Post‐nationalism and the Quest for Constitutional Substitutes
| Date | 01 March 2000 |
| Published date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00151 |
Post-nationalism is suggestive of a number of transformations in the
practice of both law and politics. In the case of politics, it implies an
assertion of the salience of the organization of scale, time, and individual
subjectivity in the practice of politics, yet a corresponding acknowledge-
ment that traditional administrative structures have lost their hegemony
over organization of these phenomena. In the case of law, it implies a
legal pluralism caused in part by administrative differentiation, but also
brought about an increase in the number and types of organization that
have private ‘law-making’ capacities. These processes are particular dis-
ruptive for the modern constitution, which has traditionally been identi-
fied as a central instrument in the recognition, co-ordination, interaction,
and self-legitimation of law and politics. This begs the question as to
what processes are carrying out tasks that have traditionally been asso-
ciated with the modern constitution. This essay argues that the fluidity
and complexity of these processes entail that they must lie in the process-
es of interaction themselves. In particular, it argues that the central ‘con-
stitutional substitute’ is the individual act of recognizing organizations as
having political and legal attributes. For the process of recognition con-
tains two structures which serve to organize and legitimize interaction.
Any act of ‘constitutional’ recognition requires, first, a process of prior
evaluation on the part of the observer that requires the organization to
justify itself to the observer. The according of recognition, by contrast,
entails that the observer respect the organization as having the autonomy
to impose and represent itself politically. This respect allow the organi-
zation to order legal and political life.
INTRODUCTION
The post-national condition expresses a situation where the performance of
law and politics is no longer configured around or constrained by the terri-
torial structures of the nation-state. To be sure, to talk of post-nationalism
© Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* London School of Economics and Political Science, Houghton St, London
WC2 2AE, England
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JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 1, MARCH 2000
ISSN: 0263–323X, pp. 178–217
Post-nationalism and the Quest for Constitutional Substitutes
DAMIAN CHALMERS*
179
© Blackwell Publishers Ltd 2000
as a condition carries with it a whiff of exaggeration as it tends to under-
state the enduring importance of the nation-state. Yet, in so far as the
emergence of post-nationalism is beginning to infect our understanding of
the performance of politics and law, it problematizes, first and foremost,
those institutions most closely associated with the nation-state, most
notably the modern constitution. One response is to argue that in so far as
processes such as globalization allow law and politics to operate on a scale
which transcends the national structures of the modern constitution, these
processes threaten the very existence of the modern constitution.1
A counter-response is to argue that modern constitutionalism is sufficient-
ly elastic to develop cosmopolitan features, which will allow it to adjust to
these forces, with the European Community being given as an example of
a constitution that has developed in an extra-national setting.2Central to
both arguments is an assumption that post-nationalism is merely about a
rescaling of politics and law. It involves no shifts in how law and politics
are conceptualized or what is considered to be legal or political. The argu-
ment here rejects these assumptions by taking the paradoxical nature of the
modern constitution as its starting point. As a formal instrument, even in
this ‘post-national age’, the modern constitution continues to be resilient
and its adoption ever more widespread. This persistence and vintage allow
it to remain a powerful totemic force which continues to attract and stabi-
lize many political and legal claims. As an organizational force, however,
the modern constitution developed against the backdrop of an increase in
the reach, intensity, and variety of government. It sought to accommodate
this through differentiating itself from its mediaeval predecessor by
entrenching, on the one hand, a particular vision of how law and politics
were to operate and how they were to relate to each other and, on the
other, requiring the polity to legitimate itself to its subjects through endow-
ing the latter with legal and political claims against the polity. Central to
this vision was the assumption that the modern constitution acted as
a central mechanism which enabled the recognition, co-ordination, assimi-
lation, and self-legitimation of the legal and political systems.
Post-nationalism, by contrast, signifies the proliferation and emergence
of new forms of law and politics. It creates a backdrop, similar to that
1For example, C. Himsworth, ‘In a State no Longer: The End of Constitutionalism?’ (1996)
Public Law 639. This argument is part of a more wide-ranging critique which suggests that
globalization threatens all structures which have emerged within the aegis of the nation-
state. For a very critical analysis of this reasoning see J. Habermas, Die post-nationale
Konstellation (1998) 91–169.
2L. Ferrajoli, ‘Beyond sovereignty and citizenship: a global constitutionalism’ in
Constitutionalism, Democracy and Sovereignty: American and European Perspectives, ed.
R. Bellamy (1996); R. Bellamy and A. Warleigh, ‘From an ethics of participation to an
ethics of participation: Citizenship and the Future of the European Union’ (1998) 27
Millennium 447.
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© Blackwell Publishers Ltd 2000
which led to the modern constitution, of increased legal and political inter-
action. The post-national condition is therefore characterized by increased
legal pluralism, on the one hand, and, on the other, by various forms of
political disordering, leading to the emergence of new political arenas and
a reflexive awareness by traditional political actors of their own limitations.
This relativizes the modern constitution, which is unable to exercise its tra-
ditional organizational hegemony over these forms of legal and political
unbounding. Paradoxically, in this, post-nationalism expresses a desire for
increasing amounts of human activity to be legally and politically orga-
nized. The multifarious, fluid, and interlocking nature of much of this
activity may prevent it from being organized through any central point or
even through any form of external steering mechanism. Yet the impulse
towards organization suggests the need for ‘constitutional substitutes’
which can carry out the processes traditionally performed by the modern
constitution of recognizing, co-ordinating, assimilating, and enabling self-
legitimation of this legal and political activity.
Such substitutes can only exist within the process of legal and political
interaction themselves. The final section of this paper considers the two
forms of interaction that can take place, communication and recognition.
Such processes reside in the subjective and intersubjective activities of the
individual. It argues that models centred around communication are unable,
per se, to generate sufficient programming and evaluative processes, as their
requirement of intersubjectivity both overstates the degree of cognitive con-
vergence between actions and forecloses certain forms of evaluation. This
paper argues, however, that recognition of legal and political measures and
identities can and does act as a constitutional substitute in relation to
this post-national activity. In particular, as only organizations have the
resources to make law or politics, the principal argument of this paper is
that the central ‘constitutional substitute’ is the recognition of an organiza-
tion by an individual as having either political or legal attributes. This
process of recognition carries an internal dualism, which generates similar
organizational structures to those predicated by the modern constitution.
On the one hand, as the act of recognition presupposes autonomy on the
part of the recognizer, organizations can do no more than press a claim for
recognition of these attributes. The duty to justify themselves, both to earn
recognition and to prevent derecognition from observers, generates a priori
conditions for organizations to meet concerning their actions, decision-
making procedures, distribution of internal power, and relations with third
parties. This process of justification thereby creates important structures of
evaluation, legitimation, and accountability. On the other, an act of recog-
nition implies a commitment to respect the attributes of the organization.
This, in turn, generates those others structures important to political and
legal organization, those of co-ordination and assimilation.
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