The paper probes the relationship between the institutional and the material dimensions of the ‘material constitution’.The analysis centres on two readings of that relationship that are offered first by structuralist and then by Hegelian strands of Marxist theory; thereafter it transfers Luhmann’s discussion of ‘semantics and structures’ to constitutional semantics and the ‘underlying’ material structures in order to offer an account of how the improbable dynamic between materiality and constitutionality might be rendered. The ‘materialist turn’ thereby re-orients constitutional thought to the material practices of the political economy and constitutional formation attaches to changing dynamics in the material relations of production and social reproduction.

If the previous chapter tracked the trajectories of the ‘forgetting’ of labour, and the diverse ways in which the emancipatory promise was lost to the mundane violence of the practices of work, the widespread commodification of social life, and the categorical schemata that vacate political opportunity, a critical phenomenology is tasked with recovering what was forgotten. We begin with such deployments of phenomenology as counter-method, as they inform Weil’s concept of attention and Rancière’s of dissensus. The emphasis here is on the largely underplayed phenomenological moment in the work of both, the disclosure that attention achieves in Weil, that the aesthetic act brings to presence in Rancière. The meaning of these insistent efforts at making perceptible is at the heart of a critical phenomenology, critical in the sense that it proceeds against the usual path-dependencies. The difficulty is captured in the ‘as-if’ of courage in Weil, the counter-factual staging of dissensus in Rancière. Both Weil’s ‘attention’ and Rancière’s ethnographies are, I will argue, profoundly phenomenological endeavours that pit themselves against the self-evidence of what appears as given. It is their unremitting refusal to give in to the ‘distributions of sense’ currently in circulation that mark them out as political, critical phenomenological undertakings.

The ‘quartet’ of the Laval/Viking decisions, all decided by the Court of Justice of the European Union within a period of two years (2007–2009)2 heralded a ‘constitutional moment’ of far-reaching significance that has shaped the field of labour protection and Europe’s social constitution. It is a degenerative constitutional moment. Its impact has been to unsettle the difficult articulation between the national and transnational constitutional orders of labour protection. It was clear then, as it is now, that the launch of EU Labour Law with Maastricht, during what we identified in Chapter 3.3 as the second phase of European integration, was never going to be smooth. From the start, EU Labour Law understood itself as the regulation of the European labour market (the same shift in the self-understanding of labour law as labour market regulation had occurred in the United Kingdom in the 1980s).3 This placed EU Labour Law in a difficult ‘middle’ position where it faced a difficult relationship at either interface: with the ILO which now held to (a limited but) substantive set of principles, and with the national systems (organised in their majority according to principles of political constitutionalism) that established social and labour protection as a matter of national-democratic decision-making. The earlier phase of the constitutional jurisprudence of the European Court had reflected both the difficulty of boundary-maintenance, but also a deference to what the Treaty clearly identified as matters that fell under member state jurisdiction. Not always coherently, and certainly with a dose of self-restraint on the part of the ECJ, the fragile architecture had been upheld during this time. It took the constitutional moment of Laval/Viking decisively to collapse what for a decade before it had been quietly eroding, and to subsume labour protection to the logic of market optimisation. Let us look at the steps of this degeneration, both in terms of its effects on the institutional architecture of labour protection in the European Union, and also at the conceptual level, in terms of the deep commodification of labour.

