Massimo Fichera (University of Turku) has posted The Paradox of Large Time on SSRN. Here is the abstract:
Whereas modern politics begins with the acknowledgement that a polity is temporally limited, modern constitutionalism seeks to respond to the fact of contingency by transcending time and proclaiming the existence of a set of values that are supposed to be shared not only by the present legal-political community, but also by the coming communities. This proclamation risks bringing about a paradox. We might admit of a constitutional system whose validity and authority are established by reference to criteria belonging to the same legal order and yet at the same time whose binding force should be extended to all future generations, by virtue of a generative event placed at the beginning of time and legitimated by a constituent power that dissolves after the moment of creation. Or, alternatively, we could imagine a legal order that, while defining itself constitutional, embraces full contingency. A constitution would, in this latter configuration, be replaced easily in a short timeframe, as a result of its inability to reflect societal values. These are two versions of what is defined in this paper the paradox of ‘large time’ (Grosszeit). In the former case, the legal-political community that is created ex post by the constituting event placed at the beginning of time stretches out indefinitely in the future, thus setting constraints on the action of any other community that follows. However, by virtue of which authority can the commitment of a polity be ensured once and for all without simultaneously compromising the autonomy of its components? In the latter case, the legal-political community is always present, hence located in a particular place, here, and at a particular time, now. However, under such conditions, how could a polity be bound by a commitment to a project – a projectuality – in a setting that is inevitably devoid of narrative?
This is the temporal dimension of the ‘security of the European project’, a meta-constitutional rationale that pervades the activity of European institutions and social actors, as well as scholarly debates. To ensure the long-term survival of the EU and avoid the paradox of ‘large time’, the paper suggests moving from self-referential security to heterarchical security with a view to reconciling constitutionalism and democracy. A useful model in this regard is an adaptation of the ancient idea of ‘mixed constitution’ through an interpretation of legality as auctoritas, i.e. a form of legality associated with constitutional time.
