ࡱ> @ ]bjbjFF 8L,,10ppp02 2 2  8$4 rIBBB;;;;7S;#BH$ KR\MI2 $%BB$%$%I2 2 4,I:::$%\2 2 ;:$%;::2 2 : 53::4BI0rI:,N:",N:F Z p2 2 ,N2 :B: p"BBBII  :  Draft: 15.8.2005 The EU and the Self-Constitution of Political Community: Conceptual and Normative Issues Hans Lindahl (Tilburg University) 1. An Ambiguity Christopher Kutz has pointed out that liberal theories of social action are reductive to the extent that they take their cue from the model of an individual agent acting alone in the pursuit of his or her own goals. This model is incapable of explaining social action as shared action, that is, as the act of a collective subject. The self of self-government, he asserts, is a we, not an I. While I wholeheartedly agree, I propose to uncover and discuss a conceptual and normative problem hidden in Kutzs dictum concerning the self of self-government. If the emblematic act of self-government is the act whereby a manifold of individuals constitute themselves as a polity, then the self-constitution of political community encloses a remarkable ambiguity. In effect, collective self-constitution can be read in two ways: as constitution by and of a self. Here, then, is the conceptual problem: is this ambiguity fortuitous or does it reveal a fundamental feature of polities in general, and the European Union in particular? The normative problem is this: if, as I shall argue, this ambiguity cannot be suspended or done away with, what sense can be made of attempts to define democracyand a fortiori a European democracyin terms of collective self-government? As will transpire, the problem unifying the conceptual and normative issues raised by the self-constitution of political community is attribution, or more precisely, self-attribution, that is, the conditions under which a collective ascribes legislation to itself. 2. From Constituted to Constituent Power and Back Again Legislation, in the broad sense of norm-creation, is the proper field of an inquiry into collective agency in the law. But in the forthcoming we will be looking primarily at the act by which a manifold of individuals constitute themselves as a political community. Traditionally, legal and political theories characterize this form of collective agency as the exercise of constituent power, opposing it to constituted power within the community. This section scrutinizes shared or collective agency in the law by contrasting two analyses of this conceptual pair. The first is Hans Kelsens theory of the attribution of norms to a community; the second is Hannah Arendts theory of the foundation of political community. Their analyses are not only disparate but even opposed. Whereas Kelsens move to clarify what is involved in the ascription of a norm to a collective implies an indirect and regressive approach to the notion of constituent power, Arendts strategy, which follows the trajectory leading from initiation to the accomplishment of a legal order, is direct and progressive. Let me flesh out this contrast more fully. Kelsens approach to collective agency is perhaps best illustrated by a passage in the second edition of the Pure Theory of Law, in which he introduces the idea of the state as an acting subject: If the state is presented as an acting subject, if it is said that the state has done this or that, the question arises which is the criterion according to which certain acts performed by certain individuals are attributed to the state, are qualified as acts or functions of the state, or, what amounts to the same, why certain individuals in performing certain acts are considered to be organs of the state. Notice, to begin with, the manner in which Kelsen approaches the problem of collective agency. He argues that, from a legal perspective, there is no access to the acts of a collectivelegislation in the broad sense noted aboveother than through the acts of its officials. The question How does a collective act? resolves itself into the question Under what conditions can the act of an individual be interpreted as the act of a collective? Kelsens move meets, so its seems, two main desiderata of a theory of collective agency, namely avoiding the move to either ontologize collective subjectivity or collapse collective action into a form of (aggregate) individual action. On the one hand, by linking the acts of a collective to those of its officials, Kelsen conceptualizes legislation in a way that avoids ontologizing collective subjectivity. In particular, he offers an alternative to dualistic theories that postulate the state as an organic unity that first creates a legal order and subsequently subordinates itself to its creation. On the other, this linkage appears to avoid reducing collective to individual agency. For to ask why acts of individuals can be viewed as legislative acts is to ask under what conditions those acts are the acts of a collective. Kelsens conceptual strategy determines his approach to constituent and constituted power. Rather than trying to directly grasp the notion of constituent power, he moves to understand constituted power by elucidating the concept of legislation. The key to constituted power is the attribution (Zuschreibung) of the act of an individual to a collective: the problem of the state as an acting person... is a problem of attribution. Significantly, Kelsens earlier works appeal instead to the notion of imputation (Zurechnung). The terminological switch to attribution is motivated, as he explains it, by the desire to distinguish the assignment of legislation to the state as an acting subject (an operation he initially called central imputation) from the notion of imputation defined as the ascription of a material fact to a legal person, with a view to establishing this persons legal liability (peripheral imputation). What is important for our purpose is that Kelsens introduction of the notion of attribution allows him to link constituted power to representation. In effect, attribution has a representational structure; to say that the act of an individual is attributed to a collective is another way of saying that the individual represents a collective: the essence of an organ is that it represents the state. Kelsen effectively argues that a collective subject can only act through its representatives: to attribute an act to the state is to claim that an officials act stands for the act of a collective; by the same token, the notion of an organ or official implies that of representation. To put it another way, the problem is not that the collective cannot be represented if it is to act; instead, Kelsen is driving home the point that the very concept of legislation entails that the collective can only act if it is represented, if it acts through its officials. Importantly, Kelsens notion of an organ encompasses not only the legislative, executive and judicial branches of power, but also private individuals who engage in the process of norm-creation. Representation is intimately related to a second constitutive feature of legislation, empowerment. The very possibility of attributing an act to the state implies that acts of norm-creation are authorized by a higher-level norm. Indeed, empowerment or authorization is the manner in which the law conceptualizes power; for the law, power is always legal power, empowerment to create norms. Precisely for this reason, the attribution of legislation to a collective subject has a regressive structure: one moves from the act of norm-creation to the norm that authorizes it, and so on. Crucially, this regression is not infinite. If every effect leads back to a cause, which is itself an effect leading back to yet an earlier cause, and so on ad infinitum, relations of empowerment lead back to a first constitution, enacted by an assembly or an individual. But, by definition, who enacts the first constitution cannot be empowered to do so by a norm of positive law. Thus, the assembly referred to in the historically first constitution, by adopting this constitution establishes itselfaccording to this constitutionas the Constituent National Assembly provided for by the constitution. This, he adds, is tantamount to the self-creation of the organ concerned, that is, a self-empowerment. But this, as Kelsen recognizes, is a contradiction in terms. Hence, Kelsens analysis unveils a paradox at the heart of the law: legislation, in its most pregnant manifestation, is the exercise of constituent power, an act that creates the first constitution without being empowered