Law and Politics: a tale from Iceland. How a constituent moment turned out to be a simple constitutional revision.

Lucia Rubinelli

One of the most interesting aspects of the everlasting quest to define the nature of constituent power rests on the analysis of its relation with the political and the legal sphere. Treated either as a moment of unconstrained political creation by society or as a complex construction of the legal order, constituent power bears with itself the sign of being an ambiguous concept. It represents the moment in which law and politics face each other from a perspective in which their relation is not already settled into the categories of the constituted order. This holds particularly true in processes of constitution-making that, not arising from a total breakdown of the previous system, witness the contemporary presence of a constituent moment inside the constituted order it will substitute.

The above-mentioned situation is therefore the frame in which an analysis of the recent experience of constitution-making in Iceland should be collocated. Following an economic crisis, the country went through a non violent revolution and wrote a new constitution to stipulate new foundations for the collapsed state. Although this process has been framed in order to grant the absolute freedom of the political to lay down a new fundamental chart, its promises of radical innovation did not reach the expected finalisation. While the new text is indeed relevantly similar to the previous one, it is now going through the process of approval as if it were a simple constitutional amendment. Due to the ambivalence of the process, scholars have struggled to reach an agreement on the nature of this experience: while some argue in favour of its constituent character pointing at the exceptional level of popular involvement, others reduce it to a mere constitutional revision, thus stressing the elements of continuity between the two texts.

In suggesting that this different range of explanations is itself a fertile soil of analysis, the Icelandic process of constitution-making should be considered neither as an instance of a successful constituent power nor the simple outcome of a constitutional revision. Rather, the analytical relevance of the case rests exactly in the investigation of its ambiguities, as they reveal how a political constituent moment has been translated into the categories of the previous legal system it aimed to change. This approach, it may be argued, accounts for both the dimensions acting in the process, thus granting an insight in the ambivalent nature of the concept of constituent power itself.
In order to pursue an analysis of the ambiguity inherent in the process, it may therefore be helpful to initially consider the dimension of first order political involvement characterising the premises of the case. This indeed, far from being reduced to a constitutional practice inside legal boundaries, should be understood in terms of an extra-legal political moment inaugurating a new constitutional habitus. The Icelandic Revolution therefore, while affirming a deep distrust towards previous administrative practices, strongly asked for a radically new commencement. Specifically, it may be noted that the constitution-making process, far from being controlled by an established elite, has been crowd-sourced by the intense work of a popular gathering, the National Forum, and has been written by 25 normal citizens in constant contact with the rest of the population through the Internet and various social networks. A short investigation of the elements composing the process of constitution-making therefore reveals a correspondence between the quest for political new beginnings and Arendt's conceptualisation of constituent power as an unconstrained force of newness and creativity. This definition, far from reducing the “politique politisante”  to the constituted order, grants a theoretical frame to collocate the extraordinary efforts Icelanders undertook in order to act in a space of political freedom.

However, the radical premises of the case did not find any echo in the final outcomes of the process: although no formal political constraints have been detected, it may be noted that the dimension of political creativity has been hindered by the agency of a series of legal documents. The latter indeed, while being tools of simplification of the process, played a definitely relevant role insofar as they structured its outcomes according to the categories of the previous legal system and the international practice. This, it may be argued following Strathern and Riles , has been made possible by the textual character of the analysed documents and their formal aspects. Particularly, it may be noted that both the Act instituting the Constitutional Council and the Rules of Procedure of the National Forum, while channelling political creativity towards a specific direction, turned the threat of a potentially unconstrained innovation into a commensurable category for the working of the Icelandic constitutional system. Consequently, the new text did not imply either the claimed new beginning or a substantial break with the previous system: on the contrary, it turned out to be a mere actualisation of the previous constitution in the form of a simple amendment.

This, it may be argued, implied a double result: on the one hand it obliterated the dimension of political newness and creativity implicit in the very concept of constituent power, thus reducing it to a mere expedient for the perpetration of a global system of constitutional knowledge and practices. On the other hand, it highlighted the agency of legal forms and documentary practices that, far from being neutral, often implies the success of a contingent and hegemonic view of the world that informs the way in which power relations are perceived and legitimised. In conclusion, it may be noted that a moment framed as an actual revolution, namely an occasion to inaugurate a new arché, has indeed resulted in the original, and opposed, meaning of the term revolution: this in fact designated “the regular, lawfully revolving motion of the stars, which, since it was known to be beyond the influence of man and hence irresistible, was certainly characterised neither by newness nor by violence” . It is therefore in this powerful image that we may recognise the agency of legal forms that, while providing the constituents with a standardised path, translated political unpredictability into simplified categories for a gapless legal system.