Law, Democracy and the Transcription of War: A Socio-phenomenological Approach to Constitutional Law

This article aims to present the groundwork for a phenomenological approach to constitutional law, using reconstructed aspects of phenomenological theory to explain how constitutions produce legitimacy for governments and how such legitimacy can be preserved. It argues that, from the eighteenth century to the present, the rise of constitutional rule took place through a process in which governments internalized external security imperatives in their inner structure, and they attached their functions to subjects in society through constitutional law to adapt to inter-state tensions. Modern public law can be read as a system of transcription, echoing parallel developments in other text-based disciplines, in which societies arranged internal relations in face of external military pressures and articulated their reactions to war. This article explains these tendencies by adding aspects of the phenomenology of violence to phenomenological interpretation. It concludes by applying this framework to contemporary democratic systems, and it examines how, today, rapidly changing security environments are redefining democracy, and how constitutional norms may be stabilized inface of these events.