Constituent power in contest: the redefinition of constitutional tradition through legal pluralism

Abstract

This research seeks to make a parallel between the constitutional tradition and the approach of legal pluralism, drawing upon the concept of constituent power as its central analytical element. On the one hand, there is the recognition of a power associated with a unified entity (such as the people or the nation, for example) that produces a new constitutional order; on the other hand, there is an advocacy for acknowledging a plurality of subjects as producers of law. In this context, the study aims to answer the following question: In what ways does legal pluralism contribute to discussions concerning the concept of constituent power? As a hypothesis, it is proposed that legal pluralism, by identifying these diverse law-producing agents, may re-signify the rigid concept of constituent power formulated within the constitutionalist tradition, thereby elevating new social actors to constitutional status. This is a theoretical study in which, through a review of the literature, the proposed hypothesis is tested using the hypothetical-deductive method. The analysis begins with a reconstruction of the premises of modern constitutionalism regarding constituent power and progressively narrows its focus to the innovations introduced by legal pluralism, ultimately developing an inquiry into the impact of this approach on the central concept of the liberal constitutional model.