Constitutional subjects: the formation and fracture of constitutional legitimacy. Towards a phenomenology of law and violence

Abstract This article addresses questions about the identity of the subject of constitutional law from a historical-sociological perspective. It aims to reconstruct, beneath the surface of constitutional texts, the actual material subjects that commonly give rise to constitutions. To do this, it isolates the constituent conjunctures in which constitutions have typically been written, and it describes the social pressures that obliged members of different societies to articulate their subjectivities in constitutional fashion. It uses this reconstruction to suggest a new framework for approaching questions of constitutional subjectivity and legitimacy, as, contrary to more deliberative methods, it explains how experiences of military violence usually shaped the emergence of constitutional subjects. On this basis, it argues that constitutions typically acquired stable legitimating force, not by enacting the will of identifiable constitutional subjects, but by displacing such subjects into a manageable form, separate from their military emphases. It cautions against idealist theories of constitutional subjectivity, arguing that most constitutions create legitimacy for government specifically as they promote societal integration in procedures that are not defined by the subjects to which they attribute their authorship. It concludes by addressing some current examples of constitutional crisis, considering how these have been shaping by literalist understandings of constitutional subjectivity.