doi: 10.1111/1467-8675.

12154

Possibility, Actuality, Rupture: Constituent Power

and the Ontology of Change
Hans Lindahl
Dedicated to Bernhard Waldenfels, on the occasion of
his 80th birthday.

1. Introduction
Constituent power is the privileged locus of modern
thinking about the emergence of legal orders. It refers
to the capacity to bring forth a new legal order, whether
by revolutionary means or otherwise, in contrast to
the capacity to enact legal norms within an extant
legal order: constituted power. Accordingly, a theory
of constituent power must address at least two general
questions. What sense are we to make of the capacity
to enact a novel legal order implied in the notion of
constituent power? What sense of novelty is at stake in
constituent power? I will argue that parsing constituent
power into its two ingredient terms with a view to
examining their meaning and significance demands
addressing two further and correlated questions, the
answers to which lay bare the ontologies of legal order
underpinning all and sundry theories of constituent
power: what is the temporal structure of law-making,
and in what sense can it bring about a fracture or rupture
in time? How is law-making related to possible and
actual legal order, and in what sense can law-making
call forth or bring into being a novel legal order?

2. The Secularization of Divine

Omnipotence?
I begin by introducing the ontological issues at the
background of modern theories of constituent power.
Such an introduction seems necessary because it is not
obvious that these theories presuppose anything like an
ontology. Inasmuch as constituent power is a mode of
normative power, and normative power is defined as the
capacity to change a normative state of affairs, it seems
that all further analysis and debate about constituent
power can dispense with an ontological inquiry.
Yet even this stripped down characterization of normative power already evokes the ontological issues at
stake in constituent power. Indeed, the notion of change
is of central importance to Western philosophical
thinking about the emergence of beings. In Book VII of
the Metaphysics Aristotle summarizes the main features
of his theory of change as follows: [E]verything that
comes to be comes to be by the agency of something and
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from something and comes to be something.1 More

than two thousand years later, Marx was to state, in
the 11th Thesis on Feuerbach, that Philosophers have
hitherto only interpreted the world in various ways;
the point is to change it.2 In both cases the concept of
change turns on issues of possibility and actuality, and
of temporality. Yet while the concept of change outlined
by Aristotle is incompatible with the notion of constituent power in modern political and legal thinking,
the notion of change that undergirds the 11th Thesis on
Feuerbach drives all calls to the revolutionary exercise
of constituent power in the modern era.
I will later show why the barebones characterization
of normative power as the capacity to change a normative state of affairs cannot do without an ontology. For
the moment, let us examine how philosophical thinking on change, in the fundamental sense of a bringing
forth into being, prepares the way for modern theories
of constituent power.
Consider the cited passage of the Metaphysics,
which captures the essential features of the ontology
prevalent in Antiquity. This passage is of particular
interest to a theory of constituent power because
praxis, for Aristotle, has no ontological productivity
of its own,3 a productivity that Aristotle restricts to
art (techne) in the sentence immediately preceding the
cited passage: Of things that come to be some come to
be by nature, some by art, some spontaneously.4 From
the point of view of change, art and nature are the same,
namely efficient causes, insofar as the substrate that
changes matter is conceived in relation to the end
of the changing, itself conceptualized as form and reality. Accordingly, the relation between matter and form
yields the ultimate elements giving account of being as
being, and of the ontologically grounding meaning of
change: the determination of a determinable.
This is crucial to clarifying the meaning of making
apposite to techne.5 Indeed, art is like nature because
the form bed into which the carpenter coaxes the pile
of wood lying before him is already given in advance,
no less than the forms of nature. Aristotle notes that if a
house had been a thing made by nature it would have
been made in the same way as it is now by art; and if the
things made by nature were made not only by nature but
also by art they would come to be in the same ways as
by nature.6 He adds: art in some cases completes what
nature cannot bring to a finish, and in others imitates

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nature.7 The convertibility of art and nature determines

the making of techne as reproduction: making is
mimesis, imitation, repetition of the existent world.8
This shows that, for the Greeks, the actual exhausts
the possible. Indeed, if what comes to be comes to be
from something and comes to be something, then these
two stages of change its commencement and its
terminus are the essential moments determining the
ontological significance of change. Aristotle designates
them with the terms dynamis and energeia, possibility
(potentiality) and reality (actuality):
Since things are said to be in two ways, everything
changes form from that which is potentially to that
which is actually . . . all things come to be out of that
which is, but is potentially, and is not actually.9

Making, as paradigmatic for human intervention in the

emergence of a being, means that art is the cause that
initiates the actualization of the possible and nothing
more.
This nutshell account of Aristotles theory of
substantial change functions as a contrasting foil for
the ontological presuppositions of modern theories
of constituent power. Four aspects are important.
First, the Aristotelian concept of possibility denotes the
not-yet-real. The actual or real comes, when viewed as a
temporal relation, after the possible, and as the terminus
of a process of actualization. Second, actuality is the
ontologically primordial term of the relation. Possibility
is intelligible only with respect to the end-point of the
becoming, for example, a house or bed, whereas actuality is intelligible in itself. Being as actuality is being
in its plenitude, such that the world, in all its fullness,
is binding for human beings. Third, the ontological
primacy of the actual entails the temporal primacy of the
present, even though the present is a re-actualization of
the past, thereby attesting to the revolutionary character
of time in the original sense of the term: a return of
the past.10 Fourth, the relation between possibility and
actuality is unidirectional: the possible is defined by its
directedness towards the actual, thereby excluding the
opposite direction of change, namely, the actual as the
point of departure for the enactment of the possible,
as in Marxs concept of change. Indeed, a fundamental
transformation of the structure of being as being, and of
the human relation to being, is required if the modern
notion of constituent power is at all to be possible.
This fundamental transformation has its point of
inception in Scholastic philosophy, namely, the concept
of being articulated by the characterization of divine
power as a making. Aquinas, when laying out the
plan of the Summa contra Gentiles, announces the
subject matter to be treated under the general heading
of divine power: the bringing forth of things into
being.11 Bringing into being receives its fundamental


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determination as a making (facere) or doing (agere).

