Introduction
There is something utopian about constituent power. For Andrew Arato, the very notion of ‘the people’ as constituent power holders is an unrealizable idea.Footnote 1 Both utopia and constituent power are closely aligned with visions of alternative futures, and constitutional scholars agree that there is an intersection between utopian thinking and the subjectivities, temporalities and operationalization of constituent power.Footnote 2 This article uses utopian thinking to expose the temporal assumptions that underpin the construction of constituent power in constitutional scholarship.
Demands for political and legal change, which seek to engage in a project of constitutional world-building are understood as utopian in two ways in contemporary constitutional scholarship. They can be considered ‘utopian’ because they seek to reimagine the very constitutional fabric of society; breaking away from the current contemporary constraints of society, the utopian imagination can offer alternative systems of governance and ways of being. Another way legal scholarship can use ‘utopian’ is as a criticism, in the sense that the idealistic ambitions of calls for constitutional change might fail for being ‘too utopian,’ ‘too idealistic,’ ‘too unrealistic.’
This critique of being ‘too utopian’ is a common refrain within legal scholarship,Footnote 3 and it is this notion of utopianism that is used in David Landau and Rosalind Dixon’s latest work on ‘utopian constitutionalism’.Footnote 4 Landau and Dixon argue that Chile’s 2022 constitutional draft and constituent process failed because it was ‘too utopian.’Footnote 5 Undertaking close readings of the use of utopia in constitutional scholarship, this article will expose how notions of the past, present and future inform constructions of constituent power.
Within constitutional scholarship, the notion of constituent power is contested, but it is broadly understood as the power to bring about constitutional change. Scholars debate the role of representation,Footnote 6 the construction of the constituent power-holder (or the ‘people’),Footnote 7 whether there are normative or procedural constraints,Footnote 8 and whether an expression of constituent power is exhausted in the constitutional moment.Footnote 9 There are discussions about whether constituent power is always external to the constitutional order or whether it can be internalized, judicialized,Footnote 10 derivative or constitutionalized.Footnote 11 There are also debates about whether the relationship between constituent and constituted power is better understood relationally or as a binary.Footnote 12 These debates give rise to contrasting views about the temporalities of constituent power; whether it is fixed in the past, open to being revised in the present, or limited by the needs of the future.
Just as constituent power has different modalities which invoke various temporalities, so too does utopia. From the ‘everyday’ quotidian utopias of social movements or intentional communities,Footnote 13 to utopian blueprints,Footnote 14 these different manifestations of utopian thinking proffer varied temporalities. The utopian impulse is sometimes conceptualized as requiring a radical break from the past,Footnote 15 in other accounts utopian thinking has a more complicated relationship with notions of futurity – as always becoming, always in the futureFootnote 16 – and there is a complexity to the relationships between past, present and future in processes of utopian thinking.Footnote 17 In exploring how ideas of utopia inform conceptualizations of constituent power, this article is not seeking to impose normative constraints on constituent power; it does not argue that for an exercise of constituent power to be successful or legitimate it must align with some utopian impulse. Rather, this article provides a more substantive exploration of how utopian thinking can inform the study of constituent power and offers a way of thinking about utopia that moves beyond the pejorative labels or blueprint conceptualizations.
The article is divided into two sections. The first section interrogates how notions of utopia and utopian thinking have been discussed in constitutional scholarship to draw out how the specific approach to utopianism in constitutional scholarship constructs particular ideas about the temporalities of constituent power. Through close readings of the work of Landau and Dixon, Peter Niesen and Andreas Kalyvas, it explores how the temporalities of utopia and constituent power have been constructed, and specifically how scholars position them as diametrically opposed, how both concepts are connected to ideas of revolution and radical change, and how the future is conceptualized within theories of constituent power and utopia. In section two of the article, alternative approaches to utopia will be brought into conversation with debates on constituent power to highlight alternative ways of understanding the temporalities of that power in constitutional scholarship. Moving away from utilizing utopia as a pejorative label and engaging instead with what it can expose about temporalities, offers alternative approaches to the study of constituent power.
Utopia in constitutionalism
Defining ‘utopia’ is a challenge because there are competing approaches to utopia and utopianism. Challenges arise because etymologically utopia means the ‘good place’ and the ‘no place’. There is little agreement on the form utopias can take,Footnote 18 with ideas ranging from practical examples to theories of social dreaming.Footnote 19 Whilst some argue for blueprint models, others discuss iconoclastic versions, and whilst some see utopias as programmatic, others identify impulses.Footnote 20 In order to understand how ideas of utopia and utopian thinking inform discussions on constituent power, this part of the article will first outline a key conceptualization of utopianism.