to do so; but because the law can only think of power as legal power, as the exercise of a competence, an act can only initiate a legal order by being retroactively interpreted as an empowered actthe exercise of constituted power. Such is the function of the basic norm, the Grundnorm. This wonderful insight will shortly require our further attention. For the moment, I will wrap up my discussion of Kelsen by considering what happens to the notion of collective agency in the pure theory of law. As noted earlier, Kelsen is concerned to conceptualize collective agency in a way that avoids reifying collective subjectivity, a phenomenon he disparagingly characterized as legal anthropomorphism. Yet in the process of purging legal theory of anthropomorphism, Kelsen boxes himself into the following dilemma: in the absence of a collective subject as a unity in action, the very idea of attributing legislation to this subject would be nonsensical; but appealing to a collective subject as the author of a legal order would, as he sees it, effectively ontologize this collective, postulating it as an organic unity existing prior to and independently of a legal order. Kelsens response to this dilemma is heroic: the notion of a collective as the subject of legislation is but the personification of a legal order, and attribution simply the reference of an act to a legal order: the attribution of a function determined by the legal order and performed by a certain human being to the state as a person is only a way of expressing the idea that a function is referred to the unity of the legal order which determines this function. So, to avoid the temptation of hypostasis, Kelsen effectively collapses collective subjectivity into the legal order itself. Having closed off the possibility that the legal order refers to an end point of attributive relations beyond itself, the only alternative is to convert the legal order into the end point of those attributive relations. But then all talk of a collective subject that enacts legislation, and to which legislation can be attributed as its author, is redundant and can be scrapped from theoretical inquiry without any loss of explanatory power. This reductive move is particularly evident in Kelsens theory of democracy, in which the people (in the plural) participate in the creation of a legal order by acting as an electorate, i.e. by engaging in a form of aggregate individual action. At the end of the day, Kelsen succumbs to Kutzs objection: the self of self-government is a we, not an I. If Kelsens pure theory of law engages in a regressive approach to collective agency, Hannah Arendts theory of the foundation of political community unfolds the opposite line of inquiry. The following passage distills her approach to collective agency: Power corresponds to the human ability not just to act but to act in concert. Power is never the property of an individual; it belongs to the group and remains in existence only so long as the group keeps together. When we say of somebody that he is in power we actually refer to his being empowered by a certain number of people to act in their name. The moment the group, from which the power originated to begin with (potestas in populo, without a people or group there is no power), disappears, his power also vanishes. Notice the inverted symmetry with respect to the passage cited at the outset of this section: whereas Kelsen is concerned to approach collective agency regressively, as the end point of attribution, Arendt emphasizes that agency is a beginning, an initiating or inaugural act. Arendts progressive approach runs parallel, in a certain sense, to Kants reflections on freedom in the Third Antinomy of Pure Reason: The transcendental idea [of freedom] stands only for the absolute spontaneity of an action, as the proper ground of its imputability. To be sure, Kants reference to imputability roughly coincides with what Kelsen calls peripheral imputation, i.e. the ascription of a material act to an individual in view of establishing her/his legal liability. But if it is the case that legislation also involves ascribing an act to a subject, albeit a collective subject, Arendts point is that this operation only makes sense if legislation is a manifestation of agency in the strong sense, that is, a collective act that initiates or inaugurates a legal order. If collective freedom means the self-constitution of a polity, then this amounts, in Kants terms, to a power of spontaneously beginning a series of successive things or states. Arendt refers, in this context, to the fact that both the Greek and the Latin employ different terms to designate two distinct phenomena for which the English reserves a single verb: to act. On the one hand, to act means to commence or begin (arkhein, agere); on the other it means to support and carry through (prttein, gerere). Accordingly, both the Greeks and the Romans understood that the first stage of action is a beginning by which something new comes into the world, such that being free and the capacity to begin something new coincided. Freedom, as we would say today, was experienced in spontaneity. This experience of spontaneity is the primordial manifestation of the ability to act in concert. Freedom, in this sense, is a political category; more forcefully, it is the defining feature of politics. To exercise constituent power is, for Arendt, to found a political community. As such, constituent power is the primordial manifestation of collective agency; it is the act whereby a group of individuals... come to think of themselves as a We. On this view, revolution, the American revolution in particular, has an exemplary significance for politics because it reveals the structure of constituent power: power [comes] into being when and where people... get together and bind themselves through promises, covenants, and mutual pledges; only such power, which [rests] on reciprocity and mutuality, [is] real power and legitimate... Thus, whereas Kelsens discussion of attribution moves from constituted to constituent power, Arendt inverts the sequence, asserting that the foundational act of getting together, whereby a group of individuals becomes a We, is the indispensable presupposition of any politically and legally meaningful sense of empowerment. Again, a potestas in populo conditions the possibility of the regressive operation that attributes legislation to a collective. Hence, Arendts position can be radicalized as follows: the attribution of legislation to a collective is first and foremost an act of self-attribution, that is, an act by which the members of a community recognize legislative acts as acts of their own community. Arendts inversion of the relation between constituent power and constituted power impinges directly on representation. Kelsens regressive strategy, which consists in asking under what conditions the act of an individual can be viewed as the act of a collective, accords center stage to the representational structure of attribution. Not surprisingly, Arendt severs the link between collective agency and representation. If constituted power is by nature representational, constituent powerthe preeminent manifestation of collective agencytakes place through citizen participation. To put it starkly, the issue at stake in the opposition Arendt sets up between constituted and constituent power is representation versus action and participation. Foundational moments, revolutionary or otherwise, suspend representational practices and reinstate presence. The Mayflower Compact is a foundational act, not because the Pilgrims voiced their consent in the Presence of God, for to this extent each of them stood in isolation, but because it is an act of mutual promise [that] is by definition enacted in the presence of one another. In this way, Arendt seems to invoke the basic move of Western metaphysics, which makes of presence the ultimate ground of truth, to account for the foundation of political community. The human capacity to initiate, to set something new on its way, is at bottom the human capacity to intervene in history in such a way that the temporal continuity assured by representational practices is punctured by constituent moments of sheer presence. But will it do to simply oppose presence and representation, constituent and constituted power, agere and gerere? In a telling passage, Arendt notes that we are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. This