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International Journal of Constitutional Law Advance Access originally published online on October 7, 2009
International Journal of Constitutional Law 2009 7(4):553-576; doi:10.1093/icon/mop022
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© The Author 2009. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org.

Time and the constitution

Lior Barshack*

* Radzyner School of Law, The Interdisciplinary Center, Herzliya, Israel. Email: barshack{at}idc.ac.il


  Abstract

The idea that sovereignty can be characterized in terms of the opposition between immanence and transcendence has gained increasing currency in constitutional theory. Roughly characterized, immanent sovereignty belongs to the living—to a Hobbesian monarch, for example, or to a group of individuals—while transcendent sovereignty belongs, at least partly, to the dead. The essay puts forward one argument in support of transcendent conceptions of sovereignty, namely, that only such conceptions can account for the temporal organization of social life. The relegation of sovereignty to ancestors and offspring and the distinction between constitutional moments and constitutional routine open up society to the temporal horizons of past and future. By affirming temporality, theories of sovereignty as transcending social and legal systems affirm the burdens of human, temporal existence. The sovereign power over life and death, like other attributes of sovereignty, is relegated by such theories to ancestral authority in order to safeguard life. The proposed account of sovereignty and time is contrasted with the theories of Arendt, Marcuse, Negri, and Maurice Bloch.


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