Constitution matérielle et constitution mixte. Du pouvoir constituant aux corps intermédiaires

The concept of “material constitution” is currently reinvested, against liberal constitutionalism and Kelsenian normativism, by a new generation of jurists. The aim is to understand dynamic legal-political realities such as the institutions of the Welfare-State, the ordo-neo-liberal “economic constitution” or European construction. By mobilizing different theoretical sources (the Hegelian theory of the State, the heterodox Marxism of Lassalle or Gramsci or the legal institutionalism of Mortati), the aim is to shift the analysis from the “formal” institutions of the Rule of Law and the representative government towards the conflictual balance of social forces crystallized into a political-normative core producing legitimacy.

While sharing this “materialist” turn, the article maintains, against several theorists of the material constitution, that there is no ultimate “constituent power” at the origin of it, but an irreductible plurality of socio-political forces. However, if social division is irreducible, it means that the unitary subject called “people” is an illusion, and that democracy is better honored, paradoxically, when it is thought of as “democracy without demos” (Colliot-Thélène) and as “institutionalization of the conflict” (C. Lefort).

We therefore propose to replace the concept of “constituent power” with those of constituent field and mixed constitution: the first to designate the settled conflict of classes and political actors; the second to mean that this balance is always relative, that any political regime is “mixed”, more or less democratic or oligarchic, according to the diagram of “de facto power” and “legitimate power”. The adjacent hypothesis is that the real agents of the mixed material constitution of the Moderns are the “intermediate bodies” – parties, unions, associations, etc. – located between the State and individuals, and which go beyond the division between the State sphere and the civil sphere.