The blueprint or end-state utopia is the most common form found in legal scholarship.Footnote 21 It is best explained as the projection of an ‘ideal’ or ‘perfect’ place, society or point in time. It is these connotations of idealism and perfection that inform utopia’s usage in legal studies. Matthew Nicholson, for example, argues that international law is informed by blueprint utopias for a better future.Footnote 22 The blueprint utopia is often understood as a final destination, and in his study, Nicholson argues that international law projects itself as the path to a utopia. Utopian studies have identified a shift from place to time in blueprint models, such that there is now an idea of futurity that is at work as the blueprint is constructed as being in the future.Footnote 23
Understanding utopia as a blueprint or as striving for perfection gives rise to a number of criticisms. Firstly, that this utopian thinking is ‘whimsical,’Footnote 24 ‘frivolous’ and ‘irrelevant’.Footnote 25 Secondly, it is an exercise in daydreaming that distracts from the revolution.Footnote 26 Thirdly, that it can be dangerous for it can lead to totalitarian projects.Footnote 27 For liberal scholars, such as Popper, liberalism and liberal constitutionalism (the rule of law, separation of powers, and democratic accountability) are understood as necessary bulwarks against the utopian projects of Nazism and Stalinism.Footnote 28
Yet, despite these critiques giving rise to a dearth of legal engagement with utopian thinking, within constitutional scholarship, there are examples of engagement with the idea of utopia. Landau and Dixon’s latest work on utopian constitutionalismFootnote 29 joins previous work by Mark Tushnet on an articulation of utopian constitutionalism.Footnote 30 This section explores how utopian thinking is currently utilized in constitutional scholarship. It is divided into three sub-sections. First, the common oppositional relationship between constitutionalism and utopia will be set out. Then, in the second sub-section, close readings of the work of Landau and Dixon, Petersen and Kalyvas will be used to show how ideas of utopia inform approaches to constitutional change, both with respect to the nature and means of change. The final sub-section reflects on how the temporal account of utopia as something that is ‘futuristic’ raises questions about how constituent power is located either in the past, present or future. Constructions of utopia as a radical alternative future work to situate constituent power within a fixed understanding of a constitutional present.
In opposition
Since the mid-20th century, legal scholarship has been disparaging of the utility of utopian thinking within law and as such, law and utopia are often constructed as diametrically opposed.Footnote 31 This construction of an antithetical relationship among utopia, politics and constitutionalism is not the only approach,Footnote 32 but it does raise questions about the plausibility of a generative discussion between utopianism and constitutionalism.
Liberal thinkers such as Popper, Berlin and Oakeshott reject utopia for being totalitarian and absolutist.Footnote 33 Law is instead seen as the ‘necessary bulwark against the inevitable excesses of utopia’.Footnote 34 The ‘single truth’Footnote 35 and drive for uniformity that underpins the blueprint model of utopia is at odds with the pluralism espoused by liberalism.Footnote 36 For those theorists, utopia is associated with an abuse of power.Footnote 37 As such, liberal scholarship considers utopia to be incompatible with key constitutional tenets, such as the rule of law.Footnote 38
This oppositional relationship also informs Jameson’s discussion on utopia and constitutions. He juxtaposes utopian thinking with constitution-writing.Footnote 39 He argues that constitutions are ‘devised to forestall’ such as revolutions, or ‘power seizure and power imbalance’.Footnote 40 In this way, constitutions thwart further utopian change. Whilst he concedes that the drafting of constitutions can be inspired by utopian thinking,Footnote 41 he notes that ‘in utopia, politics is supposed to be over’.Footnote 42 By politics, he means that ‘[f]actionalism, parties, subgroups, special interests, must be excluded in the name of the General Will.’Footnote 43 In that sense, ideas of plurality and democracy – features of liberal constitutionalism – are also supposedly lacking in utopias.
Placing constitutionalism and utopia in opposition in this way is based on a blueprint model of utopia, and as this article will highlight in the next section, there are alternative approaches to utopia. Drawing on this oppositional position, constitutional scholarship risks suppressing the potential for utopia to inform accounts of constituent power.
Constitutional change
As outlined above, Jameson’s discussion of utopia and constituent power shows there is a concern about the need to monitor and forestall (revolutionary or radical) constitutional change. Anxieties about change arise with respect to the nature of change (as in Jameson’s discussion) or the rate of change (which is the case for Marx and Engels, who use ‘utopia’ pejoratively,Footnote 44 because for them utopian socialism (and utopias) distracts the ‘working classes from more suitable political activity’).Footnote 45 This sub-section explores how these anxieties inform the debates on utopia and constituent power.
Landau and Dixon’s critique of utopian constitutionalism is informed by a concern around the nature and rate of change. They note that ‘utopian constitutionalism can deflect attention from efforts to achieve immediate legislative and policy change’.Footnote 46 This disconnect between utopia and the need for ‘immediate’ change projects a particular vision of utopia as something that is in the future. It is not rendered as something that can have impacts in the present. This is at odds with the theories of ‘everyday utopiasFootnote 47 or Jameson’s more iterative approach of the utopian impulse,Footnote 48 explored in the section on ‘Beyond the Pejorative: Utopias and Constituent Power’ in this article.
In their conceptualization, ‘utopian constitutionalism’ sits as a contrast to transformative and preservative constitutionalism. For them, preservative constitutionalism maintains the status quo,Footnote 49 whilst transformative constitutionalism aims to ‘transcend the past’ and bring about social change for ‘a better future’,Footnote 50 but utopian constitutionalism refers to ‘utopian projects’ that have ‘goals that are unlikely to be achieved within any reasonable timeframe’.Footnote 51 This construction of utopia echoes the critiques of utopia as unrealizable or unachievable, and the distinction between transformative and utopian constitutionalism oscillates on a temporal differentiation of how long change will take.
