OXFORD CONSTITUTIONAL THEORY

Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker

The Twilight of Constitutionalism?

 OXFORD CONSTITUTIONAL THEORY

Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker

One consequence of the increase in interest in constitutions and constitutional law

in recent years is a growing innovative literature in constitutional theory. The aim of
Oxford Constitutional Theory is to provide a showcase for the best of these theoretical
reflections and a forum for further innovation in the field.
The new series will seek to establish itself as the primary point of reference
for scholarly work in the subject by commissioning different types of study. The
majority of the works published in the series will be monographs that advance
new understandings of the subject. Well-conceived edited collections that bring a
variety of perspectives and disciplinary approaches to bear on specific themes in
constitutional thought will also be included. Further, in recognition of the fact that
there is a great deal of pioneering literature originally written in languages other
than English and with regard to non-anglophone constitutional traditions, the series
will also seek to publish English language translations of leading monographs in
constitutional theory.
 The Twilight
of Constitutionalism?
Edited by
Petra Dobner
and Martin Loughlin



1
 1
Great Clarendon Street, Oxford ox2 6dp
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide in
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi
Kuala Lumpur Madrid Melbourne Mexico City Nairobi
New Delhi Shanghai Taipei Toronto
With offices in
Argentina Austria Brazil Chile Czech Republic France Greece
Guatemala Hungary Italy Japan Poland Portugal Singapore
South Korea Switzerland Thailand Turkey Ukraine Vietnam
Oxford is a registered trade mark of Oxford University Press
in the UK and in certain other countries
Published in the United States
by Oxford University Press Inc., New York
© The various contributors, 2010
The moral rights of the author have been asserted
Database right Oxford University Press (makers)
First published 2010
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
without the prior permission in writing of Oxford University Press,
or as expressly permitted by law, or under terms agreed with the appropriate
reprographics rights organisation. Enquiries concerning reproduction
outside the scope of the above should be sent to the Rights Department,
Oxford University Press, at the address above
You must not circulate this book in any other binding or cover
and you must impose the same condition on any acquirer
British Library Cataloguing-in-Publication Data
Data available
Library of Congress Cataloging in Publication Data
Data available
Typeset by MPS Limited, A Macmillan Company
Printed in Great Britain
on acid-free paper by
MPG Books Group

ISBN 978–0–19–958500–7

1 3 5 7 9 10 8 6 4 2
 Contents

Acknowledgements vii
Contributors ix
Introduction xi

PART I: CONSTITUTIONALISM AND THE

EROSION OF STATEHOOD
Chapter 1 Dieter Grimm, The Achievement of Constitutionalism and its
Prospects in a Changed World 3
Chapter 2 Ulrich K. Preuss, Disconnecting Constitutions from Statehood:
Is Global Constitutionalism a Viable Concept? 23
Chapter 3 Martin Loughlin, What is Constitutionalisation? 47

PART II: THE QUESTION OF EUROPE

Chapter 4 Tanja A. Börzel, European Governance:
Governing with or without the State? 73
Chapter 5 Fritz W. Scharpf, Legitimacy in the Multi-level European Polity 89
Chapter 6 Sonja Puntscher Riekmann, Constitutionalism and
Representation: European Parliamentarism in the Treaty of Lisbon 120

PART III: CONSTITUTIONALISM WITHOUT

DEMOCRACY?
Chapter 7 Petra Dobner, More Law, Less Democracy?
Democracy and Transnational Constitutionalism 141
Chapter 8 Marcus Llanque, On Constitutional Membership 162
Chapter 9 Hauke Brunkhorst, Constitutionalism and Democracy in the
World Society 179
vi  Contents
PART IV: CONSTITUTIONAL LAW AND
PUBLIC INTERNATIONAL LAW
Chapter 10 Mattias Kumm, The Best of Times and the Worst of Times:
Between Constitutional Triumphalism and Nostalgia 201
Chapter 11 Rainer Wahl, In Defence of ‘Constitution’ 220

PART V: GLOBAL ADMINISTRATIVE LAW:

A VIABLE SUBSTITUTE?
Chapter 12 Nico Krisch, Global Administrative Law and the
Constitutional Ambition 245
Chapter 13 Alexander Somek, Administration without Sovereignty 267

PART VI: THE EMERGENCE OF SOCIETAL

CONSTITUTIONALISM
Chapter 14 Neil Walker, Beyond the Holistic Constitution? 291
Chapter 15 Riccardo Prandini, The Morphogenesis of Constitutionalism 309
Chapter 16 Gunther Teubner, Fragmented Foundations: Societal
Constitutionalism beyond the Nation State 327
Index 343
 Acknowledgements

The origins of this book lie in a proposal by Dieter Grimm to convene a focus group
at the Wissenschaftskolleg zu Berlin (the Berlin Institute of Advanced Study) for the
academic year 2007–8 on the subject of constitutions beyond the nation state. The
group consisted of Petra Dobner (Halle), Dieter Grimm (Berlin), Bogdan Iancu
(Bucharest), Martin Loughlin (London), Fritz Scharpf (Cologne), Alexander Somek
(Iowa), Gunther Teubner (Frankfurt), and Rainer Wahl (Freiburg). The group met
weekly throughout the year to discuss this wide-ranging topic and in June 2008,
towards the end of the session, convened a workshop to which leading scholars on
various aspects of this theme were invited. The book is the product of those focus
group discussions at the Wissenschaftskolleg and the workshop presentations.
For support in this venture, we must first thank Dieter Grimm for proposing
the study and the Board of the Wissenschaftskolleg for accepting his request. We
are also most grateful to Luca Guiliani, the Rector, and his dedicated staff at the
Wissenschaftskolleg who provided a remarkably congenial environment in which
the group were able to pursue their individual and collective projects. For finan-
cial support for the end-of-session workshop, we wish to express our gratitude to
the Otto und Martha Fischbeck-Stiftung. Finally, our thanks go to Christoph Möllers
(Göttingen) and Christian Walter (Münster), who participated in the workshop
proceedings but were unable to contribute to this resulting work.
Petra Dobner (Berlin)
Martin Loughlin (London)
july 2009
 Contributors

Tanja A. Börzel Professor of Political Science, Freie Universität

Berlin, Germany
Hauke Brunkhorst Professor of Sociology, University of Flensburg,
Germany
Petra Dobner Associate Professor of Political Science, Martin-
Luther-University of Halle-Wittenberg, Germany
Dieter Grimm Professor of Public Law, Humboldt University,
Berlin; Permanent Fellow, Wissenschaftskolleg zu
Berlin; former Justice, Federal Constitutional Court
of Germany
Nico Krisch Professor of International Law, Hertie School of
Governance, Berlin, Germany
Mattias Kumm Professor of Law, New York University, USA
Marcus Llanque Professor of Political Theory, University of
Augsburg, Germany
Martin Loughlin Professor of Public Law, London School of
Economics and Political Science, UK
Riccardo Prandini Associate Professor in Sociology of Cultural and
Communicative Processes, University of Bologna,
Italy
Ulrich K. Preuss Professor of Law and Politics, Hertie School of
Governance, Berlin, Germany
Sonja Puntscher Professor of Political Science, University of Salzburg,
Riekmann Austria
Fritz W. Scharpf Director emeritus, Max Planck Institute for the Study
of Societies, Cologne, Germany
Alexander Somek Charles E. Floete Chair in Law, University of Iowa,
USA
Gunther Teubner Professor of Private Law and Legal Sociology,
J. W. Goethe University of Frankfurt, Germany
x  Contributors
Rainer Wahl Professor of Public Law, University of Freiburg,
Germany
Neil Walker Regius Professor of Public Law, University of
Edinburgh, UK
 Introduction
Petra Dobner and Martin Loughlin

