The Legal Theory of the Juridical Coup: Constituent Power Now

Abstract

In a thought-provoking article, Alec Stone Sweet put forward a problem he called the juridical Coup d'État. His work was the opening of a debate to which Neil Walker, Wojciech Sadurski and Gianluigi Palombella contributed. In a subsequent essay, Stone Sweet responded to their comments. In this article, I would like to sketch this debate and explore its significance for legal theory. It is my hypothesis that the problem of the juridical coup is closely connected with the relationship between constituent (constituting) and constituted (constitutional) power. Moreover, the juridical coup shows in an exemplary way how this relationship should be understood. Before addressing the problem in these terms (Section C), analyzing an additional example of a juridical coup in EU law (Section D) and developing my own position vis-à-vis the different contributors (Section E), in the following section, I will give an overview of the argument of Stone Sweet. Taking into account the wealth of issues raised by him, I will concentrate on those aspects of his essay that are of most interest from a legal-philosophical point of view. Thus, the first question to be answered is: What are we to understand under a Juridical Coup d'État and what is its theoretical importance?