This book challenges traditional theories of constitution-making to advance an alternative view of constitutions as being founded on power which rests on violence.
The work argues that rather than the idea of a constitution being the result of political participation and deliberation, all power instead is based on violence. Hence the creation of a constitution is actually an act of coercion, where, through violence, one social group is able to impose itself over others. The book advocates that the presence of violence be used as an assessment of whether genuine constitutional transformation has taken place, and that the legitimacy of a constitutional order should be dependent upon the absence of killing.
The book will be essential reading for academics and researchers working in the areas of constitutional law and politics, legal and political theory, and constitutional history.
Table of Contents
Introduction. Violence And Foundation
Chapter One - Methodological Considerations
Chapter Two - The Concept Of Constituent Power And The Concept Of Constitution
Chapter Three Violence And Constituent Power In The Creation Of The American Republic
Chapter Four - Constituent Power Without ‘We The People’: The Foundation Of The Federal Republic Of Germany
Chapter Five - ‘New Constitutionalism’ And The Emergence Of Constituent Power In Some Recent Experiences
Hèctor López Bofill Is Associate Professor in Constitutional Law at Pompeu Fabra University. He has written eight books and more than 20 articles in the field of constitutional theory, fundamental rights, federalism, secessionism and judicial review of legislation. He is also a writer in Catalan language. He has published five poetry books and five novels which have received several awards.
"Héctor López Bofill’s offers a powerful argument showing that all states and instances of true constitutional transformation (including those that have led to liberal constitutional orders), have at their origin episodes of violence and death. His book is a historically and theoretically informed analysis, traversing multiple jurisdictions, that directly challenges contemporary approaches to popular constitution-making".
"Supported on an astounding command of contemporary debates in constitutional and political theory, López Bofill reconstructs the origins of old and new constitutional democracies from an unsettling perspective. This is indeed a worthy read that will provide insight and food for thought to analysts of constitutional matters worldwide."
Francesca Maria Pou, ITAM (Mexico City)
"In Law, Violence and Constituent Power: The Law, Politics and History of Constitution Making, Hèctor López Bofill hits the nail in the head, focusing on the link between violence and the legitimacy of the creation of constitutional orders in liberal democracies. This is an important exploration ranging from the various theories of constituent power to older and newer constitution-making instances. While most studies on constitution-making seek to focus on the issue of popular sovereignty, López Bofill shifts the focus to the struggles for domination and political power. A fascinating journey, recommended for anyone –lawyers, political scientists or historians – interested in constituent power and constitution-making."
Yaniv Roznai, Associate Professor, Harry Radzyner Law School.
'Héctor López Bofill has written an important book on an important and controversial topic: the place of violence in constitution-making processes.
I strongly recommend reading it to continue an open conversation on the subject, full of agreements and disagreements- a conversation in which we must persist, in pursuit of a better and more just coexistence.'