Le référendum entre pouvoir constituant et volonté nationale – quelques considérations sur l’architecture juridique d’une démocratie
Le référendum entre pouvoir constituant et volonté nationale – quelques considérations sur l’architecture juridique d’une démocratie

Summary/Abstract: The legitimacy of power in a pluralistic democracy implies both invoking the will of the people, as actual or alleged author of political decisions, and the occurrence of an effective dialogue between the rulers and the ruled. The effectiveness of the dialogue requires the chance of challenging not only the content of the decisions, but also the authority of political representatives and the limits of their powers. The absence of such a dialogue can induce a loss of legitimacy by a political regime and the emergence of a new one, also democratically legitimized, by the people’s constituent power. From this perspective, the constituent power bears a significant destabilizing potential, by legitimizing unconstitutional acts aimed to overthrow the existing government. From the standpoint of constitutional regime’s stability and endurance, the institution of referendum is situated somewhere between the (potentially destabilizing) constituent power and the democratic parliamentary representation, in which ordinary legislators are deemed to express the volonté nationale. This paper endeavors, with the help of some illustrations form the constitutional practice of several European states, to highlight the bivalence of referendum. On the one hand, referendums can pave the way for policies aimed at undermining the faith in Constitution and representative bodies, and on the other hand they can mitigate tensions in the field of politics and relieve Parliament, by making the people to take direct responsibility for unpopular or controversial decisions.

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