Constituent power and independence movements: On the founding and foundation of political orders and the meaning of political independence

Abstract

This paper links the debates on constituent power and European independence movements in order to develop a theoretically compelling and empirically grounded conception of constituent power, as well as to assess in how far constituent power contributes to the meaning of political independence. In its first part, it builds upon recent republican contributions to the debates on corporate, joint and collective agency and argues that, even on individualist grounds, constituent power can convincingly be understood as a surplus of collective agency that corporate agency cannot encompass. In the second part of the paper, these preliminary theoretical considerations are confronted with the debates about Scotland's constitutional future and the 2014 independence referendum. This examination suggests further differentiation, but also facilitates insights into the interplay of the constituent power of the people with corporate forms of agency, as well as into changes of constituent peoples. In the final part, the paper inverts the perspective of inquiry to show that, once one is conscious of the complex relation between popular sovereignty and sovereignty that conceptions of corporate and collective agency help us to grasp, constituent power also proves to be an element of a compelling political conception of political independence.

Introduction: Movements for independence and constituent power

Secessionist movements for independence continue to challenge existing states worldwide. In Europe, we witness the motivating and polarising force of the idea of independence within established democracies, as well as under conditions of interdependence and integration beyond the state. Empirical research on European independence movements has diagnosed that, under these conditions, the meaning of independence has changed (e.g., Hepburn, 2010: 227; Keating, 2017: 1f.). What it has come to mean, however, is less clear. In parallel, debates about independence referenda, and claims to a right to decide their constitutional future by sub-state actors that are integral parts of European independence movements, have sparked further interest in questions of constituent power (e.g., Tierney, 2007; Niesen, 2022), specifically, how constituent power can and should be understood, not least in the context of independence movements, and whether and how sub-state actors can or should claim constituent power remains controversial.

Against this double backdrop, and with particular reference to the Scottish case, this paper aims to link the debates on the constituent power of the people, and the meaning of political independence in Europe. The questions are:

How can and should constituent power be conceptualised in processes of (deciding on) becoming independent?

Does constituent power offer insights not only to help understand these processes, but to conceptualise political independence, as well?

The aim is thus to contribute to the theoretical debate on constituent power by looking at constituent decision-making about secession and independence and, by inverting the perspective of inquiry, to assess how far constituent power contributes to the meaning of political independence. To do so, this paper links theoretical reflection with an assessment of the debates about Scotland's constitutional future and the independence referendum, as these are considered a model for inclusive and engaged democratic will-formation and decision-making on independence (Devine, 2017: 232).

The notion of constituent power has gained historical significance and remains relevant today for two main reasons. Polities are understood as human-made, positive legal or constitutional orders and the idea that the people are the fundamental source of political authority has turned into a crucial normative point of reference: ‘Constituent power signals that constitutional orders are made, not found, and that their authorship of last resort lies with the people’ (Niesen, 2017: 222). Having become influential during the Enlightenment and the revolutions of the eighteenth century, this idea today highlights the link between democracy and constitutionalism (see also Rubinelli, 2020: Ch. 2). Especially in the democratic tradition that relates back to Sieyès (2003 [1789]), constituent power refers to the power of the people to constitute and re-constitute, to found and (re-)shape a political-constitutional order as a constituted polity. Insofar as this reading forms the central point of reference for this paper, alternative readings that locate constituent decision-making with political institutions, or link it to a right to resistance (e.g., Colón-Ríos, 2017: 4ff., 23ff.) and general discussions about the pros and cons of different types of constitution-making (Arato, 2017; Colón-Ríos, 2017), move to the background. Selected forms of constitution-making will, nevertheless, be considered with regard to the Scottish case.

Currently, constituent power is conceptualised in a variety of ways. Readings from constitutional theory highlight the close relationship between constituent power and the constitution (Loughlin, 2004). Contributions from radical or agonistic democratic theory highlight inclusive, participatory and direct forms of constitutional change, but question the idea that constituent power can or should be institutionalised (Kalyvas, 2005, 2018). In turn, contributions that build on republican and/or discourse theoretical thinking highlight the importance of democratic constitutional states. Continental authors, in particular, refer to constituent power to make sense of the idea of popular sovereignty (e.g., Maus, 2011: 367ff.; Niesen, 2017: 222). Not least in the context of independence movements, (liberal-)nationalist conceptions complement this picture by locating constituent power with the self-determining nation (e.g., Bossacoma, 2020: 19ff., 48ff.).

The present paper builds on a double basis – on recent republican contributions conceptualising corporate, joint and collective agency which are, in the course of the paper, connected to the tradition of popular sovereignty. It thereby negotiates the relationship between democratic politics and constitutionalism that is at stake, particularly in foundational cases of constituent decision-making. In its first part, the paper engages with prominent notions of corporate, joint and collective agency that have gained attention in recent republican contributions to establish a reading of collective self-determination which, in contrast to many liberal-nationalist accounts, rests on individualist and political grounds without giving up on the demos as a collective agent. The paper differentiates between the interrelated, but not identical conceptions of corporate and collective agency, and relates them to the distinction between constituted and constituent power. Thereby, it becomes possible to make sense of constituent power in relation to independence movements in constitutional democracies. The second part of the paper, where the preliminary conceptual considerations are confronted by the Scottish case, highlights a complex interplay of corporate and constituent collective agency. This dynamic can be observed throughout the entire process surrounding an independence referendum, including the lead-up, the event itself, and the anticipated aftermath. It necessitates further differentiation, but also facilitates further insights into the constituent power of the people and its relation to corporate agency.

The assessment of constituent power in debates about Scotland's constitutional future leads us, in the third part of the paper, to invert the perspective of inquiry to negotiate the extent to which constituent power helps us to understand the meaning of political independence itself. At first sight, independence seems to refer primarily to polities as corporate agents. Yet, the account presented here suggests that independence not only refers to the integrity and particularity of constituted polities and practices of decision-making, but also presupposes the existence of constituent peoples, and entails the possibility of re-constitution. The result is a multi-dimensional and political conception of political independence.

