Beyond ‘Constitutionalism Beyond the State’
| Date | 01 September 2012 |
| Published date | 01 September 2012 |
| DOI | http://doi.org/10.1111/j.1467-6478.2012.00589.x |
| Author | Gavin W. Anderson |
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 3, SEPTEMBER 2012
ISSN: 0263-323X, pp. 359±83
Beyond `Constitutionalism Beyond the State'
Gavin W. Anderson*
For contemporary constitutional theory, the key challenge posed by
globalization undermines the traditional link between constitutionalism
and the state: in response to multi-level governance, theories of
constitutionalism beyond the state have been advanced. This focus on
levels obscures more fundamental epistemological questions raised by
globalization about the nature of constitutionalism itself. Critical
analysis of three leading schools of constitutionalism beyond the state
± supranational, societal, and new constitutionalism ± highlights their
shared assumptions with state-based thought regarding the separation
between economics and politics, and the necessarily hegemonic
character of constitutionalism. However, globa lization intensifies
critique of these assumptions, and questions their translation to the
transnational context. An alternative scholarly fault line to the state/
non-state cleavage emerges between working within and transcending
the politics of constitutional knowledge produced during the nation-
state era. A broader globalization perspective reveals the extent to
which such processes of constitutional rethinking are under way
through developments in the global South.
INTRODUCTION
The defining question of constitutional debate over the past decade or so has
been whether traditional state-centred understandings of constitutional law
require to be supplemented, or even supplanted, by accounts of
359
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Glasgow, Stair Building, 5±9 The Square,
Glasgow G12 8QQ, Scotland
Gavin.Anderson@glasgow.ac.uk
I would like to thank Akbar Rasulov and Daniel Wincott for their support and advice at
key moments of the writing process. Thanks also to the helpful comments and
suggestions made by participants at the panel on `Beyond Neoliberalism?: Reconstructing
the Social State' at the Law and Society Association's Annual Meeting in San Francisco,
4 June 2011, where an earlier version of this article was presented.
constitutionalism beyond the state. The headline issue has focused on
globalization's decentring of the nation-state, and the impact of this process
upon the traditional consonance in constitutional discourse between law,
peoples, and national institutions.
1
Consequently, constitutional theory has
focused upon the challenge to, and consequent defence of, the `idea that
constitutional modes of government are for states, and for states alone'.
2
A
second, less noted, but highly significant impact has been a revival of the
sociological method in constitutional theory.
3
Whereas a preoccupation with
adjudication and the interpretation of rights in the closing years of the
twentieth century led some to speak of the final `triumph of liberal
normativism',
4
the ongoing efforts to rethink constitutionalism in light of
material developments in global political economy suggest that the apogee
of the `age of philosophy'
5
may have passed.
As a result of these developments, a distinctive discourse of constitu-
tionalism beyond the state has emerged which argues, with va rying
emphases, that non-state forms of political authority should also be charac-
terized as sites of constitutionalism. The salience of the ensuing debate is
indicated by the extent to which a new constitutional vocabulary has
embedded itself, as theorists now speak as a matter of routine in terms of
`postnational',
6
`transnational',
7
`plurinational',
8
or `global'
9
constitu-
tionalism ± indeed, the absence of a qualifying adjective may now, in some
quarters, be more remarkable.
A number of assumptions underpin the various positions taken in these
debates. First, that the need to rethink constitutional discourse is attributable
to relatively recent developments, in particular the rise of multi-level
governance which has accompanied globalization, principally on account of
its challenge to the more unitary conception of constitutionalism within the
state. Second, and crucially, it is assumed that taking constitutionalism
beyond the state represents a `conceptual leap [of] audacious proportions',
10
360
1 J. Tully, `The Unfreedom of the Moderns in Comparison to their Ideals of
Constitutional Democracy' (2002) 65 Modern Law Rev. 204, at 209.
2 N. Walker, `Taking Constitutionalism Beyond the State' (2008) 56 Political Studies
519, at 519.
3 See J. Pr
ÏibaÂn
Ï, `Multiple Sovereignty: On Europe's Self-Constitutionalization and
Legal Self-Reference' (2010) 23 Ratio Juris 41.
4 M. Loughlin, Public Law and Political Theory (1992) ch. 9.
5 M. Loughlin, `Pathways of Public Law Scholarship' in Frontiers of Legal
Scholarship, ed. G.P. Wilson (1995).
6 See D. Chalmers, `Post-nationalism and the Quest for Constitutional Substitutes'
(2000) 27 J. of Law and Society 178.
7 C. Joerges, I.-J. Sand, and G. Teubner (eds.), Transnational Governance and
Constitutionalism (2004).
8 S. Tierney, Constitutional Law and National Pluralism (2004).
9 A. Peters, `The Merits of Global Constitutionalism' (2009) 16 Indiana J. of Global
Legal Studies 397.
10 N. Walker, `Beyond the Holistic Constitution?' in The Twilight of Constitu-
tionalism? eds. P. Dobner and M. Loughlin (2010) 291.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
To continue reading
Request your trial