The twilight of constitutionalism? Surely not. Constitutionalism is a modern

phenomenon, a feature of political life over the last 250 or so years, but one which
in recent decades has been enjoying a greater infl uence in public discourse than
ever before. Under its infl uence, modern constitutions have established a set of
governmental institutions that provide the necessary conditions for the realisation
of a democratic Rechtsstaat. Such constitutions constrain politics by legal means,
structure power relations comprehensively, help normatively to integrate societies,
and offer a practical account of legitimate democratic rule within the state. While
these achievements cannot be denied, the fact is that this period of maturation of
constitutionalism coincides with the erosion of some of the basic conditions on
which those achievements have rested. Foremost amongst these conditions are those
of statehood and a concept of democracy generated from the claim that ‘we the
people’ are the authorising agents of the constitutional scheme. Constitutionalism is
increasingly being challenged by political realities that effect multiple transgressions
of the notion of democratic statehood. It is in this sense that constitutionalism can
be understood to be entering a twilight zone.
The combination of these diverging trends of triumph and demise offers one
powerful reason why interest in theorising about constitutions has recently gained a
new momentum. However ambiguous the term ‘globalisation’ may be, among the
few certainties is an acknowledgement of a growing incongruity between the politi-
cal (ie the world of things that need to be ordered collectively in order to sustain
society) and the state (ie the major institution for political decision making during
modern times). And it is this incongruity that presents a serious challenge to the
practices of constitutionalism. The far-reaching consequences and possible remedies
of this double disjunction of politics and state and of state and constitution form the
centre of an ongoing debate about ‘constitutionalism beyond the state’. Whether the
processes of constitutionalisation at the transnational level are to be seen as compen-
sating for losses at the national level or as an enhancement by adding a new layer of
constitutional ordering, these contemporary developments offer strong incentives
for revisiting the achievements of constitutionalism, analysing its current modes of
transmutation, and debating its future prospects. These are the issues that the chap-
ters in this collection address.
xii  Introduction
The book investigates these issues in six parts. The first part deals with perhaps
the most critical question concerning the character of modern constitutionalism,
that of the mutual dependency (or possible independency) of statehood and
constitutionalism. Dieter Grimm provides an overview of the achievements
of constitutionalism, and outlines its central elements of democracy, limited
government, and the principle of the rule of law. He argues that the achievements
of constitutionalism are tied to an acknowledgement of its constitutive conditions—
the boundary distinctions between public and private, and between internal and
external. For this reason, Grimm contends that, to the extent that statehood is
being eroded as a result of the blurring of these boundaries, then constitutionalism
must be seen to be in decline. Internationalisation is opening up a gap between
the exercise of public power and its modes of legitimation which constitutionalism
is unable to close. Constitutionalism, in short, cannot be reconstructed on the
international level.
Ulrich K. Preuss reworks Grimm’s account of the achievement of constitutionalism
and, in contrast to Grimm’s analysis, argues that the essence of constitutionalism is
misunderstood if it is too directly linked to the concept of statehood. In Preuss’s view,
the principle of territoriality—which is, he claims, the essence of statehood—was
made effective by the absolutist state and that the key feature of constitutionalism
has been to overcome the logic of the absolutist state. This has been done by linking
sovereignty not so much to territory as to a people. Exploring this latter relation,
Preuss argues that constitutionalism maintains the potential to overcome its historic
links with statehood and to provide a means of normative integration of institu-
tional arrangements at the transnational level. Martin Loughlin’s response to the
possibilities of transnational constitutionalisation is more sceptical. For Loughlin,
the emergence of the novel concept of constitutionalisation is associated with
certain social and economic processes that presently are affecting government at
both the national and international levels. Constitutionalisation is the product of a
reconfiguration of the values of constitutionalism; it promotes a merely legalistic
understanding of constitutionalism and deflects from a broader notion of political
constitutionalism, ie a form of constitutional thinking directed not only at the legal
order but at political organisation in general.
To the extent that recent trends have led to a search for functional equivalents
to the state at the transnational level, then this has been most clearly visible in the
development of the European Union (EU). The ongoing process of European inte-
gration has fuelled a number of attempts to conceptualise this specific multi-level
system of constitutions on the regional, the federal, and the European levels. Among
the many questions which are raised, the mutual relationship between political and
legal autonomy of the member states, their political and legal cooperation on the
European level, and the independence of some genuinely European institutions may
be highlighted. The constitutional question has arisen in part because of efforts to
understand the sui generis character of the EU itself. But it also arises because power-
sharing arrangements within the EU have touched on crucial aspects of democratic
governance and raised questions about the legitimacy of EU actors. These develop-
ments provide the focus for the chapters in Part II.
 Introduction  xiii
Tanja A. Börzel offers an account of the nature of the structure of governance of
the EU. In contrast to understandings of the EU as a prototype of ‘network gover-
nance’ or as ‘governance without government’, she argues that empirically the EU
is best characterised as a form of ‘governance with the state’. Börzel argues that the
governing arrangements of the EU most closely resemble the German model of
cooperative federalism; the EU has developed a supranational constitutional system,
but this constitution, far from being autonomous, is interlocked with national
constitutions. Fritz W. Scharpf advances this discussion by developing a theoreti-
cal framework which distinguishes between the sources for legitimation in Euro-
pean politics, which he argues lie entirely within the state, and the exercise of public
authority, which by contrast is often located on the European level. Scharpf ’s model
of a two-level polity parallels Börzel’s. But Scharpf takes the constitutional analysis
further by suggesting that this model imposes specific limits to the legitimacy of EU
institutional action.
In the final chapter of this part of the book, Sonja Puntscher Riekmann argues
that a core concept of modern constitutionalism is that of representation. In the
European tradition, this concept is expressed mainly through the existence of parlia-
ments as institutions that, acting as representative forums of the people, provide a
vital source of constitutional legitimacy. Maintaining that the EU contains impor-
tant federative elements, Puntscher Riekmann contends that constitutionalisation
of the EU is a necessary process but that serious problems of representation exist. In
the context of the failed Constitutional Treaty, she thus explores the potential role of
parliaments to provide the means of enhancing representation within EU governing
arrangements.
Whereas Part I focuses on the erosion of statehood, Part III addresses the
other main plank of modern constitutionalism: the question of democracy. From
different perspectives, the essays in this part converge on one central question: in
what ways, if at all, can transnational constitutionalism be reconciled with the
claims of democratic legitimacy? Petra Dobner examines the growing tension
between the normative desirability of democratised law and the practical disso-
lution of the relation between law and democracy at the transnational level. She
argues that the transformation of statehood leads simultaneously to forms of
deconstitutionalisation and losses of democratic control. The emergence of global
law, she contends, has yet to account for these losses, and present trends generally
compound the challenge of finding democratic ways of living. Marcus Llanque takes
a different tack. Examining the genealogy of citizenship, he seeks to broaden the
meaning of the concept to render it more useful to contemporary circumstances.
Distinguishing citizenship from such concepts as ‘the people’ and ‘nationality’, he
adopts a notion of citizenship founded on the idea of constitutional membership.
Starting from experience on the national level, Llanque rests his case with a plea for
further explorations of the meaning of constitutional membership with respect to
a future polity which is able to balance national, transnational, supranational, and
cosmopolitan claims of allegiance and loyalty.
Hauke Brunkhorst closes this part of the book with a broad-ranging account
of the impact of the emergence of ‘world society’ on the ideals of constitutional
xiv  Introduction
democracy. Brunkhorst bases his argument on the premiss that constitutionalism
has always maintained the Janus-face of inclusion and exclusion, emancipation and
oppression. Although Western constitutionalism has acquired its inclusive qualities
at the price of its cosmopolitan claims, he suggests that it has nevertheless been
able to provide a legal means of coordinating confl icting powers within nation-
state systems. Brunkhorst argues finally that the democratic possibilities which are
inherent in the emergence of a world society can be realised only by promoting
an agenda of radical reform which, in conceptual terms, requires us to overcome
the limitations of dualistic and representational thinking (an argument that would
appear to run counter to those of Grimm and Puntscher Riekmann).
The remaining parts address three of the main approaches to transnational law
that arise from a constitutional perspective. Part IV explores the changing relation-
ship between national constitutional law and public international law, with the two
chapters in this part offering alternative explanations of the prospects of extending
constitutionalism beyond the borders of the nation state. Mattias Kumm suggests
that progress can be made with understanding the emerging relationship between
national constitutional law and public international law only if we move beyond
the crude division between the triumphalists, who see the present era as marking
a radical extension of constitutionalism’s claims in the international arena, and the
nostalgists, who believe constitutionalism can only be realised in a world of sover-
eign nation states. Critiquing the position of ‘constitutional nostalgia’, a stance that
underpins many advocating what he calls ‘democratic statism’, Kumm proposes in
its place ‘the practice conception of constitutionalism’. The practice conception is,
he argues, a conceptual arrangement that is better fitted to adequately address the
constitutional challenges that emergent transnationalism presents. In his contribu-
tion to this part, Rainer Wahl, by contrast, vigorously defends the conceptual use of
‘constitution’ as a state-centred concept. Wahl presents the case that the extension
of the usage of the concept, whether as a form of ‘higher law’ in the international
arena or as a species of ‘societal law’, amounts to a political emptying of the concept.
Those who use the language of constitutionalism in such circumstances, he claims,
are seeking to exploit the ‘noble aura’ of the term without being able to realise its
necessary prerequisites.
Part V marks a slight detour. It considers the attempt to evade many of these
conceptual intricacies by the suggestion that the evident tendencies towards global
governance do not of themselves raise issues of constitutional quality. This part
focuses on the concept of Global Administrative Law (GAL), and highlights the
perception that the evolution of global law mostly engages issues of administrative
rather than constitutional law. Nico Krisch weighs the pros and cons of applying
the insights of constitutionalism to issues of global law. He argues that the modest
scale and narrower reach implied when one talks about the globalisation of admin-
istrative law offers a more suitable model both for scholarship and political reform
than constitutionalist approaches with their holistic vision. Alexander Somek does
not challenge Krisch’s observation that recent trends are better understood from an
administrative rather than a constitutional perspective. But Somek draws out some
 Introduction  xv
of the issues raised by the ostensibly modest ambition of the GAL project. He is,
in particular, critical of the claim that the project amounts only to a redescription
of modern international law under the dominating infl uence of administrative
rationality. Rather, he claims, it marks the triumph of administrative rationality over
the legal form itself. The world that GAL describes, Somek concludes, is not that
of the demise of the state under globalising pressures; it marks instead the triumph
of the state (the state as administration) over both politics and law.
Finally, Part VI offers three accounts of the way in which the fragmentation of law
and constitution under globalising pressures can be addressed only by analysing the
emergence of norm production from the societal periphery. This is the driving theme
of the concept of societal constitutionalism. Neil Walker returns to the themes of
Part I, dealing with the constitutional consequences of the erosion of statehood. He
does so by considering whether—and, if so, on what terms—constitutionalism can
remain a viable concept in the old state setting. And he asks whether—and, if so, on
what terms—constitutionalism could possibly be adapted to new settings. His recon-
ciling conclusion is that the use of the term constitutionalism should be retained, and
it should be used to serve as a placeholder for exactly those concerns with respect
to which others reject the use of the constitutional language when speaking about
the transnationalisation of law. Constitutionalism, Walker argues, serves a crucial
longstop function of providing a medium for dealing with the abiding concerns we
still have, and ought to have, about our ideas of the common interest.
Riccardo Prandini frames the question of societal constitutionalism in rather
different terms. In Prandini’s account, the evolution of constitutionalism is to be
seen in the mode of morphogenesis, that is, as a socio-cultural cycle in which a given
institutional and cultural structure through cultural and structural interactions
activated by societal actors gives rise to new forms. Prandini’s approach displaces
the centrality of the political in discussions of constitutions and offers an analysis
of constitutionalisation as a specific movement generated by the proliferation of
legal orders operating, both privately and publicly, at subnational, national and
transnational levels. Finally, Gunther Teubner, beginning from the empirical
observation that transnational private actors intensively regulate entire areas of life
through their own private governance regimes, seeks to reposition the main consti-
tutional question we face today. According to Teubner, the critical questions are
raised by asking how legal theory should react to these major trends of privatisation
and globalisation: how can nation-state constitutionalism be redesigned in a way that
might enable constitutionalism’s achievements to cope with these developments?
Overcoming state-centrism and accepting the polycentric form of globalisation, he
argues, are two sides of the same coin, and they result in the need to accept that the
world of nation-state constitutionalism finds a functional equivalent in the emerging
production of a global societal law.
It cannot be denied that the production of law, which used to be reserved to
governmental institutions, has increasingly been complemented by forms of private
regulation. And while the legitimacy of this production may well be questioned,
its existence does call for theoretical conceptualisation and also integration into
xvi  Introduction
the framework of constitutional thinking. The developments that the chapters in
this book examine pose some basic questions about the foundations of modern
constitutionalism, have provoked calls for a revision of that heritage, and evoked a
lively debate about the future of constitutionalism. Constitutionalism is changing—
that is beyond question. But the direction of change remains an open issue.
  1 
The Achievement of Constitutionalism
and its Prospects in a Changed World
Dieter Grimm

i. external culmination—internal erosion

Constitutionalism is a relatively recent innovation in the history of political institutions.
It emerged in the last quarter of the eighteenth century from two successful revolu-
tions against the hereditary rulers, first in the British colonies of North America,
then in France. Immediately understood as an important achievement, it appealed
to many people outside the countries of origin, and attempts to introduce modern
constitutions started all over Europe and soon also in other parts of the world.
The nineteenth century was a period of struggle for constitutionalism in a lot of
countries. But after many detours and setbacks constitutionalism had finally gained
universal recognition by the end of the twentieth century. Today, only a handful of
the nearly 200 states in the world is still without a constitution.
This is not to say that these constitutions are everywhere taken seriously, or that
constitutional norms always prevail in cases of confl ict with political intentions. But
the universal recognition of constitutionalism as a model for the organisation and
legitimation of political power is shown by the fact that even rulers who are not
inclined to submit themselves to legal norms feel compelled at least to pretend to
be exercising their power within the constitutional framework. Further, the general
willingness of rulers to govern in accordance with the provisions of the constitution
has recently increased considerably, as is indicated by the great number of constitu-
tional courts or courts with constitutional jurisdiction that were established during
the last quarter of the twentieth century. After 225 years, constitutionalism seems
now to have reached the peak of its development.
This external success of constitutionalism, however, should not mislead the
observer. It is accompanied by an internal erosion that started almost unnoticed in
the wake of a transformation of statehood, domestically as well as internationally,
and eventually cost the state the monopoly of public power over its territory.1 Today,

1
For the domestic causes and effects, which are not the central concern of this chapter,
see D. Grimm, Die Zukunft der Verfassung (Frankfurt: Suhrkamp, 1991; 3rd edn, 2002), 399;
D. Grimm, ‘Ursprung und Wandel der Verfassung’, in J. Isensee and P. Kirchhof (eds),
Handbuch des Staatsrechts (Heidelberg: C. F. Müller, 3rd edn, 2003), i. 22 et seq.
4  Dieter Grimm
the state shares its power with a number of non-state actors, most of them inter-
national organisations to whom sovereign rights have been transferred and whose
exercise escapes the arrangements of national constitutions. This differs from the
fact that constitutional norms may be violated or have little impact on political
action; such a gap between norm and fact has always existed, but does not of itself
undermine the potential of constitutionalism. The internal erosion, by contrast,
endangers the capacity of the constitution to fulfil its claim of establishing and regu-
lating all public power that has an impact on the territory where the constitution is
in force. This is why the erosion not only affects this or that constitution, but the
achievement of constitutionalism altogether.
One response to this development has been the attempt to elevate constitutional-
ism to the international level. The recent boom of the term ‘constitutionalisation’
is an indicator of this tendency. Different from traditional constitution-making, it
describes not an act by which a constitution takes legal force, but a process which
eventually ends up in a constitution. Such processes can already be seen underway
in Europe, where the European Convention on Human Rights (ECHR) and the
primary law of the European Union are analysed in terms of constitutional law,
but also globally. For many authors, public international law is acquiring constitu-
tional status. The Charter of the United Nations as well as the statutes of other
international organisations such as the World Trade Organization are interpreted
as constitutions. Even global public policy networks and self-organisation processes
of private global actors are discussed in terms of constitutionalism—all objects not
regarded as constitutions just a few years ago.2

