The Legitimacy of the People

In textbooks and other descriptions of legitimacy, it goes without saying that legitimacy concerns government. See, for example, Richard Flathman , “ Legitimacy,” in A Companion to Contemporary Political Philosophy, ed. Robert E. Goodin and Philip Pettit (Oxford: Blackwell, 1993), 527-33.

Edmund S. Morgan , Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988); John Dunn , Setting the People Free ( London: Atlantic, 2005); and Margaret Canovan , The People (Cambridge: Polity, 2005).

Robert Dahl , After the Revolution? Authority in a Good Society (New Haven, Conn.: Yale University Press, 1970), 60.

As Hannah Arendt points out, the term constitution is ambiguous in that it refers both to an act and to its result. Hannah Arendt , On Revolution (New York: Penguin, 1965), 145. In our case, it can refer to both the act of constituting the people, and the nature or character of this people once constituted. I shall discuss the people in the former sense. This means that whether one thinks of the people as a collective identity, a multitude of individuals, or a plurality of groups is of secondary importance. The focus is on the prior act of demarcation, the separation of one such people from another.

Rogers M. Smith , Stories of Peoplehood (Cambridge: Cambridge University Press, 2003), 158.

Frederick G. Whelan , “Prologue: Democratic Theory and the Boundary Problem,” in Liberal Democracy , ed. R.J. Pennock and J.W. Chapman (New York: New York University Press, 1983), 16. See also Robert Dahl , Democracy and Its Critics (New Haven, Conn.: Yale University Press, 1989), ch. 14, 204; Jürgen Habermas , “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory 29 (2001): 774; Seyla Benhabib , The Rights of Others (Cambridge: Cambridge University Press, 2004), 15-19; Smith , Stories of Peoplehood, 154, 158; Thomas Nagel , “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005): 128, 145-47; Claus Offe , “`Homogeneity' and Constitutional Democracy: Coping with Identity Conflicts through Group Rights,” Journal of Political Philosophy 6 ( 1998), 116-17; and Ian Shapiro and Casiano Hacker-Cordón, eds., Democracy's Edges ( Cambridge: Cambridge University Press, 1999), 1-3. The most classical description is made by Jean-Jacques Rousseau , The Social Contract and Other Later Political Writings, ed. V. Gourevitch (Cambridge: Cambridge University Press, 1997), 71.

Jürgen Habermas , “ The European Nation-State: On the Past and Future of Sovereignty and Citizenship ,” in Inclusion of the Other: Studies in Political Theory , ed. C. Ciaron and P. de Greiff (Cambridge, Mass.: MIT Press, 1998), 115-16, 140-43. See also Habermas , “Constitutional Democracy,” 773-76; Robert Dahl , After the Revolution ? 62; Dahl , Democracy and Its Critics, 3; John Rawls , “Reply to Habermas,” in his Political Liberalism (New York: Columbia University Press, 1993), 402-3; John Rawls , The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), 38-39; Benhabib , The Rights of Others, 175, 178; Seyla Benhabib , The Claims of Culture (Princeton, N.J.: Princeton University Press, 2002), 177; Smith , Stories of Peoplehood, 43; Whelan , “Prologue ,” 16; and Nagel , “The Problem of Global Justice,” 145-47.

Edmund Burke , Reflections on the Revolution in France (Oxford: Oxford University Press, 1993), 91ff.

Claude Lefort , Democracy and Political Theory, trans. D. Macey (Cambridge : Polity, 1988), 19; and Claude Lefort , The Political Forms of Modern Society, ed. J. B. Thompson (Cambridge: Polity, 1986 ). See also C. Mouffe and E. Laclau , Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 2001); Alan Keenan , Democracy in Question: Democratic Openness in a Time of Political Closure ( Stanford, Calif.: Stanford University Press, 2003); and Bernard Flynn , The Philosophy of Claude Lefort (Evanston, Ill.: Northwestern University Press, 2005). See also the special section on Lefort in Thesis Eleven 87, no 1 (2006).

