On the Conceptual Relevance of Constituent Power to Law beyond the State
Dr Richard Collins
The concept of ‘constituent power’ has been recently debated in the discourse of ‘global constitutionalism’ in legal and political disciplines as to its conduciveness to reimagining the forms of legal order beyond the state. It might be meaningful to explore the relevance of this concept to the possibility of moving towards constitutional or alternative forms of postnational legal order. ‘Constituent power’ is traditionally associated with the capacity of ‘people’ in ‘founding’ legal orders and the legitimacy of state sovereignty. Efforts have been devoted to reconceptualise constituent power as a kind of potentia of actors subject to law beyond the states either to dynamically delineate the ‘authorship’ of law or to resist the exclusions of legal orders. The reconceptualisation mainly challenges the continuity of constituent power to constitutional form and constituted power. Constituent power is thus assigned an alternative role of continuously seeking the possibility of ‘new forms’ of legal order beyond borders and promoting human autonomy beyond the state. This seems to be a welcomed development, since the critique of constitutional forms in postnational legal order often relies on certain normative ends recognised in professional practices. The concept of potentia accordingly opens up an approach of questioning the forms of legal order beyond the state by reference to the capacity of ordinary actors. The critical potential of this concept might nonetheless be hindered by the conception of taking law ‘beyond’ the state. New form of legal order may be presumed as ‘good’ for enhancing potentia. However, potentia as the immanent power of human beings could be contradicted by the transcendence of law ‘beyond’ the state. While tentatively recognising the normative desirability of a potentia dissociated with particular forms of legal order, this research aims to critically reflect on the main theoretical presumptions underpinning this development, which potentially contradicts its purpose. It will also explore the possibilities of overcoming them. If they are unable to be overcome, we might need to reimagine the relationship between potentia and the form of legal order beyond the state in practical contexts and seek alternative conceptual toolkits for the same purpose. The questions considered in this research are preliminary for a critical theory of potentia for law beyond the state.
Graduating with LLB and LLM degrees in China (Xiamen) and England (Sheffield) respectively, Weiran moved to Dublin in September 2018 to conduct his doctoral research on the critical theory of law beyond the state. His main interest is the critique of mainstream international legal theories by reference to various schools of contemporary continental philosophy. Originally trained in international law and still closely associated with this area, he is now prepared to research beyond disciplinary boundaries and specifically on the critique of postnational legal phenomenon by reflecting on the concept of potentia. Weiran is theoretically eclectic but dedicated to develop his distinct approach based on thorough critiques of different traditions. He hopes his original efforts on developing a critique of law beyond the state will shed a new light on the contemporary theoretical engagement of international law and law in general. Personally, Weiran is a keen promoter of both contemporary Chinese popular culture and Chinese classics. Alongside his main research, Weiran is also working out a plan of translating to English, with his original commentaries, the chapter two in the Book of Master Han Fei, a premier classical text of Chinese legalist thought. He thinks that this text shares a range of common ideas with Spinoza’s practical philosophy of potentia, which is also to be engaged in the thesis.
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