To take ‘redress’ as the tilting that forces appearance – of ‘a reality which can only be imagined’ – is the insight that underpins the analysis of constitutionalism that this book offers. My argument will be that such redress has become highly improbable under conditions of a significant shift from a political to a market conception of constitutionalism. Redress aims to capture, and where unavailable to force, law’s countervailing gesture. Since it is increasingly forged in a context that resists that gesture it calls for strategic thinking. The key phenomenological question is ‘under what conditions might something emerge as a problem?’ This is where political rationality, the possibility to think the given otherwise, meets a critical phenomenology, the forcing to appear. Redress is not to be understood as the compensatory gesture that would commit to the already defeated site of a skewed equilibrium. Instead, as per Weil, redress asks of us to ‘do what we can’ to imagine alternatives and equip them with a ‘gravitational pull’ such that the weight of necessity does not submerge them. That at least is the aspiration that links the phenomenological account of the first part of the book with the strategic account of the final part. It is with the help of phenomenology that we explore the shaping of the constitutional imaginary of the age; with systems theory, oriented to the ‘appearance of difference’, that we explore what is selected and what suppressed as its expression in constitutional reason; and with critical theory in the tradition of ‘immanent critique’ that we explore strategic deployments. While a phenomenology that navigates its way between Marxism and systems theory is going to be selective in its debts, there is scope, I argue, to extract significant dividends from the way in which appearance is thematised in both, allowing the traditions of phenomenology and Marxism to converge in a restatement of praxis philosophy: as a restatement, in the words of the phenomenologist Bernhard Waldenfels, of a vision that transforms the seen.

In the previous chapter we discussed functional differentiation as the principle that organises modern society, in the tradition initiated by Durkheim, developed by Parsons and radicalised by Luhmann to name but a few along its long trajectory. Differentiation, associated with the maintenance of the proper boundaries of systems, ensured that the legal, political, economic, etc., systems maintained consistent forms of coupling. Our own concern with political constitutionalism has been a concern about how these forms are organised under the sign of the constitution, in a way that allowed a particular constitutional reflexivity to emerge.

If ‘to speak of constituent power is to speak of democracy’, as Antonio Negri puts it in the opening sentence of his important early work Insurgencies, the question that constituent power invites from the outset is how are we to think democracy democratically? But how are we to make sense of this double inscription of the ‘democratic’ at both first- and second-order levels? It imports a seemingly paralysing unsettledness, a double contingency of sorts, in the offer of choice over choice, of reflection over reflection. And yet its allure and its promise are evident, at least to a radical tradition of constitutional theory that typically returned to the promise of constituent power to face up to the following question: If a political society or collective is that which acts through rules of ascription, to what extent can that ascription remain reconfigurable, reflexive, alive to re-definition, open both to operationalisation and transcendence by the collective that it names? This is of course also the problématique of Marxism, of a certain Marxism that counts Negri amongst its exponents, which self-consciously places the subject of emancipation in media res, both bound historically to the modalities of an ascription that could not be stepped behind within an order of capital that defined subject positions, while at the same time holding on to the promise of an overcoming, and of a genuine reflexive process of self-definition.

In the largely hagiographical literature that surrounds Hannah Arendt’s work, the ‘social weightlessness’ of her account of the political is customarily singled out as at least potentially problematic, the distinction she stubbornly draws between the ‘political and the social’ sometimes taken to be ‘untenable’.1 Such qualifying moves misread Arendt. The distinction is all too tenable and it subtends Arendt’s construction of the public sphere; the ‘social question’ of meeting social needs is introduced by her as a key counterpoint to the conceptualisation of what is properly political. Related, relentless, if less criticised, are the sets of distinctions that organise her account of social praxis, the stark partitions between labour and work on the one hand, and of action as distinguished from both on the other. Importantly, for much of this secondary literature, the first problem can be excised from the body of her thought and set aside without compromising it; in the second case conceptual analysis may be tempered as to the starkness of the dichotomies it deploys. But neither of these qualifications to Arendt’s line of argument take her position seriously. Both gestures are intrinsic to her phenomenological method as constitutive of how Arendt gives meaning to the political. As framing conditions, both ‘moments’ run through the political to the root.

‘If I could have made this enough of a book,’ wrote Ernest Hemingway in the Epilogue of Death in the Afternoon, a book that pulsates with nostalgia for his beloved Spain, ‘if I could have made this enough of a book it would have had everything in it. The bare white mud hills looking across toward Casablanca; days on the train in August with the blinds pulled down on the side against the sun and the wind blowing them. … What else should it contain of a country you love so much? We never will ride back from Toledo in the dark, washing the dust out with Furdador, nor will there be that week of what happened in the night in that July in Madrid.’

