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Paths for Constitutional Thinking ‘Beyond the State’?

  • Alun Gibbs

Abstract

In this chapter I consider the role that the constitutional state has played in restricting our sense of the possibilities of constitutional thinking and I trace the connections between the modernist state and metaphysical thinking. In doing so I hope to suggest that constitutional thinking does not need to be tied to the ‘state’ and instead concerns the commitment to what I term ‘enduring truths’. These truths are enduring, I argue, precisely because they cannot be confined to any particular epoch of constitutional undertaking, whether we call it the ‘pre-state’, ‘state’ or ‘post-state’. To explore these issues I have taken the debate surrounding the mature example of a political community which is said to be ‘beyond constitutionalism’—the European Union. My argument is that it is irrelevant to tie the problem of the EU’s constitutional future to the legacy of the state or to abandon constitutionalism itself in favour of a prospective procedural administrative accountability. What is now required is a commitment to a constitutional possibility for the renewal of the enduring truths of constitutional life rather than a steadfast adherence to the conventional metaphysics of the constitutional state.

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1 In the course of this chapter I will consider how ‘constitutional thinking’ is at the heart of a ‘new path’ but for the time being it might be useful to explain that is attempt to ‘think’ about the essence of what is at stake for us in the evocation of ‘constitutionalism’. Why I use the term ‘thinking’ is because I consider that this ‘stake’ cannot be revealed to us by recourse to ‘theory’.

2 A position which I discuss in this chapter in relation, in particular, to the work of Neil Walker.

3 I broadly discuss this position in relation to the recent work of Nico Krisch.

4 This is partly behind the phrase which become popular in EU constitutional theory ‘Big C’ and ‘small c’ constitutionalism; Walker, N, ‘Big “C” or small “c”?’ (2006) 12 European Law Journal 12–14 .

5 It has become apparent that this is addressed in uncompromising terms, ‘The twilight of constitutionalism’ is the title of a recent edited publication by Loughlin and Dobner (see n 53 below) also the position of Feldman who is less concerned with the liberal formalism of constitutions as regards their pragmatic usefulness in framing political justification and commitment, see, D Feldman ‘ “Which in Your Case You Have Not Got”: Constitutionalism at Home and Abroad’ in Current Legal Problems (2011) 117–49. Note Neil Walker also considers that this ‘ascription’ view of constitutionalism is fundamental to the dimension of meta-level discussions about EU constitutionalism, see Walker, N, ‘Taking Constitutionalism Beyond the State’ (2008) 56 Political Studies 519–43.

6 I say accepted here because it is not to say that the connection between state and constitutionalism is a ‘universal’. Also there is literature concerning the extent to which the recognition and power of sub-state groups alter the dominant sense in which we understand the connection between state and constitutionalism but I would argue that this is not on the same level as the dispute in the EU in which these practices are seen as a break with the modernist tradition.

7 The Scottish government has just closed a public consultation process concerning the proposed Referendum in 2014, see www.scotland.gov.uk and www.guardian.co.uk/uk/2012/Jan/10/scottish-parliament-referendum-cameron.

8 These cases are the well known triad of: Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastinge [1963] ECR 1; Case 6/64 Costa v ENEL [1964] ECR 585 and Case 106/77 Italian Minister of Finance v Simmenthal [1978] ECR 629.

9 Eg, the discussion in Witte, B deThe European Union as an international legal experiment’ in Búrca, G de and Weiler, J (eds), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press, 2011).

10 The German Constitutional Court has been typically given as an example of the cautious approach to questions of European sovereignty.

11 Art 4(2) TEU (Lisbon) concerning the protection of a ‘national constitutional identity’ indicates the problem of subsisting claims to sovereignty stemming from the EU and the nation-state.

12 For instance, the average voting rate across the EU in the 2009 Parliamentary Elections was 43% down from an average of 62% in 1979. For further discussion of these problems see A Malkopoulou, ‘Lost Voters: Participation in EU and the Case for Compulsory Voting’ CEPS Working Document, 317/2009.

13 Gibbs, A, Constitutional Life and Europe’s Area of Freedom, Security and Justice (Farnham, Ashgate Publishing, 2011).

14 For a consideration of these issues in the broader context of new governance see, Cohen, and Sabel, , ‘Directly-Deliberative Polyarchy’ (1997) 3(4) European Law Journal 313–42.