This determination decides on the nature of an investigation into divine power, namely, its ontological character.
The task of eliciting the being of beings finds its conceptual node in the clarification of the relation between the
made and the making. Aristotelian becoming is drastically transformed in a philosophical context in which
creatio ex nihilo acquires pride of place. Scholastic
philosophy seeks to secure a characterization of being
as made (ens creatum) when making, hence power, no
longer operates on a pre-existent matter. As a result,
the fundamental Scholastic modalization of being,
namely makeable-being (possibility) and made-being
(existence), gains a radical nature entirely foreign to the
distinction between dynamis and energeia. Indeed, the
ontological import of making is articulated in the sole
limitation to divine omnipotence: Whatever does not
involve a contradiction is in that realm of the possible
with respect to which God is called omnipotent.12
Consequently, the basic structure of made-being has
a twofold determination. For the one, made-being qua
being entails non-contradiction; for the other, it appears
as the makeable, in its relation to God. In turn, madebeing the existing world is dependent on divine
making in a twofold manner. On the one hand, madebeing depends on divine power because it is contingent
that there is a world, rather than nothing. Divine power
functions here as the causa essendi required for bringing
something into existence from nothing, a transcendent
condition that does stand in a relation of continuity with
contingent being. On the other hand, made-being depends on its maker for what it is. If mimesis, for the
Greeks, meant imitation in the sense of reproduction,
the agere of divine omnipotence means pure productivity. This entails, when coupled to non-contradiction
as the sole condition of possible-being, that God could
have created other worlds than the extant world. Making
not only implies bringing into being in the radical sense
of substituting esse for the nihil, but also bestowing the
world with a determinate order that, while it is binding
on human beings, God could have created otherwise.
Notice, furthermore, that divine creativity introduces
the notion of a temporal rupture to philosophical thinking about action and power. The present is ontologically
primordial for theology in a sense radically different
from that of Antiquity: the human present leads back
to an absolute present; the creation, which inaugurates
time. Rather than evoking the plenitude of being, the
absolute present of creatio ex nihilo is marked by the absence of being, by a realm of absolute possibility waiting
to be determined by its creator, subject only to the condition of non-contradiction. Crucially, the dependency
of created being does not cease with the act of creation:
the world order continues to be radically dependent on
its maker for its continued preservation in being. As

Constituent Power and the Ontology of Change: Hans Lindahl

a result, the human present continuously stands in the
shadow of an absolute present, which would manifest
itself in the form of a divine intervention that, casting
the extant world back into the abyss of the nihil, calls
forth an entirely new world order.
This is the ontology to which Schmitt appeals when
claiming that constituent power, like all central concepts
of state law, is a secularized theological concept.13 On
this view, God is transposed into the people, as the creator of a legal order; the world order is transposed into
the legal order; the ontological productivity of divine
making is transposed into the ontological productivity
of human law-making. The legal order is continuously
dependent on the people in a twofold sense: that there is
a legal order and what it is as a legal order. The transcendence of God with respect to the world He has created
is transposed into the transcendence of the people with
respect to the legal order it has enacted, such that the
people can at any time withdraw its support from the
legal order and, exercising a constituent power which
cannot be exhausted by any of its legal creations, calls
into being a new legal order. The absolute present of
creation, in which divine power attests to a purely productive making, is transposed into the revolutionary act
that, as the immediacy of a pure present, cuts all links
with the past and inaugurates an entirely new future.14
Schmitt is right to aver that the concept of constituent
power, and the ontology that animates it, would be unthinkable in the absence of theological thinking. But this
does not mean that constituent power is the secularization of divine omnipotence. Hans Blumenbergs critique
of the secularization theorem shows, in particular, that
the modern reception of the Scholastic modalization of
being can best be understood as a new answer to the
radical problem of contingency: self-preservation.15 In
effect, divine power functions as a boundary concept
in relation to which modernity comes to interpret the
human relation to the world. The essence of the transition leading into modern philosophical thinking can be
summarized as follows. While human power, like divine
power, is conceptualized in terms of its ontological productivity, that is, in terms of its capacity to bring forth
into being, human making is determined in a twofold
way by the agere of actus purus: negatively, as noncreative, as conditioned in its activity by a pre-given
world; positively, as productive, as supplying the form
(order) of the realized. Whereas techne, as an efficient
cause, only initiates the forming of matter, human action
is the formal cause of reality in modern philosophical
thinking, hence it is a making that is ontologically productive in a strong sense because it contributes one of
the two ingredients of the being of beings.
This characterization of the ontological productivity
of human action reveals four key differences with respect to divine power and the Scholastic modalization


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165

of being. First, human activity depends on a world that

human beings do not create from nothing, and which
concretely conditions their activity. In contrast with the
unconditioned production that defines divine omnipotence, human power is conceptualized as conditioned
production or dependent spontaneity, as Kant puts it in
the second edition of the first Critique.16
Second, the ontological productivity of human
power consists in its capacity to give a form to reality: to order it. Instead of regressing from real to logical
possibility, as required by divine omnipotence, modern
conceptions of human action recognize that its ontological productivity consists in progressing from logical to
real possibility, where the former is that which is not
self-contradictory. If, for Scholastic philosophy, the extant world is one of the possible worlds that meets the
condition of non-contradiction, modernity is premised
on the idea that, in the face of an extant world rife with
internal contradictions, human action can call into being
a world that meets the condition of non-contradiction.
Third, as human being finds itself in a world given to
it as the condition for its action, its productive relation
to the world is necessarily immanent rather than transcendent. We are always already in-the-world, a world
that, having forfeited its binding character for us to the
extent that it is self-contradictory, is also the world we
can act upon, ordering it in a new way. Crucially, the
ontological productivity of human action is no longer
limited to techne, as in Aristotle; dependent spontaneity becomes the common root of theory and practice in
modern philosophical thinking.
Fourth, the concept of dependent spontaneity
is pivotal to the development of a new concept of
freedom, which Kants Grundlegung characterizes as
the destructive and constructive moments of autonomy.
If humans are initially given over to a world order
that appears as binding to them and as determining the
scope of their possibilities (heteronomy), the initial,
destructive moment of freedom consists in rendering
the extant world order non-binding and determinable
for human action. In its second, productive moment,
human action determines the determinable, giving it
an order that meets the condition of non-contradiction
(a universal law).17 This interpretation of freedom
finds its most significant political expression in Marxs
account of revolutionary praxis. In its first, negative
moment, revolutionary praxis deploys a critique of
the ideology that makes of capitalism an allegedly
necessary world order. This prepares the way for the
positive moment of revolutionary praxis that, acting
upon an oppressive world that has lost its binding
character, brings forth a new and universal world order
rid of internal contradictions: communism. On this
reading, constituent power is the political manifestation
of freedom as autonomy, the bringing forth into being

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of a universal social and legal order: emancipation.