2
The literature is increasing rapidly. See in general R. St J. Macdonald and D. M. Johnston
(eds), Towards World Constitutionalism (Leiden: Brill, 2005); A. Peters, ‘Compensatory
Constitutionalism: The Function and Potential of Fundamental International Norms and
Structures’ (2006) 19 Leiden Journal of International Law 579; E. de Wet, ‘The International
Legal Order’ (2006) 55 International & Comparative Law Quarterly 51; R. Uerpmann, ‘Internationales
Verfassungsrecht’ (2001) Juristenzeitung 565; M. Knauff, ‘Konstitutionalisierung im inner- und
überstaatlichen Recht’ (2008) 68 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
453; M. Rosenfeld and H. R. Fabri, ‘Rethinking Constitutionalism in an Era of Globalization
and Privatization’ (2008) 6/3–4 International Journal of Constitutional Law 371; C. Walter,
‘Constitutionalizing International Governance’ (2001) 44 German Yearbook of International
Law 170; R. Kreide and A. Niederberger (eds), Transnationale Verrechtlichung (Frankfurt:
Campus, 2008). For public international law, see: J. A. Frowein, ‘Konstitutionalisierung
des Völkerrechts’ (1999) 39 Berichte der Deutschen Gesellschaft für Völkerrecht 427. For the
UN, see B. Fassbender, ‘The United Nations Charter as Constitution of the International
Community’ (1998) 36 Columbia Journal of Transnational Law 529. For the WTO, see D.
Cass, The Constitutionalization of the World Trade Organization (Oxford: Oxford University Press,
2005); J. P. Trachtman, ‘The Constitution of the WTO’ (2006) 17 European Journal of
International Law 623. For the European Convention on Human Rights, see C. Walter, ‘Die
EMRK als Konstitutionalisierungsprozess’ (1999) 59 Zeitschrift für ausländisches öffentli-
ches Recht und Völkerrecht 961. For the EU, the literature is immense: see, eg J. Weiler, The
Constitution of Europe (Cambridge: Cambridge University Press, 1999); I. Pernice, ‘Multilevel
Constitutionalism and the Treaty of Amsterdam’ (1999) 36 Common Market Law Review 703;
A. Peters, Elemente einer Theorie der Verfassung Europas (Berlin: Duncker & Humblot, 2001).
 The Achievement of Constitutionalism  5
In order to realise the extent to which the development affects the constitution
on the national level one needs a clear notion of what constitutionalism entails. This
is not always present in discussions over the process of constitutionalisation and
the future of constitutionalism. Many authors tend to identify constitutionalism as
involving a submission of politics to law. This is not wrong, but it is not the whole
story. Legalisation of politics is nothing new; it existed long before the constitu-
tion emerged. A clear notion of constitutionalism can therefore be best obtained if
one tries to determine what was new about the constitution when it emerged from
the two revolutions, and which conditions had to be present before it was able to
emerge.3 This, in turn, will allow a comparison of constitutionalism in the traditional
sense with new developments on the international level and permit an assessment to
be made of the possibility of its reconstruction at the global level.

ii. the achievement and its preconditions

The emergence of the modern constitution from revolution is not accidental. The Amer-
ican and the French Revolutions differed from the many upheavals and revolts in history
in that they did not content themselves with replacing one ruler by another. They aimed
at establishing a new political system that differed fundamentally from the one they had
accused of being unjust and oppressive. In order to achieve this, they devised a plan of
legitimate rule, with persons being called to govern on the basis of and in accordance with
these pre-established conditions. The historic novelty of this step is often obscured by the
fact that the legalisation of politics did not start with the first constitutions. Neither was
the term ‘constitution’ new. It had been in use long before constitutionalism emerged.
But the earlier legal bonds of politics were of a different kind and the term ‘constitution’
had a different meaning before and after the revolutionary break.4
In its traditional meaning, the term referred to the state of a country as deter-
mined by various factors, such as the geographical conditions, the nature of its popu-
lation, and the division of power. Also among these factors were the fundamental

For societal constitutionalism, see: G. Teubner, ‘Globale Zivilverfassungen: Alternativen zur

staatszentrierten Verfassungstheorie’ (2003) 63 Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht 1; A. Fischer-Lescano and G. Teubner, Regimekollisionen (Frankfurt: Suhrkamp,
2006); H. Schepel, The Constitution of Private Governance (Oxford: Hart, 2005). For some
critical voices, see R. Wahl, ‘Konstitutionalisierung: Leitbegriff oder Allerweltsbegriff ?’ in
C.-E. Eberle (ed), Der Wandel des Staates vor den Herausforderung der Gegenwart: Festschrift für
W. Brohm (Munich: Beck, 2002), 191; U. Haltern, ‘Internationales Verfassungsrecht?’
(2003) 128 Archiv des öffentlichen Rechts 511; P. Dobner, Konstitutionalismus als
Politikform (Baden-Baden: Nomos, 2002); D. Grimm, ‘The Constitution in the Process of
Denationalization’ (2005) 12 Constellations 447.
3
See D. Grimm, Zukunft der Verfassung, above n 1, 31; D. Grimm, Deutsche Verfassungsgeschichte
(Frankfurt: Suhrkamp, 3rd edn, 1995), 10 et seq.
4
See H. Mohnhaupt and D. Grimm, Verfassung (Berlin: Duncker & Humblot, 2nd edn,
2002); C. H. McIlwain, Constitutionalism, Ancient and Modern (Ithaca, NY: Cornell University
Press, 1940).
6  Dieter Grimm
legal rules that determined the social and political structure of a country. Later in
the eighteenth century the notion was used in a narrower sense, referring to the coun-
try’s state as formed by the fundamental rules. But still the term ‘constitution’ did not
designate these rules. It was an empirical rather than a normative notion. Understood in
a descriptive sense, every country had—or more precisely was in—a constitution. If used
in a normative sense, constitution designated some specific laws, such as laws enacted by
the Emperor in the Holy Roman Empire (Constitutio Criminalis Carolina). On the other
hand, there existed laws regulating the exercise of public power, though these were not
called ‘constitutions’, but forms of government, leges fundamentales, etc.
In the medieval era, these fundamental laws were regarded as of divine origin.
They were by definition higher law and the political powers could not dispose of
them. The function of politics consisted in enforcing God’s will. Legislation, if
it occurred, was not understood as law creation, but as concretisation of eternal
law, adapting it to exigencies of time and space. This understanding lost its ground
with the Reformation of the early sixteenth century. The devastating civil wars that
followed the schism made the restoration of social peace the ruler’s primary func-
tion. This required a concentration of all powers and prerogatives, which in the
medieval order had been dispersed among many independent bearers who exercised
them not as a separate function but as an adjunct of a certain status, eg that of a
landowner. In addition, this power did not extend to a territory; it referred to persons
so that various authorities coexisted on the same territory, each of them exercising
different prerogatives.
Restoration of internal peace seemed possible only if all holders of prerogatives
were deprived of their power in favour of one single ruler, historically the prince,
who combined them in his person and condensed them to the public power in
the singular. This power was no longer limited to law enforcement. It included
the right to create a legal order that was independent of the competing faiths and
secular in nature. Eternal law thereby lost its legal validity and retreated to a moral
obligation. In order to enforce the law against resisting groups in society the prince
claimed the monopoly of legitimate use of force, which entailed on the other
side a privatisation of civil society. A new notion for this completely new type of
political rule soon came into use: the state, whose most important attribute was
sovereignty, understood since Bodin’s seminal work as the ruler’s right to dictate
law for everybody without being bound by law himself.5 The state originated as
an absolute state.
Absolutism nevertheless remained an aspiration of the rulers that was nowhere
completely fulfilled before the French Revolution ended this period. Sovereignty,
although defined as highest and indivisible authority over all subjects, was but rela-
tive in practice. Old bonds dating from the medieval period survived, new ones
were established. But they did not form an integral whole. Most of these laws had
a contractual basis. They took the form of agreements between the ruler and the
privileged estates of a territory on whose support the ruler depended. They were

5
Jean Bodin, Les six livres de la République (Paris: Du Puys, 1576).
 The Achievement of Constitutionalism  7
regarded as mutually binding and could sometimes even be enforced by courts. Yet
none of these legal norms questioned the ruler’s right to rule. Based on transcen-
dental or hereditary legitimation this right preceded the legal bonds. They merely
limited the right in this or that respect, not comprehensively, and in favour of the
parties to the agreement, not universally.
The existence of such legal bonds, first eternal and then secular, indicates that it
would not be sufficient to characterise constitutionalism as a submission of politics
to law. Different from the older legal bonds of political power, the new constitu-
tions did not modify a pre-existing right to rule: they preceded the ruler’s right to
rule. They created this right, determined the procedure in which individuals were
called into office, and laid down the conditions under which they were entitled to
exercise the power given to them. In contrast to the older legal bonds, the constitu-
tion regulated public power coherently and comprehensively. This is not to say that
political power was again reduced to law enforcement, as with the medieval order.
It means, rather, that constitutionalism neither recognised any extra-constitutional
bearer of public power, nor any extra-constitutional ways and means to exercise
this power vis-à-vis citizens. Finally, the legal regulation of public power not only
favoured certain privileged groups in society who possessed sufficient bargaining
power, but society as a whole.
These differences had some consequences that further characterise the constitution.
As an act that constituted legitimate public power in the first place, the constitu-
tion could not emanate from the ruler himself. It presupposed a different source.
This source was found in the people that had decided to form a polity. The legiti-
mating principle of the modern constitution was popular rather than monarchical
sovereignty. This was by no means an original idea of the American and the French
revolutionaries. It had older roots and gained widespread recognition when religion
no longer served as the basis of the social order after the Reformation. In the absence
of a divine legitimation the philosophers of the time turned to reason as a common
endowment of mankind, independent of religious creeds. In order to find out
how political rule could be legitimised, they placed themselves in a fictitious state
of nature where everybody was by definition equally free. The question, then, was
why and under which conditions reasonable people would be willing to leave the
state of nature and submit themselves to a government.
The reason for this was the fundamental insecurity of life and limb in the state
of nature. Leaving the state of nature became a dictate of reason. Given the equal
freedom of all individuals, the step from the state of nature to government called for
a general agreement. Legitimacy could be acquired only by a government based on
the consent of the governed. It was also up to the governed to determine the condi-
tions under which political power could be exercised. These conditions varied over
time. For those philosophers who elaborated their theory against the backcloth of
the religious wars of the sixteenth and seventeenth centuries, ending civil war and
enabling peaceful coexistence of believers in different faiths enjoyed absolute priority.
For them, this goal could be achieved only if individuals handed over all their natural
rights to the ruler in exchange of the overarching good of security. Here, the theory
of the social contract justified absolutism.
8  Dieter Grimm
The better the absolute ruler fulfilled his historical function of pacifying society,
the less plausible seemed the claim that peaceful coexistence in one society required
a total relinquishment of all natural rights. The ruler’s task was now seen to be the
protection of individual freedom, which required no more from the individuals than
handing over the right to self-justice. From the mid-eighteenth century, the treatises
of natural law contained growing catalogues of fundamental rights that the state
was obliged to respect and protect. This coincided with the economic theory that
freedom of contract and property would be a better way of achieving justice and
welfare in society than feudalism and state regulation of the economy. The idea
that individual freedom remained endangered vis-à-vis a concentrated governmental
power also gained ground. To guarantee that the state respected individual rights,
some separation of powers and certain checks and balances were regarded as
indispensable.
Although these theories contained all the ingredients that later appeared in the
constitutions, they were not pushed forward to the postulate of a constitution by
the philosophers. For them, they functioned as a test of the legitimacy of a political
system: a political system was deemed legitimate if it could be considered as if estab-
lished by a consensus of the governed. Like the state of nature, the social contract
was fictitious. With the sole exception of Emer de Vattel,6 neither a document nor a
popular decision was required. The social contract served as a regulative idea. It was
not considered to be the result of a real process of consensus building. Its authority
was based on argumentation, not on enactment. No ruler before the revolution had
been willing to adopt it, and most rulers had explicitly rejected it. Natural law and
positive law contradicted each other.
Only after the revolutionary break with traditional rule were these ideas able
to become a blueprint for the establishment of the new order needed to fill the
vacuum of legitimate public power. By their very nature they worked in favour of
a constitution. Popular sovereignty was the legitimating principle of the new order.
But unlike the sovereign monarch, the people were incapable of ruling themselves.
They needed representatives who governed in their name. Democratic government
is government by mandate and as such stands in need of being organised. In addi-
tion, the mandate was not conferred upon the representatives unconditionally. In
contrast to the unlimited power of the British Parliament and the French monarch,
the revolutionaries wanted to establish a limited government. The limits in scope
and time as well as the division of power among various branches of government
also required a determination in the form of rules.
Hence, the contribution of the American and French revolutionaries was to turn
the idea from philosophy into law. Only law had the capacity to dissolve the consen-
sus as to the purpose and form of government from the historical moment and
transfer it into a binding rule for the future, so that it no longer rested on the power
of persuasion but on the power of a commitment. There was, however, the problem
that, after the collapse of the divinely inspired medieval legal order, all law had

