Arguing, barganing and persuating in constituent processes

The paper will examine the theme of constituent processes, conducted through the action of an organ, which is expression of popular will, the outcome of which is the production of a written constitution. In the essay "Arguing and Bargaining in Two Constituent Assemblies", Jon Elster seems to develop a kind of “general theory of constituent process” based on an (Habermasian) argumentation theory. The strong accent on the argumentative dimension makes this theory particularly attractive when studying constitutional debates. Elster suggests that the constitution-making enterprise can be understood more generally resorting to two types of “speech acts”: “arguing” and “bargaining”. Elster uses the two types with the aim of exploring two distinct issues: “the role of the rational argument”, and that of “threat-based bargaining” (“bargaining on the basis of extra-parliamentary resources”). Nevertheless, the analysis of real constitution-making debates could be improved by developing the triadic version of the model, suggested, but not elaborated by Elster. Such an improvement can be achieved by introducing the third “type of speech act” (ʻrhetorical statements aiming at persuasionʼ) and perhaps combining it with other concepts developed in legal theory, such as the idea of “incompletely theorized agreement” proposed by Cass Sunstein as a peculiar method of statutemaking, aiming at reduce the potential for conflict.