Agency – corporate, individual, and collective – and constituent power

The following proposal for conceptualising constituent power in the context of broader notions of corporate and collective agency takes established contributions from the republican tradition of political thinking as points of departure. As the discussion will show, only an account that differentiates individual, collective and corporate agency allows us to understand their distinct contributions to democratic politics and constitutional polities, to negotiate their interrelationships, and to conceptualise constituent power as a surplus of collective agency that corporate agency does not and cannot encompass.

This democratic-republican account offers an alternative to other ways of thinking about political agency and constituent power – from accounts that distance themselves from the notion of collective agency, to accounts that conceptualise constituent power based on collectivist premises. An example of the former is Stilz's (2019: 123ff., 150ff.) liberal account that focusses on the interplay of individual and corporate agency. Examples of the latter are (liberal-)nationalist accounts (e.g., Miller, 2000).

Republican thinking builds on the insight that individual freedom is realised institutionally in social and political contexts, and stresses the importance of the people and its citizen members, and thus a collective dimension of democratic politics. At the same time, republican contributions range from communitarian or collectivist accounts, via attempts striving for a balance between individual freedom and collective self-determination or popular sovereignty, to accounts that prioritise individualist arguments (e.g., Bellamy, 2011: 130ff.). Pettit's (2012) prominent account of political agency will serve as the main point of departure for the following discussion. By engaging with it and building on the work of Skinner (2002a, 2002b), Oldenbourg (2019), and Gädeke (2017), a tripartite account of individual, collective and corporate agency is developed that builds on individualist premises, but also recognises collective agency and its complex interrelations with corporate agency. Thereby, it opens up a fruitful perspective on the constituent power of the people.

Variations of corporate and collective agency in (neo-)republican thinking

Before delving into Pettit's account, a brief discussion of contributions to republican thinking that assign agency to pre-political communities or nations is necessary. Prominently, Miller (2000: 34f., 79f., 102ff.) locates constituent agency within nations as communities with a shared history, language, culture and customs, and thus shared meanings, which are considered prerequisites for individual freedom, as well as for solidarity and democracy (see also Bellamy, 2019: 31f., 77ff., 137ff.). While Miller argues for a balance between individual freedom and national self-determination, he conceives of national communities as at least partially pre-political collective agents (2000: 27ff.). The decision to assign nations agency and a right to national self-determination, including the ‘right to decide’ or constituent power, would solve many of the challenges that will be discussed in the course of this paper. Nevertheless, it also confronts fundamental criticism. Empirical inquiries question the existence of clearly distinct national communities. Normatively, building on nationalist and thus collectivist premises is exclusive because membership in the pre-political nation is, for many people, hard or even impossible to attain (e.g., Vincent, 2005; Williams, 2007; see also Meine, 2017: 203ff., 237ff.). Thus, the balance between individual autonomy and collective as national self-determination is skewed toward the latter because national belonging is the gateway for individuals to lead fully free and self-determined lives. The notion of collective agency of a nation is, therefore, based on collectivist premises that trump individualist arguments and undermine a true balance between individual and collective agency.

In contrast, Pettit (2012, 2023) builds his neo-republicanism firmly on individualist premises, highlighting the importance of the political institutions and the mixed constitution of free states to guarantee individual freedom and create options for individual citizens to contribute to and contest political decisions. Pettit, like other republican thinkers (see below), conceptualises the state as ‘a corporate and conversable entity’ (2012: 133), a corporate agent. It has the ‘capacity to make up its mind autonomously’, is ‘addressable by other persons’, can ‘make commitments to others and be held to account’ (Pettit, 2023: 89), and can therefore be considered a legal person. Claiming exclusive authority and supremacy, the state moreover has the power to impose a legal order, raising questions of legitimacy (Pettit, 2012, 132ff.; 2023: Ch. 2).

Pettit's conception of the people can be understood against this backdrop because a dual conception of ‘the people’ answers these questions of legitimacy. Pettit understands the plurality of citizens as the constituting people (plural), as ‘members of the population acting as citizens to determine how things are set up and run’. In ‘a multi-dimensional, multi-centred system of popular interaction and decision-making’, citizens ‘as a plurality’ exercise influence and control via a series of electoral and contestatory institutions and processes framed by a mixed constitution, and thereby direct and sustain the political and constitutional order (all quotations Pettit, 2012: 286, see also 220ff.). Pettit contrasts this with the constituted people (singular): ‘the people in incorporated form: the people, operating in the manner of a singular, corporate entity’ (2012: 287). Collective agency, according to Pettit, is solely located in the ‘incorporated’ or ‘constituted’ people. The people as a collective agent can only act through the corporate agency of the state; in fact, Pettit explicitly identifies the state and the constituted people: ‘The constituted people […] is just the state and the state is just the people’ (Pettit, 2012: 287). At the same time, Pettit claims the ‘primacy’ of the constituting people. The people, which exists as a collective agent within and by means of the political order of the state, is (to be) shaped by the actions of the plurality of citizens – at least in the long term (see also Oldenbourg, 2019: 158). However, this account remains ambivalent. On the one hand, Pettit (2012: 288ff.) claims priority for the constituting people, and hints at their ability to change the constitution by extra-constitutional means. On the other hand, where Pettit (2012: 282ff.) elaborates on the notion of the constituting people, the plurality and diversity of citizens as members of the constituting people are already located within the context of the constitutional order, and thus within the framework and boundaries set by the constituted people, thus by the state.

Recently, Pettit (2023: Ch. 4) has elaborated on these thoughts and developed the notion of the incorporating people – the equivalent of the constituting people – that exist alongside unincorporated people as a pre-political multitude without agency, and the incorporated as the constituted state-people that exercises collective as corporate agency. Importantly, the agency of the incorporating people is contrasted with collective agency, and conceptualised as the joint agency of its individual citizen members acting together to pursue a common goal (Pettit, 2023: 206ff.). The incorporating people are, and remain, ‘a multiplicity of agents who jointly sustain the polity, each playing the part or parts required of them in a plan that achieves that effect’ (Pettit, 2023: 212, see also 211ff.), such as obeying the law, electing officials and even contesting political decisions. Thus, the members of this multiplicity act mainly within the framework of the constituted order, even though Pettit (2023: 211, 216f.) also claims this form of agency for extra-constitutional constituent acts of resistance, and even for founding new polities. In order to realise the extra-constitutional power of the incorporating people, there must be a plan under which at least a significant number of its members coordinate, as well as motivation to risk the costs of resisting the constitutional order (Pettit, 2023: 218ff.). Pettit thus continues to identify collective and corporate agency, and subsumes the power to (re-)constitute a polity under a joint form of agency by individuals.

