TFL Vsebine / Revija Revus

This article employs Andrew Arato’s models of sovereign and post-sovereign paradigms of constitution-making to analyse the Brexit process. The focus is not on the UK’s departure from the EU, but on the internal constitutional changes this process has initiated, such as the dis-entrenchment of fundamental rights. The first part of the argument is that the 2016 referendum was framed as an exercise of sovereign constituent power, combining the traits of extra-legal power and legitimacy attributed to an agent called ‘the people’, which possesses a single will, with the willingness of the executive to interpret and implement this will sometimes at the expense of the separation of powers. This framing is an ideological construction, but one which has been successfully operationalised by the Brexit protagonists to frame the referendum in a sovereign light. The version of Brexit which resulted from this has some normative as well as practical drawbacks, such as dis-entrenchment of fundamental rights and further fracturing of the Union respectively. The second part of the argument employs Arato’s post-sovereign paradigm to suggest a counterfactual scenario in which the 2016 referendum and its aftermath are framed differently and follow the logic of post-sovereign constituent power, thus constitutionalising the process of constitutional change itself with positive normative and practical imports.