Margaret Canovan , The People; Bonnie Honig, Democracy and the Foreigner (Princeton, N.J.: Princeton University Press, 2001); Bonnie Honig , “Between Decision and Deliberation: Political Paradox in Democratic Theory,” American Political Science Review 101, no. 1 (2007): 1-17; Keenan , Democracy in Question; and Chantal Mouffe, The Democratic Paradox (London: Verso, 2000). See also, among others, William Connolly , The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995); and Jacques Rancière , Disagreement: Politics and Philosophy (Minneapolis: University of Minnesota Press, 1999).

For the difference between abundance and lack (or immanence and transcendence) in the understanding of radical democracy, see L. Tonder and L. Thomassen, eds., Radical Democracy: Politics between Abundance and Lack (Manchester, UK: Manchester University Press , 2005). For an overview of different agonistic positions, see Andrew Schaap , “ Political Theory and the Agony of Politics,” Political Studies Review 5 (2007): 56-72.

Considering this, one would expect there to be a vibrant discussion as to what render these new boundaries of the people legitimate. Instead, globalization has produced a growing interest in “global governance.” Many liberal and deliberative theorists proceed directly from the nation-state to the constitution of a federation or world government, discussing matters of accountability and the need for global institutions to express the consent of the governed. See, for example, the contributions in David Held and Mathias Koenig-Archibugi , eds., Global Governance and Public Accountability (Oxford: Blackwell, 2005 ).

See, for example, John Rawls, A. Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 13; and Habermas , “The European Nation-State,” 115-16.

Robert Paul Wolff , In Defense of Anarchism ( Berkeley: University of California Press, 1998).

Rawls , A Theory of Justice, 13, 8; Rawls , Political Liberalism, 12, 136; and Rawls , The Law of Peoples, 26.

Rawls , The Law of Peoples , 34, 39 n. 48.

Rawls , The Law of Peoples, 39 n. 48; and Michael Walzer, Spheres of Justice (Oxford: Blackwell, 1983 ), 39.

Smith , Stories of Peoplehood, 135-41; and Benhabib , The Rights of Others, 74-94. For a critique of Rawls from a justice perspective, see, among others, Charles Beitz , Political Theory and International Relations, rev. ed. (Princeton, N.J. : Princeton University Press, 1999 ); and Andrew Kuper , “Rawlsian Global Justice: Beyond The Law of Peoples to a Cosmopolitan Law of Persons,” Political Theory 28, no. 5 (2000): 640-74.

Smith , Stories of Peoplehood , 137.

Benhabib , The Claims of Culture, 19-20, 131-32.

Smith , Stories of Peoplehood , 137, 43.

Seyla Benhabib , “Beyond Interventionism and Indifference: Culture, Deliberation and Pluralism,” Philosophy and Social Criticism 31, no. 7 (2005): 767; and Benhabib , Claims of Culture, 172-74.

A telling example, as Margaret Canovan points out, is the 1973 border poll in Northern Ireland, where 98.9 percent voted for union with the United Kingdom. The Unionists (in majority) saw the verdict as an expression of the will of the people, whereas the Catholic nationalists, knowing that they would be outvoted, called the boundaries of the electorate itself into question and abstained. They argued that by handing over the constitution of the people to “the people of Northern Ireland,” one had settled the question in advance. Canovan , The People, 110-11.

Rousseau , The Social Contract , 71.

See note 6, above.

Whelan , “Prologue ,” 40.

Habermas , “Constitutional Democracy,” 774.

Dahl , Democracy and Its Critics, 3.

Burke , Reflections, 95-97.

To Schmitt, who was active during the Weimar Republic, the gap is filled by the decision of the Reichskansler (as opposed to what he sees as the unproductive discussion of the Reichstag). Carl Schmitt , The Crisis of Parliamentary Democracy , trans. E. Kennedy (Cambridge, Mass.: MIT Press, 1988), 22-32. See also Carl Schmitt , Political Theology , trans. G. Schwab (Chicago: University of Chicago Press, 1985). For a critique of Schmitt, see Mouffe , The Democratic Paradox, ch. 2; and Chantal Mouffe , The Return of the Political (London: Verso , 2005), ch. 8.