In its own way, this reading of constituent power remains
faithful to the Scholastic doctrine of the transcendentals:
ens et unum et verum et bonum convertuntur.

3. Authoritative Collective Action

and Constituted Power
This is, I believe, the ontology underpinning much of
contemporary political and legal theorizing about constituent power. But instead of assessing this ontology
head on I favor a more indirect approach that, focusing on a concrete analysis of legal ordering, seeks to
establish whether and how this ontology could provide
the elements for a defensible reading of what is at stake
in constituent power. For, as noted earlier, it remains
unclear how an ontology of constituent power can be
linked to normative power in its minimalistic interpretation as the capacity to change a normative situation, let
alone to the legal doctrine. In short, there is no guarantee that the change of revolutionary praxis, as articulated
by Marx, has anything to do with the stripped-down notion of change involved in law-making in general, and
constitution-making in particular. In fact, need we at
all take for granted that constituent power is a notion
central to thinking about law?18
Addressing these objections requires bracketing for
the time being the ontological style of questioning I
have privileged and taking up residence in legal theory
proper, focusing directly on the permutations of legal
ordering which the doctrine parses into constituted and
constituted power. In particular, we need to describe
concretely the correlation between possibility and actuality, on the one hand, and temporality, on the other,
as revealed by these two modes of legal ordering. Only
then will it be possible to ascertain whether and how a
theory of constituent power is, at bottom, an exercise in
political ontology.
I argue in this article that legal order can best be
described in terms of what I will call authoritative
collective action (ACA). On this view, legal orders are a
species of collective action, which Margaret Gilbert captures with the expression we together, and which she
contrasts to we each.19 Consider a scenario in which
several people are queuing up to board an airplane. And
now compare it to a second scenario in which a group of
friends queue up for a joint trip. If someone were to ask,
What are you doing? the answer might run we are
queuing up for the departure. But the use of the indexical we is quite different in these scenarios. In the first,
it functions as an aggregative term: each of a manifold
of individuals stands in the queue, waiting to be called
on board, regardless of what the others are doing: we
each. In the second, we functions as an integrative


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term; a manifold of individuals are a group of friends

going on a trip: we together. Imagine, furthermore,
that in the first scenario one of the individuals misses
the boarding call and she realizes what has happened
only when it is too late. She would have no standing
to rebuke the other passengers for not having called her
attention to the boarding call; they had no obligation to
do so. In the second scenario the stranded friend would
certainly be entitled to rebuke her fellow travellers. See
here the elementary structure of entitlements between
members which attaches to action by social groups
plural subjects, to use Gilberts favored expression.
Legal orders are a species of collective action, or so I
hold. By the same token, legal obligations and sanctions
are a species of the entitlements and rebukes that emerge
between participant agents in the course of collective action. The nature and scope of legally relevant behavior,
as well as the rights and obligations that accrue to it, are
internally related to the normative point of joint action:
that which our joint act ought to be about. Significantly,
the normative point of joint action under law may itself
be open to conflict, as occurs with other forms of social
groups. But in contrast with the latter, legal orders involve second-level authorities that monitor participant
agency with a view to realizing the (transformable) normative point of joint action. By monitoring I mean that
second-level authorities lay down general or individual norms that are a default setting of the normative
point of joint action. Monitoring includes decisions in
the face of conflict among the participant agents about
the course that their joint action ought to take. Legal orders also typically involve second-level authorities who
uphold joint action: they take the appropriate steps to
ensure that participant agents comply with joint action
and its normative point, bringing sanctions to bear on
non-compliers.
In what way does ACA shed light on the manner in
which legal orders structure the relation between possibility and actuality? The first point to bear in mind is that
legal possibilities are a species of practical possibilities.
Indeed, ACA opens up a realm of possibilities of action
for participant agents, a repertoire of ways of involvement with others and with things, and which participant
agents can instantiate actualize or realize. Crucially,
practical possibilities entail the first-person perspective
of an actor, both singular and plural. For the one, legal
possibilities appear as my own or anothers possibilities,
possibilities I or someone else can realize in the course
of participating in ACA. For the other, and precisely because my participation is part and parcel of joint action,
my own possibilities are also our own possibilities, the
possibilities we can actualize in the course of realizing
the normative point of ACA.
Two further points merit attention here. First, ACA
opens up a realm of practical possibilities while closing

Constituent Power and the Ontology of Change: Hans Lindahl

down other practical possibilities. Depending on the
normative point of ACA, certain kinds of behavior are
singled out as relevant and important with a view to
realizing it; all other forms of behavior are discarded and
pushed beyond the pale. Notice, in this respect, that what
is excluded is not simply illegal behavior, for illegal
behavior is itself relevant and important to ACA; rather,
what is excluded from ACA is behavior irrelevant and
unimportant for the realization of its normative point.
Secondly, as in modal logic and logical possibility, the
principle of non-contradiction plays a role in assuring
the coherence of ACA, but in the form of practical noncontradiction. One cannot, for example, both manage
the property of another and receive it in donation.
More could be said about ACA. But these considerations suffice to show how legal power relates to
possibility and actuality. In effect, the legal term for
a practical possibility is competence. But I prefer the
notions of empowerment or authorization to that of
competence, such that the realm of practical possibilities that ACA opens up is the realm of actions which
participant agents are empowered to realize. See here
the elemental relation between power and possibility
and actuality proper to ACA: in a legal sense, power
involves the authorization to do so something, that is to
actualize a practical possibility made available by ACA.
This is legal power in a broad sense. In a narrower
sense, legal power is a form of normative power in the
stripped-down version indicated at the outset of this
chapter; namely, the capacity to change a normative
situation by enacting legal norms. The broad sense of
legal power includes its narrow sense. Indeed, one of the
ways to actualize the practical possibilities that an agent
is empowered to instantiate is for the agent to enact
legal norms, thereby changing the normative situation
of the addressees of the norm. To change the latters
normative situation is, in turn, to change what they are
empowered to do: their practical possibilities (which,
in turn, can be an authorization to enact norms). This is
the authoritative dimension of ACA I referred to earlier,
in which second-level authorities monitor collective
action by laying down legal norms that establish the
default setting of the normative point of joint action.
This notion of legal power is proper to constituted
power. In the same way that we must distinguish
between the broad and narrow senses of legal power,
so also should we distinguish between the broad and
narrow senses of constituted power. As to the former,
constituted power is the actualization of a practical possibility authorized under ACA. In this broad sense, all
participant agents in ACA exercise constituted powers.
As to the latter, constituted power is the enactment of
legal norms by second-level officials authorized to monitor ACA. The latter falls under the scope of the former
because, as noted earlier, one of the ways to actualize an