description of the self-constitution of political community raises a pressing question: who belongs to the we that decide to band together and grant themselves mutual rights, beginning with those accruing to citizenship? Suggesting that this question can be settled by a prior compact will not solve the problem, for this would entail embarking on an infinite regress. Arendt is aware of this problem, and intimates how it must be dealt with: every action, accomplished by a plurality of men, can be divided into two stages: the beginning which is initiated by a leader, and the accomplishment, in which many join to see through what then becomes a common enterprise. Accordingly, thinking through the conditions of collective agency leads Arendt to implicitly deconstruct the sharp opposition she sets up between representation and action and participation. For community can only be initiated if a leader seizes the initiative by claiming to act on behalf ofrepresenta group. To the extent that she recognizes this point, it seems fair to say that Arendt succeeds in staving off a metaphysics of presence: representation is inscribed in action and participation, constituted power in constituent power, and gerere in agere. We can now draw up the balance of this imaginary confrontation. On the one hand, I read Arendt as correctly arguing that the attribution of legislation to a collective comes about, first and foremost, from the first person plural perspective: a We as a unity in action. Yet, I interpret Kelsen as suggesting that a We is never directly present as a unity in action; it must always be represented, even when citizens participate in law-creation. This, I submit, is the profound meaning of Kelsens epigram, proffered when discussing the vicissitudes of democracy and democratic representation: the people as a whole is... mute. Wouldnt this insight at least partially vindicate Kelsens indirect and regressive approach to constituent power, to the extent that, paradoxically, an act only initiates a community through its accomplishments, that is, through the acts of individuals that, carrying forward the constituent act, retroactively attribute it to themselves as the inaugural act of their community? With this question in mind we can now turn to consider two exemplary foundational acts, the Van Gend & Loos and Martin v. Hunters Lessee rulings of, respectively, the European Court of Justice and the American Supreme Court. 3. Foundation: A Performative Circularity The Van Gend & Loos ruling is too well-known to require introduction. Instead, I will go directly to the heart of the matter: The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. On the one hand, the ECJ claims that it exercises norm-creating power within the scope of the law. On the other, the Court effectively exercises power over the scope of the law, to the extent that its ruling posits the European Community not only as a community of states, but also and primordially of market citizens. For, in the very same act by which the ECJ claims to act within the scope of the powers conferred on it by the treaties, it both confers powers on individuals, enabling them to invoke direct effect, and on itself to render rulings on the basis thereof. Remember, in this context, that both the Netherlands and Belgium had challenged the jurisdiction of the Court to deliver a preliminary ruling on an issue raised by a private person on grounds that the question whether the norms of EC-law prevail over national law fell squarely within the jurisdiction of the national courts. This passage has the structure of innovation by transgression. The acquired reading, with respect to which Van Gend & Loos is both blatant transgression and daring innovation, was, of course, that the Treaty, turning the ECJs own words against it, is nothing but an agreement which merely creates mutual obligations between the contracting States. A circularity in the Courts reasoning attests to the performativity of its ruling. For the claim that the Treaty is more than an ordinary treaty under international law only holds if one presupposes that the functioning of a common market is not of direct concern only to the states but also to individuals, that is, only if one presupposes that the Treaty is not an ordinary treaty under international law. Before exploring the implications of this circularity in greater detail, consider Martin v. Hunters Lessee, in which the American Supreme Court laid down the basis of its competence to review state court decisions on issues of federal power. A brief analysis of this case, decided in 1816, dispels the suspicion that the abovementioned circularity is only the birthmark of the European Union, a birthmark that distinguishes it in a decisive manner from the foundation of a classical federal state. To this effect, I will draw on and recast an illuminating article by Steve Boom. The ruling, as Boom explains it, has its origin in the reversal of a decision by the Virginia Court of Appeals, in which the Supreme Court had ordered the Virginia court to obey its decision. The Virginia Court refused, advancing two arguments: first, the Constitution was silent as to how disputes about the boundaries between state and federal competences were to be settled; second and crucially, the Constitution only empowered the Supreme Court to issue commands to federal courts: the Virginia court belonged to a differentand sovereignlegal order. In short, the Virginia court held that the US was a confederation of states. The Supreme Court rejected this view, appealing to the wording of the preamble to the Constitution. In the words of Judge Story, the constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the People of the United States. Story then went ahead to argue that the Constitution granted the Supreme Court jurisdiction on the basis of the case, rather than the court, and that this empowerment, in conjunction with the supremacy clause, entailed that the Supreme Court did enjoy the authority to review state court decisions. This reasoning, as Boom notes, actually begs the question at hand. The issue is not whether the Supreme Court has jurisdiction to hear all appeals of federal law; the issue is whether the Supreme Court has the authority to decide whether a particular issue is a matter for federal appeal in the first place. In other words, Storys opening statement about the American people guided his view: since a single people formed the Constitution, it is logical that a single body of law should apply to all American people. Such uniformity would, however, be impossible if state judges interpretation of federal law were not reviewable. Although Story sought to support this reasoning by referring, amongst others, to the Constitutional Convention and the deliberations of the first Congress, there was as a matter of historical fact no consensus on this point: Patrick Henry, James Madison, and Thomas Jefferson were amongst the influential Founding Fathers who, advocating state jurisdiction, strongly opposed assigning jurisdiction on matters of the limits of federal powers to the Supreme Court. Hence, a performative circularity governs Martin v. Hunters Lessee. Whereas the Court argues that a single body of law follows from the fact that a single people enacted the constitution, its ruling, by asserting that a single body of law should apply to all American people, constitutes them as a single people. Thus, the opening words of the preamble to the Constitution, We the people, lend themselves for a confederational no less than a federal reading. As a historian of American constitutional law puts it, at bottom, the issue was one of politics and expediency rather than law. Was it preferable to have a federation or confederation of states? The parallel between the two rulings is by no means fortuitous: in both cases the attribution of legislation to a collective subject fails not merely because there is no subject to whom legislation can be attributed, but because the author to whom the act would be attributed is authored by the attribution. As Christodoulidis neatly puts it, there can be no people prior to the imputation of a will to them. This difficulty is closely related to the problem encountered by Arendt in giving account of the foundational act of political community: who belongs to the We, and what joins individuals in mutuality and reciprocity, cannot be established on the basis of a compact. Someone has to seize the