6
E. de Vattel, Le Droit des gens ou principe de la loi naturelle (Leiden, 1758), i. 3 § 27.
 The Achievement of Constitutionalism  9
become the product of political decision. Law was irreducibly positive law. Nothing
else could be true for the law whose function it was to regulate the establishment
and exercise of political power. The question that emerged from this positivisation
of law was how a law that emanated from the political process could at the same
time bind this process.
This problem was solved by taking up the old idea of a hierarchy of norms (divine
and secular) and re-introducing it into positive law. This was done by a division of
positive law into two different bodies: one that emanated from or was attributed to
the people and bound the government, and one that emanated from government
and bound the people. The first one regulated the production and application of
the second. Law became reflexive. This presupposed, however, that the first took
primacy over the second. The revolutionary theoreticians had a clear notion of this
consequence of constitution making. The Americans expressed it as ‘paramount
law’ and deployed the distinction between master and servant or principal and agent,
while Sieyes conceptualised it in the dichotomy of pouvoir constituant and pouvoir
constitué.7 Without this distinction and the ensuing distinction between constitutional
law and ordinary law and of the subordination of the latter to the former, constitu-
tionalism would have been unable to fulfil its function.
Constitutionalism is therefore not identical with legalisation of public power. It is
a special and particularly ambitious form of legalisation. Its characteristics can now
be summarised:
1. The constitution in the modern sense is a set of legal norms, not a philosophical
construct. The norms emanate from a political decision rather than some
pre-established truth.
2. The purpose of these norms is to regulate the establishment and exercise
of public power as opposed to a mere modification of a pre-existing public
power.
3. The regulation is comprehensive in the sense that no extra-constitutional
bearers of public power and no extra-constitutional ways and means to exercise
this power are recognised.
4. Constitutional law finds its origin with the people as the only legitimate source
of power. The distinction between pouvoir constituant and pouvoir constitué is
essential to the constitution.
5. Constitutional law is higher law. It enjoys primacy over all other laws and legal
acts emanating from government. Acts incompatible with the constitution do
not acquire legal force.
These five characteristics refer to the function of the constitution. As such they differ
from the many attempts to describe the modern constitution in substantive terms:
democracy, rule of law, separation of powers, fundamental rights. The reason is that
constitutionalism leaves room for many ways of establishing and organising political

7
James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (1788), No 78;
E. Sieyes, Qu’est-ce le Tiers État? (Paris: 1789).
10  Dieter Grimm
power: monarchical or republican, unitarian or federal, parliamentarian or presiden-
tial, unicameral or bicameral, with or without a bill of rights, with or without judi-
cial review, etc. All this is left to the decision of the pouvoir constituant. But this is not
to say that the constitution in the modern sense is compatible with any content. The
reason is supplied by the function of the constitution, namely to establish legitimate
rule and to regulate its exercise by the rulers comprehensively. A system that rejects
the democratic origin of public power and is not interested in limited government
does not meet the standards of the modern constitution.
The two elements of constitutionalism, the democratic element and the rule of
law element, cannot be separated from each other without diminishing the achieve-
ment of constitutionalism. It is widely accepted that a document which does not
attempt to submit politics to law is not worth being called a ‘constitution’. But it is
not so clear with regard to democracy as a necessary principle to legitimise public
power. Yet, every principle of legitimacy other than democracy would undermine
the function of the constitution. If political power is based on some absolute truth,
be it religious or secular, the truth will always prevail in cases of confl ict with posi-
tive law. This will also happen if an elite claims superior insight in the common good
and derives from this insight the right to rule independently of popular consent. For
this reason, it would be wrong to recognise two types of constitutions as equally
representing the achievement of constitutionalism: a democratic type and a rule of
law type.8 In terms of achievement only a constitution that comprises both elements
is capable of fulfilling the expectations of constitutionalism fully.
Constitutionalism in this sense deserves to be called an achievement,9 because
it rules out any absolute or arbitrary power of men over men. By submitting all
government action to rules, it makes the use of public power predictable and enables
the governed to anticipate governmental behaviour vis-à-vis themselves, and to face
public agents without fear. It provides a consensual basis for persons and groups with
different ideas and interests to resolve their disputes in a civilised manner. And it
enables a peaceful transition of power to be made. Under favourable conditions it
can even contribute to the integration of a society.10 Although there is no achieve-
ment without shortcomings, constitutionalism as characterised by the five features
is not an ideal type in the Weberian sense that allows only an approximation, but
can never be completely reached. It is a historical reality that was in principle already
fully developed by the first constitutions in North America and France and fulfilled
its promise in a number of countries that had adopted constitutions in this sense.

8
For this attempt, see C. Möllers, ‘Verfassunggebende Gewalt—Verfassung—
Konstitutionalisierung’, in A. von Bogdandy (ed), Europäisches Verfassungsrecht (Baden-Baden:
Nomos, 2003), 1.
9
See N. Luhmann, ‘Die Verfassung als evolutionäre Errungenschaft’ (1990) 9
Rechtshistorisches Journal 176.
10
See D. Grimm, ‘Integration by Constitution’ (2005) 3 International Journal of Constitutional
Law 193; H. Vorländer (ed), Integration durch Verfassung (Wiesbaden: Westdeutscher Verlag,
2002).
 The Achievement of Constitutionalism  11
Yet, the five characteristics do not describe everything that in constitutional
history or in present times presents itself under the name ‘constitution’. There are
many more legal documents labelled ‘constitution’ or considered as constitutions
than constitutions in the full sense of the achievement. The reason is that once the
constitution was invented and inspired many hopes, it became possible to use the form
without adopting all of the features that characterise the achievement. There were
constitutions that left a pre-constitutional right to rule untouched. There were consti-
tutions without a serious intention to limit the ruler’s power. There were constitutions
whose rules did not enjoy full primacy over the acts of government, but could legally
be superseded by political decisions. But to the extent that these constitutions lacked
some of the essential features of constitutionalism they failed to meet the achievement
and were regarded as deficient.
The fact that the achievement was reached rather late in history nourishes the
presumption that additional preconditions had to exist before a constitution in the
sense described here, ie different from a mere legalisation of public power, could
arrive. Although the first constitutions were a product of revolutions, a revolutionary
break is not an indispensable precondition of the constitution. For the invention of
the constitution the break with the traditional rule, combined with a new imagi-
nation of legitimate government, may have been necessary. But once invented the
constitution no longer depends on a revolutionary origin. It can be adopted in an
evolutionary way. It is sufficient that questions of legitimacy and organisation of
political power are open to political decision. If the political order is predetermined
independently of a consensus of the people, there is no room for a constitution.
A document that bears this name is unlikely to enjoy primacy, but will be subordi-
nated to an ultimate truth.
However, understood as a coherent and comprehensive regulation of the estab-
lishment and exercise of public power, the constitution could not emerge unless
two further preconditions were in place. First, there has to be an object capable
of being regulated in the specific form of a constitution. Such an object did not
exist before the emergence of the modern state in the sixteenth and seventeenth
centuries. Different from the medieval order, the state was characterised by a concen-
tration of all prerogatives on a certain territory in one hand. Only after public power
had become identical with state power could it be comprehensively regulated in one
specific law. The medieval world did not have a constitution, and it could not have
had one.11 All talk about the constitution of the ancient Roman Empire, or of medieval
kingdoms, or of the British constitution refers to a different object.
Although a necessary condition for the realisation of the constitution, the state
was not a sufficient condition. For historical reasons, the state emerged on the Euro-
pean continent as the absolute state. This meant that it did not depend on the
consent of its citizens; it claimed unlimited power over them. Different from political

11
See H. Quaritsch, Staat und Souveränität (Frankfurt: Athenäum, 1970), 184;
E. W. Böckenförde, ‘Geschichtliche Entwicklung und Bedeutungswandel der Verfassung’,
in Festschrift für R. Gmür (Bielefeld: Gieseking, 1983), 9; D. Grimm, Zukunft der Verfassung,
above n 1, 37 et seq.
12  Dieter Grimm
power that is exercised in the form of a mandate, power that a ruler claims of his
own right requires no regulation of the relationship between principal and agent.
Omnipotence is then the only rule of constitutional rank. But even if the ruler has
a mandate but it is unconditional, no regulation is necessary. Unlimited government
stands opposed to constitutional government. Only when the idea had taken root
that the power of the state should be limited in the interest of individual freedom
and autonomy of various social functions was a constitution needed.
The concentration of all public power in the hands of the state has a corollary:
the privatisation of society. The constitution did not change this. It only changed the
order between the two. Individual freedom takes primacy while the state’s task is
to protect it against aggressors and criminals. In order to fulfil this limited function
the state continued to claim the entire public power and the monopoly of legiti-
mate force. Only the purpose for which and the conditions under which it might be
used were limited. The border between public and private is thus constitutive for
the constitution.12 A system where the state enjoys the freedom of private persons
would have as little a constitution as a system in which private persons may exercise
public power. If private persons gain a share in public power, the constitution can
no longer fulfil its claim to regulate the establishment and exercise of public power
comprehensively unless the private actors submit to constitutional rules whereby
they would lose their status as free members of society.
The fact that an object capable of being constitutionalised emerged in the form
of the territorial state had the consequence that a plurality of states existed side by
side. A second precondition for the constitution’s claim to comprehensive validity
was therefore that the public power of the state was without an external competitor
within the territory. Consequently its legal force ended at the border of the terri-
tory. No constitution submitted domestic power to a foreign power or granted acts
of a foreign power binding force within the domestic sphere. Just as the boundary
between public and private is of constitutive importance for the constitution, so too
is the boundary between external and internal.13 A state that was unable to shield
its borders from acts of a foreign public power could not secure the comprehensive
functioning of its constitution.
Above the states there was no lawless zone. Rather the rules of public interna-
tional law applied. But public international law rested on the basic assumption of
the sovereignty and integrity of the states. It regulated their relationship based on
the prohibition of intervention in the internal affairs of states. Legal bonds among
states were therefore recognised only if they emanated from a voluntary agreement
that was limited to the external relations of states. Only the precondition of this
order, the rule pacta sunt servanda, was valid independently of consent. But the inter-
national order lacked the means to enforce contractual obligations. This is why war

12
See Grimm, ‘Ursprung und Wandel’, above n 1, 18 et seq; S. Sassen, Territory, Authority,
Rights (Princeton: Princeton University Press, 2008).
13
Grimm, ‘Ursprung und Wandel’, above n 1, 18; R. Walker, Inside/Outside (Cambridge:
Cambridge University Press, 1993).
 The Achievement of Constitutionalism  13
could not be ruled out. But there were no legal means for states or the international
community to interfere with the internal affairs of a state. The two bodies of law—
constitutional law as internal law and international law as external law—could thus
exist independently of one another.