In their discussion of utopian constitutionalism, Landau and Dixon outline two forms of utopian constitutionalism: structural utopian constitutionalism and sociological utopian constitutionalism. As the following sub-sections show, these critiques map onto two ways utopia is used as a critique of constitutional change: the nature of the change (or in other words, what can be changed and how dramatically), and how change can come about (for example, the protests, calls for reform, or lobbying). Utopia is used as a label where the change is too radical or too futuristic, and where the change will take too long or it is too far into the future.
Nature of constitutional change
For Landau and Dixon, utopia is a form of criticism that can be levelled at particular social and political movements seeking to bring about constitutional change. Structural utopian constitutionalism, for Landau and Dixon, refers to situations where there is a disconnect between the aims of political movements and the institutional processes necessary to implement those aims.Footnote 52 They raise concerns about social movements or independent actors that have limited ‘institutional experience or know-how’, or in other words concerns about those actors that are outside of the current constituted power.Footnote 53 This ‘know-how’ ties the constituent power to a particular way of constitutional thinking or knowledge framework of constitutionalism. Rather than viewing either utopia or constituent power as the potential for a radical break from the past or present, the structural utopianism critique works to stymy the opportunity for alternative frames of reference.
Another example of structural utopianism that they mention is where constitutional structures are ‘attacked or undermined’.Footnote 54 They do not elaborate on how this could transpire, but if the challenge to constituted power is through claims of constituent power, structural utopianism ignores the destructive potential of constituent power. Again, this risks placing constituent power within current approaches to constitutionalism, denying the potential of a radical break from the past or present.
Kalyvas also draws a distinction between utopia and constituent power, where utopian thinking is pre-constitutive in the sense that it lacks the potential to bring about a radical break with the constitutional order. However, for Kalyvas, constituent power is proffered as a more radical alternative than utopia. Drawing on Cohen and Arato’s theory of civil society as a ‘self-limiting’ utopia,Footnote 55 Kalyvas argues that social movements might work to expand the democratic horizon of democracy.Footnote 56 The utopian horizon of democracy presupposes and acknowledges the ‘existing constitutional framework of an institutionalized democracy’, but it works to extend what counts as legitimate citizen activity.Footnote 57 As such, these movements inspire the ‘utopian’ aspects of democracy by sitting alongside, apart from and next to democratic institutions but always firmly within the constituted order.Footnote 58 The ‘self-limiting’ utopias have to be ‘compatible with the modern differentiation of society’.Footnote 59 In contrast, constituent power offers a radical break from the constitutional order.Footnote 60 He locates utopia within the ‘normal times’ of ‘ordinary politics’, rather than the extra-ordinary times of constituent power.Footnote 61 This prima facie constructs constituent power as having more radical potential than utopia.
Yet, Kalyvas ties constituent power to law; ‘higher constitutional norms are the final cause of the constituent power’.Footnote 62 For him, constituent power is intrinsically tied to a model of constitutionalism. In constructing a divide between utopia and constituent power, Kalyvas cuts off the potential that a utopian constituent power might break out of the institutional limits he places on that power. What this sub-section shows is that the utopian critique ensures that the analysis and evaluation of constitutional change remain within an accepted frame of reference. In contrast, a utopian constituent power would be able to imagine a radical departure from the confines of the reified constitutional form.
Bringing about constitutional change
In addition to concerns about the nature of change, there are also critiques levied at how change occurs. Sociological utopian constitutionalism occurs, Landau and Dixon argue, where there is little political support for the aims of the ‘utopian’ political project.Footnote 63 Similar reflections on the role of social movements in constitutional moments highlight temporal concerns around duration and longevity. This sub-section unpacks how the scholarship tends towards a presentism that sedates alternative futures-thinking.