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authorized practical possibility is to enact a legal norm

that changes the normative situation of its addressees.
These broad and narrow conceptions of legal power
deploy a relation between possibility and actuality
that runs parallel to the unidirectionality going from
dynamis to energeia. Abstracting from the question
concerning the ontological productivity of human action, Aristotle provides a phenomenologically accurate
description of how the exercise of constituted power
relates to possibility and actuality; namely, possibility
as the-not-yet-real-but-realizable. Notice, moreover,
that by making use of the practical possibilities made
available to them by ACA, the acts of participant
agents repeat prior acts that actualized those practical
possibilities. Participant agency manifests itself as
reproducing the extant legal order, such that there is
a continuity linking together past, present, and future
as the temporal modes of the group agent. Insomuch
that it seems to do no more than reproduce the extant
legal order, the exercise of constituted power appears
to have no ontological productivity of its own. To
this extent, the Aristotelian notion of mimesis offers
a phenomenologically accurate description of the
experience of temporality proper to constituted power.
This rough and ready account of constituted power
will need to be rendered more complex at a later stage
of the argument. But it will do for the time being. In any
case, and to conclude this section, if the re-actualization
of practical possibilities as authorized under ACA describes the phenomenon of constituted power, so also,
conversely, constituted power is shorthand for a specific
manifestation of the correlation between possibility and
actuality and collective temporality deployed by ACA.

4. Representation and the Paradox

of Constituent Power
The foregoing section could offer an account of constituted power because it took for granted that a legal
collective has already emerged, with a view to picking
out and examining the basic features of legal power that
accrue to ACA. A theory of constituent power comes
into its own when one drops this assumption and asks
how ACA arises.
The heart of the matter is this: the concept of constituent power is indispensable to a theory of legal ordering because there could be no ACA unless someone
seizes the initiative to say we on behalf of the individuals who would act jointly, and in such a way that this
initiative provides a preliminary determination of the
normative point of ACA and of those who are or could
become participant agents in it. Bernhard Waldenfels
incisively formulates the core of what is by now a wellestablished critique of social contract theory and all of

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its ramifications and permutations: A we [cannot] say

we . . . A political group only finds its voice by way
of spokespersons that speak in its name and represent it
as a whole.20 Because legal collectives are irreducible
to the (variable constellation) of the participant agents
that compose them, the legal collective is absent as a
unity, which is always and perforce a represented unity.
This holds irrespectively of whether the initiative takes
the form of a revolution or of the slow emergence of a
legal collective, which Anglo-Saxon theorists are fond
of extolling when writing about common law.21
Moreover, the initiative to act on behalf of the
whole must be seized because there can be no prior
authorization to this effect by its addressees. Only
thanks to this initiative can individuals come to view
themselves as participants in a plural subject, such that
their acts can be attributed to a collective as a whole,
including the mandate participant agents might grant to
second-level officials via elections, for example
to enact legal norms that monitor the normative point
of ACA. In short, without this initiative there can be no
constituted powers, either in the broad or in the narrow
sense indicated in section 3. So what legal sense can be
made of this initiative? What does it say about power
as constituent power?
Kelsens theory of the basic norm exposes this
problem and attempts to deal with it. He argues that to
attribute an act to a legal collective implies that the act is
authorized by a higher level norm. This regressive movement, leading from the authorized act to the authorizing
norm, ultimately leads back to a first constitution
enacted by an assembly or individual. But, legally
speaking, the notion of a first constitution is an oxymoron. If an act is to be an act of constitution-making,
then it must proceed from an earlier constitution. If, on
the other hand, the act creates a first constitution then
the latter cannot be a constitution, but is rather a mere
command, such that right collapses into might. Because
empowerments or authorizations are the legal manifestation of practical possibilities made available by ACA,
Kelsen effectively unveils a paradox at the heart of
legal power: constituent power is the im/possible origin
of legal possibilities. By im/possible I mean that the
initiative that gets ACA going is itself neither legally
possible nor impossible because it is an act that opens
up and closes down legal possibilities. More generally,
Kelsens regressive line of inquiry shows that ultimately
the (il)legality of acts cannot be safeguarded from within
the legal order itself; because the law only grasps acts
as legal acts, hence possibilities as legal possibilities, an
act can initiate a legal order only if it is retroactively interpreted as an authorized or empowered act, that is, as
an act of constituted power. Such is the task of the basic
norm.22


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The problem of retroactivity reintroduces the

problem of temporality into an account of legal power.
Whoever seizes the initiative to constitute a group
claims to act on behalf of a we, hence avers that
there is already a group on whose behalf the individual
acts. The constituent act that gives rise to a new legal
order retrojects the emergence of this order into the
past, such that the emergent legal order is deemed
to be the implication of an origin that has already
come to pass. Notice the temporal paradox inscribed
in representation, a paradox that is foreign to both the
Greek mimesis and the Scholastic actus purus: the re
of representation does not refer to what supervenes
or follows an original present and presence, a now
in which a manifold of individuals gather together to
constitute themselves as a group in the plenitude of a
simple and immediate presence to themselves. Instead,
and paradoxically, an act originates a collective by representing its origin. Constituent power has the temporal
structure of an anticipative retrojection: what is said to
already have taken place is what is yet to come.23
The paradox of representation is, consequently, also
the paradox of constituent power. On the one hand, the
group that would constitute itself as a legal collective
by enacting a new legal order is in fact constituted as a
group. Whoever seizes the initiative to speak on behalf
of a putative we, projecting a collective image that
allows a manifold of individuals to identify themselves
as the members of a group oriented to realizing a certain
normative point under law, is the constituent power
of a legal order. But this initial act of identification
and empowerment only works as a constituent act if
its addressees retroactively identify themselves as the
members of the collective by exercising the practical
possibilities made available to them by ACA. Hence, an
act succeeds as the exercise of constituent power only if,
retrospectively, it appears to be the act of a constituted
power. This paradox entails that only retrospectively
is a collective a we; it begins, ever anew, as an us:
it emerges into being as the object of an interpellation
before it can become the subject of action, and in such a
way that it never entirely leaves behind its heteronomous
origin. In this precise sense, the emergence of a legal
order is an event, not the act of a collective subject. By
the same token, constituent power only manifests itself
indirectly, through its effects, that is, after the event.
Before examining the implications of the paradox of
constituent power at greater length, let me first distinguish two different ways in which it is effectual. In the
first, constituent power transforms an extant legal order;
in the second, it calls forth a new legal order irreducible
to extant legal orders. While both modes of constituent
power mark the emergence of legal order, the first speaks
to a weak, the second to a strong form of novelty. I call