While the strengths of Pettit's account are that he recognises the inner plurality of the demos and highlights the status of individual citizens, as well as the importance of legal and political institutions that guarantee their freedom and self-determination, it is also confronted with a series of criticisms that pertain to his conception of political agency. First, as a collective, the people appears, on the one hand, through the back door, and on the other hand, in the form of the state itself: Pettit himself speaks of ‘unintended consequences’ (2012: 291) of individual actions that, over the long term, produce the shared norms and shape the institutions of the state, resulting in citizens’ collective self-determination. The relation of individual citizens to the people as a collective is of secondary importance (see also Oldenbourg, 2019: 151f., 159f.). Against this backdrop, second, the equation of people and state appears questionable because, from an individual perspective, it is not evident whether and/or how they are collectively self-determining. In Pettit's account, the idea of ‘the state in the hands of the people’ (Maus, 2011: 43), ¹ the core of republican notions of popular sovereignty, is elusive. Defending democratic republicanism, Celikates (2014: 45ff.) argues in favour of an intrinsic link between individual freedom and collective self-determination, which establishes a connection between the genesis and the validity of political norms, and necessitates participation. While Celikates, like Pettit, rejects the idea of a collective self that governs itself, he argues that citizens must be able to collectively make their own decisions and see themselves as co-authors of the laws. Participation itself does not make individuals free, but ‘being able to participate in these decision-making procedures is a necessary part of being respected as a free and equal citizen and of collective self-rule’ (Celikates, 2014: 51). Third, Pettit's arguments about (re-)constituent agency are primarily a by-product of his argument that collective only exists as a corporate agency. A systematic account of constituent, as opposed to constituted forms of agency, as well as a clear account, not of resistance to a constituted polity, but of the democratic (re-)constitution of a polity, is missing. Pettit's position on individualist joint and collective corporate agency does preclude a compelling conception of legitimate constitutional change.

A tripartite conception of individual, collective and corporate agency

In contrast to Pettit, the following account explicitly delineates between individual, collective and corporate forms of political agency. One premise is that even collective agency needs to rely on individualist foundations. Yet, while conceptions of a collective self that is self-determining are dismissed, it nevertheless makes sense not to abandon the notion of collective agency. It is only by differentiating between individual, collective and corporate agency that we can negotiate their distinct forms and contributions to democratic politics, as well as their complex interrelations. The tripartite account shows that collective agency is conceivable even on individualist grounds, but necessitates political institutions and processes of decision-making. Under regular circumstances, collective is therefore realised via corporate agency. However, a people and a state, or polity, are not identical, and a convincing conception of collective agency must do justice to their differences, not least in order to recognise democratic self-determination within well-established states, as well as cases of legitimate constitutional change. It is thus within this framework that constituent power can be located and conceptualised.

Skinner elaborates his conception of the state as a corporate agent on the basis of his reconstruction of Hobbes’ theory of the state. Accordingly, a state is a corporation that shares the features of a person and holds the status of an agent. ² It must, however, be equated neither with its political institutions or public officials, nor with the people, as it is based on a ‘doubly abstract notion of public power’ (Skinner, 2002a: 386; 2002b: 206f.): On the one hand, this corporate agent has no existence without or beyond government institutions and public officials, and is only capable of speaking and acting through them. Their actions are attributed to the state. It is this corporate agency, based on a claim to supremacy and realised by institutions and officials of the polity, that forms the core of sovereignty. But public officials and institutions represent the state. They are not identical to it (Skinner, 2002a: 403). On the other hand, the state only exists as an association of individuals. The state as a corporate agent and those who represent it receive their authority through acts of authorisation by the people. In turn, the existence of the people as a political collective depends on their incorporation into the state. According to Skinner, as well, the people act as a collective through the corporate agent that is the state, and thus through its institutions (Skinner, 2002b: 185f., 197ff.). But Skinner's account shows convincingly that a state always remains distinct; it remains an abstract idea and an artificial, even fictional agent, although its actions are all but fictional. This explains its continued existence even when the members of the people or their representatives change (see also Oldenbourg, 2019: 142f.). Even more importantly, this conception allows us to grasp the differences, as well as the interrelations, between individuals, people, state and political institutions, or public officials.

Today, a compelling account of legitimate corporate agency presupposes, one the one hand, the constitutionalisation of the polity and the integrity of the constitutional framework and, on the other, the continuing authorisation by the people. In fact, Oldenbourg (2019: 141ff., 160ff.) emphasises the fundamental importance of democratic constitutionalism. The legal and institutional structures of a state enable the people to act as an incorporated and constituted collective of citizens via the political institutions of the state, both internally and externally. In contrast to Hobbes’ times, moreover, the relationship between demos and state is to be conceived as a relationship of continuous authorisation and control, on the one hand, and of democratic representation, on the other. The relationship between people and state is to be continuously (re-)articulated and can also be re-constituted. The corporate agency of the state is not a static reality.

Notably, citizens’ engagement with the state can take a number of forms. As individual agents, they interact freely with each other, as well as with the institutions and officials that represent the state. The state as a corporate agent offers individuals a counterpart with which to engage and enter into individual relationships, as persons governed by the state, but also insofar as they utilise individual options for influence, control or contestation (also Oldenbourg, 2019: 146f.). As Pettit outlines, individual citizens’ actions can also result in joint agency, if they act together with others to pursue political goals that they have in common (see above). But this should be distinguished from members of the demos participating in collective processes of democratic will-formation and decision-making that cannot fully be understood via joint agency.