In his discussion on civil disobedience, Niesen draws a distinction between social movements that cannot be characterized through the lens of constituent power and social movements that can. He argues that ‘[t]he articulation [or a claim] of constituent power can apply only to collectives that aim at a certain tenacity and longevity, and not to the more fleeting campaigns that enact ambitious, but short-lived glimpses of alternative forms of life’.Footnote 64 Although Niesen does not use the language of utopia, the references to ambition and ‘alternative forms of life’ invoke the language of utopian thinking. For Niesen, a constitutive act requires a sense of longevity (something that is non-fleeting and not short-lived). In a similar vein, Kalyvas sees these types of expressions as utopian,Footnote 65 which are not sufficient for constituent power, and Landau and Dixon use the utopian label where the parties in Chile ‘lacked a clear vision of how to implement’ the changes.Footnote 66 For them, where political movements or projects are ‘ephemeral’ (in the sense that the ‘energy behind the protests waned’), this would fall short of a claim or an exercise in constituent power and would amount to a ‘too utopian’ attempt to change the constitution.Footnote 67
In a similar vein to the critiques of sociological utopianism, Kalyvas draws on similar vectors to distinguish those movements that can merely inspire utopian expansions of democracy and those that can bring about constitutional change. He writes: ‘[some] movements transgress the limits of legality in order to radicalize the utopian and radical content of a democratic government and to broaden and expand existing political freedoms’.Footnote 68 His suggestion that some ‘utopian’ activities can expand democratic horizons makes space for an understanding of the potential for some utopian thinking to have ongoing effects, even if they fall short of recognized exercises in constituent power. These utopian demands are contrasted with movements that have broader support. He continues:
‘[b]ut […] some of the movements are able to mobilize and encompass broader strata of the population, to form wider organic alliances, to articulate new norms and rights, to formulate original collective aims that transcend the confines of the existing regime, and to propose a new hegemonic founding project.’Footnote 69
Kalyvas’ model of a successful constitutive social movement is one that is capable of mobilizing and strategizing, which echoes Landau and Dixon’s distinction between those movements that are ‘too utopian’ and those that are recognized as constituent power holders.Footnote 70 In this sense, for Kalyvas, utopian thinking is pre-constitutive. For Kalyvas, utopia is aligned with ‘unrealistic’ expectations.Footnote 71
By locating utopia as something that is not sufficient to amount to constituent power is again using utopia as a form of criticism. In these approaches, utopian projects remain pre-constitutive because they lack the requisite agency needed to be recognized as successful claims for constituent power. Under sociological utopianism, the social movement is evaluated against ideas of longevity and institutional robustness. For example, in this approach, social movements must have aims and objectives, clear visions and strategies for implementing these plans. This evaluation – and critique of failed movements – chimes with Levitas’ critique of some types of utopias that are too ‘abstract’ and undisciplined as they are open-ended and are lacking in a programme or agenda.Footnote 72 Similarly, Engels in his critique rejects utopianism for ‘lacking any conception of agency or political strategy’.Footnote 73 To the extent that they cannot bring about social change, these social movements are evaluated as having ‘no future.’
Paradoxical present?
There is a potential paradox that emerges. Whilst the lack of a plan renders a movement ‘utopian,’ it is the blueprint or futuristic nature of a plan that can also give rise to the ‘utopian’ label. This position highlights further temporal features of constituent power. For Landau and Dixon, there needs to be a plan for the present. Plans that will take too long into the future are dismissed as utopian. For them, this utopian-future-thinking is a potential distraction from present-day legal reforms. This places constituent power within a constitutional present. Within that present, change must be actionable and framed within the current structures, or align with the status quo of constitutionalism. Reading across the constitutional scholarship above, there is a trend which suggests that to be recognised as claims of constituent power – to be rendered plausible – such constitutive acts need to be located within a constitutional present.
This focus on the ‘present’ obscures alternative timelines. Studies of utopian thinking and utopian projects uncover a longer trajectory, where utopian visions of past revolutions or other previous social projects might inform and influence the social movements of the present.Footnote 74 This longer trajectory might shift how the longevity of the social movement is evaluated. Constrained to the present risks overlooking the role of utopian impulses (and those social movements characterized by Niesen and Kalyvas as pre-constitutive) that appear unprogrammatic because they fall outside of recognized institutional robustness or processes.
This particular focus on the present seems at odds with aspects of constitutional scholarship that locate constituent power firmly in the past. As Jameson does, much constitutional theory constructs constituent power as a singular constitutional moment when the constitution was adopted, located in a particular contextualized past.Footnote 75 This specific past is then often utilized in some theories of constitutionalism – such as originalism – to inform current constitutional jurisprudence.Footnote 76 However, the constitutional present in the constitutional literature analyzed above is informed by a constitutional past. Dismissing particular articulations of constituent power as ‘too utopian’ acts to stall change, fixing the constitution into a particular present which is tied to its constitutional past and the previous successful exercise of constituent power. Moreover, theories of constitutionalism herald from particular constitutional pasts (such as The French Revolution or American Revolution),Footnote 77 and these inform the ontological and methodological constitutional present.
This section shows some of the ways in which utopianism is currently used within constitutional scholarship, and specifically how the approach to utopian thinking constructs particular understandings of constituent power. Across these examples, utopia is associated with a future that is contrasted with a sense of the present. Constituent power is often located as something that happened in the past and whilst some of the literature recognises that it might be able to re-emerge in the present, for mainstream scholars it cannot be ‘too futuristic,’ and for them it operates within the confines of present institutional and constitutional parlance. This section thus exposes how the radical potential of utopianism to reimagine constitutionalism and constitutional change is neutered.
Beyond the pejorative: Utopias and constituent power
To move away from using utopia as a form of pejorative criticism, alternative models of utopia need to be explored. This part of the article draws on three temporal themes found in constituent power scholarship that can be unpacked through different approaches to utopianism. The first theme is the idea that exercises of constituent power are a ‘radical break from the past’.Footnote 78 Drawing on Jameson’s theory of the ‘break’ as a function of utopian thinking,Footnote 79 this sub-section explores how constitutional scholarship can approach constituent power as a ‘break from the past.’ The second theme, as noted above, is the theme of longevity as a marker of success in the identification of constituent power. This sub-section draws on Jameson’s theory of ‘utopian impulse’Footnote 80 to interrogate how constitutional scholarship collects evidence of exercises of constituent power. The third theme is the idea of the constitutional moment as a one-off moment in time, and a related question about the potential ongoing effects of an articulation of constituent power. Drawing on Abensour’s theory of the ‘persistent utopia’Footnote 81 and Levitas’ theory of utopia as method,Footnote 82 this sub-section articulates a more iterative notion of constituent power that contests the singular constitutional moment. Using these different approaches to utopia offers alternative temporal dynamics to inform the study, conceptualisation and construction of constituent power in constitutional scholarship.