Rawls , “A Reply to Habermas,” 404-5.

Nagel , “The Problem of Global Justice,” 146-47.

Habermas , “ Constitutional Democracy,” 774. See also Jürgen Habermas , Die nachholende Revolution ( Frankfurt am Main: Suhrkamp Verlag, 1990), ch. 6; and Jürgen Habermas , “Why Europe Needs a Constitution ,” New Left Review 11 (2001): 16.

In this context it is worth noting that while Benhabib gives Schmitt “right” in that the constitution of the people rests on the arbitrary forces of history, this is the exact point where Mouffe—who often is charged for being too compliant with his constitutional thinking— distances herself from him. As she points out, the problem with Schmitt is that he takes the identity of the people as a given: “Because of that, his distinction between `us' and `them' is not really politically constructed; it is merely a recognition of already-existing boundaries” (Mouffe, The Democratic Paradox, 54).

Benhabib , The Rights of Others, 178; Benhabib , Claims of Culture , 177; and Seyla Benhabib , “ Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida ,” Journal of Political Philosophy 2, no. 1 (1994): 18.

Smith , Stories of Peoplehood , 154, 158, 186ff.

Whelan , “Prologue ,” 16.

Bernard Yack , “Popular Sovereignty and Nationalism,” Political Theory 29, no 4 (2001): 529.

Thomas Hobbes , Leviathan: Parts One and Two ( Englewood Cliffs, N.J.: Prentice Hall, 1958); John Locke , Two Treatises of Government, ed. P. Laslett (Cambridge: Cambridge University Press, 1988); and Rousseau , The Social Contract . It should be noted that while I discuss the work of Hobbes, Locke, and Rousseau, the focus of interest is not with the theorists per se. The attention is on a shared position. On the social contract, see Otto von Gierke , The Development of Political Theory (New York: Norton, 1939), pt. 2, ch.2; J.W. Gough , The Social Contract: A Critical Study of Its Development (Oxford: Clarendon, 1936), “Introductory,” chs. 8-11; and Michael Lessnoff , Social Contract (London: MacMillan, 1986), “Introductory,” chs. 4-5.

As Lessnoff points out, the term social contract—which often is associated with Gierke's distinction between “Gesellschaftsvertrag” and “Herrschaftsvertrag”—easily gives the impression that Hobbes, Locke, and Rousseau never were concerned with establishing “Herrschaft.” This would be misleading. The difference is that unlike their predecessors, they establish a ruling authority directly from the agreement between individuals. Or, differently put, they try to create legitimate “Herrschaft” by means of a Gesellschaftsvertrag. See Lessnoff , Social Contract, 28-30.

Rousseau , The Social Contract , 68.

Note that what I call the people framework and the government framework are not synonymous with Gierke's “Gesellschaftsvertrag” and “Herrschaftsvertrag.” They both refer to the former. Moreover, and as the term framework indicates, the focus is not on particular theories of legitimacy, but on the preconditions under which they might obtain. Finally, it should be noted that the terms people and government in this context are my own, and that Hobbes, Locke, and Rousseau often use the terms in a different sense (if at all).

Lefort , The Political Forms of Modern Society, 279. Lefort's view results from a phenomenological analysis of the symbolic power inherent in the democratic revolution. He describes the move from the sovereignty of the king to that of the people, and the ensuing shift in the symbolic description of power. What happens in the move is that the divine right of the king, and the rank and order associated with it, is replaced by “the dissolution of the markers of certainty” ( Lefort , Democracy and Political Theory, 19). As I will try to demonstrate, a similar dissolution of certainty is engendered in the turn to the so-called state of nature.

This focus leaves out two important questions. Concerned with legitimacy, we take the postulation of a state of nature at face value. How to understand this position itself, and its role in the justification of political order, is therefore not part of the investigation. In focusing on legitimacy, we also leave out its institutional implications, such as what political mechanism is required to construct a legitimate “government” or “people.”