Constituent Power and the Ontology of Change: Hans Lindahl

these, respectively, secondary and primary constituent
power, albeit with a meaning that is quite different from
that of the doctrine of constitutional law, for which it
refers to the amendment of a constitution.
The transformation of legal orders is linked to the
relation between a legal order and the normative point
of ACA. An extant legal order, as explained in section 3,
is the current default answer to the fundamental practical question confronting a collective: what ought
our joint action to be about? Accordingly, the default
setting of the normative point of ACA can be changed
in the course of joint action if it appears that, under
new circumstances, this default setting is inadequate
to realizing the normative point of joint action. In some
cases, resetting the default setting of ACA will appear
as part and parcel of ordinary politics. The normative
point of ACA remains more or less taken for granted,
such that at issue are the proper means to realize the
normative point. We can speak in such cases of the
exercise of constituted power, and of a first sense in
which normative power involves the capacity to change
a normative state of affairs. Importantly, the change of a
normative state of affairs wrought by constituted power
already moves on the ground of an ontology according
to which the actual does not exhaust the possible: a legal
order is but the default setting of the normative point
of joint action. In other cases, however, the new default
setting of the normative point also transforms the normative point of ACA. To the extent that the addressees
of this new interpretation of the relation between the
default setting and the normative point of ACA take up
and instantiate the practical possibilities opened up by
this transformation, a weak mode of constituent power
has transpired. It is a weak mode of constituent power
and a weak form of novelty because, although there is
a rupture with the past, the new possibilities which are
called forth are retrospectively deemed to remain within
the circle of the collectives own legal possibilities.
Constituent power is also associated with a strong
form of novelty that gives rise to a new legal order irreducible to extant legal orders, either by breaking away
from them or destroying them. An example of the former would be the new lex mercatoria which, wresting
itself loose from the commercial law of states, claims an
independent validity of its own, even though arbitration
awards proffered under its aegis continue to depend
on state enforcement. The paradigm of the latter is, of
course, the revolutionary enactment of a new legal order
on the ashes of order it overturns. Both cases point to a
rupture that opens up a novel first-person plural perspective of a we. The emergence of a novel ACA makes
available an interconnected realm of practical possibilities for participant agents that is not available in other
legal orders. These novel practical possibilities may
include substantive empowerments or authorizations


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incompatible with action authorized by another legal

collective: at issue is another normative point, not
merely the transformation of a collectives normative
point. They also comprise empowerments to monitor
ACA by enacting general or individual legal norms that
fall outside the chain of second-level empowerments of
an extant legal order. This, I think, is what Kelsen has
in mind when noting that a legal revolution can leave
in place the substantive law of the prior legal order,
only changing the authorities empowered to enact legal
norms.24
The question we must now address, to conclude this
section, concerns the nature of the rupture wrought by
constituent power. As we have seen, ACA cannot empower participant agents without also disempowering
them. This disempowerment remains more or less concealed in the course of constituted power, in which there
is a continuity between past, present, and future: I do
(present) what I have been empowered to do (past) with a
view to realizing my own ends and those of the collective
(future). The continuity of past, present, and future has
its correlate in the characterization of the possible as thenot-yet-realized-but-realizable. By contrast, the exercise of constituent power marks a temporal rupture and a
rupture of possibilities. Constituent power suspends the
normal course of ACA by actualizing practical possibilities beyond the realm of practical possibilities that had
been made available to participant agents by ACA. What
had not been possible within the realm of practical possibilities opened up by an extant legal order retroactively
manifests itself as possible and calling for realization.
A precise characterization of the rupture proper
to constituent power turns on the retroactivity of
constituent power. As concerns secondary constituent
power, if the scope of practical possibilities available to
a collective were given in advance, then a collectives
own possibilities would concern the actualization
of forms already given in the collectives point of
departure, and which were simply held in reserve until
the appropriate moment. There would be no rupture
because change would be but the explication of possibilities implied in the origin: the Aristotelian movement
leading from dynamis to energeia. The paradox of
representation would collapse into a form of originalism, and the paradox of constituent power would be
leveled down to the exercise of constituted power: the
realization of the-not-yet-realized-but-realizable. Yet
secondary constituent power, as I call it, catches us by
surprise because it reveals possibilities as our possibilities, yet as possibilities that we knew nothing about. A
rupture takes place because constituent power projects
possibilities as our own possibilities into the future, such
that one moves from the actual to the possible, while
also retrojecting these possibilities into our past as possibilities that are already available to us and that we can

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now realize. If the addressees of secondary constituent

power carry forward this changed first-person plural
perspective, the collective is transformed in a strong
sense because it moves from the actual to the possible,
while it seems, retrospectively, as though the transformation is no more than the realization of an extant
possibility: an implied power. Here, then, is a second
sense of the concept of change at issue in the minimalistic interpretation of normative power as the capacity
to change a normative state of affairs. This concept of
change also presupposes an ontology irreducible to the
making of either Greek mimesis or divine omnipotence.
Similar considerations hold for primary constituent
power. It catches us, a manifold of individuals, by
surprise because it reveals us as a group that is in
the offing in the same movement by which it claims
that we are already off to a start as a group in legal
action. At issue, here, is not merely the emergence of
what, retrospectively, appear to have always been our
own possibilities but rather the founding of a novel
we. The emergence of a new group takes place as
the rupture leading from an actual group to another,
new group in such a way that if primary constituent
power catches on, it appears as though we are already
a collective that merely obtains legal expression by
way of its first constitution. Here is a third sense of
the concept of change apposite to normative power as
the capacity to change the normative situation of the
addressees of an act. Here again, change presupposes an
ontology irreducible to either mimesis or actus purus.
To summarize, if the correlation between the opening up of novel practical possibilities and the temporal rupture that dislocates and reorganizes the temporal
arc of past, present, and future characterizes constituent
power, so also, and conversely, constituent power is
shorthand for the specific manifestation of the correlation between possibility and actuality and collective
temporality that governs the emergence of a novel legal
order.25

5. The Paradox of Emancipation

The upshot of sections 3 and 4 is, first, that the concept
of constituent power is an indispensable ingredient of a
theory of legal ordering and, second, that there is indeed
a certain ontology at work in the concept of normative power, even if it remains more or less implicit and
taken for granted by those very theorists who spurn an
overtly ontological inquiry into constituent power. Certainly, part of this inquiry has already been addressed in
contemporary theories of social ontology oriented to establishing whether and how the existence of collectives
is irreducible to the existence of the individuals that
compose them.26 But we need to go further. A theory
of constituent power, as a subset of a general theory of