A break from the past
Prima facie, many exercises of constituent power seek a radical break from the past or the present in the sense that constituent power has the dual function of dismantling one constitutional order to rebuild another. Indeed, constituent power is often discussed as a ‘break’ within contemporary constitutional scholarship.Footnote 83 As explored in the section on ‘Utopia in Constitutionalism’, utopia is often used in constitutional scholarship to suggest that the break was ‘too radical.’ Chile’s constitutional process, for Landau and Dixon was so radical that it was unrealistic and unfeasible.Footnote 84
For Jameson that unrealizability is part of the function of utopias. Utopias are also ‘no-places,’ and as such invoke an impossibility or unrealizability. Jameson argues that utopias are unrealizable because we cannot imagine beyond the current societal constraints.Footnote 85 He stresses that the ‘transformative potential’Footnote 86 of utopia lies in a radical departure from contemporary societal, institutional and political structures, but this break is not possible and therefore a function of utopia is to show what cannot be imagined. Literary utopias, in particular, for Jameson, highlight the limits of our current political imaginaries and our inability to imagine something different.Footnote 87 This means that the ‘cognitive estrangement’Footnote 88 function of utopia is paramount, because utopia works to show the limits of the imagination and to expose the structural, epistemological and methodological barriers that hinder the imagination.
Jameson’s assertion of the impossibility of utopia acts as a reminder to interrogate the radical nature of the departure from current constitutional structures.Footnote 89 We might consider, for example the extent to which normative constraints on constituent power work to mute the radical potential of constituent power. This might be the case if there are normative requirements for democratic legitimacy, for example, or if there are procedural requirements outlined within the constitution for exercises of derived constituent power.Footnote 90 For the constitutional revolution, there is an implicit substantive threshold that needs to be met (a sense of radical change or departure from the constitutional order), before it can be conceptualized as an exercise of constituent power.Footnote 91 One such structural constraint is that an exercise of constituent power in domestic constitutionalism and international law is tied to the constitution of a State or State entity;Footnote 92 within international law, a people can only externally self-determine as a state and internal self-determination is about participation within a state,Footnote 93 and as such, constituent power is limited to the creation of a state.
Using Jameson’s approach reminds constitutional scholars to interrogate the potential constraints. Illan rua Wall, for example, shows how ‘the concept of ‘the people’ acts as a centripetal force’ because it pre-determines a ‘unity under the sovereign’ and as such ‘pre-determines the movement [towards the state model]’.Footnote 94 In other words, ‘the people’ acts to fix ‘the state as its destiny’.Footnote 95 Kalyvas provides another constraint where he argues that constituent power is always aimed towards law; ‘Its true finality, is to fulfil the idea of law’.Footnote 96 In that respect, current approaches to constituent power are not ‘utopian’ from Jameson’s perspective, because they do not break from our current political imaginaries.
Tushnet’s approach to utopian constitutionalism is concerned with reform proposals that go-beyond the current structural frames of reference to push against the norm.Footnote 97 Rather than adopting a blueprint model where utopia is in the future, here utopia is conceptualized as a ‘radical break’ with the present. From Jameson’s perspective, the question would be how far the proposals push against the norm, and whether such reform proposals offer a radical departure from the status quo. Moylan warns of ‘misdirected celebrations of political maneuvers that may appear to be radically oppositional but in fact are present-bound reforms that are incapable of eluding capitalism’s retrieval mechanisms, thus becoming enclosed in the mechanism of an artificial negativity that reaffirms rather than revolutionizes the present order’.Footnote 98 Reading Tushnet’s theory of utopian constitutionalism and constituent power through Jameson’s lens prompts further questions about where the threshold is set for a ‘radical’ change and whether, instead, the current order has maintained its hegemonic role.
In her construction of feminist potencia, Verónica Gago approaches constituent power as a desire to rethink everything.Footnote 99 It is a call to displace the ‘limits that we have been made to believe and obey’, and as such, constituent power becomes about challenging constitutional theorists to reimagine the very contours of what is possible.Footnote 100 Feminist potencia reconceptualizes the very foundations of how constitutional scholarship has approached constituent power. It seeks to problematize the binary between constituent and constituted power, as well as dismantle the distinctions drawn between radical revolution and evolutionary reform, and recognize the dual destructive and constructive potential of constituent power.Footnote 101 In this respect, Gago’s approach to constituent power is ‘utopian,’ for an exercise of feminist potencia would radically break from the current model of constitutionalism and the role constituent power is afforded within that model. Adopting Jameson’s approach, though, adds a cautionary note to check for remnants of hegemonic structures that might scupper the more radical aims of feminist potencia.