Flathman , “Legitimacy ,” 527.

Rousseau , The Social Contract , 69.

Hobbes , Leviathan, 142. For a critique of Hobbes's idea of the contract, that it renders society too unstable since it suffices that one person disagrees to declare it null, see Samuel Pufendorf , On the Duty of Man and Citizen, ed. J. Tully (1673; reprint, Cambridge: Cambridge University Press, 1991), book 2, ch 2; and Robert Filmer , “ Observations upon Aristotles Politiques,” in his Patriarchia and Other Writings, ed. J. P. Sommerville (Cambridge: Cambridge University Press, 1991), 268.

Hobbes , Leviathan, 142. For a discussion of Hobbes's concept of representation, see Hanna Pitkin , The Concept of Representation (Berkeley: University of California Press, 1967), chs. 1-2; and her two articles on Hobbes in American Political Science Review 58, no. 2 (1964): 328-40 and 58, no. 4: 902-18. See also Quentin Skinner , “Hobbes on Representation,” European Journal of Philosophy 13, no. 2 (2005): 155-84. If Pitkin has a conceptual approach, arguing that Hobbes's concept of representation mainly is a response to internal theoretical problems, Skinner argues that one must see representation as a rhetorical strategy on Hobbes's part against the parliamentarians—what Hobbes calls the “democratic gentlemen”—of his time. The parliamentarians had argued that power is inherent in the people itself, thereby making it possible for the people to resist the king in case he was not properly authorized. Fearing this constraint on his power, Hobbes, as Skinner writes, denies “that civil associations are created out of pre-existing and unified bodies of people.” He claims that there is no such thing as a natural body of people, only a multitude of free and equal individuals, and that the only way in which this multitude can enter into society is if they agree among themselves to authorize Leviathan to present their person. In this way, there is no “people” there to authorize or resist the king.

“This,” Locke writes in a well-cited passage, “is to think that Men are so foolish that they take care to avoid what Mischiefs may be done [to] them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions” (Locke, Second Treatise, § 93). See also §§ 90-91. Locke does not, at least explicitly, respond to the theory of Hobbes. His aim is to refute Filmer's Patriarchia. See John Dunn , The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969); and Jeremy Waldron , God, Locke and Equality ( Cambridge: Cambridge University Press, 2002).

Locke, Second Treatise, § 97. See also § 96.

On this reading, equating everyone's consent with majority consent is Locke's attempt to square the gap in the constitution of a legitimate government. This is in line with John Dunn's view that Locke's comments on majority consent “were a part of his formal analysis of the concept of political legitimacy. They were in no sense whatever a proposal for the appropriate form of social organization.” Dunn, The Political Thought of John Locke, (129).

Rousseau , “ Letter to Mirabeau,” in his The Social Contract, 270.

Rousseau , The Social Contract , 68.

Rousseau , The Social Contract, 59. As Keith Michael Baker points out, this suggests that Rousseau—like Hobbes—also uses the image of a representative in his understanding of popular rule: the general will. The difference lies primarily in the location of this representative device. If Hobbes places the representative in the person of Leviathan, Rousseau places it in the idea of community itself. This move allows him to speak of direct popular rule without having to submit the governing process to the temporary will of the people (the will of all). See Keith Michael Baker , Inventing the French Revolution (Cambridge: Cambridge University Press, 1990), ch. 10.

Hanna Pitkin seems to arrive at a similar understanding in her discussion of obligation and consent. She calls attention to the paradox of obligation, the fact that “men are both superior to their government and subject to it.” To this paradox, she concludes, “No one has the last word because there is no last word.” Hanna Pitkin , “Obligation and Consent II,” American Political Science Review 60, no. 1 (1966): 49-52.

See, among others, David Held , “Democratic Accountability and Political Effectiveness from a Cosmopolitan Perspective,” in Held and Koenig-Archibugi , Global Governance and Public Accountability, 249-50; Nancy Fraser , “Reframing Justice in a Globalizing World,” New Left Review 36 (2005): 69-88; and Robert Goodin , “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy and Public Affairs 35, no. 1 (2007): 40-68.