15 See, Walker, NThe Place of European Law’ in Búrca, G de and Weiler, J (eds), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press, 2011), and also Gibbs, N, ‘European Constitutionalism, the Temporal Dimension of Juridical Order and Modern Social Imaginary’ (2010) 21 Law and Critique 147–62.

16 Taylor, C, Modern Social Imaginaries (London, Duke University Press, 2004).

17 For a much broader discussion about the relationship between hermeneutics and constitutionalism, see Gibbs, Constitutional Life (n 13) ch 2.

18 For more discussion about this fundamental point see, Arendt, H, On Revolution (London, Penguin Books, 1990), also, Between Past and Future: Eight Exercises in Political Thought (New York, Penguin Classics, 1978) also the chapter of Walker, ‘The Place of European Law’ (n 15).

19 Taylor, Modern Social Imaginaries (n 16).

20 Gibbs, Constitutional Life (n 13) ch 2.

21 Oakeshott, M, Lectures in the History of Political Thought, ed Nardin, T and O’Sullivan, L (Exeter, Imprint Academic, 2006) 188 .

22 Scalia, A, A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ, Princeton University Press, 1998).

23 Dworkin, R, Law’s Empire (Oxford, Hart Publishing, 1998).

24 In particular, the lectures given by Foucault, M at the Collège de France 1978–1979, Birth of Bio-politics: Lectures at the Collège de France, trans G Burchell (London, Palgrave Macmillan, 2010).

25 Foucault, Birth of Bio-politics (n 24) lecture 3.

26 Halberstam, D, ‘Local, Global and Plural constitutionalism: Europe Meets the World’ in Búrca, G de and Weiler, J (eds), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press, 2011).

27 See Skinner, Q, The Foundations of Modern Political Thought: The Renaissance (Cambridge, Cambridge University Press, 1978).

28 Ullmann, W, A History of Political Thought in the Middle Ages (Harmondsworth, Penguin Books, 1965).

29 For much broader discussion of these issues see Walker, N and Loughlin, M (eds), The Paradox of Constitutionalism: Constituent Power and the Constitutional Form (Oxford, Oxford University Press, 2006).

30 The so called ‘no-demos’ thesis associated with Grimm, D, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 306 .

31 Walker, , ‘The Place of European Law’ (n 15) 65 . There is of course a rich literature here which accompanies primary material, notably the writings of Gottfried Herder but also secondary literature—for interesting accounts see, Berlin, I, ‘Herder and the Enlightenment’ in Hardy, H (ed), The Proper Study of Mankind (London, Pimlico, 1998) and also Taylor, C, ‘The Importance of Herder’ in Philosophical Arguments (Cambridge, Mass, Harvard University Press, 1995).

32 Walker, N, ‘Constitutionalism and Pluralism in a Global ContextNew York University Working Paper (2011) 27 , available at www.law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_ website–academics–colloquia–global_and_comparative_public_law/documents/documents/ ecm_pro_070600.pdf.

33 The most eloquent and distinct expression is to be found in work of B Constant (1767–1830): ‘The liberty of the ancients compared with that of the moderns’ in Fontana, B (ed), Cambridge Texts in the History of Political Thought: Constant Political Writings (Cambridge, Cambridge University Press, 1988).

34 See A Gibbs, Constitutional Life and Europe’s Area of Freedom, Security and Justice, ch 3.

35 On this metaphor and how it emerged in constitutional theory see, Landau, M, Political Theory and Political Science: Studies in the Methodology of Political Inquiry (New Jersey, Humanities Press, 1979).

36 Elster, J, Ulysses Unbound; Studies in Rationality, pre-commitments and constraints (Cambridge, Cambridge University Press, 2000).

37 Foucault, , Politics of Bio-Politics (n 24) 19 .

38 See, Walker, , ‘The Place of European Law’ (n 15) 67 .

39 Haltern, U, ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination’ (2003) 9 European Law Journal 14–44 .

40 Eg, see P Allott, ‘The crisis of European Constitutionalism’ (1997) Common Market Law Review 439–90 and Ward, I, ‘Beyond Constitutional: The search for the European Political Imagination’ (2001) 7 European Law Journal 21–40 .