iii. prospects under changed conditions

If the modern constitution could only come into existence because of the prior
development of certain conditions, it cannot be denied that these conditions may
disappear, just as they once arrived. This does not necessarily mean that the consti-
tution will cease to exist. The disappearance of such conditions is unlikely to be a
sudden event. If it occurred it would most probably be a long process with remote
rather than immediate consequences. But should the constitution survive, it is
almost certain that it would acquire a new meaning and produce different effects.
It is therefore of crucial importance for the future of constitutionalism to inquire
whether, or to what extent, the situation that brought forth the constitution has
changed, and to gauge how this affects the achievement of constitutionalism. The
question of the prospects of the constitution is a question concerning the continued
existence of its preconditions.
For two of these preconditions the answer seems straightforward. They do not
pose a problem, at least in most parts of the world. Questions of political order
continue to be open to political decision. They are not regarded as pre-determined
by some transcendental will and removed from political infl uence. Furthermore, the
idea of limited government is still the leading concept in countries in the Western
tradition. The problem rather arises in relation to the state and its two constitutive
borders: the boundary between internal and external and between public and private.
It is generally observed that we are living in a period of erosion of statehood,14
although it is not always precisely determined of what that consists. If the feature
that distinguished the state from previous political entities was the concentration of
public power in a given territory and the fact that this power was not submitted to
any external will, it seems likely that here the source of the erosion has to be sought.
In fact, both boundaries become blurred. The boundary between public and private
has become porous as a consequence of the expansion of state tasks. No longer only a
guardian of individual freedom and market economy, the state regulates the economy,
engages in social development and welfare politics, and tries to protect society against
all sorts of potential risks. Many of these tasks cannot be carried out with the tradi-
tional instruments of order and enforcement. In a growing number of cases the state

14
See, eg S. Leibfried and M. Zürn (eds), Transformationen des Staates? (Frankfurt: Suhrkamp,
2006); M. Beisheim et al, Im Zeitalter der Globalisierung? Thesen und Daten zur gesellschaftlichen
und politischen Denationalisierung (Baden-Baden: Nomos, 1999); D. Held et al, Global
Transformations (Stanford, Calif.: Stanford University Press, 1999); S. Sassen, Losing Control?
Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996); Sassen,
above n 12.
14  Dieter Grimm
relies on negotiations with private actors rather than legal orders addressed to them:
agreements replace laws. This means that private actors gain a share in public power,
yet without being integrated into the framework of legitimation and accountability
that the constitution establishes for public actors. In addition, there are modes of deci-
sion making that are not submitted to the requirements prescribed by the constitution
for acts of public authority. Since there are structural reasons for this development, it
can neither be simply prohibited nor fully constitutionalised.15
The same is true for the boundary between inside and outside. After having been
unchallenged for almost 300 years, the border became permeable when, in order to
enhance their problem-solving capacity, the states began to establish international
organisations to whom they transferred sovereign rights which these organisations
exercise within the states and unimpeded by their right to self-determination. The
first step in this direction was the foundation of the United Nations in 1945, whose
task it was not only to coordinate state activities but also to fulfil a peace keeping
mission of its own. To reach this end, member states not only gave up the right to
solve their confl icts by means of violence, except in cases of self-defence (as a self-
limitation this would have remained within the framework of traditional interna-
tional law and left their sovereignty intact), they also empowered the UN to enforce
the prohibition, if necessary by military intervention. As a consequence, the right to
self-determination is limited to the relationship among states, but cannot be invoked
against the public power exercised by the international organisation.
This development has meanwhile progressed further. It is no longer doubtful that,
if a state completely disregards the human rights of its population or of minorities
within the population, the UN has in principle the power of humanitarian inter-
vention. Moreover, international courts have been established that can prosecute
war crimes and crimes against humanity. Some of these courts, the criminal courts
for the former Yugoslavia and for Rwanda, were established not by way of treaties,
but by a decision of the Security Council and may act on the territory of the states
independently of their permission. Beyond that, under the umbrella of the UN,
a jus cogens has developed that claims validity independently of the state’s consent,
but which, in turn, limits them in their treaty-making power. Similar effects went
along with the foundation of the World Trade Organization, basically a forum for
negotiations and agreements of states, but independent from these states through its
court-like treaty enforcement mechanism.
As a consequence, no state remains sovereign to the extent states used to be before
1945.16 But nowhere has this development progressed as far as in Europe. It is true
that UN interventions, if they occur, can be much more substantial than acts of
European institutions. But they do not occur frequently, in part because the great
majority of member states provide no reason for an intervention, and also because
some states are permanent members of the Security Council and thereby enjoy a

15
See D. Grimm, ‘Lässt sich die Verhandlungsdemokratie konstitutionalisieren?’ in C. Offe
(ed), Demokratisierung der Demokratie (Frankfurt: Campus, 2003), 193.
16
See D. Grimm, Souveraenitaet (Berlin: Berlin University Press, 2009).
 The Achievement of Constitutionalism  15
veto-right that they can use to prevent interventions. Unlike the sovereign power of
states, the UN power actualises itself very rarely and only vis-à-vis states that disre-
gard their treaty obligations and provoke UN actions. The majority of states have
never been subjected to measures of the UN. For them, the change that occurred
with the founding of the UN is less visible, the loss of sovereignty not obvious.
This is different on the European level. Although no European organisation has yet
acquired the power to use physical force vis-à-vis its members, the states are constantly
subject to European legal acts which they have to observe. Only the degree varies.
So far as the Council of Europe is concerned, these are judicial acts. The Council
of Europe exercises public power solely through the European Court of Human
Rights (ECtHR). Its judgments are binding for the forty-six member states, but they
do not take direct effect within them. The ECtHR is not an appellate court with
the power to reverse judgments of national courts. It can only state a violation of
the ECHR, but has to leave the redress to the states themselves. Still, the effects on
member states’ legal systems are far-reaching. They may even include an obligation
to change the national constitution.
The power of the EU is broader in scope and deeper in effect on the member
states’ sovereignty. It includes legislative, administrative, and judicial acts. It is true
that the EU has only those powers that the member states have transferred to it. As
far as the transfer of sovereign rights is concerned they retain their power of self-
determination. They remain the ‘masters of the treaties’. Once transferred, however,
the powers are exercised by organs of the EU and claim not only direct effect within
the member states but also primacy over domestic law, including national constitu-
tions. Although this lacks an explicit basis in the Treaties, it has been accepted in
principle as a necessary precondition of the functioning of the EU. Only the outer
limits remain controversial, as both the European Court of Justice (ECJ) and some
constitutional courts of the member states each claim the last word concerning ultra
vires acts of the EU.17
Hence, the state is no longer the exclusive source of law within its territory. Laws
and acts of law enforcement claim validity within the state that emanate from exter-
nal sources and prevail over domestic law. The identity of public power and state
power that was implied in the notion of sovereignty and had been the basis of the
national as well as the international order is thus dissolving. This development cannot
leave the constitution unaffected.18 Since the constitution presupposed the state
and referred to its power, the fragmentation of public power inevitably entails a

17
See F. C. Mayer, Kompetenzüberschreitung und Letztentscheidung (Munich: Beck, 2000);
M. Claes, The National Courts’ Mandate in the European Constitution (Oxford: Oxford University
Press, 2006); A. M. Slaughter et al (eds), The European Court and National Courts (Oxford:
Oxford University Press, 1998).
18
See D. Grimm, ‘Zur Bedeutung nationaler Verfassungen in einem vereinten Europa’, in
D. Merten and H. J. Papier (eds), Handbuch der Grundrechte (Heidelberg: Müller, 2009), vi. 1;
M. Ruffert, Die Globalisierung als Herausforderung des Öffentlichen Rechts (Stuttgart: Boorberg,
2004); R. Wahl, Herausforderungen und Antworten: Das Öffentliche Recht der letzten fünf
Jahrzehnte (Berlin: De Gruyter, 2006).
16  Dieter Grimm
diminution of the constitution’s impact. Of course, the loss did not occur contrary
to the will of the states. Sovereign rights were given up voluntarily because they
expected something in return: an increase in problem-solving capacity in matters
that could no longer be effectively handled on the national level. In addition, the
states usually retain a share in the decision-making processes of the international
institutions that now exercises these rights. But this cannot compensate for the
decrease in constitutional legitimation and limitation of public power.
With respect to the five criteria that were found to be constitutive for the modern
constitution the consequences are the following:
1. The constitution remains a set of legal norms which owe their validity to a
political decision.
2. Their object continues to be the establishment and exercise of the public
power, but only insofar as it is state power.
3. Since public power and state power are no longer congruent, the constitution
ceases to regulate public power coherently and comprehensively.
4. Consequently, the primacy of constitutional law is no longer exclusive. It prevails
over ordinary domestic law and acts applying domestic law, not in general.
5. The constitution still emanates from or is attributed to the people. But it can
no longer secure that any public power taking effect within the state finds its
source with the people and is democratically legitimised by the people.
In sum, the emergence of an international public power does not render the consti-
tution obsolete or ineffective. But to the extent that statehood is eroding, the consti-
tution is in decline. It shrinks in importance since it can no longer fulfil its claim to
legitimise and regulate all public authority that is effective within its realm. Acts of
public authority that do not emanate from the state are not submitted to the require-
ments of the state’s constitution, and their validity on the state’s territory does not
depend on their being in harmony with the domestic constitution. The constitution
shrinks to a partial order. Only when national constitutional law and international
law are seen together is one able to obtain a complete picture of the legal conditions
for political rule in a country. The fact that many constitutions permit the transfer
of sovereign rights prevents the situation from being unconstitutional. But it does not
close the gap between the range of public power on the one hand and that of consti-
tutional norms on the other.
This gives rise to the question of whether the loss of importance that the
constitution suffers at the national level can be compensated for at the international
level. Public power stands in need of legitimation and limitation regardless of
the power holder. The constitution has successfully solved this problem vis-à-vis
the state. It therefore comes as no surprise that the question is posed whether the
achievement of constitutionalism can be elevated to the international level.19 This, in
fact, is the reason why the new term ‘constitutionalisation’ has acquired its current
popularity in academic writing and public discourse. ‘Constitutionalisation’ means a

19
See the indications suggested in n 2 above.
 The Achievement of Constitutionalism  17
constitution-building process beyond the state.20 It applies to international political enti-
ties and international legal documents and is even extended to rule making of public-
private partnerships on the international level and of globally active private actors.
In view of the preconditions that had to be fulfilled before national constitutions
became possible, the question is whether an object capable of being constitutionalised
exists at the international level. The answer cannot be the same for all international
organisations, the differences between them being too big. This is even more true if
societal institutions are included in the consideration. The easiest case seems to be
the EU. The EU is certainly not a state, but neither is it an international organisation
within the usual meaning. It differs from other international organisations first in its
range of competencies which are not limited to a single issue but cover an increasing
variety of objects. It differs secondly in the density of its organisational structure,
comprising all the branches of government possessed by a state. And it differs finally
in the intensity of the effects that its operations have on the member states and their
citizens. Given all these features, the EU comes quite close to comparison with the
central unit of a federal state.
The power of the EU is by no means unregulated. It is, on the contrary, embed-
ded in a closely meshed net of legal norms. Although these legal norms are not
contained in a constitution but in international treaties concluded by the member
states, the treaties fulfil within the EU most of the functions that constitutions fulfil
in states. The European treaties established what is today the EU. They created the
organs of the EU, determine their powers and procedures, and regulate the relation-
ship between the EU and the member states as well as the citizens—all rules that in
the state one would find in the constitution. The Treaties are also higher law: all legal
acts of the EU must comply with the provisions of the Treaties. This is why many
authors do not hesitate to call the Treaties the constitution of the EU, and neither
does the ECJ.
However, this mode of speaking neglects one of the elements that characterise a
constitution in the full sense of the notion.21 Different from constitutions, the Trea-
ties are not an expression of the self-determination of a people or a society about the
form and substance of their political union. The EU does not decide upon its own
legal foundation. It receives this foundation from the member states which create it
by an agreement concluded according to international law. Consequently, the Trea-
ties lack a democratic origin. This does not make them illegitimate. But they do not
enjoy the democratic legitimacy that characterises a constitution. The citizens of the
EU have no share in making the basic document. They do not give a mandate to a
constitutional assembly. They do not adopt the text. Ratification within the member
states, even if it happens by a referendum, is not a European but a national act deciding