initiative, and, acting in the name of the whole, indicate who is an interested party to the collective and what interest joins its members. Notice how this ties into Kelsens analyses: the ECJs empowerment of individuals, such that they are now entitled to invoke direct effect, is also an act whereby the ECJ empowers itself. A parallel self-empowerment by the American Supreme Court lies at the heart of Martin v. Hunters Lessee. These rulings amount, in his terms, to the self-creation of the European and American courts as the constitutional courts of federal polities. Constituent power, as Kelsen correctly argues, is by definition ultra vires. Notice, moreover, that, in the case of the European Community, this problem is by no means unique to the Van Gend & Loos ruling. In the closing consideration of the Preamble to the Treaty of Rome, the founding parties ... [call] upon the other peoples of Europe who share their ideal to join in their efforts... At one level, of course, this consideration expresses the openness of the EC to other potential member states. At a deeper level, however, it reminds us that while the six founding member states claimed to represent European unity, they had received no mandate from all possibly affected parties, whether states or individuals, to found a European Community. Bluntly, the founding states are the self-proclaimed representatives of European unity. Prior to all normative qualifications, whether positive or negative, the Treaty of Rome illustrates something that is far more fundamental: there is no genesis of a polity, democratic or otherwise, without a representation of unity, but this initial representation is not mandated because, by effecting a normative closure, it provides a first determination of the actors that, actually or potentially, are entitled to participate in and mandate political representation. 4. Representation and Self-Attribution The foregoing section focuses on Van Gend & Loos and Martin v. Hunters Lessee primarily as manifestations of constituent power, attempting to grasp the interruption or rupture without which, as Arendt correctly notes, we could not make sense of foundational acts. This fracture, as we have seen, is attested to by the performative circularity governing both rulings. Far from marking a moment of pure spontaneity or activity, in which a collective acts in the strong sense of exercising its constituent power in view of enacting a legal order ex novo, the circularity reveals a fundamental passivity at the heart of political community: instead of initiating, the collective is initiated by a constituent power. If the exercise of constituent power signals the self-constitution of political community, then first and foremost in the objective form of the genitive: the constitution of a collective self. Ironically, Arendts invitation to forego a regressive approach to constituent power in view of grasping concerted action directly, at the very inception of legal order, calls into question what her approach was supposed to reveal, namely the self-constitution of political community as the enactment of a legal order by a collective self. The performative circularity that gives rise to a polity cuts off any return to the end point of attribution, dashing all hopes of ever being able to directly reveal the collective as a constituent power. This is not, however, the end of the story: the ECJ and the American Supreme Court can only exercise constituent power by claiming to act in the name of the collective, that is, by claiming to act as constituted powers. In other words, although the exercise of constituent power cannot be directly attributed to a collective because constituent power effectively creates this collective, whoever exercises constituent power nonetheless claimsand cannot but claimthat her/his act is attributable to the collective. What sense are we to make of this? This question leads straight to the temporal paradox of representation: Van Gend & Loos and Martin v. Hunters Lessee can only found autonomous legal orders by retrojecting the foundational moment onto a past that is identified as the origin of those orders. In particular, the rulings that give rise to a new and own European legal order transfer the birth of this legal order to the past, and then go ahead to assert that direct effect and supremacy are but implications of the origin. This is, then, the temporal paradox: the re of representation does not refer to what supervenes or follows an original present and presence, a now in which a community constitutes itself as a community in the plenitude of a simple presence to itself. Instead, and paradoxically, an act becomes the origin of a community through its representations. This paradox governs the attribution of legislation to a collective, to the extent that to assign acts of individuals to a collective is to follow a regressive strategy that takes us from the present to the past. But the end point of attribution is not the initiating act of a collective agent located in an original present; instead, and borrowing Merleau-Pontys remarkable phrase, attribution leads back to a past which has never been a present. This is the sense, I believe, in which one should read Kelsens caveat about the aporetic character of attribution. But Kelsens analyses of attribution, however perceptive, remain incomplete, to the extent that he only views attribution as a regressive operation. In effect, the rulings of the ECJ and the Supreme Court anticipate the meaning of, respectively, a European and an American community. There is no attribution without the retrojection of an inaugural act into the past, but there is also no attribution without the projection of community into the future, in such a way that what is held to have already taken place is what is yet to come. Attribution temporalizeszeitigt, to borrow Heideggers vocabulary; to attribute legislation to a collective is to engage in a retrojective projection. Despite the claim by the Single European Act that the internal market was to have been realized on such and such a dateDecember 31, 1992, to be exact, a past that has never been a present calls forth a future that will never become a present. This insight casts a critical light on a widely held view about the self-constitution of political community. According to this view, political self-constitution attests to the modern banishment of all forms of transcendence from the political domain; the self-constitution of a collective would denote a purely immanent principle of political organization. Antonio Negri has formulated this idea in a particularly forceful manner, asserting that [t]he emancipation of humanity from every transcendent power is grounded on the multitudes power to construct its own political institutions and constitute society. The foregoing analyses reveal, to the contrary, that a transcendent pole remains the indispensable presupposition of collective self-constitution. In effect, a collective can only constitute itself as a political community by way of a detour through a community that never has been and never can become a here and a now. More concretely, the European Union can only refer to itself in space and time, drawing its borders and defining its policies into the future, by referring to a community that is neither in space nor in time: Europe. This is precisely the significance of the passage in the preamble to the Treaty of Rome, and all later treaties, according to which the foundation of the European Union institutionalizes an ever closer union among the peoples of Europe. Returning to Negris assertion, without the reference by constituent power to a transcendent pole to which a community has no direct access, no collective selfhood would be possible; no political community could identify or constitute itself as a collective subject, nor a fortiori attribute institutions to itself. This does not imply that Europe is transcendent to the European Union in the Aristotelian sense of a finality understood as the inner measure of a historical process, such that, whether legislation or not may be attributed to the EU depends on whether such legislation unfolds this principle or deviates from it. This conception of political transcendence would amount to dissolving the paradox of representation by collapsing representation into the mere copy of an original. The paradox of representation entails, to the contrary, that, precisely because the origin is only