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2002 J. S. Afr. L. 108 (2002)
Paradoxes of Sovereignty and Representation

handle is hein.journals/jsouafl2002 and id is 118 raw text is: Paradoxes of sovereignty and representation
I Representing the people
In this article I would like to trace the problematic relationship between the
democratic will of a sovereign people and the constitutional framework that
purports to represent the people by containing the expression of its will. My
interest is thus in the triangular relationship between the sovereign people,
constitutional reason and democratic will. In his political history of France,
Pierre Rosanvalon writes this about democracy's peuple introuvable:
Whereas democracy, or popular sovereignty, has represented for two centu-
ries 'l'horizon 6vident du bien politique', even in its lands of origin where it has
been most affirmed and celebrated, democracies are now 'bien marquees par la
dception, comme si elles incarnaient un ideal trahi et d~figur&.' But, as
paradoxes spring up everywhere, I will address the problem of this irreparable
deficit, and the complexity of the relationship underlying it, gradually. Let me
proceed through familiar territory first, and explore the connection between
constitutional reason and democratic will.
American constitutional theorists are fond of saying that it is hard to re-
concile reason and will. They obsess about the counter-majoritarian para-
dox, the federalist dilemma, the Thayerite objection, the clash between
self-rule and law-rule, and what - in numerous other formulations - boils down
to roughly this: how can we justify our commitment to democracy, and thus
the right of a sovereign citizenry to determine the terms of public life, and at
the same time curtail that right in the name of constitutional rights? Every
answer to this appears to stumble on paradox.
I regard this paradox as real, fascinating and persistent. Responses come,
broadly speaking in two types, with constitutional theorists either denying the
tension or explaining it away, either by subordinating reason to will or by
subordinating will to reason. There are thus, respectively, the dualist solu-
tion to the paradox, that of eliding it, and the monist lines of argument that
purport to tackle it.
I will pass over the dualist solution as being simply an admission that the
tension exists, rather than an attempt to overcome it. In this line of thinking,
fundamental rights theorists argue that our political culture incorporates both
rights and democracy as having fundamental value. Western democracy has
accordingly developed a commitment to upholding fundamental rights as an
inherent and constitutive feature and it is its dual commitment to both ideals
that characterises our political systems. But to argue with the dualists that
constitutionalism accommodates both will and reason is to pass off description
as explanation. After all, the dualist cannot cower from both questions, namely
(i) how the reconciliation of these mutually denying ideals is possible, or
* Reader, Centre for Law and Society, University of Edinburgh.
Le Peuple Introuvable (1998) 9.

TSAR 2002.-1

[ISSN 0257-77171

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