The Idea of Constitutional Pluralism
| Date | 01 May 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00383 |
| Published date | 01 May 2002 |
THE
MODERN LAW REVIEW
Volume 65 No 3May 2002
The Idea of Constitutional Pluralism
Neil Walker*
Constitutional discourse has perhaps never been more popular, nor more
comprehensively challenged than it is today. The development of new
constitutional settlements and languages at state and post-state level has to be
balanced against the deepening of a formidable range of sceptical attitud es. These
include the claim that constitutionalism remains too state-centered, overstates its
capacity to shape political community, exhibits an inherent normative bias
against social developments associated with the politics of difference, provides a
language easily susceptible to ideological manipulation and, that, consequent
upon these challenges, it increasingly represents a fractured and debased
conceptual currency. A rehabilitated language of constitutionalism would meet
these challenges through a version of constitutional pluralism. Constitutional
pluralism recognises that in the post-Westphalian world there exists a range of
different constitutional sites and processes configured in a heterarchical rather
than a hierarchical pattern, and seeks to develop a number of empirical indices
and normative criteria which allow us to understand this emerging configuration
and assess the legitimacy of its development.
Introduction
The declining years of the 20th century have been described as the ‘Weltstunde des
Verfassungsstaates’ – the global hour of the constitutional state.1As an empirical
generalisation, there is some support for this proposition. In Eastern and Central
Europe, the post-Communist establishment of liberal democratic regimes has been
accompanied by the gradual emergence of new constitutional settlements, and by
vigorous debate over the precise model of constitutionalism the final form of these
settlements should represent.2In Germany, reunification required significant
ßThe Modern Law Review Limited 2002 (MLR 65:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 317
* Professor of European Law, European University Institute, Florence; Professor of Legal and
Constitutional Theory, University of Aberdeen. This is an amended version of a paper delivered to the
MLR ‘Constitutionalism in Transition’ seminar at the University of Leeds in July 2001. Thanks to all who
participated and offered comments and criticism, especially to Zenon Bankowski, John Bell, Ruth Fletcher,
Colin Harvey, Allan Hutchinson, Martin Loughlin, Therese Murphy, Jo Shaw and Jim Tully. Thanks also
to Damian Chalmers, Hans Lindahl and Gerry Neuman, who offered constructive suggestions at various
stages in the development of the finished version.
1P.Ha¨berle, ‘Verfassungsentwicklungen in Osteuropa – aus der Sicht der Rechtsphilosophie und der
Verfassungslehre’ (1992) 117 Archiv des offentlichen Rechts 169, at 170.
2 See eg D. Howard (ed), Constitution-Making in Eastern Europe (Washington DC: Woodrow Wilson
Center Press, 1993); J. Elster, ‘Constitution-Making in Eastern Europe’ (1993) 71 Public
Administration 169.
adjustment of the constitutional machinery, if not a brand new model.3In Britain,
the comfortable clothes of the unwritten constitution came to assume an
increasingly threadbare appearance to large sections of the political classes and
New Labour’s project of institutional reform, however disappointing to some, has
marked a new intensity of engagement with constitutional issues.4In Western
Europe more generally, the accelerated growth over the last decade of the European
Union and its development of state-like characteristics such as representative
institutions of government, a common currency, influence over macro-economic
policy and social welfare policy, a policing capacity and a concern with the security
of its own external borders, has led to a new interest in its constitutional status,
direction and institutions, and also a higher public and political profile for the
constitutional institutions (especially the constitutional courts)5of its fifteen
national members as they seek to negotiate the balance of authority between state
and Union.6Outside Europe, too, there have been many instances where
constitutionalism has become a more dominant political theme. To name but two,
the transition to a democratic South Africa has already produced a landmark, the
new Constitution of 1996 – the effectiveness or otherwise of which is generally
regarded as crucial to the long-term viability and legitimacy of the new regime;7
and the heightened profile of human rights institutions at both the international level
(including the United Nations and regional bodies such as the Inter-American
Charter and the European Convention of Human Rights)8and the domestic level
(notably, the Canadian Charter of Fundamental Rights and Freedoms of 1982)9has
sparked a new concern with constitutional rights jurisprudence as a way of
accommodating individual entitlements and group aspirations within national, sub-
national, trans-national and supra-national political spaces on every continent.
More examples of constitutionalising trends will emerge in the course of our
discussion, but a first priority is to convey something of the other side of the story.
For in this very same historical ‘hour’, the very ideas of constitutionality – the
basic structures and mechanisms through which ‘actually existing’ constitutions
are formed and identified, and of constitutionalism – the normative discourse
through which constitutions are justified, defended, criticised, denounced or
otherwise engaged with10 – have also been subject to a perhaps unprecedented
range and intensity of attack. My aim in this paper is to map the various forms
3 See eg K. H. Goetz and P. J. Cullen (eds), Constitutional Policy in Unified Germany (London: Frank
Cass, 1995).
