Constitutional democracies – moving beyond abstraction and reflection – a politics of bodies, things and relations (continue)

1 Introduction

With reference to Deleuze’s Course on Rousseau, Kleinherenbrink in his translation of the course (A politics of things p.5) emphasis Deleuze’s remark that “we know how to legislate, but we do not know what to do”. Kleinherenbrink explains that Deleuze

reminds us that the Sovereign only has the law itself as its object, in a purely formal sense. In other words, after the completion of the fourth stage, we know how to legislate, but we do not know what to do. One more thing must be added, and this is precisely the relation with things or with concrete situations which confront the people: ‘to determine a law, the general will does not suffice. The formal determination of the will must be joined to the content of objective circumstances of a given society’ and adapt itself to concrete situations. Deleuze sees the figure of the legislator as referring to this ‘injection’ of material circumstances: without the legislator, the general will formally know what it wants. But it needs him to be determined materially. A good law must not consider particular persons – formal aspect – and adapt itself to concrete situations – material aspect– (p. 27) (A politics of things p.5).

This post refers to case law on socio-economic rights to use it as examples where the judiciary are continually confronted with the apparent tension between democracy and constitutional reason and illustrates the judiciary’s unresponsiveness to deal with the question what to legislate, given the court’s role as quasi legislator in constitutional democracies.

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