This is Sir Robert Filmer's objection to the idea of the contract: how do you explain that there are many political communities in the world? See Filmer, Patriarchia, 20. Filmer, of course, is not concerned with opening up the people to a claim of legitimacy. He raises the objection to contest the idea of society as a voluntary association. For him, the kings—who have inherited their powers from Adam—are the only rightful rulers. Nevertheless, Filmer's objection can be compared with an argument often raised by contemporary critics of Rawls: if individuals are free and equal, why limit the agreement in the original position to a closed society?

Hobbes , Leviathan, 140.

See Tracy B. Strong , “Foreword,” in Carl Schmitt , The Concept of the Political , trans. G. Schwab (Chicago: University of Chicago Press, 1996), xxiii-xxiv. See also Mouffe , The Return of the Political; and, for a different view, Jacques Derrida , Politics of Friendship ( London: Verso, 1997).

Locke , Second Treatise , § 95, 331.

Robert Nozick , Anarchy, State and Utopia (New York: Basic Books, 1974), pt. 3. As Nozick argues, this “process goes on; worlds are created, people leave them, create new worlds, and so on.” 299.

An example that is often used to elucidate Locke's idea is the agreement of the Pilgrim Fathers of the Mayflower in 1620: “We do solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politic.” The example serves to illustrate that in the social contract, there is no force prior to the agreement between individuals, but they are themselves its only legitimate origin. But society is not only a matter of self-exclusion. Not only does the Mayflower example illustrate the inbuilt discrepancy between those who are partakers of the agreement (fathers) and all those who fall under its jurisdiction (the mothers, the women, and the children), and the silent contract between them; see Carole Pateman , The Sexual Contract (Stanford, Calif.: Stanford University Press, 1988). It also demonstrates the need to ask who are authorized to step on the boat in the first place since this decision predetermines the boundaries of jurisdiction, not only vis-à-vis the ones who are left behind in the country of origin but also, more importantly, vis-à-vis the already existing inhabitants in the country of arrival. See Jacques Derrida , “Force of Law: The Mystical Foundation of Authority,” in Deconstruction and the Possibility of Justice, ed. D. Cornell , M. Rosenfeld , and D. G. Carlson (London: Routledge, 1992).

Why do Hobbes and Locke never raise the question of how to constitute a legitimate people (rather than a legitimate government)? Perhaps because they, in line with contemporary thinkers, could take it for granted? For the prehistory of “the people” in the Roman tradition before the Reformation and the rise of the social contract tradition—including Hobbes's attempt to wipe out “the people” by means of his theory of representation—see Canovan, The People, ch. 2.

For two recent attempts to rethink democracy as a question of beginning rather than governing (“herrschen,” or command) based on the work of Arendt and Schmitt respectively, see Patchen Markell , “The Rule of the People: Arendt, Arche and Democracy,” American Political Science Review 100, no. 1 (2006): 1-14; and Andreas Kalyvas , “Popular Sovereignty, Democracy and the Constituent Power,” Constellations 12, no. 2 ( 2005): 223-44.

Rousseau , The Social Contract , 71.

See, among others, Paul Riceour , “The Political Paradox,” in Legitimacy and the State, ed. W. Connolly (New York: New York University Press, 1984); Connolly , The Ethos of Pluralization, 137-40; 165-69; Honig , Democracy and the Foreigner, 18-25; Honig , “Between Decision and Deliberation ”; and Keenan , Democracy in Question, 41-54.

Connolly , The Ethos of Pluralization, 138.

Keenan , Democracy in Question , 52-54.

Honig , “ Between Decision and Deliberation,” 3, 5-6. Like Skinner's reading of the problem of representation in Hobbes, Honig argues that Rousseau's many twists and turns are intentional. We should not ask for his argument, but what he is doing with it. See also Democracy and the Foreigner, 37.

Rousseau , The Social Contract , 53.