accessible through its representations, the foundation of political community calls forth a past that was never a present, and a future that will never be a present. These radical forms of past and future are not deficient modes of collective historicity; they condition the possibility of history in the strong sense of a temporality shot through with unpredictability and improbability, the very features that, according to Arendt, define human action. But one would also misconstrue the transcendence of Europe if one were to view it as a simple finality that constituent power projects ahead of itself when attributing legislation to the European Union. The paradox of representation is a real paradox because, in the same way that representations cannot be collapsed into the origin, the origin cannot be collapsed into its representations. Europe is not simply at the disposition of the constituent powers that claim to represent it in the process of attributing legislation to the European Union. Were it otherwise, were Europe simply an picture that constituent power can project at whim, the European Union could not be a historical community in the strong sense noted above. Here is the unavoidable limit of all political moves to instrumentalize the finality of the European Union through orchestrated processes of identity-formation. The unavoidable claim that who acts, acts in the name of a collective, hence that the act is attributable to this collective, entails that an act of constituent power is a wager. Several aspects of a wager are important from the perspective of constituent power. First, the notion of a wager implies a risk, and this in at least two ways. For the one, that an individual or group of individuals acts in the name of the whole is but a claim that can only be validated by its addressees; as such, this validation escapes the control of who seizes the initiative. Notice the inverted symmetry: if the activity of constituent power discloses an irreducible passivity in political community, the notion of a wager reveals that a no less irreducible passivity is nested in constituent powers activity. For the other, the exercise of constituent power is risky because power must posit an interest that, despite intractable uncertainty about both past and future, can provide a durable principle for concerted action. As Arendt has pointed out, foundational acts must look to the stability and durability of political community. Second, a wager is a calculated or reasoned risk: whoever exercises constituent power must be able to posit an interest that, deemed to be common, can galvanize and guide concerted action, despite conflicting views of interested parties as to how that interest can be best achieved. Third, and as a consequence of these two characteristics, the exercise of constituent power implies a commitment to abide by the interest posited in the name of the whole, i.e. to act as a constituted power. This last feature resonates in the archaic sense of the term wager, which meant to give a pledge to take and abide by the result of some action. All of this goes into the act by which constituent power attributes legislation to a We. To recognize that the exercise of constituent power involves a wager is to acknowledge that, paradoxically, constituent power only becomes such when it succeeds in presenting itself as constituted power. If, as Boom notes, only with the hindsight of history do Storys arguments in Martin seem compelling and... inevitable, the same fate befalls Van Gend & Loos and Costa v. ENEL, which only become constituent acts of a new and own polity to the extent that, by accepting direct effect and the supremacy of EC law, national judiciaries and market citizens accept the ECJs invitation to view direct effect and supremacy as implied by the Treaty, that is, accept the ECJs invitation to view these rulings as the acts of a constituted power. This is, on my reading, the profound truth hidden in what has been flattened out into a merely technical term: an act of acquiring a community only becomes such when it has come to be recognized as an acquis communautaire. The paradoxical relation between constituent and constituted power suggests how the attribution of legislation by constituent power to a collective can take on the form of collective self-attribution. The act of constituent power institutes political community, not only by positing an interest that is held to be common to all members of a community, but also by positing who has a stake in that interest, that is, who is a member of the community. This, precisely, is what the central passage of Van Gend & Loos does: it claims, for the one, that the realization of a common market is the common interest of the European Community, and, for the other, that not only Member States but also market citizens are interested parties to the common market. This is tantamount to an act that at once identifies and empowers individuals as members of a community. But this identification/empowerment only succeeds if, and as long as, individuals retrojectively identify themselves as members of a community, that is, when they understand their acts as having been empowered by the Treaty. This point can be made in a way that calls attention to the attribution and the self of collective self-attribution. On the one hand, [t]o attribute an act of human behavior to the community means, as Kelsen phrases it, to understand it as an act authorized by the normative order. On the other, and this is what Kelsen neglects, attribution is first and foremost a reflexive act: by invoking direct effect, individuals do not attribute the Treaty to a collective from a third person perspective; they attribute it to themselves in the first person plural, understanding their acts as part and parcel of the ongoing process whereby a We gives shape to a common market. Indeed, to invoke direct effect is to participate in the process of determining what counts as the commonality of the common market. In short, the ECJs wager only succeeds to the extent thatand as long asindividuals identify themselves as market citizens. The ECJs claim about the collective self-constitution of a European polity is credible only in and through renewed acts of individuals that, acting as its officials or organs, identify themselves as members of a We. In the same way, only retroactively, when the state courts came to accept the American Supreme Courts reasoning, did We the people bespeak the enactment of a constitution by the American people in the singular. This amounts to recognizing that only retroactively can an act of constituent power be viewed as an act by the collective: the members of a community attribute it to themselves in virtue of recognizing it as an act whereby We founded a polity. Here, I believe, is a way of understanding collective agency in the law that addresses Kelsens fears concerning the hypostasis of collectivity, while recognizing the irreducibility of collective to individual subjectivity. 5. Preserving the Ambiguity As recent events have made plain, success can abruptly turn into failure. More precisely, success in the exercise of constituent power is profoundly ambiguous because, to borrow Kelsens vocabulary, although no legal order is such unless it is effective, validity cannot be collapsed into efficacy. That the founding acts of a polity depend, to be such, on their reiteration by the members of a polity implies that collective self-attribution can erode or break down. The French and Dutch nos to the Constitutional Treaty evidence in a spectacular way that members of a community can become estranged from and resist what is claimed to be our history and our community. Accordingly, acts of constituent power are irrefragably ambiguous: without them, no collective could set course, no integration would be possible; but the price they exact for their enabling function is that they also introduce doubt, disorientation, crisis, and disintegration as essential possibilities of political community. From this perspective, the current crisis confronting the European Union invites a renewed reflection on the problem of the self-constitution of political community, albeit in view of a theory of democracy. After all, democratic theories of all stripes and colors define democracy as collective self-government. The main thrust of the foregoing sections has been, however, to introduce a certain indeterminacy into this concept; as two