In our analysis so far, two lines converge. The first line, developed in the first part of the book, sought to establish the conditions of a critical phenomenology. The focus was on what emerges as a problem, the conditions of that emergence, and what in turn sustains those conditions; the critical effort was to submit all three moments to question. The sections on semantics and structures that run through the book turn phenomenology towards hermeneutics, that is, towards thinking about meaning and interpretation. At stake is the loss of terms for redress. As normative expectations become increasingly displaced by cognitive expectations in the modalities of governance by information and the optimisation of outcomes, the key question that must be held on to, I argued, is what are the conditions of iteration of something as a problem such that a political solution might be sought. At that point a critical phenomenology is read into Marx’s eleventh thesis, a thesis that resists reading solutions off situations in fragmented and closed forms of ‘understanding the world’ – the positivisms that express the depleted forms of the Verstand (Hegel’s term for the absence of dialectical thought) – but reconfigures the problem to which a solution might be adequate in the direction of expanding potentiality, or what we call constituent power.

Written and revised over the course of twenty years, Louis Althusser’s Machiavelli and Us remains perhaps his most unfinished work. Fragmentary, replete with corrections in turn revised, deleted and restored, this is an essay poised on what Althusser termed in the mid-1960s ‘a theoretical conjuncture’. How unlikely the attraction of one of the most structuralist of Marxists to Machiavelli; Althusser was after all par excellence the theorist of totalities that arrogated questions of agency and action to themselves, describing the latter as mere epiphenomena of the tectonic movement of capitalist structures. What is it that attracts this theoretician of invariant structures to Machiavelli’s singular conjunctures and the fleeting figurations of virtù? And yet, by the time Althusser comes latterly to write this treatise on constituent power, he finds Machiavelli’s ‘endeavour to think the conditions of an impossible task’ as the one he too must confront. ‘Machiavelli’s question, the question how to begin from nothing, was my own.’2

Already controversially this statement suggests that the law thinks, and that it thinks about itself: to cast the law as both agent and object of scrutiny, it has been objected, involves a circularity that does not allow scrutiny to get off the ground. In this chapter we will treat the circularity not simply as productive but as constitutive of the meaning of the ‘constitutional’ as autopoietic. To answer the ‘epistemological’ objection we will follow Luhmann in his theory of how legal meaning is generated, and we will navigate (and also circumvent) a great deal of theoretical complexity, in order to arrive at an understanding of how legal operations at the first-order are controlled at the second-order, constitutional level, in the way in which they are organised, framed, sanctioned and reflected on, and thus how constitutional meaning is generated across all three dimensions: social, material and temporal. This, I will argue, is what systems theory may offer constitutional thinking that in the face of globalisation sweeping away the constitutional givens, finds it so extraordinarily difficult to answer its identity problem, the question ‘what is the Constitution?’ The answers we get range from theoretical a prioris, to unsustainable assumptions about constitutional culture, to meaningless zero-sum contrasts between political and legal constitutionalism, to weak and tentative delineations couched in the language of so many pluralisms and of a creeping constitutionalisation, all of which surrender the political dimension of the constitution and belie what the constitution is so obviously about: unity, framing, entrenchment, foundation, fixity, orientation and rationalisation.

What unfolded in 1980/81 in Poland was one of the most striking experiments in industrial democracy in Europe, a leaf out of Rosa Luxemburg’s Mass Strike. If the events are today largely forgotten, this is partly because of Solidarity’s (Solidarność) later co-option and involvement as the party in government during the socially destructive programme of market implementation that took place in Poland after the fall of the Iron Curtain. But if it failed to impact on the democratic imagination of the West, it was for another reason too. What was distinctive about the Gdansk uprising was that it was an exercise both in autogestionnaire politics, and a re-assertion of the meaning of work buttressed by a collective commitment to its protection. Solidarity was an instance of a worker’s movement rising against a workers’ republic, unclassifiable in terms of the blunt binarisms that dominated the political imagination of both East and West. It was ‘unclassifiable’ because both the agent and the action defied locution in the constitutional space available to them at the time. This double negotiation (of agency and action) was only possible as an exercise of constituent power in the dynamic process of enactment of a labour constitution.