflect the ‘voice of the people,’ yet we don’t recognize this voice until it takes certain forms. This impasse is most apparent at the founding of states where it appears as the paradox of constituent power – the collective power of the people is imagined as preceding representative politics, yet remains inarticulate without it. While it seems like a formula for paralysis, modern states regularly use some form of announcement to mark their arrival, and a declaration of independence has become the default hallmark of newfound sovereignty. A properly authorized declaration – meaning one that is accepted by its own populace and the wider international order – therefore looks like an answer to the paradox. But there is a problem with this solution. Declarations are generally taken to draw their authority from performativity. But performatives operate on the basis of prevailing authority (J.L. Austin explained), cannot provide instantaneous authorization (Jacques Derrida argued), and signify the absence of a constituting subject (Judith Butler claims), meaning they are linguistically and politically unsuited to the conditions of founding. So why is a declaration considered performative? This paper brings together current debates on constituent power and Butlerian performativity to show that her theory does not translate well into a proto-legal form, suggesting that something else is happening in a Declaration of Independence to solve the founding paradox.
Federalism, Bordering, and the Federalist Response to the Boundary Problem: Jan Smolenski (New School for Social Research)
Abstract: Most responses to the boundary problem have assumed the modern State as the only available political form – either as the only legitimate unit by which the demos should be bound or as an arbitrary unit whose bounds should be transcended by different principle allowing for more dynamic membership. Both sides have their drawbacks. This dichotomy itself is a result of the statist bordering - the constitution of the inside/outside distinction that presumes in principle and prima facie binary distinction and clear separation between the internal and the external. However, by focusing on the State, these responses have neglected the alternative to the modern State, a federation. In this paper I explore the application of the federal principle to the boundary problem and I argue that the federal principle offers a distinct response to it. In making my argument, I revisit selected federal theories and focus on how the issue of bordering is addressed. I investigate the issue of spatial extension by the iteration of the founding constitutional compact, contraction through secession, and the territorial distribution of difference manifested in legal pluralism. This makes bordering implied by the federal principle more dynamic that the statist one and allows for the demos to be at the same time demoi. As a result, I argue, the boundaries of the federal demos/demoi are contingent but not arbitrary. Additionally, I argue that focusing on bordering offers distinct, democratic (as opposed to liberal or republican) justification for federalism.
Montesquieu's Constitutional History, Foundings, and the Modern State: Jacob Levy (McGill University)
Abstract: Part 6 of The Spirit of the Laws is by far the longest of the book’s major sections— almost a third of its total length— but it is the least-discussed and least-understood. It offers a legal and constitutional history of France which offers few explicit normative conclusions and little by way of an explanation of its purpose. The material he discusses is obscure to contemporary readers, and so Part 6 is typically either ignored or identified in a summary way with la thèse nobiliaire. I will offer an interpretation of Part 6 and its purpose in the book, and use that to illuminate Montesqeuieu’s understanding of constitutional foundings and the emergence of the modern European state throughout SL and in The Persian Letters. Montesquieu rejects all of the contemporaneous theories of political normativity grounded in foundings and origins— la thèse nobiliaire as much as la thèse royale, historical contractarianism as is found in the monarchomachs and hypothetical contractarianism In the Grotius-Hobbes tradition, and the obsession with foundings and founders seen in Machiavelli and republicanism. He demonstrates the falseness and impossibility of all of these, rejecting them as incompatible with the pluralism and institutional evolution that generated the moderate and balanced era of the Gothic constitution, “the best ...which men have been able to devise.” Its merits were not based on a founding principle but on the institutional history traced in Part 6, and its fall was not due to corruption but to the rise of the Weberian state.