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the emergence of collective action, involves an ontology

that is thinkable only in the wake of Christian theology. I
submit, however, that it is not the ontology espoused by
the champions of the secularization theorem, whatever
their political bent. Is it, instead, the ontology according to which constituent power, in its politically strong
sense, amounts to emancipative praxis, whereby an oppressive social and legal order is definitively overturned
by a revolution that calls into being a universal hence
all-inclusive legal order in which only freedom would
reign?
To address this question let us examine a series of
oppositions that structure the concept of revolutionary
praxis underpinning this interpretation of the emancipative potential of constituent power: spontaneity and
dependency; form and matter; activity and passivity; the
self and the strange; freedom and domination.
Notice, to begin with, that the account of constituent
power outlined in section 4 does not simply reject out
of hand the notion of spontaneity. The power to inaugurate is deployed by the act whereby someone seizes the
initiative to represent a new collective. Moreover, this
initiative, if it catches on, marks a new beginning to the
extent that it introduces a twofold rupture. The first is
a rupture in time, such that the collective represented
by the initiative is not simply the (transformed) continuation of an extent collective. The second is a rupture
that inverts the relation between possibility and reality,
insofar as an extant order becomes the point of departure for the realization of a possible order irreducible
to the former, hence not merely the actualization of
one of the formers possibilities. To this extent, at least,
the paradox of constituent power supports the notion of
emancipative revolutionary praxis, rejecting contemporary attempts to domesticate or neutralize it by way of
normative theories of constitutionalism.
However, the paradoxical structure of representation
decisively questions the idea that constituent power can
be characterized as an absolute, albeit formal, beginning
of action. If, on the one hand, the activity of constituent
power discloses an irreducible passivity in the plural
subject that must be constituted by the initiative to represent it, constituent activity is imbued, on the other,
with a no less irreducible passivity because this initiative only constitutes a collective if it is taken up again
and carried forward by its addressees. That the initiative
will be carried forward cannot be taken for granted; it
must succeed in representing its addressees as a group
in a way that is both viable as a future possibility and
recognizable, albeit retroactively, as articulating what
they already share. Constituent power does not have
these conditions under its control, and they resist characterization, in line with the concept of dependent spontaneity, as the merely material condition of a formally
productive activity. Thus, the representation at work in

Constituent Power and the Ontology of Change: Hans Lindahl

constituent power is not the Greek mimesis, the reproduction of an extant world. Nor is it simply the formal
production of a new legal order from scratch. To the extent that modern philosophy interprets human creativity
as an absolute formal beginning it remains in thrall to
the metaphysics of actus purus. Instead, the representational process at work in the paradox of constituent
power deploys what Andre Malraux and Merleau-Ponty
call a coherent deformation,27 when describing artistic and linguistic creativity. If the notion of deformation
involves a strong sense of rupture and creativity irreducible to reformation, it also underscores the fact that
constituent power can create a new legal order only in
a representational process that, paradoxically, discovers
in the extant social and legal order ways of acting jointly
that its participants never had envisaged. And the deformation wrought by constituent power is coherent to the
extent that it succeeds in representing a legal collective
in a way that is both viable as a future possibility and
also recognizable, to its addressees, as the articulation
of who they already are.
But there is more. The notion of a pure formal
causality re-enacts the Scholastic notion of divine
omnipotence as taking place in a pure present, even
if a pure present limited to an inaugural ordering.
The purity of this present means that a manifold of
individuals are present to each other as a unity in the
immediacy of a now that allows them to jointly enact
a constitution and to enact it in their joint interest. This
absolute presence and present would guarantee that the
constitution is the product of their joint act, and that
it is a constitution enacted in their joint interest. This
immediate self-presence would guarantee that there is
a new beginning, a rupture whereby, breaking entirely
with the past, a manifold of individuals call forth an
entirely new future by constituting themselves as a legal
order. This would be the notion of constituent power
demanded by an emancipative revolutionary praxis
faithful to the ontology of dependent spontaneity.
Here again, the paradox of constituent power destabilizes this understanding of the temporality of revolutionary praxis: representation ensures that there is no
direct access to the foundation of a collective in a pure
present. Indeed, the paradoxical structure of representation entails that a legal collective must rely, as MerleauPonty puts it, on a past that never has been present28
and, I would add, a future that never will become a
present, hence a past and a future that definitively elude
the control of whoever seizes the initiative to represent
a novel collective. The meaning of what takes place
now is shot through with ambiguity, for its significance
can only be established retrospectively, and only for
the time being. On the one hand, what may seem to
participant agents to be only a slight change in ACA,
retrospectively can appear to be a decisive change that


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171

marks the emergence of a novel collective. What seemed

to be at the time the continuation of order by constituted
power becomes, with the benefit of hindsight, a veritable
foundational moment, but one that escaped its protagonists in that now. On the other hand, what now seems to
be a revolutionary moment, galvanizing participants to
great achievements and sacrifices, retrospectively can
appear to be no more than a revolution in the sense of a
return of the same; the genuinely revolutionary moment
escaped its protagonists when they thought they had it
in their hands. The paradox of representation entails that
there is no way of definitely establishing whether an act
taking place now is an act of constituent power or of
constituted power; only retrospectively, and only inconclusively will it manifest itself as the one or the other.
Let us now turn to the opposition between the self
and the alien or strange. Both Kants account of moral
freedom and Marxs interpretation of revolutionary
emancipation depart from a situation in which human
being is given over to a world that opposes its free
activity. In both cases, the extant world manifests itself
as alien. Kant refers to alien [fremden] causes29 that
restrict freedom; Marx speaks of an initial situation of
alienation (Entfremdung), in particular, the alienation
of labor in the capitalist mode of production.30 In
both cases, the negative moment of freedom consists
in leveling down the strange to the factuality of
what merely exists, such that, deprived of its binding
character, the real becomes the point of departure for
the positive moment of freedom, namely, the enactment
of a universal order. Accordingly, the strange or alien
manifests itself as the ultimate danger that human
being could lose itself; that, no longer recognizing
itself in the made of its making, the subject forfeits
its primordial ontological productivity and its capacity
to assert itself against what opposes its continued
existence in being. Carl Schmitt articulates the extreme
political implications of this assumption when equating
the enemy with the stranger, and then describing the
enemy as the existential negation of a collective.31
Emancipation, on this account of constituent power,
demands overcoming the strange by way of a critique of
ideology that leads over into a revolutionary praxis that
enacts a social and legal order in which we have ceased
to be estranged or alienated from ourselves and have
become fully ourselves. Revolutionary emancipation
leads to collective self-identity in the form of what I
would call a synthetic tautology: indirectly, by way
of a detour through nature and society, human beings
come to recognize themselves fully in their products,
namely, as its producers. The universal social and legal
order is the fully humanized order, an order that, having
overcome all forms of strangeness, is fully and properly
ours, the order we, as humans, can call our own. If the
Greek notion of mimesis implied that human making