20
Cf Loughlin in this volume.
21
See D. Grimm, Braucht Europa eine Verfassung? (Munich: Siemens, 1995) (Eng. trans. (1995)
1 European Law Journal 278); D. Grimm, ‘Entwicklung und Funktion des Verfassungsbegriffs’,
in T. Cottier and W. Kälin (eds), Die Öffnung des Verfassungsstaats, Recht-Sonderheft (2005);
D. Grimm, ‘Verfassung—Verfassungsvertrag—Vertrag über eine Verfassung’, in O. Beaud
et al (eds), L’Europe en voie de constitution (Bruxelles: Bruylant, 2004), 279.
18  Dieter Grimm
whether a state approves of the treaty. The document is not even attributed to the
citizens as the source of all public power.
Nevertheless, there are examples in history in which a constitution in the full sense
originates in the form of a treaty concluded by states which unite into a greater state.
But in these cases the founding treaty is only the mode to establish a constitution. As
soon as the treaty is adopted as the legal foundation of the new political entity, the
founding states give up the power to determine the future fate of the text and hand
this power over to the new entity which thereby gains the full authority to maintain,
change, or abolish it. It is a treaty by origin, but a constitution by legal nature. The
test is the provision for amendments. If the amendment power remains in the hands
of the member states and is exercised by way of treaties, the transition from treaty
to constitution has not taken place. If the newly created state has gained the power
of self-determination (even if the member states retain a share in the decision of the
new entity) the legal foundation has turned into a constitution.
Such a transfer has not taken place in the EU. It was not even provided for by the
failed Constitutional Treaty. Even if ratified in all member states, it would not have
acquired the quality of a constitution. However, this does not deprive the EU of
its capacity to be a potential object of constitutionalisation. Its status as an entity
comparable to the central unit of a federation qualifies the EU to a legal foundation
in the form of a constitution. The member states would simply have to give up their
power to determine for themselves the legal foundation of the EU. The question is
not one of possibility but of desirability. However, by doing so they would inevitably
transform the EU into a federal state. It is here that doubts arise. Would the formal
democratisation of the EU be accompanied by a gain in substantive democracy, or
does it serve the democratic principle better if the decision about the legal founda-
tion of the EU remains in the hands of the states where the democratic mechanisms
work better than in the EU? Would it deprive the EU of its innovative character as a
genuine entity between an international organisation and a federal state?
The issue is different at the global level. Here, no organisation exists whose range
of powers and organisational density is comparable to that of the EU. There are
some isolated institutions with limited tasks, most of them single-issue organisa-
tions, and with correspondingly limited powers. They are not only unconnected,
but sometimes even pursue goals that are not in harmony with each other, such as
economic interests on the one hand and humanitarian interests on the other. Rather
than forming a global system of international public power they are islands within
an ocean of traditional international relations. In this respect, the international order
currently resembles the pre-state medieval order with its many independent bearers
of dispersed powers.22 Like medieval ordering, the international level is not suscep-
tible to the type of coherent and comprehensive regulation that characterises the
constitution.
The UN is no exception. It stands out among international organisations because
of its all-encompassing nature, its peacekeeping purpose, and its corresponding powers.

22
See Sassen, above n 12.
 The Achievement of Constitutionalism  19
But it is far from aggregating all public power exercised on the global level and even
farther from the concentrated and all embracing public power of the state. Its
charter therefore does not come close to a world constitution. It marks an important
step in legalising international relations but does not go beyond that. This is doubly
so with respect to institutions like the World Trade Organization, the International
Monetary Fund, the International Labour Organization, and such like. Their stat-
utes regulate the powers of these institutions and guide them in the exercise of their
functions. But their limited competencies and their non-democratic structure do not
qualify them for the specific form of regulation that is characteristic of the constitution.
It has nonetheless become quite common to see constitutionalising processes at
work also on this level and to call the statutes or charters of international organisa-
tions or the jus cogens within public international law a constitution. The term is, of
course, not reserved to one single meaning. As could be seen, the notion ‘consti-
tution’ has covered a number of phenomena in the past.23 But if it is applied to
international institutions and their legal foundation one should not forget that it
does not have much in common with the achievement of constitutionalism. Without
doubt, international law is undergoing important changes, covering new ground,
and becoming more effective.24 But calling it a constitution empties the notion and
reflects a very thin idea of constitutionalism. Basically, it identifies constitutionali-
sation with legalisation of public power, a phenomenon that existed long before
the constitution emerged and from which the constitution differed considerably.
This difference is levelled by the new use of the term which does not contribute to a
clarification of the current state of affairs.
This argument applies with even greater force to so-called societal constitution-
alism.25 This type of constitutionalism is not only disconnected from the state but
also from international organisations created by states. The proponents of societal
constitutionalism realise on the one hand that the state is unable to regulate the
transactions of global actors. On the other hand they do not believe either that
international organisations have sufficient regulatory power to provide a legal frame-
work for the operations of global actors that would prevent them from pursuing
their own interests in an unihibited way. At best, international organisations could
‘constitutionalise’ themselves, ie submit their actions to self-created standards. The
gap between international rule making and transnational operations of private
actors could only be closed if the idea of constitutionalism is disconnected from its

23
See Mohnhaupt and Grimm, above n 4.
24
See B. Zangl and M. Zürn (eds), Verrechtlichung: Bausteine für Global Governance? (Bonn:
Dietz, 2004); B. Zangl, Die Internationalisierung der Rechtstaatlichkeit (Frankfurt: Campus, 2006).
25
See D. Sciulli, Theory of Societal Constitutionalism (Cambridge: Cambridge University Press,
2005); G. Teubner, ‘Global Private Regimes: Neo-Spontaneous Law and Dual Constitution
of Autonomous Sectors?’, in K. H. Ladeur (ed), Public Governance in the Age of Globalization
(Aldershot: Ashgate, 2004), 71; see also Teubner and Fischer-Lescano, and Teubner, above
n 2. For comment see D. Grimm, ‘Gesellschaftlicher Konstitutionalismus: Eine
Kompensation für den Bedeutungsschwund der Staatsverfassung?’ in Festschrift für R. Herzog
(Munich: Beck, 2009), 67.
20  Dieter Grimm
traditional link with politics and adapted to the societal sphere. In this case a body of
transnational law would emerge alongside national and international law.
This law is seen as being capable of fulfilling the function of constitutions
vis-à-vis private global actors. However, this requires an adaptation of the notion
‘constitutionalism’ to its object, the global private actors. In contrast to state
constitutions, societal constitutions do not take legal force by an authoritative act of
a constitution maker. They emerge from a long-lasting evolutionary process, even
though this process may be stimulated by political incentives or supported by formal
legal requirements. Societal constitutions are neither mere legal texts, nor simply
reflections of the factual situation. And, more importantly, they do not encompass
the internationally exercised private power in its totality. In contrast to traditional
state constitutions that cover public power comprehensively but are territorially
limited, societal constitutions claim global validity but are limited to certain sectors
of society. The territorial differentiation of national law is relativised by the sectoral
limitation of global law.
In order to deserve the name ‘constitution’, societal law must show in addition
some of the structural elements of state constitutions. First, societal constitutions
must function as higher law that regulates the making of ordinary law. Secondly,
this higher law must contain provisions that regulate the organisation and the proce-
dures of the global actors. Thirdly, it must limit the scope of action of the private
global actors, just as fundamental rights limit the scope of action of state actors in
domestic law. Finally, it must provide control mechanisms similar to constitutional
adjudication that guarantee an effective review of the acts of global organisations
with respect to their compliance with higher law. The proponents of this idea
concede that up to now societal constitutionalism exists only in rudimentary form.
But they believe in its potential for institutionalising within these global sectors
respect for the autonomy of other social sectors and their needs as well as recogni-
tion of areas where the behaviour of global actors can be observed independently
and criticised freely.
However, this potential, if it exists, depends on some preconditions which cannot
be taken for granted. In the absence of a global legislator, the limitation by soci-
etal constitutions will always be self-limitation guided by the actor’s interest, not the
common interest. Both interests may partly coincide, but not completely. Hence,
self-limitation capable of harmonising actors’ own interests with the interests of
those affected by their actions and the communal interests is unlikely if not imposed
by a public authority whose task it is to keep the self-interest of the various sectors
of society within the limits of the common best. On the national level, government
fulfils this function. But how can the same result be reached on the international level
in the absence of an equivalent of the state or of other institutions with sufficiently
broad regulatory power? And even if existing international institutions possessed
this power, how effectively would they use it without the democratic and representa-
tive element that guarantees participation of those affected by the decisions and thus
enables a perception of problems beyond the institutional interests of the actors? No
so-called constitution on the international and transnational level is yet capable of
fulfilling only minimal democratic demands.
 The Achievement of Constitutionalism  21

iv. which conclusion?

This analysis suggests that the gap between public power and its constitutional legiti-
mation and limitation, which is opening up as a result of the erosion of statehood
and transfer of public power to the international level, cannot for the time being
be closed. On the one hand, it seems neither possible nor desirable to return to
the Westphalian system. On the other, the achievement of constitutionalism cannot
be reconstructed on the international or transnational level. National constitutions
will not regain their capacity to legitimise and regulate comprehensively the public
power that takes effect within the territory of the state. The regulation of interna-
tionally exercised public power is expanding, but remains a legalisation unable to
live up to the standard of constitutionalism. Whoever invokes constitutionalism in
this connection uses a thin notion of constitutionalism with its democratic element
almost always left out.
If a full preservation of constitutionalism is not available, the second best solu-
tion would be to preserve as much of the achievement as possible under given
conditions. In principle, this can occur in two directions: by striving for a greater
accumulation of public power on the international level,26 or by limiting the
erosion of statehood on the national level. Strengthening the international level
would be a solution only if the international order could develop into an object
capable of being constitutionalised in the sense of the achievement, ie as differ-
ent from mere legalisation. This is neither likely in a medium-term perspective,
nor are there convincing models for democratic governance on the global level.27
A democracy that is not deprived of its participatory element, but maintains a
substantive rather than a purely formal outlook including the societal precondi-
tions of democratic government such as a lively public discourse, is already diffi-
cult to realise within the EU. On the global level even a democracy reduced to the
formal element of free elections seems unlikely.
The consequence would be to put the emphasis on states where constitutional-
ism still finds more favourable conditions and where the potential for democratic
legitimisation and accountability of public power remains greater than on the inter-
national level. This should not be misunderstood as a call to restore the traditional
nation state. On the contrary, the international turn of politics is in need of further
development. An approximation of the scope of politics to the scope of action of
private global actors seems an urgent postulate. But it is likewise important that
democratic states remain the most important source of legitimation, including the

26
See M. Lutz-Bachmann and J. Bohman (eds), Weltstaat oder Staatenwelt? (Frankfurt:
Suhrkamp, 2002); M. Albert and R. Stichweh (eds), Weltstaat und Weltstaatlichkeit
(Wiesbaden: Westdeutscher Verlag, 2007).
27
See A. Kuper, Democracy Beyond Borders (Oxford: Oxford University Press, 2004); J. Anderson
(ed), Transnational Democracy: Political Spaces and Border Crossings (London: Routledge, 2002);
A. Niederberger, ‘Wie demokratisch ist die transnationale Demokratie?’ in Albert and
Stichweh, above n 25, 109; G. de Burca, ‘Developing Democracy beyond the State’ (2008) 46
Columbia Journal of Transnational Law 221.
22  Dieter Grimm
legitimation of international organisations. They must be prevented from becoming
self-supporting entities distant from the citizenry and largely uncontrollable in their
activities and unaccountable for the results.
In fact, states are by no means out of the international and transnational game.
Up to now the process of internationalisation has not touched the monopoly of the
legitimate use of force. No international organisation possesses its own means of
physical force, let alone a monopoly. The fragmented global society has no enforce-
ment mechanisms per se. International courts and even more so private arbitration
bodies depend on states when it comes to enforcing judgments against reluctant
parties. In addition the states retain a share in the direction and control over the
international organisations they have formed. This is as important in the EU as it
is on the global level. In all these matters they are subservient to the requirements
of their national constitutions. These bonds should neither be prematurely relin-
quished, nor severely weakened.
Regarding the supranational level, it seems preferable to leave the constitutional
path and drop the notions of constitutionalism and constitutionalisation altogether.
They are misleading insofar as they nourish the hope that the loss national constitu-
tions suffer from internationalisation and globalisation could be compensated for
on the supranational level. This would, however, be an illusion. The submission of
internationally exercised public power to law will always lag behind the achieve-
ment of constitutionalism on the national level. The conditions that would allow a
reconstruction of the achievement beyond the nation state are not given. The inter-
nationalisation of public power is a new phenomenon that poses new challenges.
The illusion that these challenges could be met by using a model that was invented
for a different object tends to obstruct the search for solutions that are oriented
towards the new situation and will suit it better.
  2 
Disconnecting Constitutions from Statehood
Is Global Constitutionalism a Viable Concept?