41 Ben-Dor, O, ‘Agonic is Not Yet Demonic?’ in Ben-Dor, O (ed), Law and Art: Justice, Ethics and Aesthetics (London, Routledge-Cavendish, 2011) 122 .

42 For a good discussion/overview see Dawson, M, ‘Integration through Soft Law? New Governance and the Meaning of Legality in the European Union’ in Augenstein, D (ed), Integration Through Law Revisited: The Making of the European Polity (Farnham, Ashgate, 2012).

43 See the classical decision of the Court in Brunner v European Union Treaty 1 CMLR (1994) 57.

44 N MacCormick, ‘Beyond the Sovereign State’ (1993) Modern Law Review 1–23 and ‘The Maastricht-Urteil: Sovereignty Now’ (1995) European Law Journal 259–66. It must also be acknolwedged that the descriptive and analytic account of the inter-dependence of separate legal orders in a whole (EU) has attracted scholars from a traditional analytic jurispridential background such as Nick Barber and Julie Dickson who are very much (like Neil MacCormick himself) in a Hartian tradition of descriptive jurisprudence.

45 This sumamrises the argument in ch 3 of Tully, , Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge University Press, 1995).

46 For further discussions about a unification theme within constitutional pluralism see the recent edited volume, Avbelj, M and Komárek, J (eds), Constitutional Pluralism in the European Union and Beyond (Oxford, Hart Publishing, 2012).

47 Walker, N, ‘EU Constitutionalism in the State Constitutional Tradition’ (2006) 59 Current Legal Problems 51–89 .

48 Walker, N, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317–59, 339.

49 Walker, , ‘Constitutional Pluralism in a Global Context’ in Avbelj, and Komárek, (eds), Constitutional Pluralism (n 46) 24 .

50 Walker, , ‘Constitutionalism and Pluralism’ (n 32) 12 .

51 Grimm, , ‘Integration by Constitution’ (2005) 3 ICON 193–208 .

52 An aspect acknowledged by Walker, in ‘Constitutional Pluralism in a Global Context’ in Avbelj, and Komárek, (eds), Constitutional Pluralism (n 46) 32 .

53 Scharpf, F, ‘Legitimacy in the Multi-level European Polity’ in Loughlin, M and Dobner, P (eds), Twilight of Constitutionalism? (Oxford, Oxford University Press, 2010) 89 .

54 Krisch, N, ‘Global Administrative Law and the Constitutional Ambition’ in Loughlin, and Dobner, (eds), Twlight of Constitutionalism? (n 53) 246 .

55 For a futher discussion of this area see my work in ch 2 of Constitutional Life and Europe’s Area of Freedom, Security and Justice (n 13).

56 Krisch, , ‘Global Administrative Law’ (n 54) 255 .

57 There is of course a wide literature on these, M Dawson, ‘Integration through Soft Law? New Governance and the Meaning of Legality in the European Union’ in Augenstein (ed), Integration Through Law Revisited (n 42).

58 This point is reflected in the quote from Walker, in ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317–59, 353:

[T]hey remain intimately connected with a long tradition of voice centred questions within constitutional discourse, some older forms of which, as we have seen in the democracy/rights debate, still have considerable currency. So they are best considerd as extending rather than ecplising that older discourse and indeed as requiring to be addressed simultaneously and in co-ordination with the more venerable questions in a manner which in itself democratically legitimate so as to ensure the overall democratic credentials of the constitution generating process.

59 For a much fuller account of this see the philosophical discussion of steering and metaphysical thinking in O Ben-Dor, ‘The Gravity of Steering, the Grace of Gliding and the Primordiality of Presencing Place: Reflections on Truthfulness, Worlding, Seeing, Saying and Showing in Practical Reasoning and Law’ (forthcoming) International Journal for the Semiotics of Law/Revue internationale de Sémiotique juridique.

60 One of the reasons that I use this term ‘near’ here is because one of the important implications for calling these truths ‘enduring’ is that they cannot be dismissed as a further level/order of discourse—it is precisely not a ‘meta-’ discourse or ‘meta-frame’. If you will, this has been the reason for obscuring the enduring truths about constitutionalism.