examples will make clear, democratic theories generally overlook this indeterminacy. I will argue that, instead of attempting to abolish it, the task of a theory of democracy is to preserve andif possibleto radicalize the indeterminacy of collective self-constitution. Kutzs insight about collective self-government provides an initial and powerful confirmation of the importance of an indirect approach to the canonical definition of democracy. By reminding us that the self of self-government is a We, not an I, he exposes the misconception guiding all those brands of democratic theory that too quickly reduce self-government to the identity between those who rule and who are ruled. It is significant, in this respect, that authors of such different philosophical feather as Habermas and Schmitt endorse this reductive conception of democratic identity. Bert van Roermund also makes this point, but develops it at far greater depth, arguing that two distinct but interrelated forms of identity are at stake in democracy, namely identity in the sense of the coreferentiality of the rulers and the ruled, and in the reflexive sense implied in the notion of a collective self. While I endorse the insight developed in both of these papers, I want to explore more closely the implications of collective selfhood for a theory of democracy. In particular, Kutzs paper already takes for granted what I have been concerned to recover from its systematic occlusion by liberal theories of democracy, namely, the ambiguous conditions governing the genesis of a We. This occlusion is systematic because liberal theories of democracy lead back, in one way or another, to the social contract, with its trenchant distinction between facticity and validity, quaestio facti en quaestio juris. As they see it, the contractual genesis of a polity cannot be understood as a claim about the empirical genesis of a polity. To the contrary, the social contract is held to function as the standard against which the principles and institutions of existing polities can be measured in terms of their political legitimacy. By the same token, liberal theories of democracy rest on a stark alternative: a genetic account of a polity can be either normative, in which case it concerns itself with the criteria that settle what counts as just law, or descriptive, in which case it examines the concrete circumstances that give rise to an empirical legal order, mere law. But this bifurcation presupposes the realizability in principle of social contract, even if its realization must be postponed indefinitely in real world politics. In the absence of this presupposition, the normative claims made on behalf of social contract theory would be compromised. This is the point at which liberal theories of democracy can no longer postpone coming to terms with an inquiry into constituent power. This inquiry is the core of a third approach, the approach I have been developing in the foregoing sections, namely an inquiry into the general and necessary principles of the foundation of political community. One could speak, in this respect, of a transcendental analysis, which aims to uncover the a priori governing the genesis of any and every polity. By only allowing a choice between politics and law as the subject matter of applied moral philosophy, on the one hand, and empirical studies of political and legal institutions, on the other, social contract theories lose sight of what Lefort calls le politique and, with it, the domain of political philosophy proper. The whole thrust of the foregoing inquiry into collective self-constitution is to show that social contract theorys interpretation of the self-constitution of political community is untenable. The preliminary questions concerning who belongs to the We that joins together in a political community, and what are the interests the pursuit of which makes political community a meaningful venture, can only be settled by acts of constituent power. This insight entails that appeals to a procedural model of political rationality and to (the normative idea of) deliberation between citizens can neither explain nor substitute for constituent power; to the contrary, they presuppose it. Yet it would be a grave distortion of the political significance of constituent power to simply reduce it, as deliberative models of democracy are bound to do, to a merely deficient form of political action, namely political action that does not meet the formal requirements of deliberative rationality. I would argue, to the contrary, that the performative circularity governing Van Gend & Loos and Martin v. Hunters Lessee attests not so much to the absence of reasons but precisely to the creation of a reason for acting. Accordingly, a theory of constituent power deconstructs the two-step ploy of social contract theories, which distinguish and oppose dialogue and command, to then assign a positive normative charge to the former and a negative charge to the latter. Not only is a command ingredient to every political dialogue, by virtue of giving a reason for acting where there was none, but it also has a positive value to the extent that it enables dialogue. This enabling function of constituent power entails that the genesis of a political We cannot be conceptualized in terms of a simple opposition between facticity and validity. In effect, although the act of constituent power is never merely an arbitrary decision, it is unpredictable as to its occurrence and content. Constituent power reveals an irreducible element of positivity in a legal order, not only because there is always a tension between facticity and validity in real world politics, as Habermas holds, but because positivity is inscribed in rationality itself: the foundation of a political community reveals an irreducible facticity of validity. Yet more forcefully, constituent power eludes this hard and fast distinction because its exercise attests to a certain indeterminacy of facticity and validity at the genesis of political community: to a greater or lesser extent, constituent power spawns the distinction between a factual and a valid We, between actual and possible community. Crucially, the trenchant distinction between facticity and validity does not recognize that attribution is the central problem confronting a theory of democracy. For if the genesis of political community might give rise to problems of attribution, then, according to social contract, only in fact, that is, only given the constraints under which real world politics must operate. But in principle, that is, under the ideal conditions of social contract, the problem does not arise, or so we are told. To recognize that attribution is a problem in principle, and not merely in fact, is to acknowledge that a theory of democracy must bid definitive farewell to social contract if it is to find a way of dealing with this problem. Let us now turn to the account of democracy defended by Antonio Negri, which attempts to move beyond the limitations of liberalisms normative account of the genesis of political community. The very first line of Insurgencies condenses his theoretical endeavor: [t]o speak of constituent power is to speak of democracy. The link between constituent power and democracy is, as he sees it, the multitude. Having identified the multitude as the collective subject of constituent power, Negri redefines democracy as government of the multitude. This conception of democracy stands in polemic contrast to the traditional definition of democracy as government of the people. According to Negri, Hobbes is the first philosopher to distinguish between the people and the multitude, and to have taken the fateful step of linking democracy to the former, rather than the latter. Here are Hobbess words: The people is somewhat that is one, having one will, and to whom one action may be attributed; none of these can properly be said of a multitude. Negris strategy is to promote a radical theory of democracy by opposing the multiplicity of multitude to the unity of the people: Whereas the multitude is an inconclusive constituent relation, the people is a constituted synthesis that is prepared for sovereignty. The people provides a single will and action that is independent of and often in conflict with the various wills and actions of the multitude. Negris redefinition of democracy as constituent power, however perceptive in its critique of liberalism, falls prey to the same problem confronting liberal