Collective agency can be conceptualised on individualist grounds, as well as distinguished from individual agency. The basis of this argument is Gädeke's (2017: 103f.) proposal to complement the negative neo-republican conception of freedom as non-domination by an account of legal and political autonomy and, thus, a positive dimension of agency. This entails that individuals can shape the social norms and relations, and the social, legal and political contexts within which they are embedded. For individuals to be free, the status of addressees of the law and of bearers of rights does not suffice. They must also hold the status of autonomous citizens that participate in collective processes of will-formation, decision-making, and self-legislation, and thus shape the political and constitutional order they are part of (Gädeke, 2017: 187ff.; 199ff.). Importantly, self-legislation and, not least, the power to form and shape the political and constitutional order which are implied by the notions of freedom and political autonomy, are collectively realised by the members of a specific community of law. They develop collective agency via processes of contestation, but also importantly through deliberative, participatory and ideally inclusive will-formation and decision-making (Gädeke, 2017: 208ff.).

Building on the supervenience model that List and Pettit (2011; see also Pettit, 2012: 191ff.) propose, Gädeke (2017: 293ff.) emphasises an understanding of collective self-determination and agency that can neither be understood separately from the plural attitudes, intentions, statements and actions of the individual members of the collective, nor be limited to the aggregation of individual positions. In order for individuals to ‘think and act collectively’ (2017: 285), informal, as well as institutionalised processes of will-formation and decision-making are necessary because they allow them to form collective intentions, assess them, not least against previous or parallel decisions, and thereby reflexively develop them further. Intentions, judgements and decisions of the collective are thus not detached from those of its respective members. Yet, the institutionalised processes of self-reflexive collective will-formation and decision-making, among free and equal persons, establish the epistemic independence of the collective. The collective thus goes beyond the joint agency. It can be ascribed to self-reflexive demoi that can assume the status of a self-determining agent, without presupposing the existence of a collective subject or ‘self’, and while still allowing individuals to consider collective decisions as made by the collective, of which they are free and equal members (Gädeke, 2017: 294ff.).

If one combines these different strands of argument, the resulting democratic-republican reading allows us to differentiate between individual, collective and corporate agency, while also recognising their interrelations: The state or polity is a corporate agent and, at the same time, its institutions provide points of reference for an individual and collective agency. Prerequisites for the links between individual freedom, collective self-determination and sovereignty that underlie this account are the integrity of the constitutional, legal and institutional structures of the respective polity, as well as the integrity and particularity of the practices of collective democratic will-formation and decision-making. Notably, particularity implies the boundedness of polities and demoi, but does not refer to the particularity or exclusivity of preexisting communities or collective identities. Rather, it relates to the tripartite relationship between individual citizens, demos and state or polity. Even though these relationships are not permanently fixed and can be politically contested and renegotiated, it is their interlinkage that allows for the interplay of individual, collective and corporate agency. ³

Differentiating between corporate and collective agency in this way might, at first, seem like a purely academic exercise. Legitimate corporate agency presupposes collective agency, and the collective agency of a demos ‘normally’ finds expression via the internal and external corporate agency of the constitutional state or polity. But, contrary to what Pettit seems to suggest, corporate and collective agency are not identical. Legitimate corporate agency of the polity, enacted via its institutions, gives expression to the collective agency of the people as an incorporated collective. But neither individual nor collective agency completely merges with it. Collective agency does not seamlessly translate into corporate agency. There is a surplus, not only of individual, but also of collective agency that corporate agency cannot encompass. And it is precisely this surplus of collective agency that can help us understand the constituent power of the people.

Constituent power as a surplus of collective agency

Constituent power is widely conceived as relevant in the act of founding, of constituting a polity. Particularly, if it is understood as a crucial dimension of popular sovereignty, the original democratic as constituent power of the people, lends legitimacy and authority to the constituted order of a democratic state. Additionally, constituent power is not fully absorbed into the constituted order after the founding act, but can be reactivated as a power of constitutional change beyond constitutional amendment (e.g., Kalyvas, 2005: 226; Niesen, 2019: 33). In the terminology of this paper, constituent power refers to a surplus of collective agency that is not, cannot and, as Niesen (2017: 224) and Patberg (2017a: 52, 58) argue, must not be expressed via corporate agency. Oldenbourg (2019: 147ff., 160ff.) points in this direction when he argues that each act of constitution and incorporation of a people remains an imperfect attempt to represent the constituent people that can still contest and (re-)constitute the polity. While for him, constituent agency remains confined to the mode of contestation by individuals or groups, Gädeke's (2017: 215ff.) conception of autonomy more explicitly encompasses the possibility of changing the social and political structures within which individuals are embedded via collective agency. Notably, even in these cases, a collective's constituent agency requires institutions and processes that provide for reflexive processes of will-formation and decision-making, via which individuals, as free and equal members of the constituent people, develop collective agency. Yet, it does not presuppose the constituted structures of a state or polity as a fully constituted corporate agent (Gädeke, 2017: 314ff.).

This preliminary sketch already indicates that the notion of constituent power is confronted with two related challenges at precisely this point: the paradoxes of foundation (Kalyvas, 2005: 231), or constitutionalism (Loughlin & Walker, 2007: 1f.). They point to the fact that the foundation of a constitutional order and its institutions relies on extra-constitutional forms of collective agency which, in turn, are not conceivable without mechanisms of representation, without institutions and processes of will-formation and decision-making that make the agency of a constituent collective realisable in the first place. Engaging with these paradoxes helps to better grasp the relationship between democracy and constitutionalism.

First, it bears remembering that while constituent power is widely regarded as a crucial dimension of popular sovereignty, conceptually as well as normatively, it is not compatible with all notions of national and popular sovereignty, but with conceptions that understand constitutionalism in light of popular sovereignty, as well as popular sovereignty as linked with constitutionalism. Parallel to notions of democratic constitutionalism, Loughlin's (2004: 112f.) relational understanding of constituent power reflects this interrelation. In contrast to liberal approaches to constitutionalism, which interpret it primarily as a means to limit political power and to protect individual freedoms, Loughlin emphasises the interplay between politics and law, democracy and constitutionalism: Constitutions give political power a legal form. They organise, guide and limit political power. But, at the same time, they enable, indeed generate power, and remain themselves subject to political decisions and developments. As constituent power is not absorbed into the constituted order, but remains present not just as a normative reference point, but also as a power that can be reactivated politically, a constitution is always in the process of becoming, ‘a living constitution’ (Tierney, 2022: 73, also 73ff.). This does not mean that the tensions between democracy and constitutionalism, lying at the heart of the paradoxes mentioned, are resolved. Constituent power always carries the potential to destabilise or to transform the existing constitutional order (see also Colón-Ríos, 2017: 39). It offers a mechanism for renegotiating, linking and developing the relationship between democracy and constitutionalism over time (Loughlin and Walker, 2007: 3f.).

