‘Identity without Differences’: On the Concept of ‘the People’ in Constitutional Democracies

The notion of ‘the People’ is an eminently legal one. In the face of division and conflict within society, the legal concept of the People in constitutional democracies serves to overcome conflict and unify the social body, thereby enabling the establishment of a legal order. Such a function also emerges from a historical examination. After the revolutionary period of the late eighteenth century, the unifying functions once held by the monarch were transferred to the People. Thus, the People become an identity devoid of any differences. Precisely because it is an identity, the People is subject to limits in their capacity to act. The People-as-identity cannot be identified with the State and its institutions, nor with the electorate. After the Italian Constituent Assembly, the People no longer express itself as an identity, but rather as one of the forms referred to in Article 1, paragraph 2 of the Constitution (the electorate, State institutions, and then political parties, associations, and the exercise of fundamental rights). The People also serves as a normative reference for the performance of unifying functions, in which case it often appears as the ‘nation’. As an identity, the People cannot be represented. The particular nature of the People requires, in constitutional democracies, a specific structuring of power, which must be — and remain — a vacant space, immune from appropriation. Popular sovereignty thus becomes, on one hand, an aspiration to overcome social division, and on the other, a determination to escape domination.