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Reframing EU Constitutionalism

Published on December 17, 2009        Author: 

Professor Neil Walker is Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh

The intense if highly variable focus on constitutionalism in the Ruling the World collection is a reflection of significant changes in global legal relations with which we are only beginning to come to terms. Once upon a time constitutional law was part of a hegemonic pair of dominant legal frames for the Westphalian world. Constitutional law framed the legal authority of states – understood as mutually exclusive sites of sovereign power – while international law was engaged in the relentless and relentlessly precarious business of framing legal authority between states (who were in many respect in unequal or even imperial relations inter se).

 The world has changed. States are very far from being marginal players, but they do not exert the comprehensive legal and political authority they once did. This poses a challenge to international law and constitutional law alike. For each, the post-Westphalian moment both poses a threat and provides an opportunity. International law is in some respects disorientated and decentred by the erosion of state authority. It has to deal with the rise of private power and of forms of supranational authority. It also has to cope with the related matter of the advent of new forms of functional specialisation – of more or less self-contained regimes in such as environmental, trade and criminal law to which states increasingly defer and where general principles of international law are of fading authority. But privatization, transnationalism and fragmentation also afford new opportunities.  A flexible international law can seek to embrace these. If international law has always been about the heterarchical dimension in legal relations – about law between powerful entities – then the new global archipelago offers new possibilities for the adaptation of international law.

For constitutional law the erosion of state authority poses an even more direct challenge. If constitutional law was embedded in the modern state, what happens when the state itself becomes disembedded from its dominant position in the global order? Does constitutional law just become less relevant, ceding ground to the new forms of private and supranational authority? Or, as in the case of the EU or the WTO or the UN, can it become the new framing discourse for each of these entities considered discretely?  Can we think of such supranational organisations in constitutional terms, and can we even begin to think of private or hybrid bodies (such as the internet’s ICANN) in such terms? Can we learn and borrow from state constitutional discourse sufficiently to bridge the legitimacy gap opened up by the erosion of state constitutional authority?  In other words, can the rise of a new constitutionalism be an answer to the decline of the old constitutionalism?

In my own essay in the collected volume, I ask this question of the EU. My answer is a mixed one. Modern state constitutionalism, I argue, involves a fusion of number of framing registers. Read the rest of this entry…

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