Viewed against this backdrop, constituent power, on the one hand, forms the (logical) precondition, as well as the limit of corporate agency, but, on the other, is also conceptually limited itself. The reference to the power of the people shapes and limits the sovereign power of corporate agents. The relationship between the people and the polity, established by the real or imagined founding act, must not be severed as long as corporate is to be understood as an expression of the collective agency. Constituent power forms the ‘generative’ dimension of popular sovereignty (see also Kalyvas, 2018: 105; Loughlin, 2014: 231; Tierney, 2022: 74ff.) because potential changes to the structures of corporate agency are possible not in the form of constituted, but of collective as constituent agency. Constituent power as the surplus of collective agency keeps the possibility of (legitimate) constitutional change open. Simultaneously, understanding constituent as a form and surplus of collective agency does not mean that it is a necessarily revolutionary power. Rather, even though it goes beyond collective agency as it is expressed by corporate agency, it is itself limited. On the one hand, ‘[i]t is a power that constitutes legal-political structures and that, as such, is in a direct conceptual relation with the idea of a constituted order’ (Rubinelli, in Colón-Ríos et al., 2021: 928). It is always (to be) directed towards constitutionalisation. On the other hand, understood as a form of collective agency, it remains bound to institutions and processes, mechanisms of representation and institutional structures of will-formation and decision-making that allow individual members of a constituent collective to develop and cultivate collective agency. And still, it remains a surplus of collective agency and represents a ‘challenge to the constitutional status quo’ (Colón-Ríos, 2017: 38).

As Niesen (2017: 223f.) emphasises, acts of constituent power can take a variety of forms that ultimately cannot be determined, constitutionally fixated or predicted. However, while it realises extra-constitutional power, constituent as collective agency can neither be convincingly conceptualised as extra-institutional or extra-legal, nor do we have no means of distinguishing legitimate from illegitimate acts. Regarding its normative assessment, authors agree that constituted institutions must not usurp constituent power. They also support the non-violent, inclusive character of constituent decision-making and the equality of the members of the constituent people (Kalyvas, 2005: 236; Patberg, 2017a: 58f., Niesen, 2022: 53). If one then turns to the process of constitution-making, institutionalising processes of constitution-making proves demanding and often controversial. But this only underlines a core insight: ‘The method of constitution making does matter’ (Arato, 2017: 277).

In normative terms, the present account entails a preference for open and inclusive processes of will-formation and decision-making among free and equal members of the constituent collective and/or their representatives. Participation by members of the constituent collective should be provided for and encouraged. What is more, in order to guarantee that the relevant perspectives are taken into account, that the equality of participants in constitution-making is recognised and, not least, that a constituent decision can be considered a legitimate and democratic expression of collective agency of the relevant constituent people, constituent decision-making, at least in democratic contexts and/or as far as possible, should take the form of a legally framed, multi-stage process, distinct from the constituted forms of decision-making realised in the constituted polity (see Arato, 2017; Colón-Ríos et al., 2021). ⁴

Considering specific ways of constitution-making also reminds us that the constituent people acting as a collective agent is a political artefact. Many constitutional and political theorists argue that its identity becomes visible in the act of constitution-making, and can be understood by analysing the constitution itself (e.g., Loughlin, 2014: 228ff.; Tierney, 2022: 74f.). But it is also democratic processes of constitution-making, not least referenda, which give expression to the identity, in fact, presuppose the specification of a constituent people (Tierney, 2016: 113ff.). Here, the paradoxes of foundation and constitutionalism relate to the so-called boundary paradox (Näsström, 2007). The account of constituent power presented so far does not claim to solve either of them. But it opens up a fruitful perspective for legitimate democratic engagement with them through processes of constitution-making, always keeping open the possibility of future acts of (re-)constitution, as well as possible changes in the constituent people (see also below).

Before we assess these preliminary results in the contexts of the debates and decisions on Scotland's constitutional future, two additional points are in order: The democratic-republican account of constituent power proposed here shares a number of insights with radical-democratic accounts, not least the rejection of the notion of a self-determining collective self, and the insight that a democratically constituted political order as a political artefact is based on, and needs to remain subject to, democratic will-formation and decision-making (e.g., Kalyvas, 2005, 2018). It differs from radical-democratic accounts, however, insofar as constituent power is not comprehensively specified by ‘more spontaneous, extra-institutional forms of political mobilization’ or by ‘extra-legal-pre-judicial’ acts (Kalyvas, 2005: 230). While such forms of political agency are not discarded (see also below), the constituent power of the people is explicitly understood as a collective form of agency, relying on informal, but also on institutionalised and legally-framed processes of decision-making among free and equal members of the constituent people and their representatives. Thereby, this account can also counter criticisms levelled at the notion of constituent power in general, and especially against so-called strong conceptions of popular sovereignty (Duke, 2020). They question readings of constituent power, particularly those in the Schmittian tradition, that presuppose the existence of a homogeneous pre-political people with a unified will and/or concepualise it as unlimited, unconstrained, and unauthorised (e.g., Verdugo, 2023: 30ff.). Yet, as has become clear, the conception presented here is based on individual grounds, and, while still extra-constitutional, by no means conceptualises constituent power as extra-institutional, unauthorised, or unlimited. Simultaneously, it represents a differentiated, but no less convincing conception of popular sovereignty.

Constituent power of the people and decision-making on independence: Conceptual thoughts with reference to the Scottish independence referendum

Juxtaposing these preliminary results with the debates about Scotland's constitutional future and the 2014 independence referendum allows us to both assess their cogency and further develop this account of constituent power. ⁵

Constitutional and particularly independence referenda are considered a pertinent case of collective as constituent power (e.g., Fasel and Wilson Stark, 2024: 7f.). In line with the argument developed here, constituent power as a power that goes beyond corporate as constituted agency is relevant to independence referenda. They institutionalise the decision on whether or not to break up an existing state, or to constitute a new one. Even if it is only one step towards this new order, the latter goal is at the core of an independence referendum as a constituent act. But even if this is the case, the questions are justified regarding whether a referendum really is more than an aggregation of individual preferences, juxtaposing minority and majority opinions, and whether it can and/or should be understood as an expression of collective agency by a constituent collective.