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had a tautological structure because techne imitated

nature, the notion of autonomy entails a new (albeit formal) tautology in the relation between the making and
the made: the exercise of constituent power as emancipative praxis would mark the political accomplishment
of this synthetic tautology: man man.32
The paradox of constituent power reveals that this
is a strongly reductive interpretation of the strange. My
point is not to deny that the politically strange can manifest itself in the form of an existential negation that calls
forth a revolutionary response, even though this is by no
means its primordial mode of appearance.33 It is to note
that the revolutionary response that calls forth a new
legal order never only affirms a pre-existent collective
against what would negate it; it also always creates a
collective in the very process of claiming to defend it.
Hence, the foundation of a novel collective includes, by
establishing what kinds of behavior are important and
relevant with a view to realizing the normative point
of ACA, while also excluding everything else as unimportant and irrelevant thereto. What has been excluded
does not simply disappear: having been marginalized, it
can manifest itself in the guise of strange behavior, that
is, behavior that, calling into question what our joint
action ought to be about, refuses normative integration
into what is deemed to be the new collectives own legal
order. So, in responding to domination by calling forth a
novel legal order, the exercise of constituent power must
marginalize in the process of gathering together, thereby
paving the way for more or less radical contestation of
its default setting of ACA: not in our name.
Accordingly, the conditions that govern the foundation of a legal order ensure that a form of plurality
is ensconced in ACA that is far more radical than the
plurality of Gilberts plural subject: nous sont des
autres, to paraphrase Rimbauds famous je est un autre.
Because there can be no inclusion without exclusion,
emancipative revolutionary praxis does not lead over
into a universal collective. The exercise of constituent
power is never an innocent matter, and perhaps least so
when universality is claimed for the enacted legal order.
Constituent power speaks to an initial situation of indeterminacy between law and violence, an indeterminacy
that never entirely abandons ACA and that becomes
manifest when second-level officials claim, in response
to the radical contestation of ACA by the strange or
alien, that they are empowered to draw the distinction
between law and violence because freedom is on the
side of the law and violence on the side of the strange.
This is the point at which the dialectic of emancipative revolutionary praxis kicks in: emancipation as the
process of overcoming extant domination becomes the
vehicle for a new form of domination.


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The foregoing is not, nevertheless, an argument

against emancipative revolutionary praxis. It shows, instead, that all revolutionary emancipation is a specific
response to domination that calls forth a domain of
freedom rather than freedom tout court: there are emancipations in the plural, rather than emancipation in the
singular. Constituent power cannot empower, enabling
a domain of freedom as a realm of practical possibilities, without also disempowering, thereby marginalizing
other ways in which joint action might be the expression
of freedom. This disempowerment is radical in those
cases in which the strange intimates practical possibilities which cannot be integrated into a given legal collective because they are irreducibly in contradiction with
the latters normative point. In such situations, a collective cannot respond to what calls it radically into question with a new legal default setting of the normative
point of ACA. Those practical possibilities can be realized only from another first-person plural perspective.34
The initiative to found a collective has, on this reading, an irreducibly ambiguous status: it is the expression
of constituent power and of constituent powerlessness,
of a primordial we can and a no less primordial we
cannot. The strange, in a strong sense, is what confronts a collective with its powerlessness, that is, with
what cannot be said or done in the framework of a given
ACA because it intimates possibilities that lie beyond
the variable scope of that collectives own possibilities.
The im/possibility that gives rise to practical possibilities under ACA catches up with a given collective from
ahead in the form of practical im/possibilities intimated
by strange behavior. Constituent power lies behind a
legal order and ahead of it, as strange behavior that anticipates the emergence of another first-person plural
perspective.
The task of legal ordering, as concerns the strange in
the strong sense of what refuses normative integration
into a given ACA, is to respond to it by exercising
collective self-restraint. Legal collectives acknowledge
in this indirect way that they exist in the mode of a
finite questionability and a finite responsiveness. The
conceptual and normative stakes of constituent power
are not only about collective self-preservation but also,
and no less importantly, about the preservation of the
strange. This ontology of legal ordering is what I take to
be the core of a conceptually and normatively defensible
theory of constituent power.

NOTES
1. Aristotle, Metaphysics, 1032a1213, in The Complete
Works of Aristotle, ed. Jonathan Barnes (Princeton: Princeton
University Press, 1985), Vol. II.