61 N Walker, ‘Taking Constitutionalism Beyond the State’ (2008) Political Studies 524. I would like to emphasise that Walker’s position concerning this legacy is very subtle as he recognises that this tradition of the ‘state’ embraces a much broader tradition of western thinking (metaphysics) that indeed stretches back into what is often referred to as pre-modern, see p 525.

62 I have only summarised most briefly these frames—the italics are my own and are for easier identification. For the full account see Walker, , ‘Taking Constitutionalism Beyond the State’ (n 61) 526 .

63 Recalling that this is a much wider phenomenon than simply the EU: it includes other forms of complex post-state organisations also—ECHR, WTO etc.

64 Walker writes in Worlds of European Constitutionalism (n 15) 104: ‘Constitutionalism invokes a social technology that was unknown to pre-modern cultures’. I do not wish to give the impression that this is a distinctive view of Neil Walker; in this same volume there is a symptomatic exchange between Daniel Halberstam and Joseph Weiler whereby Halberstam seems to exchange the word constitutionalism for ‘operating system’ see p 289.

65 N Walker, ‘Taking Constitutionalism Beyond the State’ (2008) Political Studies 540, ultimate paragraph.

66 Walker, N, ‘Beyond the Holistic Constitutional’ in Loughlin, M and Dobner, P (eds), Twlight of Constitutionalism? (n 53) 307–8.

67 In this chapter I focus on Williams, A’ article: ‘Taking Values Seriously: Towards a Philosophy of EU Law’ (2009) 29(3) Oxford Journal of Legal Studies 549–77. For a fuller account see also Williams, A, The Ethos of Europe: Values, Law and Justice in the EU (Cambridge, Cambridge University Press, 2010).

68 Williams, , ‘Taking Values Seriously’ (n 67) 550 .

69 Williams, , ‘Taking Values Seriously’ (n 67) 550 .

70 Williams, , ‘Taking Values Seriously’ (n 67) 551 .

71 On the instrumental view of law in the EU’s narrative of integration see, A Gibbs, ‘Taking Agency Seriously: An Examination of Legal Integration and Constitutionalism’ in D Augenstein (ed), Integration Through Law Revisited (n 42).

72 Williams, , ‘Taking Values Seriously’ (n 67) 552 .

73 Williams, , ‘Taking Values Seriously’ (n 67) 552 .

74 It, of course, is implied in my treatment of this—that is it is not possible to ‘pin down’ exactly how many ‘enduring truths’ become a feature of our constitutional thinking—the section below clarifies this further.

75 Loughlin, M, ‘Constitutional Theory: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 183–202 .

76 Loughlin, , ‘Constitutional Theory’ (n 75) 184 .

77 Loughlin, , ‘Constitutional Theory’ (n 75) 184 .

78 Loughlin, M, Foundations of Public Law (Oxford, Oxford University Press, 2010).

79 Loughlin, , Foundations of Public Law (n 78) 220 .

80 Loughlin, , Foundations of Public Law (n 78) 94 .

81 Loughlin, , Foundations of Public Law (n 78) 220 .

82 See the account I develop in ch 2 of my book, Constitutional Life and Europe’s Area of Freedom, Security and Justice (n 13).

83 In Gadamer, HG, Truth and Method, trans Weinsheimer, J (London, Continuum Press, 2004).

84 There is a suggestion that Neil Walker precisely misunderstands it in this way, see: ‘Constitutionalism and Pluralism’ (n 32) 25, fn 12.

85 Gadamer, Truth and Method 352.

86 Ibid, at 306.

87 For further remarks about the importance of viewing hermeneutics in a different sense to interpretation, see Dor, Ben, ‘Agonic is not yet Demonic?’ (n 41) 117 .

88 Nancy, JL, Being Singular Plural (Stanford, Stanford University Press, 2001).

89 Unheimlich in the German.

90 Nancy, , Being Singular Plural (n 88) 23 .

91 Nancy, , Being Singular Plural (n 88) 13 .

92 Ben-Dor, O, Thinking about Law (London, Hart Publishing, 2007) 310 .

93 Ben-Dor, , Thinking about Law (n 92) 344 .

94 Ben-Dor, Thinking about Law (n 92).

95 See the broader discussion in O Ben-Dor, Thinking About Law, ch 9.

96 I am referring here to the implications of Tully’s work in constitutional theory: see Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (n 45).

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