The discussion on constitutional referenda helps to give answers: To confront the dangers of simple majoritarianism, elite capture, and a deliberative deficit, and thus to count as a legitimate democratic decision, a referendum, Tierney (2016: 103ff.) argues, must be embedded within a broader context of inclusive public will-formation that leads up to the vote and is not controlled by one side, group or government. Regarding the two-year debates between the Edinburgh Agreement in October 2012 and the independence referendum on the 18^th September 2014, Tierney (2016: 105ff.) observes that principles of deliberative and democratic decision-making were realised. In parallel, one can argue that they provided a context in which a form of collective agency could develop. It can be distinguished from joint agency insofar as the Scottish people, firstly, did not just act on a given goal they happened to have in common. Rather, in the debates about Scotland's constitutional future, the goal, including the meaning of independence and the form that it should take, was itself one important subject of debate. Secondly, this corroborates the argument that the quest for Scottish independence is not solely an attempt to resist the existing order. The question of what kind of order to constitute was at least as important, and debated as a goal to be collectively specified. Popular sovereignty served as a basic norm to guide this process (Scottish Government, 2013). This indicates, thirdly, that the idea of collective agency of the people of Scotland played a role in legitimising the processes and its results (see also below).

Yet, it is worth broadening the view further because the debates on Scotland's constitutional future did not start with the Edinburgh Agreement. A process of institutional and ideational change can be traced back, at least, to the Scottish Constitutional Convention (SCC) in 1989. ⁶ The SCC stood outside the constituted order of the UK. But, as a forum of most of Scottish civil society and most of its elected MPs and MEPs, it demanded popular sovereignty for the people of Scotland and a regional Scottish Parliament, though not independence (Mitchell, 2014: 234ff.). Despite early setbacks, the idea was kept alive, and devolution in 1999 realised the SCC's and its supporters’ demands via an act of the Westminster parliament, but also after a positive vote in a Scottish referendum. Devolution established a Scottish parliament and government with their own electorate. Parallel to developments in Wales and Northern Ireland, it resulted in a circumscribed form of corporate agency of a Scottish sub-state polity through which the people of Scotland could act, although it stopped short of devolving constituent power. And yet, when the SNP gained an absolute majority in the Scottish parliament in 2011, many considered this a mandate to demand an independence referendum, as promised in the party's election manifesto at the time. Even though this was clearly beyond the constituted corporate agency upon which Scottish institutions and officials could act, the then Prime Minister, David Cameron, agreed. Consequently, the independence referendum as a constituent decision of a Scottish demos also came about as a result of a regular regional election, and an agreement between two governments (Devine, 2017: 234ff.).

This brief historical overview entails a number of additional lessons for conceptualising constituent power. First, constitutional change took place via a complex interplay of constituent and constituted forms of agency. Devolution, based on corporate and constituent decision-making, created institutions that could serve both as the backbone of new or adapted forms of sub-state corporate agency and as points of reference for political notions of the Scottish people, rendering the notion of Scottish popular sovereignty more prominent, more widely accepted and more realistic. The conditions of possibility of the referendum, as well as the conditions of its recognition and legitimacy, as an act of the Scottish as a constituent people, were established via successive steps of ideational and institutional change. Through these, the relationship between collective and corporate agency was repeatedly renegotiated. If the decision in September 2014 had resulted in a positive vote for independence, further negotiations between the governments, as well as further constituent acts, would have followed. The interplay of constituent and corporate agency would have continued.

Second, while not all acts that shaped the quest for Scottish independence can be considered as forms of collective agency, the independence referendum remains crucial as an act of constituent as collective agency. Acts of protest and civil disobedience, like the vigil for the Scottish parliament from 1992 to 1997 (Mitchell, 2014: 239), and even the Scottish Constitutional Convention's mobilising of civil society and elected MPs and MEPs can, following Pettit, be considered as expressions of joint agency. People, individuals and groups joined together to promote a shared goal. The independence referendum, however, is different. The referendum marked Scottish independence as a real option, but, as the debates in 2013 and 2014 showed, also as an option that needed to be specified. Additionally, Scottish proponents, as well as opponents, of independence, predominantly framed the referendum as a decision of the people of Scotland, based on their popular sovereignty (Meine, 2023: 187f.). Considering the referendum as a collective decision makes a difference normatively, as well. In the case of a positive vote, it would have been of foundational significance for the legitimate founding of a possible future Scottish state, even though additional constituent acts would have followed. This indicates that instances of foundational change require a distinct form of legitimation, an expression of democratic as collective agency (see also below).

Examining the constituent collective that decided on Scottish independence not only supports the arguments for the interplay of constituent power and corporate agency, but also helps to specify the distinctiveness of the referendum decision and its agent. Importantly, those that took part in the referendum in 2014 were not the future citizens of an independent Scottland, but mainly those that, at other times, formed the regional electorate of the Scottish Parliament, including resident UK, as well as Irish, Commonwealth and EU-citizens (e.g., Shaw, 2014). Thus, not only is the constituent collective voting in the referendum politically specified and very different from any notion of a Scottish nation, the existing structures that allow for collective via corporate agency formed the point of departure for deciding on who would vote in the referendum. While some questioned this choice (Ziegler, 2014), Bauböck (2014) defended it because the referendum decision concerned the question of whether Scotland, a sub-state region, would become an independent state, and because the future citizenry would yet have to be decided:

The putative demos of an independent Scotland should not replace the existing demos of Scotland as part of the UK in a decision about independence because currently only the latter but not the former can be considered as democratically legitimate. (Bauböck, 2014: 10)

It remains important, however, that the referendum demos and the incorporated Scottish demos were not identical – and not just because 16- and 17-year-olds were additionally enfranchised: As a political artefact, the referendum demos was created specifically to act as a constituent collective. Thus, its competence and its mode of decision-making differed from those of the constituted sub-state demos electing the Scottish parliament. Its members decided collectively whether there would be a new sovereign corporate agent, whether future Scottish people would be incorporated within it as the state's demos, and thus able to act collectively via this new form of corporate agency.

