Olaf Tans

The Imaginary Foundation of Legal Systems: A Mimetic Perspective

Abstract Starting from the premise that the normative foundation of legal systems is widely considered to be imaginary, this article addresses the question how actors in those systems are able to experience this fictional basis and consider it binding. As the answers already given in legal and political philosophy tend to be limited to instrumental explanations, it is argued that insights from aesthetic philosophy, and more specifically mimesis theory, can help to gain a more profound understanding of both the nature of fictions and the human capacity to use them. Drawing from Kendall Waltons work, fiction use is reconceptualized as an interactive game of make-believe that has active and passive players, involves the use of props, and is governed by both constitutive and regulative rules. It is claimed that human beings are able to play and appreciate this game on the basis of a dual consciousness in which their minds are partly devoted to going along in the fiction of legal hegemony, and partly having to derivate experiences. Tentatively, it is argued that these derivate experiences form our main gratification, and hence the prime motive, for playing the game and accepting its outcomes.

The Constitutional Theatre

Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.

Imagined Constitutionality: Rethinking Democratic Citizenship with the Aid of Fiction Theory

Seeing that political communities are often believed to have an imaginary constitutional basis, this article raises the question how we – citizens of those communities – relate to this imaginary basis, and to the legitimacy it claims. As the answers already given tend to focus on the instrumental, here it is argued that insights from fiction theory can be used to shed new light on the mechanisms involved in our ability to adhere to the idea of there being an original (normative) foundation of the state. Drawing from Johan Huizinga and other play-oriented thinkers, the constitutional fiction is reconstructed as a social situation in which the existence and hegemony of a foundational normative framework is pretended to be the case. It is argued that our ability to adhere to this public form of pretense stems from the capacity to have separate spheres of consciousness: one to go along in the enacted world, and one to generate our own personal response to it. In the interaction between these two spheres of consciousness we develop our normative commitments and collective identity, while ascribing them to an imaginary constitution.