Jameson’s negative construction of utopia as something that we cannot imagine is, therefore, useful to identify the limits of the current political system. This is to some extent related to the cognitive estrangement role of utopian literature, which allows readers to reflect on the current state of the world.Footnote 102 What Jameson is saying is that through engaging with and reading utopias, we are forced to confront how we are trapped by current political and social constraints, and cognitive estrangement works to force readers to reflect on the contemporary structures and to picture how they could be different. Drawing on this cognitive estrangement, Mao argues that rather than focusing on how different utopias might seek to reorient the world, its institutions and practices, the value of utopia is how they can be used to expose the injustices in the present.Footnote 103 In that sense, Thomas More’s Utopia is useful for the critique of Tudor England. If, as Jameson argues, the function of utopia is to identify current limits of our political systems and current limits of our political imaginations, certain claims for constituent power work to expose these.Footnote 104
Jameson’s radical-break approach to utopia raises two questions for studies of constituent power: one question concerns the threshold of ‘radical’ and therefore the need to interrogate the ongoing role of the current or previous constitutional order; the other question is around challenging the limits of current political imaginations. We can revisit Landau and Dixon’s claim that the constitutional process in Chile was (too) utopian and thus (doomed) to fail.Footnote 105 Rather than only focusing on the ‘failures’ of the social movements, drawing instead on Jameson’s insistence on the impossibility of the radical breakFootnote 106 reminds constitutional scholars to ask questions about what the articulation of constituent power demonstrated about the failures of the current order, and to also consider the roles of the contemporary political, social, economic and constitutional order that might have worked to temper the constitutional moment.
Impulse or longevity
As discussed above, there are features that social movements and political parties need to espouse to be recognized as successful constituent power holders.Footnote 107 The section on ‘Constitutional Change’ demonstrates that for Landau and Dixon, there needs to be structural and sociological affinities,Footnote 108 and for Niesen, movements cannot be too fleeting.Footnote 109 These features include ideas of seriousness and of being organized, but they also include temporal vectors such as being non-ephemeral and having a sufficient longevity. These place limitations on constituent power that might work to render invisible claims that emanate from more marginalized groups of society, and those that might not be sufficiently resourced to meet these standards. The concern is that short-lived, ephemeral, or everyday impulses towards utopia might not be identified, recorded, or archived as evidence of claims to constituent power because they do not meet the temporal vectors associated with ‘successful’ political movements within constitutional scholarship. Reading constituent power through the Jameson lens of utopia as an ‘impulse’ challenges the role of these temporal markers.Footnote 110
In his work, Jameson draws a distinction between the utopian ‘program’ and the utopian ‘impulse’.Footnote 111 A utopian ‘program’, like a blueprint, ‘aims at the realization of a utopia’ and is accompanied with a sense of closure and totality.Footnote 112 For Jameson, a utopian program can vary in scale from ‘whole social revolution, on a national or even world scale, all the way down to the design of the uniquely utopian space of a building or garden’.Footnote 113 In contrast, the utopian ‘impulse’ seeps into the everyday.Footnote 114 The impulse is more fragmentary, diffuse and iterative.Footnote 115
An exercise of constituent power might be conceptualized as a ‘utopian program’, where that power is exercised to adopt a new constitution. In contrast, if the utopian impulse is fragmentary and diffuse, shifting to the ‘impulse’ requires a broader view of what activities count as claims to constituent power.
Conceptualizing constituent power as an impulse would both facilitate the possibility of an ongoing articulation of power beyond the constitutional moment and open up discussions about constituent activities that might (in the terminology of Nico Krisch)Footnote 116 be understood as an ‘irritant.’ For Krisch, the pouvoir irritant refers to acts that disrupt the contemporary constituted powers but fall short of constituent power because they do not aim towards reconstitution. In other words, these ‘irritants’ are activities that critique the system and, as such, call for change, but do not necessarily (as of yet) have fully formed manifestos for alternative constitutional arrangements. Movements such as Occupy have been conceptualized as examples of articulations of constituent power, despite not setting out a programme for constitutional change.Footnote 117 These irritant activities might be more ephemeral in nature and possibly short-lived. However, Jameson’s utopian impulse captures these more diffuse or iterative examples and as will be explored in the next section, even these short-lived examples of utopia can have a longer lifespan as they inform future utopian thinking and activities.Footnote 118
Niesen’s distinction between articulations of constituent power and exercises of constituent power can also be read through the lens of the utopian impulse.Footnote 119 For Niesen, whilst an exercise of constituent power is constitutive, the function of an articulation of constituent power is to expose the failures and exclusions rendered possible by contemporary constitutional orders, to expose the legitimacy deficit in these orders and to hold the constituted powers accountable.Footnote 120 The utopian impulse, through its cognitive estrangement function, also works to expose the failings and limits of the status quo. Reading constituent power through the utopian impulse acts as a reminder that the power can be both constitutive and destructive, for it serves as a critique of contemporary constitutional orders. These impulses, critiques, articulations might be more ephemeral in nature – found in manifestos or overheard in the informal spaces of protest camps – and as such, not only does this reading of utopia offer an alternative temporality or timeline for constitutional change, but also serves as an invitation for constitutional scholarship to revisit the sources it uses to identify and evaluate claims to constituent power.