The argument for constituent as collective agency can be corroborated further, if one looks at Niesen's work on changes in constituent power, and particularly constituent collectives. Niesen (2019: 41ff.; 2022: 52f.) conceptually distinguishes three stages in the formation of constituent collectives: articulation, activation and exercise. Articulation refers to actors advocating, as part of democratic processes of will-formation, for constitutional change, including a change in the holders of constituent power. While they understand themselves as members of a constituent collective, from the point of view of this paper, they act jointly. Articulation alone leads neither to changes in the constituted order, nor in the recognised constituent collectives. Activation, in turn, refers to efforts to establish new or alternative constituent collectives, ‘to political activity that brings about a change in its allocation, such that for a given polity, there occurs a shift in the holders of constituent power’ (Niesen, 2019: 41). Nevertheless, it is only the exercise of constituent power that leads to constitutional change, to the break with an existing and the establishment of a new order. This is why, normatively, it is also linked to the most demanding conditions of legitimation, including the inclusion of all stakeholders and distinct forms of legitimation outside constituted channels (Niesen, 2022: 53f.). This interpretation fits with the above arguments for constituent as collective agency: The activation of a constituent people allocates constituent power to a collective, while its exercise must fulfil the criteria for genuine collective agency.

According to Niesen, it follows that an independence referendum forms the mechanism for exercising constituent power, but no less for fully activating sub-state constituent collectives, and thus for changing the constellation of constituent agents:

While independence referenda can be won or lost, they are in either case likely to activate and stabilise a constituent power that may only have been brought about in that very process. In contrast to articulations of constituent power, which are plural and can misfire, referenda aim to vindicate a pouvoir constituant as a force to be reckoned with. […] Independence referenda are not so much means towards advocating a position on the conditions of democratic self-government than instruments for changing those conditions. (Niesen, 2019: 45)

Even if lost, independence referenda can lead to the activation, at least temporarily, of new constituent agents. Future efforts to achieve secession, or even to change, perhaps federalise, existing constitutions, can refer to these newly activated holders of constituent power (Niesen, 2022: 45, 51ff.), as the Scottish Government did (e.g., 2019: 8). This argument makes sense only if, as indicated by Niesen's use of the singular, constituent peoples are conceived as being able to exercise collective agency.

There is a caveat, however: With Niesen, the lost Scottish independence referendum can, in some ways, be read as a process of successful activation of a constituent people. In its aftermath, the notion of popular sovereignty, entailing constituent power of the people of Scotland, has remained alive and, at first, rather well. The activation of the Scottish constituent collective seemed successful, resulting in the 2016 reform of the Scotland Act that declared the Scottish institutions a permanent part of the UK constitutional arrangements, unless the people of Scotland, voting in a referendum, decide otherwise (Section 63A). What is more, it put the Sewell Convention ⁷ on a statutory footing, seeming to bolster the status of the Scottish institutions and the agency, even the popular sovereignty of the people in Scotland (Section 28(8); Bogdanor, 2019: 182, 251f.). Yet, the Scottish case also shows that, if the constituent collective that is newly activated does not find clear constitutional expression after the referendum, if it neither forms the founding agent of a new polity nor, in the case of a negative vote, is unequivocally recognised in the constitutional order of the existing polity, its existence remains virtual, ⁸ contestable and potentially provisional. Accordingly, during the Brexit process, the UK government, with placet by the UK Supreme Court, repeatedly insisted on the Westminster parliament's sovereignty that also remains part of the Scotland Act (Section 28(7)), and ignored the Sewel convention (Wincott et al., 2022: 706ff.), negating the constituent power of a Scottish people. While a number of commentators consider this legal, but unconstitutional (Bogdanor, 2019: 218ff.; Keating, 2021: 71), politically, it shows that the notion of Scottish popular sovereignty and, specifically, constituent power, in contrast to the situation in Scotland, has no secure purchase in the political centre in London. Renewed demands for a second independence referendum were denied, and in 2022, the UK Supreme Court made clear that the Scottish parliament could not, without consent of the UK parliament, schedule a second independence referendum. In the UK today, different notions, not only of constituent power, but also of relevant constituent peoples, co-exist and conflict. Thus, as Petkar puts it, the constituent power of the Scottish people is ‘[j]ust as Schrodinger's cat […] simultaneously dead and alive’ (2022).

This corroborates a third lesson to be learned from the Scottish case: While it implies the ability to change constituted orders and forms of corporate agency, constituent power has no stable existence apart from constitutional orders. If one looks at the UK today, we can observe a mismatch between conceptions of constituent power and the constitutional order that keep the dispute about the constitutional futures of Scotland, as well as the UK, alive. Even if it can never be finally fixated, in a constitutional democracy, the goal has to be to arrive at a somewhat stable fit between notions of the relevant constituent agent(s) and its political-constitutional form. Only then can the collective agency of the people or peoples of this polity be exercised via the latter's legitimate corporate agency, while this interplay of collective and corporate agency is simultaneously based on the constituent power of a related constituent people as a collective agent. The two dimensions of popular sovereignty, though distinct, always point towards each other.

On constituent power and the meaning of political independence

Based on these insights, the remainder of this paper will show that the idea of the constituent power of the people opens up a distinct perspective on the meaning and significance of independence as an institutional-guiding principle. More precisely, by recourse to ideas of constituent power, the connection between the normative foundations and the political-constitutional form of independent polities can be broached. It is precisely because it connects democracy and constitutionalism that constituent power proves to be a building block of a multi-dimensional conception of political independence.