theories of democracy. Rather than rehashing it on a conceptual plane, let me illustrate the problem by briefly referring to a confrontation in the European Social Forum that met in Florence in November, 2002. For, arguably, the meetings of the European Social Forum are the most visible and radical sites of resistance by the multitude to the project of European integration as given form by the European Union. The Forum of Florence was marked by the effort of a revolutionary faction to marginalize an institutional faction composed primarily of NGOs. Our movement is not reformist; it is radical, declared Vittorio Agnoletto, former spokesman of the Genoa movements and member of the International Committee of the World Social forum, thereby forgetting the charter of principles of Porto Alegre, which stipulates that the Forum is an open meeting place, and that no one is authorized to express... positions that claim to be those of all participants. Notice the dilemma: a space remains open only as long as no claim is made in the name of a whole; but unless a claim is made in the name of the whole, unless someone effects a closure by seizing the political initiative to say what joins together the multitude into a people, no alternative political and legal order can be founded, by revolutionary means or otherwise. Revolt is a conditio sine qua non but not the conditio per quam of revolution. Unless the multitude becomes a unity in action, unless it ceases to be a multitude and becomes a collective subject, it cannot construct its own political institutions and constitute society. So, Hobbes is right: the notion of collective self-government implies that [t]he people is somewhat that is one, having one will, and to whom one action may be attributed; none of these can properly be said of a multitude. At the same time, his reference to attribution reveals that the real political and philosophical problem is not whether democracy is government of the people or of the multitude; the problem is the preposition of. For if attribution presupposes the unity of the agent, constituent power renders the unity of the people, hence the attributability of action to it, irredeemably problematic. No, democracy is not identical to constituent power, as Negri supposes. For, contrary to his assumption, the act that founds political community is an act of collective self-constitution understood as the constitution ofrather than bya collective self. An alternative to both Habermas and Negri must begin by resisting the temptation to conflate a theory of collective self-government with a theory of democracy. The former is the indispensable prolegomenon to the latter because attempts to theorize democracy as a political form can only begin after a theory of collective agency in the law and, in particular, an analysis of the paradoxical relation between constituent and constituted power. In contrast to social contract theory, which severs the connection between genesis and validity, and to Negri, who simply identifies the two terms, the theory of democracy I am advocating connects these terms by recognizing that, to be valid, legislation must take into account the fact that its claim to being an act of collective self-attribution always come too soon. Democracy is a particular way of disciplining the political use of possessive prepositions. In other words, democracy is the political form that renders the act of attributing legislation to a collective the central problem of politics. At a surface level, the question to which democracy is a response is this: Under what conditions can a legislative act be viewed as the act of a collective? But democracy gives this question a special twist. Instead of putting into place the ways and means that could ensure an uninterrupted chain of legitimation leading back from legislation to the people, democracy links legitimacy to a certain interruption of attribution, an interruption that suspends, up to a point, the inaugural act of attribution, in view of determining anew who is a party to the community and what are the interests that join its members. The same point can be made in another way. If collective self-constitution inevitably begins as the constitution of a self, rather than by a self, democracy is the political form that seeks to duplicate this genetic condition of political community, holding open the possibility of renewed acts of bringing about the constitution of a collective self. Democracy does not abolish the ambiguity of self-attribution; it preserves this ambiguity, elevating it to the principle of political action. Could we not see in the current crisis of the European Union an interruption of collective self-attribution, an interruption that returns all their urgency to the questions Who is a member of the community? and What are the interests that join its members? It remains to be seen what responses will be forthcoming to these questions. But this much seems certain: the ease with which the self-constitution of the European Union has been taken to mean the constitution of a community by a self has been challenged, such that once again the constitution of a collective self becomes the ineluctable issue confronting the Union.  Christopher Kutz, The Collective Work of Citizenship, in Legal Theory, 8 (2002), 471-494, 472.  Hans Kelsen, The Pure Theory of Law, trans. by Max Knight (Berkeley: University of California Press, 1970), 291.  See Hans Kelsen, Der soziologische und der juristische Staatsbegriff: Kritische Untersuchung des Verhltnisses von Staat und Recht (Aalen: Scientia Verlag, 1981 [1928]).  Kelsen, Pure Theory of Law, note 2 above, 297.  Ibid., 150, fn. 48. The problem of imputation/attribution already plays a central role in Kelsens Habilitationsschrift, the Hauptprobleme der Staatsrechtslehre (Aalen: Scientia Verlag 1984 [1911]). I cannot survey here the career of this concept in Kelsens thinking. See, to this effect, Kelsens own retrospective discussion of imputation in the foreword to the second printing of the Hauptprobleme, translated and published in Stanley L. Paulson and Bonnie L. Paulson (eds.), Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford: Clarendon Press, 1998), 3-22, as well as Stanley L. Paulsons article, Hans Kelsens Earliest Legal Theory: Critical Constructivism, ibid., 23-45, especially 33-40.  Hans Kelsen, Allgemeine Staatslehre (Vienna: sterreichische Staatsdruckerei, 1993 [1925]), 310. The quotation marks do not convey conceptual qualms about the appropriateness of qualifying the acts of officials as representational acts but rather signal Kelsens willingness to extend the notion beyond its traditional domain of parliamentary representation.  Kelsen, Pure Theory of Law, note 2 above, 154-155.  Crucially, Kelsen is not arguing that one must presuppose the basic norm, but rather that an act of norm-creation is the expression of law, rather than force, only if one presupposes the basic norm. In a recent article, Andreas Kalyvas argues that Kelsens pure theory of law systematically suppresses the problem of constituent power. Although I agree with several aspects of Kalyvass interesting article, I believe he fundamentally misinterprets Kelsens significance for a theory of constituent power. More generally, in this and other essays, Kalyvas overlooks the paradox of representation and its determinative role in the paradoxical relation between constituent and constituted power. See Andreas Kalyvas, Popular Sovereignty, Democracy and the Constituent Power, in Constellations 12 (2005) 2, 223-244. The analysis I am developing is akin to the interpretations of the basic norm defended by Emilios Christodoulidis, The Aporia of Sovereignty: On the Representation of the People in Constitutional Discourse, in Kings College Law Journal 11 (2001), 111 ff., and Bert van Roermund, Authority and Authorisation, in Law and Philosophy 19 (2000), 201 ff. See, further, my essay Dialectic and Revolution: Confronting Kelsen and Gadamer on Legal Interpretation, in Cardozo Law Review 24 (2003) 2, 769-798.  Kelsen, Pure Theory of Law, note 2 above, 292.  Hans Kelsen, Vom Wesen und Wert der Demokratie (Aalen: Scientia Verlag 1981 [1929]), 14-25. This is also Schmitts objection to Kelsen. But in the process of driving home this point, Schmitt falls prey to the second pitfall of a theory of collective agency, namely, the hypostasis of collective subjectivity.  Hannah Arendt, On Violence (New York: Harcourt Brace & Company, 1970), 44.  