4 The literature is enormous. For a recent overview, see V. Bogdanor, ‘Constitutional Reform’ in A.
Seldon (ed), The Blair Effect: The Blair Government 1997–2001 (London: Little, Brown and Co,
2001) 139.
5 See eg A-M. Slaughter, A. Stone Sweet and J. H. H. Weiler (eds), The European Court and National
Courts Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford: Hart, 1998).
6 On the debate over the constitutionalization of the European Union more generally, see eg C. Joerges,
Y. Meny and J. H. H. Weiler (eds), What Kind of Constitution for What Kind of Polity? Responses to
Joschka Fischer (Florence: Robert Schuman Centre, 2000); J. H. H. Weiler, The Constitution of
Europe ‘Do The New Clothes Have an Emperor?’ and Other Essays on European Integration
(Cambridge: Cambridge University Press, 1999).
7 See eg H. Corder, ‘South Africa’s Transitional Constitution: Its Design and Implementation’ (1996)
Public Law 291.
8 See eg H.J. Steiner and P. Alston (eds), International Human Rights in Context: Law, Politics,
Morals, (Oxford: OUP, 2nd ed, 2000).
9 See eg D. Beatty, ‘The Canadian Charter of Rights: Lessons and Laments’ (1997) 60 MLR 481.
10 On terminological questions, see eg N. Walker, ‘European Constitutionalism and European
Integration’ (1996) Public Law 266–90; P. P. Craig, ‘Constitutions, Constitutionalism and the
European Union’ (2001) 7 European Law Journal 125.
The Modern Law Review [Vol. 65
318 ßThe Modern Law Review Limited 2002
these attacks have taken, to argue that the challenges they pose to the notions of
constitutionality and constitutionalism are genuine and serious, yet to contend that
these ideas remain worth defending and promoting, and are best done so through a
version of what is termed constitutional pluralism.
Five critiques of modern constitutionalism
The critiques in outline
Five major lines of explicit or implicit criticism of modern constitutionalism run as
follows. A first criticism holds that constitutionalism, given its traditional statist
framework and continuing statist legacy, is increasingly unable to explain or to act
as a container and steering mechanism for the major contemporary circuits and
flows of political, economic and social power which escape the state. A second
criticism focuses on the dangers of what we might term constitutional fetishism.
This criticism holds that an undue concentration upon – even enchantment with –
constitutionalism and constitutional structures overstates the explanatory and
transformative potential of constitutional discourse and frustrates, obstructs or at
least diverts attention from other mechanisms through which power and influence
are effectively wielded and political community is formed and which should
instead provide the central, or at least a more significant, focus of our regulatory
efforts and public imagination. A third criticism concerns the normative bias of
modern constitutionalism, its tendency to favour certain interests and values over
others and its failure to provide a level playing field within which all relevant
interests and values may be authentically and fairly engaged. A fourth criticism
concerns the role of constitutionalism as an ideological resource and the propensity
of many to clothe their interests, ideas or aspirations in constitutional garb, not
because of a commitment to certain normative standards which may be represented
or suggested by constitutionalism but because of the symbolic authority which they
hope to draw upon by so doing. Each of the different critiques considered thus far
has different starting points and trajectories. Within each critical posture,
moreover, there is considerable diversity, but there is also a great deal of
convergence and overlap between these positions, not least in that they are all
informed by or at least lent new urgency by the gradual escape of political power
and authority from the state. A fifth and final criticism, in turn, is closely and
complexly related to the other four considered collectively – indeed, in a sense is a
cumulation of the other four critiques and the various responses to these critiques.
It concerns the disputed or debased conceptual currency of constitutionalism.
Constitutionalism, from this angle, has become a highly protean notion, its field of
possible signification increasingly wide and diverse, so raising the prospect of its
supplying too indeterminate a discourse to be of any compelling or even persuasive
normative value in principle or to provide a viable point of reference for the
mobilisation of a broad consensus of public and political opinion in practice.
If these lines of criticism – statist legacy, fetishism, normative bias, ideological
exploitation and debased conceptual currency – speak to the range of criticisms of
modern constitutionalism, they also provide a measure of its intensity. This is
because each line of criticism has the potential not only to challenge particular
forms of constitutional discourse, but even to cast doubt upon the abiding value of
the very idea of constitutional discourse in some if not all settings. As we shall see,
the arguments from state-centredness and fetishism may suggest the refashioning
May 2002] The Idea of Constitutional Pluralism
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