Constituent Power and the Ontology of Change: Hans Lindahl

2. Karl Marx, Theses on Feuerbach 1845. http://www.
marxists.org/archive/marx/works/1845/theses/, accessed 23
March 2015.
3. A point also made by Hannah Arendt, The Human
Condition (Chicago: Chicago University Press, 1958), 175.
4. Aristotle, Metaphysics, n 1, 1032a1213.
5. Ibid, 1032a2728.
6. Aristotle, Physics, 199a15, in The Complete Works of
Aristotle, ed. Jonathan Barnes, Vol. 1.
7. Ibid, 199a15.
8. On the history of the concept of mimesis, see the
essay Nachahmung der Natur. Zur Vorgeschichte der Idee
des schopferischen Menschen, in Wirklichkeiten in denen wir
leben, Hans Blumenberg (Stuttgart: Philipp Reclam, 1986),
55103.
9. Aristotle, Metaphysics, n 1, 1069b141070a10.
10. Hannah Arendt, On Revolution (London: Penguin
Books, 1977), 21.
11. Thomas Aquinas, Summa contra Gentiles, trans.
James F. Anderson (Notre Dame: University of Notre Dame
Press, 1975) II, 5.
12. Thomas Aquinas, Summa Theologia, trans. English
Dominican Fathers (London: Blackfriars, 1964) 1, 25, 3.
13. Carl Schmitt, Political Theology. Four Chapters on
the Concept of Sovereignty, trans. George Schwab (Cambridge,
MA: MIT Press, 1985), 36.
14. See Carl Schmitt, Constitutional Theory, trans.
Jeffrey Seitzer (Durham: Duke University Press, 2008);
Schmitt, Political Theology, n 13; Antonio Negri, Insurgencies. Constituent Power and the Modern State, trans. Maurizia
Boscagli (Minneapolis: University of Minneapolis Press,
1999). I cannot discuss here Benjamins and Agambens
messianic interpretations of rupture. See Benjamins
Critique of Violence, in Selected Writings, Walter Benjamin
(Cambridge, MA: Belknap Press, 1996), Vol. 1, 23652,
and Giorgio Agamben, Potentialities. Collected Essays in
Philosophy, trans. Daniel Heller-Roazen (Stanford: Stanford
University Press, 1999), 16084.
15. Hans Blumenberg, The Legitimacy of the Modern
Age, trans. Robert M. Wallace (Cambridge, MA: MIT Press,
1986).
16. Immanuel Kant, Critique of Pure Reason, trans.
Norman Kemp Smith (Hong Kong: Macmillan, 1987), B72.
Dependent spontaneity is Kants formulation of the cogito
principle, where ego sum captures the conditioned character
of human being, and ego cogito its productive activity.
17. Immanuel Kant, Groundwork of the Metaphysics of
Morals, trans. H. J. Paton (London: Routledge, 1991), BA 97,
BA 119.
18. David Dyzenhaus has mounted a powerful attack on
the notion of constituent power in Constitutionalism in an Old
Key: Legality and Constituent Power, Global Constitutionalism 1 (2012): 22960. For a careful analysis of constituent
power see Martin Loughlin, The Concept of Constituent
Power, European Journal of Political Theory 13 (2014):
218237.
19. Margaret Gilbert, On Social Facts, 2nd ed. (Princeton: Princeton University Press, 1992), 168.
20. Bernhard Waldenfels, Verfremdung der Moderne:
Phanomenologische Grenzgange (Essen: Wallstein Verlag,
2001), 140. See also Bert van Roermund, Law, Narrative and
Reality: An Essay in Intercepting Politics (Dordrecht: Kluwer
Academic Publishers, 1997), 14565; Jacques Derrida, Declarations of Independence, New Political Science 15 (1986):
715.
21. See Ferdinando Menga, Potere costituente e rappresentanza democratica: per una fenomenologia dello spazio


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173

istituzionale, 2nd ed. (Naples: Editoriale Scientifica, 2010), for

an excellent study on the relation between constituent power
and representation.
22. See Hans Lindahl, The Paradox of Constituent
Power. The Ambiguous Self-Constitution of the European
Union, Ratio Juris. An International Journal of Jurisprudence
and Philosophy of Law, 20 (2007): 485505. For a different reading of the political significance of the basic norm see
Andreas Kalyvas, The Basic Norm and Democracy in Hans
Kelsens Legal and Political Theory, Philosophy and Social
Criticism 32 (2006): 57399.
23. On representation, differance, and the supplement of origin see Jacques Derrida, Speech and Phenomena
and Other Essays on Husserls Theory of Signs, trans. David
B. Allison (Evanston: Northwestern University Press, 1973).
24. Hans Kelsen, Pure Theory of Law, trans. Max Knight
(Berkeley: University of California Press, 1967), 209.
25. See Hans Lindahl, Fault Lines of Globalization:
Legal Order and the Politics of A-legality (Oxford: Oxford
University Press, 2013), 13133.
26. See for example, Gilbert, 4326; Philip Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency
(Cambridge: Polity, 2001), 11415; Michael Bratman, Faces
of Intention: Selected Essays on Intention and Agency (Cambridge: Cambridge University Press, 1999), 129; John Searle,
Collective Intentions and Actions, in Intention in Communication, eds. Philip R. Cohen, Jerry Morgan and Martha E.
Pollack (Cambridge, MA: MIT Press, 2003), 40115.
27. Andre Malraux, La Creation artistique (Paris: Skira,
1948), 152, cited by Maurice Merleau-Ponty, La Prose du
Monde (Paris: Gallimard, 1969), 85.
28. Maurice Merleau-Ponty, Phenomenology of Perception, trans. Colin Smith (London: Routledge, 1989), 242.
29. Kant, Groundwork, BA 97.
30. See, among others, Karl Marx, Economic and
Philosophical Manuscripts of 1844, https://www.marxists.org/
archive/marx/works/1844/manuscripts/preface.htm, accessed
23 March 2015.
31. Carl Schmitt, The Concept of the Political, trans.
George Schwab (Chicago: Chicago University Press, 2007),
27.
32. Compare with Heideggers analysis of Protagoras
famous aphorism, man is the measure of all things, in
the Appendices to The Age of the World Picture, in Off
The Beaten Path, Martin Heidegger, trans. Julian Young and
Kenneth Haynes (Cambridge: Cambridge University Press,
2002), 7380.
33. See Bernhard Waldenfels, A Phenomenology of the
Alien: Basic Concepts, trans. Tanja Stahler and Alexander
Kozin (Evanston: Northwestern University Press, 2011).
34. The constitutional deadlock that arose in the famous Quebec Secession Reference issued by the Canadian
Constitutional Court between, on the one hand, the Canadian
government and Supreme Court, and, on the other, the
Quebecer initiative to secede from Canada is a good illustration
of this point. See my article Recognition as Domination: Constitutionalism, Reciprocity, and the Problem of Singularity, in
Europes Constitutional Mosaic, eds. Neil Walker, Stephen
Tierney and Jo Shaw (Oxford: Hart, 2011), 20530.

Hans Lindahl holds the Chair of Legal Philosophy at

Tilburg University, the Netherlands. His primary areas
of research are legal and political philosophy. Lindahl
has published numerous articles in these fields. His
monograph, Fault Lines of Globalization: Legal Order

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Constellations Volume 22, Number 2, 2015

and the Politics of A-Legality, was published with

Oxford University Press in 2013. His current research
is primarily oriented to issues germane to globalization processes, such as the concept of legal order in
a global setting; the relation of boundaries to freedom, justice, and security; a politics of boundarysetting alternatives to both cosmopolitanism and


C 2015 John Wiley & Sons Ltd.

communitarianism; transformations of legal authority

and political representation; immigration and global justice; collective identity and difference in the process
of European integration. In dealing with these topics
Lindahl draws on (post)phenomenology and theories of
collective action of analytical provenance, while also
seeking to do justice to the nitty-gritty of positive law.