If one asks what independence means, in the literature, varying links are drawn to sovereignty, freedom and/or self-determination, and conceptions of each can be traced in the Scottish independence debates (e.g., Scottish Government, 2013). The premise of the following account is that to fruitfully understand political independence, we need to consider all three concepts. In contemporary republican contributions, independence is primarily approached via notions of free statehood that link sovereignty and freedom. In the terminology of this paper, it thus refers, firstly, to the free or autonomous corporate agency of a state or polity (e.g., Pettit, 2010; Laborde and Ronzoni, 2016; Gädeke, 2017: 357ff.). This entails that independent polities hold a legally and institutionally secure status, and entertain relations of non-domination, of independence, to other polities. This is and remains important. But it does not grasp the full meaning and value of independence. Free and sovereign statehood is meant to realise individual freedom and/or collective self-determination of the demos and its citizen members (see also Meine, 2022). In particular, the premium put on popular sovereignty in the Scottish debates on independence, represented by the core slogan of the 2013/2014 Yes Campaign ‘Scotland's Future in Scotland's Hands’ (Scottish Government, 2013: 374), indicates that collective self-determination plays a significant role. The interlinkages between freedom, sovereignty and self-determination are crucial for understanding independence and the vocabulary of corporate and collective forms of agency, their differentiation, but also their mutual referrals help us grasp them.

According to the principle of popular sovereignty, in a constituted setting, corporate agency is considered legitimate where it is linked back to democratic forms of collective self-determination, and where the state lies in the hands of the people (Maus, 2011: 43). Following the argument presented above, one can conclude that independence presupposes the integrity of the constitutional order of a polity and the integrity and particularity of the practices of will-formation and decision-making of the members of the demos. Only then will citizens’ individual rights and opportunities to influence and contest political decisions be fully realised, and they will be able to cultivate collective agency as members of the incorporated people.

If one acknowledges the complex interlinkages between corporate and collective agency, however, constituent decision-making about corporate forms of agency, the surplus of collective agency that corporate agency cannot encompass, needs to be accounted for as a second dimension of popular sovereignty. As constituent power is a prerequisite for free corporate agency via which collective agency can be realised in a constituted setting, independence presupposes the existence of constituent demoi that can potentially re-constitute ‘their’ independent polities. This implies that independence, at least in the democratic-republican sense, entails the enduring possibility of the self-determined development and re-constitution of the political order by its constituent people or peoples. While many, even most, democratic polities nevertheless arrive at a somewhat stable match between constituent people(s), incorporated people(s) and polity, this process is never complete; the political form of an independent polity and its ‘fit’ with its constituent people or peoples is never finally determined, but can always become subject to change again. It is the interplay of constituent power and constituted order that links the conceptual and normative foundations, freedom and self-determination, and the political form of independent polities as sovereign corporate agents. Although, at first sight, it is a status of constituted polities, independence therefore also implies scope for political and constitutional change.

One final point is important: Particularly under conditions of interdependence, a distinction between independence and institutional autonomy of a polity has become difficult to draw. Especially in the European multi-level order, where competences have been rescaled to levels above and below the state, the traditional juxtaposition between international organisations, independent states and autonomous regions is under strain. Approaches that point towards foreign and defence policy as classic competencies of independent states, and contrast these with culture, language or education policy as the ‘usual’ sub-state competences, make some headway (Tierney, 2022: 202ff.). But as Tierney (2022: 208f.) also indicates: There are always exceptions. The enumerative allocation of policy areas to specific political levels has limits. In light, particularly, of the diagnosis that the meaning of independence has changed, a principled distinction, thus far, is missing.

The preceding discussion suggests that, while the integrity and particularity of corporate agents and their linkage with incorporated demoi remains important, it is constituent power that marks a central threshold between independence and institutional autonomy. If we compare institutionally autonomous and independent polities, the crucial difference is not so much the scope of the jurisdiction, or the political form of the state. Instead, in addition to the corporate agency and relevant scope of a polity's jurisdiction, independence presupposes that the form of the corporate agent is not constituted, controlled and potentially reconstituted by others, but primarily by the demos or demoi of this order. In decentralised, even regionalised states, the power to constitute and re-constitute institutionally autonomous polities is not located with regional collectives. In federations, this can be different (Tierney, 2022), and federal constellations of potentially plural constituent demoi deserve more attention in the future.

A full discussion of the question whether, and under which conditions, there can be plural constituent collectives in one federation or Union that debates on a pouvoir constitutant mixte (Patberg, 2017b; Niesen, 2017: 228ff.) or pluralized constituent power (Aroney et al., 2024: 9ff.; Tierney, 2022: 123ff.) raise, lies beyond the scope of this paper. It can be noted, however, that the present account is conceptually compatible with constellations of plural polities and demoi, including plural constituent demoi. Importantly, however, the interplay of collective and corporate agents and agency needs to be safeguarded. This necessitates that distinct constituent collectives hold primary control over the constitution of ‘their’ polities on different political levels. In turn, the status of and relations between polities and demoi within the wider multi-level constellation would need to be co-constitued. Regarding the latter, different processes and institutional forms of multiperspectival or mulitlateral decision-making will need to be assessed further. Regarding the UK, a nested coexistence of constituent collectives at the state and sub-state level would theoretically be possible. A nascent interplay of different constituent agents was already visible during the debates on Scotland's constitutional future. The referendum, a decision of the people of Scotland, resulted from an agreement between British and Scottish representatives and bilateral negotiations about a separation settlement would have followed a positive vote in 2014. Yet, any federalising dynamic was reversed during the Brexit process and future reforms of the UK constitution are, as of yet, uncertain.

Conclusion and outlook

The preceding theoretical discussion, and its assessment and further development in light of the debates on Scotland's constitutional future have shown that, within the framework of a tripartite republican account of corporate, individual and collective agency, constituent power can fruitfully be understood as a surplus of collective agency that corporate agency cannot encompass. In contrast to collectivist readings, this political notion of constituent power of the people rests on individualist grounds, but does not give up on the demos as a collective agent. Its relevance becomes most clearly apparent in debates and decisions on secession and independence. While its expression and exercise are extra-constitutional, constituent as collective agency, nevertheless, relies on institutionalised processes of will-formation and decision-making, and aims at constitutionalising a polity which allows for the expression of collective via corporate agency. What is more, constituent power not only precedes constitutional democracy, but actually exercising this power also establishes the connection and allows for the political renegotiation, or renewed constitution, of the relationship between democracy and constitutionalism, politics and constitutional law. One consequence is that conceptualising independence from the perspective of democratic republicanism, and by means of the notions of collective and corporate agency, results in a multi-dimensional and political conception of political independence. Differentiating individual, collective and corporate agency, as well as negotiating their complex interlinkages, thus opens up fruitful avenues for engaging with questions of democratic constitutionalism and institution-building, also under conditions of interdependence.