Ulrich K. Preuss

i. introduction
Our conventional wisdom teaches us that constitutions are essentially linked with
the concept of statehood, more specifically with the state’s sovereign power. This
perception is quite persuasive, given the established meaning of sovereignty as
absolute and exclusive power within a territory.1 From the sixteenth century on,
sovereignty—in Bodin’s famous definition the ‘power … of giving the law to subjects
in general without their consent’2—became the defining feature of a new concept
of politics which superseded the medieval patterns of interpersonal reciprocity.3 The
conversion of the socially and culturally embedded medieval individual and his or
her particular community-linked status with the levelled equal status of subjection
to the sovereign state, triggered a desire for protection against this almost context-
less coercive and unilaterally imposed power. Consequently, curbing the ostensibly
limitless sovereign power was the obvious remedy against absolutist rule.
In fact, liberal reasoning dominated the constitutional discourse in the eighteenth
and nineteenth centuries. When the French Declaration of the Rights of Man and
Citizen of 1789 asserted in Article 16 that ‘a society in which the guarantee of rights
is not assured and the separation of powers not established has no constitution’,
it identified two prerequisites as defining elements of a constitution which could
easily be understood as power-limiting devices. As I shall argue below, this was a
misunderstanding, and a far-reaching one at that. In countries infl uenced by US
constitutionalism, fundamental rights and separation of powers were mainly seen

1
D. Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations
(Princeton: Princeton University Press, 2001), 16 et seq.
2
Jean Bodin, On Sovereignty (Cambridge: Cambridge University Press, 1992), i., ch 8, 23.
3
U. K. Preuß‚ ‘Souveränität: Zwischenbemerkungen zu einem Schlüsselbegriff des
Politischen’, in T. Stein, H. Buchstein, and C. Offe (eds), Souveränität, Recht, Moral:
Die Grundlagen der politischen Gemeinschaft (Frankfurt am Main: Campus, 2007), 313–35.
24  Ulrich K. Preuss
as establishing limited government until well into the twentieth century.4 In this
view, the taming of the Leviathan is the essential function of constitutions. Without
devices which restrain sovereignty, or so reads the argument, government tends to
become oppressive and despotic, irrespective of who governs. Obviously, the shift
of sovereignty from the absolutist monarch to the people did not calm the fears
that sovereignty is inherently predisposed to despotism. As we know, the Founders
of the US constitution were sceptical about the democratic version of unrestricted
sovereign power,5 which Tocqueville, two generations later, famously labelled the
tyranny of the majority.6
In Europe, the historical development of modern constitutionalism was closely
linked to the emergence and development of the modern state. In the early stages
of the evolution of statehood, between the twelfth and sixteenth centuries, three
main institutional devices restrained the state’s power, namely urban autonomy,
parliamentarianism, and constitutionalism.7 The latter consisted mainly of charters
in which monarchs ‘promised to eliminate specifically named abuses and to treat
their subjects according to the law’.8 Those institutional devices converged on the
issue of finding an institutional balance between the benefits of an efficient central
government and the individual’s quest for freedom, ie ‘between utter subjection and
complete anarchy’.9 A major shift in the relative importance of these three restrain-
ing devices occurred in the period of high absolutism, where ‘unfettered personal
rule was eventually contested everywhere’.10 However, as the cases of England,
France, and the Netherlands—the most important European states which overcame
or avoided absolutism through constitutions—attest, the struggle over the distribu-
tion and the appropriate institutionalisation of power among the political, economic,
social, and religious elites played a major role. A purely negative understanding of
the constitution as a mechanism of limiting government was not prevalent.11 In the
emerging United States of America, by contrast, ‘the Americans’ inveterate suspicion
and jealousy of political power, once concentrated almost exclusively on the Crown

4
For instance, C. J. Friedrich gave his infl uential comparative account of constitutional
history the title ‘limited government’: C. J. Friedrich, Limited Government: A Comparison
(Englewood Cliffs, NJ: Prentice-Hall, 1974).
5
See The Federalist Papers, Nos 1, 9, 10.
6
A. de Tocqueville, Democracy in America (New York: Vintage Books, [1848] 1990), i., ch 15,
258 et seq.
7
R. C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge:
Cambridge University Press, 1995), 78 et seq.
8
Ibid 80.
9
Ibid 98.
10
Ibid 108.
11
See the respective accounts of Caenegem, ibid at 108 et seq (England), 142 et seq
(Netherlands), and 174 et seq (France).
 Disconnecting Constitutions from Statehood  25
and its agents, was transferred to the various state legislatures’12 and remained a
dominant motif in the debates on the Federal Constitution. In this respect the US
model of constitutionalism seems to resemble a Sonderweg.13
Be this as it may, it is beyond question that modern constitutions have evolved as a
concomitant element of the modern sovereign state,14 at least in the Western hemi-
sphere. To be sure, this close relationship of constitutionalism and statehood applies
only to the states’ internal formation; it is absent in the sphere of their external
relations. Due to their territorial character, states are political entities which neces-
sarily exist as a plurality. They interact on the basis of mutual independence and
equality and form an unorganised international society,15 which Hedley Bull rightly
qualified as an anarchical society.16 Independence is a synonym for sovereignty or,
for that matter, for sovereign equality, one of the basic principles of the UN Charter
(Article 2, para 1). Independence and integration into a constitutionalised system are
mutually exclusive. Thus, it seems that the idea of constitutionalism as a pattern of
order is only meaningful within states, rendering any concept of constitutional order
beyond the states’ internal sphere, let alone of a global constitution, futile from the
very outset.
In the following I reassess these assumptions. How can we explain the close
relationship between statehood and constitutionalism in the first place? Can we
substantiate the claim that the states’ sovereign equality and global constitutionalism
are incompatible? I will discuss these questions in turn, starting with an analysis of
the significance of the territorial character of the modern state and its connection
with the concept of sovereignty (II). I will then deal with the consequences of the
state’s territoriality for the character of the law (III). The main section deals with the
analysis of the relationship between the territorial character of the state and consti-
tutionalism, where I will argue that the essence of modern constitutionalism is not
to be found in the imposition of restraints on the absolutist state but in the constitu-
tion of a thoroughly new kind of polity (IV). In the following section I will discuss a
hypothesis which posits a three-stage model of the development of sovereignty (V),
followed by an attempt to reconceptualise the notion of constitution in the light of a
constructivist approach (VI). Finally, I offer some concluding remarks about certain
embryonic elements of a constitutionalisation of the international community (VII).

12
G. S. Wood, The Creation of the American Republic, 1776-1787 (New York: Norton, 1972),
409.
13
See U. K. Preuß, ‘Der Begriff der Verfassung und ihre Beziehung zur Politik’, in Preuß (ed)
Zum Begriff der Verfassung: Die Ordnung des Politischen (Frankfurt am Main: S. Fischer, 1994),
7–33.
14
See D. Grimm, ‘Does Europe need a Constitution?’ (1995) 1 European Law Journal
282–302, at 284–8.
15
U. K. Preuss, ‘Equality of States: Its Meaning in a Constitutionalized Global Order’ (2008)
9 Chicago Journal of International Law 17–49.
16
H. Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan,
1977).
26  Ulrich K. Preuss

ii. statehood and territoriality

A prominent characterisation of the state is Max Weber’s contention that from a
sociological perspective the modern state can only be defined by a specific means,
namely its exclusive control of the means of coercion. Weber admitted that in the
past very disparate associations—eg families, clans, tribes—had used violence as a
means of imposing social discipline upon their subordinates. But he insisted that the
state is unique because it is the only human association which successfully claims
the monopoly of physical force ‘within a defined territory’.17 In fact, the element
of territoriality is essential for the proper understanding of the state. It implies a
profound transformation in the structure and significance of physical force within a
given social structure. In pre-state political associations, coercive, ultimately physi-
cal, force was a mere instrument in the hands of rulers whose authority was rooted
in their social status based on age, divine descent, dynastic tradition, religious
charisma, military virtues, and the like. In contrast, in the modern state coercive
force is itself not a, but the source of political authority. It becomes the key factor
of societal integration. The reason is that the political entity, ‘state’, is defined in
physical terms, that is, as a bounded territory.
There are two different kinds of territoriality: one is a means of assigning things to
persons, to confer control over physical objects and to exclude others from their use.
This kind of territoriality is embodied in the concept of property. The other is the
exercise of authority over human individuals. Both institutions are based upon terri-
torial boundaries. Whereas the territorial character of property is limited to merely
excluding others from access to the demarcated space, the territorial character of
jurisdiction is more complex, as it involves claims to the obedience of ‘whoever is
physically in that area’.18
Thus, territoriality in this latter sense is by no means a purely spatial category.
Space becomes a territory when it is combined with the exercise of authoritative
power: that is, by controlling the access to or departure from the area, by the exclu-
sion from or access to the use of the resources available there, or by the control over
the social interactions within this area.19 In the latter case in particular, it becomes
clear that territoriality involves a type of generalisation of authoritative power.
Instead of exercising control over each individual action or event case by case, the
master of the territory is able to subject everything to his rule, including the various
present and future events of which he largely is not even aware. This comprehensive
and exclusive control of a territory is what we call sovereignty.