Immanuel Kant, Critique of Pure Reason, trans. by Norman Kemp Smith (Hong Kong: MacMillan Education, 1987), A 448, B 476.  Ibid.  Arendt, What is Freedom? in Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought (London: Penguin Books, 1993 [1961], 143-171, 166.  Hannah Arendt, The Life of the Mind/Willing (New York: Harcourt, Inc., 1978), 202.  Hannah Arendt, On Revolution (London: Penguin Books, 1990 [1963]), 181.  Arendt, On Revolution, note 16 above, 273.  Ibid., 171; 204.  Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace & Company, 1979 [1958]), 301.  Bert van Roermund has exposed a comparable problem in Jrgen Habermass discourse principle. See Bert van Roermund, Law, Narrative and Reality: An Essay in Intercepting Politics (Dordrecht: Kluwer Academic Publishers, 1997), 151.  Arendt, Personal Responsibility Under Dictatorship, in Hannah Arendt, Responsibility and Judgment, ed. by Jerome Kohn (New York: Schocken Books, 2003), 47. I deal at greater length with this difficulty in Arendts thought in Give and Take: Arendt and the Nomos of Political Community, forthcoming in Philosophy and Social Criticism (2006).  Das ganze Volk... ist stumm. Kelsen, Allgemeine Staatslehre, note 6 above, 315.  Case 26/62 Van Gend & Loos [1963] ECR, 12.  A similar circularity is at work in the crucial recital of Costa v. ENEL, The law stemming from the Treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the Community itself being called into question. See Case 6/64 Costa v. ENEL [1964] ECR, at 594. For, of course, in the very process of deriving the supremacy of the Community legal order from its status as an independent source of law, the Court attributes supremacy to the Community legal order, thereby instituting it as an independent source of lawand itself as the constitutional court of the EC.  Steve Boom, The European Union after the Maastricht Decision: Will Germany be the Virginia of Europe?, in American Journal of Comparative Law 43 (1995), 177ff.  Cited by Boom, The European Union after the Maastricht Decision, note 25 above, 188.  Ibid., 189.  Ibid.  Charles Haines, The Role of the Supreme Court in American Government and Politics 1789-1835 (New York: Da Capo Press, 1973), cited by Boom, note 25 above, 191. If, as Martin reveals, We the people can be coherently read on a confederational key, there is no doubt that an ever closer union among the peoples of Europe can be read in a federal key, that is, as presupposing a European people. The important point is, rather, that European integration does not imply a zero-sum game: the presupposition of a European people, as the collective subject of the European legal order, does not exclude the continued presupposition of European peoples, in the plural, as the collective subjects of national legal orders.  Christodoulidis, The Aporia of Sovereignty, note 8 above, 130. I develop this shared insight in a way that differs substantially, in some aspects, from Christoulidiss views on law and politics.  Maurice Merleau-Ponty, Phenomenology of Perception, trans. by Colin Smith (London: Routledge, 1989), 242. I owe a great deal to Bernhard Waldenfelss analyses of the paradoxical temporal structure of Nachtrglichkeit, which he has discussed, amongst others, in Deutsch-Franzsiche Gedankengnge (Frankfurt: Suhrkamp, 1995), Antwortregister (Suhrkamp, 1994), and Bruchlinien der Erfahrung (Frankfurt: Suhrkamp, 2002).  Martin Heidegger, Being and Time, trans. by John Macquarrie & Edward Robinson (Oxford: Blackwell,1962), 65.  Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000), 165. Negri draws here, of course, on Schmitts interpretation of political theology. See to this effect Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1928), and Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. by George Schwab (Cambridge, Mass.: The MIT Press, 1985).  In terms of the philosophical debate, it would be possible to read Negris and other related attempts to conceptualize political community by collapsing transcendence into pure immanence in the light of Heideggers discussion of the Cartesian reduction of the world to a picture (Bild) or representation (Vorstellung), where, in its Cartesian form, to represent means of one self, to set something before one and to make what has been set in place [das Gestellte] secure as thus set in place. See his essay The Age of the World-Picture, in Martin Heidegger, Off the Beaten Path, trans. by Julian Young and Kenneth Haynes (Cambridge: Cambridge University Press, 2002), 57-85, 82. In terms of the political debate, it would be interesting to review the literature concerning the finalit of the European Union, not least Joschka Fischers well-known speech at the Humboldt University of Berlin, in the light of the paradoxical relation between transcendence and immanence. For a perceptive analysis of this issue, see Neil Walker, The Idea of a European Constituti0n and the Finalit of Integration, forthcoming in Bruno de Witte (ed.), The Emerging European Constitution (Oxford: Oxford University Press, 2005).  Boom, The European Union after the Maastricht Decision, note 25 above, 191.  See my article, Acquiring a Community: The Acquis and the Institution of European Legal Order, in European Law Journal 9 (2003) 4, 433-450.  Kelsen, Pure Theory of Law, note 2 above, 150.  See, amongst others, Jrgen Habermas, Between Facts and Norms, trans by William Rehg (Cambridge, Mass.: The MIT Press, 1996), and Carl Schmitt, Verfassungslehre, note 33 above. Generally, this reductive move is part of the move to play off representation against citizen participation. A good example of this is Castoriadiss otherwise magnificent essay, La polis grecque et la cration de la dmocratie. See Cornelius Castoriadis, Domaines de lhomme: Les carrefours du labyrinthe 2 (Paris: Seuil, 1986), 325-382, 361.  Bert van Roermund, First-Person Plural Legislature: Political Reflexivity and Representation, in Philosophical Explorations 6 (2003) 3, 235-252. Drawing on analytical studies of collective intentionality, in particular Bratmans essays on shared cooperative activity, and on phenomenological studies on identity, in particular those of Ricoeur and Waldenfels, this article develops a general model of the reflexive structure of legislative speech acts, distinguishing and relating four different functions of the first person plural pronoun, We.  In fairness, this omission is entirely justified in the context of the problem Kutz addresses in his paper, namely, proving that collective action is irreducible to individual action.  Claude Lefort, Democracy and Political Theory, trans. by David Macey (Cambridge: Polity Press, 1988).  Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. by Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999), 1.  Ibid., 76.  The Citizen, Ch. XII, sect. 8, in Thomas Hobbes, Man and Citizen (Indianapolis: Hackett Publishing Company, 1991), 250.  Hardt and Negri, Empire, note 33 above, 103.  L. Caramel, Forum de Florence: offensive de la gauche radicale, in Le Monde, November 16, 2002.  For a perceptive critique of Negris theory of constituent power, see Bert van Roermund, Constituerende macht, soevereiniteit en representatie, in Tijdschrift voor filosofie 64 (2002), 509-532.  Hardt and Negri, Empire, note 33 above, 165 (emphasis added). Loughlin draws an analogous conclusion: The [multitude]... lacks political agency; such agency is intrinsically representative. See Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 56.  Such is the purport, I believe, of an extraordinary passage in De Cive, which follows immediately after Hobbess remark about the people and the multitude: The people rules in all governments. For even in monarchies the people commands: for the people wills by the will of one man; but the multitude are citizens, that is to say, subjects. To the extent that, in his view, monarchies, aristocracies and democracies are all forms of government whereby the people acts as a unity, Hobbes can be read as intimating that self-government is the proper subject of a general political theory of collective action. In other words, Hobbes is correctly arguing that collective self-government is not, of itself, the distinguishing feature of democracy. See Hobbes, The Citizen, note 44 above, 250.  Ernst-Wolfgang Bckenfrde, Demokratie als Verfassungsprinzip, in Staat, Verfassung, Demokratie (Frankfurt: Suhrkamp, 1992), 289-375, 299. 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