A moment in time
In constituent power discourse, the exercise of power is often tied to a particular constitutional moment.Footnote 121 This is very often the moment at which a constitution is adopted but might also extend to cover the drafting of the constitution through the processes of a constituent assembly. Some scholars would then conclude that the power is exhausted in that moment.Footnote 122 Even for scholars who recognize the possibility of a re-emergence of constituent power, the exercise of such power happens within a particular constitutional moment. For example, for Landau and Dixon, the Chilean moment was a one-off moment (albeit a failure). The risk with this approach is that any ongoing effects, impacts or outcomes after the fact are constructed out of the constitutional analysis.
In contrast, Miguel Abensour’s theory of a utopia as persistentFootnote 123 can be brought into conversation with constituent power. Rather than equate this persistence to an eternal utopia, which Abensour argues would be a conservative project, ‘the expression ‘the persistence of utopia’ designates a stubborn impulse toward freedom and justice’.Footnote 124 This means that utopia is iterative and ongoing, always becoming, rather than momentary or tied to a particular ‘event’ in time and space. Any political event or experience would need to be continually open to the possibility of change.Footnote 125
Abensour argues that utopianism requires ‘incorporating the drive towards alterity’.Footnote 126 This is in direct contrast to the critics of utopianism that see utopia as a drive towards homogeneity that ultimately risks totalitarianism.Footnote 127 This drive to ‘alterity’ works to ensure that ‘democracy never settles into an absolute form’ and instead leaves ‘open the possibility of self-renovation or re-founding’.Footnote 128 As this quote shows, Abensour’s approach to utopia is connected to his conceptualization of democracy,Footnote 129 and the idea of a re-founding speaks to notions of constituent power.
Within constituent power scholarship, there is a debate on the relationship between constituent power and democracy. This debate is framed around questions of procedural and normative limitations on constituent power,Footnote 130 whether the exercise of the power needs to be democratic, whether it needs to be representative and whether it needs to lead to a democratic outcome.Footnote 131 What a focus on utopia shows is that there is also a temporal question. Whilst for Kalyvas, the utopian aspects of democracy are trammelled within the ‘normal times’ with social movements operating alongside institutions but not departing from the constitutional order,Footnote 132 for Abensour democracy maintains its ‘utopian’ ideals through constituent power; ‘democracy must be utopianism to avoid regressing into “normal politics”’, where normal politics is understood as being within constituted power.Footnote 133 Democracy within constituted power becomes about procedure; elections, representatives, voting and referenda. This is in contrast to the radical potential for democracy to be always becoming – not yet done or achieved – to be open to grassroots movements, to facilitate the voice of the oppressed, marginalized and excluded. Constituent power, instead, allows for this sort of expression of power outside of formal democratic procedures. This reaffirms the radical extra-legal potential of constituent power.
Rather than an account of constituent power that is tied to a particular constitutional moment and understood as exhausted at that point, constituent power in this approach is iterative and ongoing. Other constitutional theorists maintain an understanding of constituent power as ongoing. Lawson for example, argues that constituent power acts as an ongoing accountability check on constituted power.Footnote 134 Yet, Abensour’s approach moves constituent power beyond this accountability mechanism and instead shows the recognition of the need for constituted power to be ‘open’ to radical alternatives.Footnote 135
The more iterative nature of constituent power that this approach to utopia has uncovered raises questions about how to respond to either articulations of constituent power outside of the constitutional moment or potential ongoing effects after an exercise of such power. As will be explored in the next sub-section, utopian thinking can be used to rethink approaches to these concerns.
Ongoing effects
Understanding constituent power either as an impulse or as being persistent challenges the idea of a ‘constitutional moment’ and necessitates alternative methods for conceptualizing constituent power. Within sociology, Levitas proffers a conceptualization of utopia as a method.Footnote 136 For Levitas, there are three methodological functions of utopia: an archaeological method that seeks to uncover the utopian aspirations of political projects, as well as the silences and inconsistencies of these projects;Footnote 137 an architectural method that concerns the ‘imagination of potential alternative scenarios for the future’;Footnote 138 and the ontological method which is more concerned with facilitating the development of utopian-thinkers, to create spaces to allow people to ‘dream.’Footnote 139 It has been shown how Levitas’ method can contribute to legal scholarship:Footnote 140 the archaeological mode facilitates questions on whose utopia is being supported through law and who is excluded, and can act as a reminder for constitutional scholars to question whose articulations of constituent power or attempts to activating constituent power are ignored, and the architectural mode – with its emphasis on the plurality of provisional visions of the future – prompts constitutional scholars to seek out the utopian impulse in non-traditional sites, locations and sources.
