The aporias of modern constitutionalism

Abstract

Modern constitutionalism has established itself on a strong assumption: the control of arbitrariness to safeguard freedom. This is an assumption built on a continuum starting from the opposition between the state of nature and political society formulated, amongst others, by Suárez and Locke, going through the question of the legitimacy of the restrictions of individual freedoms developed by Rousseau, and ending in the conjunction of constitutionalism and democracy by Pettit. In Pettit's essay, this evolution is traced by highlighting the fundamental aporia that seems to exist in the heart of modern constitutionalism, thas is: the displacement but not the extinction of the sovereign's arbitrariness. But if the displacement of arbitrariness is the only thing to which we can aspire within constitutionalism, then it is the conditions of the possibilities of non-arbitrariness what urgently needs to be rethought.