Eric Heinze (Queen Mary University of London, School of Law) has posted The Constitution of the Constitution: Democratic Legitimacy and Public Discourse (Rancière and Law (J. Extabe & M. Lopez, eds., Routledge, 2017), pp. 111-28) on SSRN. Here is the abstract:
Democracy, for Jacques Rancière, stands neither as a form of constitution nor as a form of government. Democracy instead manifests wherever citizens openly challenge social and economic conditions arising (a) from the policies and practices of the state’s inevitably elite managerialism and (b) from the state’s consequently hierarchical and stratified structuring of society. That disjunctive relationship between government and citizenry is by no means peculiar to the modern state. It supplies a backdrop throughout history, already notable in Plato. Democracy, then, bears two faces. On the one hand, the demos comprises not passive subjects of law, but rather persons acting with a quasi-autonomy from the bounds of formally constituted power. The ultimate embodiment of that informal power is identified in this essay as public discourse. Its crucial feature, for Rancière, is not Habermasian or Rawlsian consensus — a fabrication that he views as serving too readily to justify the existence or outcomes of elite managerialism — but rather an anarchic ‘dissensus’, which forever renews necessary challenges to elite managerialism. On the other hand, that inevitable tension between demos and government does not render power inherently illegitimate. Power — it is argued in this essay, either as a development of or as a departure from Rancière — stakes its claim to legitimacy (as opposed to sheer efficiency) to the extent that it preserves democratic public discourse.