This way of thinking is not only common in discussions on political membership (Benhabib, Rawls, Smith, and Walzer) but also forms a centrepiece among scholars who examine the role of the nation. The difference is that while theorists of legitimacy often presuppose the existence of a people, scholars concerned with nationhood do not stop there. They ask for its identification. For what kind of entity does one actually assume in speaking of a “closed society”? As Bernard Yack argues, it is the absence of a proper answer to this question that opens the door to the nation: “For the nation provides precisely that what is lacking in the concept of the people: a sense of where to look for the prepolitical basis of political community” (Yack, “Popular Sovereignty and Nationalism,” 524). For an illustrative example of how the nation is able to “fill” this gap, see Emmanuel Sieyès, Political Writings , ed. M. Sonenscher (Indianapolis, Ind.: Hackett, 2003), 133-44.

In line with Lefort's understanding of power as an “empty place,” the people framework of legitimacy is without substance. It does not tell us what legitimacy is. It rather provides the criteria we use when we ask that question. It is not wholly unbiased, however. As many theorists have noticed, Lefort's understanding of power is dependent on there being a sovereign place of power which then is “emptied out” of its content through democratic questioning ( Flynn , The Philosophy of Claude Lefort, 148; and Keenan , Democracy in Question, 8). As Lefort himself puts it, the people is there and declared sovereign, but since it has no body attached to it, its “identity will constantly be open to question” ( Lefort , The Political Forms of Modern Society, 304; my emphasis). In our case, the retreat to a plural state of nature also sets in motion an irreversible process of questioning in society. From this position of boundlessness, however, the question is not “Who are the people?” but “Who constitute the people, and by what authority?” “We,” the persons who have to start all over again, does not refer to an irreducible people, but to an irreducible and an-archical multiplicity. See Sofia Näsström , The An-Archical State: Logics of Legitimacy in the Social Contract Tradition, Stockholm Series in Politics 99 (Stockholm, Sweden: University of Stockholm, Department of Political Science, 2004); and Simon Critchley , Infinitely Demanding: Ethics of Commitment, Politics of Resistance (London: Verso, 2007), esp. ch. 4.

Hannah Arendt , “Civil Disobedience,” in her Crisis of the Republic (New York: Harcourt, 1972), 88.

Yack , “ Popular Sovereignty and Nationalism”; and Sieyès , Political Writings.

Locke , Second Treatise, §§ 113-22; and Rousseau , The Social Contract, 123-24.

See Thomas Jefferson in a letter to Colonel Smith, 1787, in The Life and Selected Writings of Thomas Jefferson, ed. A. Koch and W. Peden (New York: Modern Library, 1944), 436; and Thomas Paine , Rights of Man, Common Sense and Other Political Writings, ed. M. Philp (Oxford: Oxford University Press, 1995), 92. For a discussion of Jefferson and Paine, see Arendt , On Revolution, 232ff.; and Honig , “ Between Decision and Deliberation,” 8ff. 77. Filmer , Patriarchia, 20.

Filmer , “ Observations upon Aristotles Politiques,” 277.

Ibid., 255. See also 261, 274.

Ibid., 275, 268; and Filmer , Patriarchia, 31-32. See also Morgan , Inventing the People, ch. 2.

Joseph de Maistre , “Study on Sovereignty,” in The Works of Joseph de Maistre, ed. and trans. J. Lively (New York: Schocken, 1965), 93.

Conservatives are not alone in emphasizing the gap in the constitution of a legitimate government. With the gradual acceptance of individual self-government, many classical anarchists call attention to the same inconsistency. According to a contemporary advocate of anarchism, Robert Paul Wolff, the defining mark of the state is “the right to rule,” whereas the primary obligation of the individual is “the refusal to be ruled” (Wolff, In Defence of Anarchism, 18). To Wolff, this suggests that a legitimate government is a contradiction in terms, equal to the category of the “round square” or the “married bachelor.” Unlike conservatives like Filmer and de Maistre who take this impossibility to speak in favour of authoritarianism, Wolff assumes the opposite. Government can only take place at the expense of individual autonomy, and since that is out of the question, we must resort to anarchism; Wolff, In Defence of Anarchism, 71.