The archaeological approach is a process of revisiting utopias and utopian projects. Part of this approach involves an excavation of the exclusions and silences within previous utopian exercises, to explore who benefited and who suffered, as well as offering an opportunity for an interrogation of the ‘fault-lines’ to consider why the project failed.Footnote 141 This opens up a space for revisiting so-called ‘failed’ utopias. Davis, for example, reminds us that past utopian experiments and even short-lived examples of utopia can have a longer lifespan as they inform future utopian thinking and activities.Footnote 142
Levitas’ approach to utopia as methodFootnote 143 offers an alternative starting point for constitutional discussions on constituent power. Utopias can provide evidence of articulations of constituent power – so that even where these ‘failed’ or go unheard in their contemporary politics – they can be excavated and recovered. Rather than merely stopping at a ‘finding’ that an articulation of constituent power, such as the Chilean example, was a ‘failure’, Levitas’ archaeological method ensures that these projects continue to have utility; ‘Even as they fail, they operate as a critique of the present and a reconstitution of the future’.Footnote 144 Where Landau and Dixon write off Chile’s constitutional process in 2022 as a failed ‘utopian’ experiment,Footnote 145 revisiting Chile’s constitutional processes through Levitas’ lens of utopia as a method opens up the potential to see the ongoing impacts of that process,Footnote 146 and such effects might inform future utopian thinking, and as such, future constituent processes.Footnote 147
These are only some of the different ways in which utopia can be theorized, but what it shows is that there are different approaches to utopia and utopianism that could be used in constitutional scholarship to expose how constituent power is conceptualized and to offer alternative methodological tools for the study of that power. Moving beyond a blueprint, futuristic or programmatic understanding of utopia, to incorporate ideas of fragmentary utopian impulses, a persistent utopia, or utopia as a method, and complicating utopia’s relationship with the past and future, offers different ways for constitutional scholarship to engage with utopia. These approaches to utopia highlight the need to raise questions about the nature of change, to interrogate how hegemonic structures and epistemological foundations can limit the scope of constituent power, and how temporal assumptions around the longevity and the idea of a ‘moment’ can shape how exercises of constituent power are identified, evaluated and evidenced. Drawing on these theories of utopia shows the need to capture the iterative, ongoing and informal articulations of constituent power.
Conclusion
Articulations of constituent power,Footnote 148 as the radical demand for alternative constitutional structures, can be said to be propelled by a utopian impulse.Footnote 149 But commonly, constitutional scholarship utilises utopia as a criticism. To move beyond mere pejorative uses of utopia in constitutional scholarship, this article draws on the wider scholarship on utopianism to provide alternative readings of articulations of constituent power. Reading constituent power through different approaches to utopia exposes the temporal assumptions that underpin constructions of constituent power in constitutional scholarship. In addition to exposing the temporal assumptions and offering alternative temporalities for constituent power, reading constituent power through the lens of utopianism raises a series of questions for constitutional scholarship.
These questions include what limitations are placed on who can hold or exercise constituent power, when can that power be exercised and what changes can be made. As the section on ‘Utopia in constitutionalism’ shows, the futuristic reading of utopia serves as a critique that can impact how constituent power is identified. The section on ‘Beyond the pejorative: Utopias and constituent power’ then demonstrates how different theories of utopia offer reflections on constitutional epistemologies and methodologies. As Gago notes, feminist potencia requires rethinking everything.Footnote 150 Indeed, Levitas states that utopian thinking is a form of knowledge-generation,Footnote 151 and Kathi Weeks argues that utopias ‘disable those epistemologies and habits of thinking that […] bind us to the present’.Footnote 152 Reflecting on utopian thinking forces us to reconsider our sources, and influences where we look for articulations of constituent power.
This interaction with utopian thinking can also be used to reflect on constitutional scholarship as a discipline more broadly. Though situated within international law, Akbar Rasulov notes the ideological conservatism within international law, and how an anti-utopian stance is driven by the need for self-preservation of the archetypal international lawyer.Footnote 153 In a similar vein, the approach to utopia – and in particular the predominance of using utopia pejoratively – can be interrogated for what this can tell us about constitutional law’s approach (as a discipline) to the scope and nature of constituent power. For Landau and Dixon, comparing utopian constitutionalism with its transformative counterpart ‘ought to be sobering’, as a way of curtailing the potential of transformative projects.Footnote 154 This tempering is not uncommon within constitutional literature, where the power of people can be restrained through certain conceptualizations of constituent power.Footnote 155
An additional utility of reading constituent power alongside utopian thinking is that it has the potential to expose the collective imaginaries that underpin a process of constitutional change. Drawing on Levitas’ archaeological methodFootnote 156 can encourage constitutional scholars to ask about the ideologies that inform a constitutional process; better for whom, being just one question that could be asked.Footnote 157 Indeed, Weeks argues that liberalism had ‘utopian origins’ that it abandoned on becoming ‘a dominant ideology’.Footnote 158 Operating as Levitasian-archaeologists, constitutional scholarship can interrogate those historical articulations of constituent power based on liberal demands and question who would benefit from those once-upon-a-time utopian experiments and who would be excluded and marginalized from the utopian project.
Utopia is more than just a label we can use to dismiss radical attempts to bring about constitutional change. As this article demonstrates, drawing on cross-disciplinary theories of utopia raises questions about how constituent power is identified, evaluated and analyzed within constitutional discourse.
Acknowledgements
This article has benefited from the comments from participants at the Time and Constitutions Workshop in Maastricht (October 2024), the ConGov Workshop in Newcastle in December 2024, and the Constitutionalism and Democracy RECONNET workshop in Maastricht (June 2025). With particular thanks to Lisa Garforth, Matthew Nicholson, Franco Perrone, Francesco de Cecco, Simon Thorpe and Paul Mazzocchi for their comments.
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