Reframing EU Constitutionalism

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. There is a fundamental ‘legal order’ register through which the polity constitutes itself in juridical terms. There is an institutional register through which the organs of government are instituted and place in relation to one another. Then there are also both popular and social registers, through which the constitution frames itself as the product of a popular constituent power intended for a particular self-contained society. But this kind of multi-frame, holistic constitution is not or at least not yet available in the context of a supranational body such as the EU. Its constitutionalism remains relatively ‘thin’ – largely confined to the legal and institutional registers, with only limited (though arguably still emergent) scope for ‘thick’ popular and social constitutionalism. And if this is true for the EU, it is even more emphatically so in the case of other supranational and private bodies.

So where does this leave constitutional discourse in the new global arena? Is it an inadequate and outmoded response? Might its invocation induce a false complacency? Does it lend false dignity and bogus legitimacy to forms of authority which lack the ‘thick’ credentials of the state? Or can we conceive of constitutionalism in more or less terms, with less still better than nothing at all? Or more optimistically, as Jeff Dunoff and Joel Trachtman themselves countenance, can we also think of the constitutionalism of the new complexly overlapping global order in compensatory terms. Can the constitutionalization of each regime compensate for the inadequacies of the others? Can, for example, the migration of constitutional principles in areas such as human rights, the separation of powers, or the requirements of ‘voice’ and due process, mean that the inadequacy of any particular regime (state or otherwise) in representing ‘the public interest’ is cured or balanced by the constitutionalization of other regimes?

 At this point,  constitutionalism begins to depart quite radically from its traditional hierarchical frame of reference – as  something only concerned with the internal relations of a polity whose core sovereignty is already assured and located – and to occupy the same heterarchical terrain as international law (old and new).  The framing of transnational law, accordingly, becomes increasingly blurred, unsettled and contested, with constitutional law but one candidate amongst many (think also of Global Administrative Law).  Within that contest, constitutionalism can offer either nostalgia or a critical ideal. Nostalgia, if its function is simply to recall and doubtless romanticize an unrecoverable past.  A critical ideal, if the language of constitutionalism somehow allows us to abstract and recover from that unrecoverable past a message about fair and responsible self-government that can serve as a standard for a very different future.