See note 6, above.

Some, like John Rawls, make it more explicitly than others. On the “taken for granted” nature of political community among political theorists, see Margaret Canovan , Nationhood and Political Theory ( Cheltenham, UK: Edward Elgar, 1996 ).

This conclusion is in line with the democratic thinking of both Mouffe and Honig. As Mouffe points out,

By showing that consensus is a conceptual impossibility, it does not put in jeopardy the democratic ideal, as some would argue. On the contrary . . . such a rejection constitutes an important guarantee that the dynamics of the democratic process will be kept alive. (The Democratic Paradox, 33)

In a similar vein, Honig argues that we should not see Rousseau's legislator as a “betrayal” of the democratic ideal. For “in the end it is up to the people themselves to accept or reject his advances” (Honig, “Between Decision and Deliberation,” 5-6). As I have tried to demonstrate in this article, the productivity of conflict is not only characteristic for the tension between liberalism and democracy (Mouffe) or for the paradox of law within republicanism (Honig). It also forms a centrepiece in the (always impossible) quest for consent within the early social contract tradition.

Dahl , After the Revolution ? 62.

For a revealing account of how this claim operates in politics today, in the debate on nationalism, cosmopolitanism, and populism, see Canovan , The People. See also Benjamin Arditi , “Populism as a Spectre of Democracy: A Response to Canovan,” Political Studies 52, no. 1 (2004): 135-43.

The question of how to institutionalize this conflict falls beyond the scope of this article. However, it is an exceedingly important topic. As Lefort and others have shown, the absence of certainty associated with modern societies is ambiguous. It gives birth not only to democracy but also to the experience of totalitarianism. Characterized by the lack of stable and secure foundations, there is always the risk that modern societies seek to “banish the indetermination that haunts the democratic experience” by affirming the People-as-One. Lefort, The Political Forms of Modern Society, 305, pt. 3.

To Giorgio Agamben, this way of reasoning is significant for modern democracy. For whereas the medieval notion of exception is “an opening of the juridical system to an external fact,” the modern version attempts “to include the exception itself within the juridical order.” It rules by means of exclusion. Giorgio Agamben, State of Exception, trans. K. Attell (Chicago: University of Chicago Press, 2005), 26.

Sofia Näsström , “What Globalization Overshadows,” Political Theory 31, no. 6 (2003): 808-34. See also Jens Bartelson , “Facing Europe: Is Globalization a Threat to Democracy?” Distinktion , no. 8 (2004): 47-60; and Marc G. Doucet , “The Democratic Paradox and Cosmopolitan Democracy,” Millennium: Journal of International Studies 34, no. 1 (2005): 137-55.

Nagel , “The Problem of Global Justice,” 147.

Walzer , Spheres of Justice , 31.

Benhabib , The Rights of Others, 1; emphasis added.

For the argument that it is the other way around, i.e., that foreignness resolves the problem of founding the people, see Honig's illuminating discussion in Democracy and the Foreigner.

See also Hannah Arendt , “The Decline of the Nation-State and the End of the Rights of Man,” in her The Origins of Totalitarianism (New York: Schocken, 2004), 372. This is what Michael Walzer refers to as the asymmetry between emigration and immigration: you have a right to leave your country of origin, yet no corresponding right to enter a new one. To Walzer, this is a moral asymmetry. See Walzer , Spheres of Justice, 40. See also Benhabib , The Claims of Culture, 171-75.

See also Giorgio Agamben , Homo Sacer: Sovereign Power and Bare Life, ed. W. Hamacher and D. E. Wellbery , trans. D. Heller-Roazen (Stanford, Calif. : Stanford University Press, 1998 ).

Arendt , “The Decline of the Nation-State,” 373, 376-77.

Benhabib , The Rights of Others, 138. See also Benhabib's discussion of Arendt's “right to have rights” in ch. 2.