17
Max Weber, Wirtschaft und Gesellschaft: Studienausgabe. Zwei Halbbände (Cologne:
Kiepenheuer & Witsch, 1964), 1043 (not included in the American translation of Roth/
Wittich).
18
D. Miller and H. Sohail, Boundaries and Justice: Diverse Ethical Perspectives (Princeton:
Princeton University Press, 2001), 4.
19
On this and on the following, see R. D. Sack, Human Territoriality: Its Theory and History
(Cambridge: Cambridge University Press, 1986), 19, 31 et seq.
 Disconnecting Constitutions from Statehood  27
The territorial dimension of sovereignty has several important implications. First
and foremost, authoritative power becomes impersonal because the subordination
under the will of a ruler is not based on personal relations and therefore does not
have to be secured and affirmed for each individual person. It is valid for each person
within the borders of the territory, irrespective of his or her social status or indi-
vidual attributes (such as religious belief or ethnic belonging). Note, however, that
the European states in their early developmental stage had still to learn about their
potential for ethnic or religious neutrality, as the enforcement of the principle of
cuius regio, eius religio, established in the Augsburg and the Westphalian Peace Trea-
ties of 1555 and 1648 respectively, attest.
Secondly, authoritative power by virtue of territoriality requires only a minimum
of communication regarding object and limits of the ruler’s powers. The clear and
easily discernible limits of the space which constitutes the territory are sufficient
to set a purely spatio-physical, evident demarcation of subordination. Ideally, the
ruler does not need more than a fence, though the capacity to set up the fence may
be extremely demanding in terms of material resources, power, political skills, and
legitimacy.20
Thirdly, the depersonalisation of rule entails that the scope and intensity of domi-
nation is standardised according to the pattern: each person in territory X has the
duties Y irrespective of their individual merits, attitudes, or capacities. It enables a
master to rule over a multitude of individuals according to general standards. This
quality of domination transforms interpersonal domination into impersonal order;
it is an essential element of sovereignty. Sovereignty does not relate to individuals but
to the impersonal order of a territory. It is not accidental that an early definition of
a ruler’s supreme power—the above-quoted principle of cuius regio, eius religio—had
an explicitly territorial character. The dominant confl ict of the early modern era was
redefined in spatial terms. This depersonalisation of religion strikes us as strange
because history teaches us that religion is the primary source of commonness and
a pivotal emblem of social and cultural embeddedness of individuals. Statehood, ie
the spatial organisation of authority, changed that status of religion profoundly, in
that it gave rise to the idea of religious toleration and finally the individual right to
religious freedom—at the price of opening the path to the privatisation of religion.
However this may be, the structural relevance of the state’s territorial character is
best articulated in the assertion of Poggi: ‘The state does not have a territory, it is a
territory.’21

20
See, eg the Advisory Opinion of the ICJ of 9 July 2004 and the Separate Opinions of
several Judges regarding Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory <http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=5a&case
=131&code=mwp&p3=4> (accessed 15 April 2009).
21
G. Poggi, The State: Its Nature, Development and Prospects (Stanford, Calif.: Stanford
University Press, 1994), 22.
28  Ulrich K. Preuss
Thus, territoriality defines sovereignty. Jean Bodin stated that ‘there is nothing
greater on earth, after God, than sovereign princes’.22 But their majesty, their status,
and their attributes ‘which are properties not shared by subjects’23 are just conse-
quences of the impersonal concept of sovereignty which Bodin conceives as ‘the
absolute and perpetual power of a commonwealth’.24 As is well known, Bodin devel-
oped the concept of sovereignty as a conceptual weapon against the religious wars in
France which threatened to destroy the unity of the French kingdom. The justifica-
tion of the right of the prince to issue laws without the consent of his subjects was
a barely concealed legitimisation of the French monarchy’s claim to superiority over
the estates and other local and particularistic forces which prevented the king from
safeguarding the peace and security of the kingdom. Overcoming the intermediary
forces of the medieval society—the estates, local parliaments, and cities—was tanta-
mount to the transformation of the kingdom into one territory controlled by the
monarch; creating this territory was tantamount to establishing sovereignty.25
The conception of sovereignty as supreme, undivided, absolute, and exclusive
power attributed to the state was a radical rupture with the traditional understand-
ing of power as being embedded in a hierarchical order of social relations. In an
interpersonal affiliation, power relations are reciprocal—not necessarily symmetric—
balanced, divided, relative, inclusive, and hence limited. However, sovereign power
also has its limits, which Bodin addresses in a separate chapter when he expounds
the relationship of the sovereign princes among each other.26 He takes it for granted
that there is a plurality of princes each of whom has, after God, supreme power. This
can only mean that each of them is sovereign within a demarcated space on earth,
ie within a territory. In fact, power can be supreme, undivided, absolute, and exclu-
sive only within a demarcated territory—without this spatial limitation it would
simply water down and diff use in the vastness and the complexities of the world.
It would be altogether impossible. While the plurality of independent territories
transformed the world of empires into the international society of states,27 within
the territories the social disembeddedness of power generated a new mode of soci-
ality which C. B. Macpherson, in his analysis of the political philosophy of Hobbes

22
Bodin, above n 2, i., ch 10, at 46.
23
Ibid.
24
Ibid, i., ch 8, at 1.
25
A thorough analysis of the complex relation between land and lordship which is inher-
ently connected with the process of territorialisation of medieval Austrian lands is provided
by O. Brunner, Land and Lordship: Structures of Governance in Medieval Austria (Philadelphia:
University of Pennsylvania Press, 1992) (Eng. trans. of Otto Brunner, Land und Herrschaft:
Grundfragen der territorialen Verfassungsgeschichte Österreichs im Mittelalter (Darmstadt:
Wissenschaftliche Buchgesellschaft, 1965), see especially section V.i.).
26
Bodin, above n 2, i., ch 9 (not included in the edition cited).
27
For a thorough analysis of its implications, see Bull, above n 16.
 Disconnecting Constitutions from Statehood  29
and Locke, called ‘possessive individualism’.28 This was an impersonal and abstract
pattern of interactions by a multitude of atomised individuals, each of whom strove
separately for his and her survival. And the state was the container of this society.29
Two brief remarks about the implications of the state-contained kind of sociality
may be appropriate, before I turn to the relationship between constitutionalism and
territoriality.

iii. legality and territoriality

The character of the social discipline which is required in this territorially defined
order undergoes a fundamental change. The individuals’ subordination no longer
consists in their posture of loyalty towards their superiors of the social hierarchy but
in a behavioural attitude of conformity to the requirements of the abstract order.
Loyalty to persons gradually metamorphoses into obedience to law. The tradi-
tional Christian natural law doctrine as developed by Thomas Aquinas—natural law
is given by God, hence its commands are inherently right, it is eternally valid and
immutable, and it is binding upon every human being due to its inherent rightfulness—
is replaced with a new concept of law which has been posited by man. Its binding
force is content independent, based upon social facts which are recognised in the
society as duty engendering: the fact that an authority has enacted the law in a proce-
dure which is recognised as authoritative—auctoritas, non veritas facit legem.
This means that obedience is owed to the mere existence of the law whose
fundamental nature is a command. The correlative obedience of the ruled requires
the attitude ‘as if [they] had made the content of the command the maxim of their
conduct for its very own sake’.30 This is the rationale of positive law: it is binding
because it is the law. Irrespective of its source—a dictator or a democratically elected
representative body—positive law constitutes a vertical and unilateral relationship
of command and obedience. Bodin is fully aware of the importance of this
attribute of the law when he states that ‘the very word “law” in Latin implies the
command of him who has the sovereignty’.31 He cautions his readers ‘not to confuse
a law and a contract. Law depends on him who has the sovereignty and he can
obligate all his subjects (by a law) but cannot obligate himself ’, while a contract as
a mutually binding scheme ‘obligates the two parties reciprocally and one party
cannot contravene it to the prejudice of the other and without the other’s consent’.32
Obviously, Bodin foreshadowed John Austin, the leading theorist of nineteenth-century

28
C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford:
Oxford University Press, 1979).
29
P. J. Taylor, ‘The State as Container: Territoriality in the Modern World-System’ (1994) 18
Progress in Human Geography 151–62.
30
Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed G. Roth and
C. Wittich (Berkeley: University of California Press, 1978), 946.
31
Bodin, above n 2, i., ch 8, at 11.
32
Ibid 15.
30  Ulrich K. Preuss
legal positivism, who stated: ‘Every law or rule … is a command … A command is
distinguished from other significations of desires … by the power and the purpose of
the party commanding to infl ict an evil or pain in case the desire be disregarded.’33
Law-as-command bears a structural resemblance to the territory: it requires only
a minimum of communication because its binding character is not dependent upon
its content but exclusively upon the lawgiver’s authoritative power. It is impersonal
because its authoritative power is independent of any particular characteristics of
the addressee and therefore can be imposed upon everyone within the territory. Its
formal character as a command achieves the generalisation of authoritative power
to the effect that sovereignty and territoriality complement and reinforce each other.
One of its major benign effects was its neutrality vis-à-vis questions of religious
rightness. In the emerging world of sectarian strife among the Christian denomina-
tions and the pluralisation of normative principles, the separation of the concept
of law from any kind of concept of what is good and right was an important step
towards the idea of individual religious and spiritual freedom. Moreover, in the long
run the abstract character of the law generated the potentiality of associating indi-
viduals who were also alien to each other in non-religious aspects, as for instance
in terms of social status, geographical origin, ethnic identity, or economic success.
The reduction of the disembedded individuals’ obligations to mere obedience to
the sovereign’s commands thus facilitated the emergence of social spaces in which
diverse individuals could autonomously pursue their life plans.

iv. territoriality and constitutionalism

The concept of law is a significant exemplar of the deep political and cultural impact
which the territorial character of the state has had on the character of Western soci-
eties, in particular on most continental European societies. During the nineteenth
and well into the twentieth century, particular social formations, cultural practices,
and national identities developed within the security of the territorial borders and
left deep cultural imprints on the European nation states. Arguably, the idea of
constitutionalism has been one of the furthest-reaching corollaries of statehood; it
mirrors the idea of ‘founding the order of society through the state’.34

Constitutions for the state or for society?

State-centred societies need other forms and institutions of self-determination than
societies which are not integrated through the coercive means of sovereign power.
Still, even if the constitution of a statist society appears to be merely focused upon
the state, it is actually a constitution of the society. Take Article 16 of the French

33
J. Austin, The Province of Jurisprudence Determined [1832/1863], ed D. Campbell and
P. Thomas (Aldershot: Dartmouth, 1998), 11.
34
A. Supiot, Homo Juridicus: On the Anthropological Functions of the Law (London: Verso,
2007), 52 et seq.
 Disconnecting Constitutions from Statehood  31
Declaration of the Rights of Man and Citizen, which is frequently invoked as the
quintessential definition of a constitution. It stipulates that ‘a society in which the
guarantee of rights is not ensured, nor a separation of powers is worked out, has no
Constitution’. Note that it is the society, not the state, whose order is secured by a
constitution; after all, it is the liberty in the society which is the aim of the political
association.35
This reference to the society rather than to the state was not an inadvertence in
the drafters’ editing. Rather, it articulated the particular French concept of constitu-
tionalism, whose essence has remained effective up to the present. As Michel Troper
has pointed out, Article 16 must not be understood as a model of the American
principle of limited government.36 In the framework of the French Declaration, the
state is not a threat to the citizens’ liberties but a device which enables the enjoyment
of these very liberties. Liberty as defined in Article 4 of the Declaration—‘Liberty
consists in the freedom to do everything which injures no one else; hence the exer-
cise of the natural rights of each man has no limits except those which assure to the
other members of the society the enjoyment of the same rights. These limits can
only be determined by law’—is a liberty of associates.
The limits of these liberties do not derive from some collective good, interest, or
value; rather, they originate in the fabric of the society itself, namely in the equal
liberty of all members of the society. The contention of Article 2 of the Declaration—
‘The aim of all political association is the preservation of the natural and impre-
scriptible rights of man’—postulates that the natural freedoms of the individuals
be compatibilised under the conditions of political association, ie transformed into
freedom inter socios. Thus, setting limits to natural freedom through law is tanta-
mount to defining freedom inter socios.37 It is by defining freedom inter socios that
the basic institutional fact of the society is established—and this is an essential part
of the constitution of the society. When the law defines the concrete content of a
freedom it does not interfere with the natural freedoms of the individuals, but organ-
ises freedom as a mode of societal communication and interaction, that is, it enables
their freedoms in the society. Thus, the ‘guarantee of rights’ in Article 16 of the
Declaration is based upon two interdependent presuppositions: first, rights specify
demarcated spheres of action inter socios (as opposed to boundless natural freedoms
and rights); secondly, these demarcations which are by necessity definitions of rights
‘can only be determined by law’ (as opposed to decrees, contracts, local conventions,
customary law, and the like). In one word, the ‘guarantee of rights’ in Article 16 of
the Declaration is an essential element of the constitution of a society which deter-
mines its freedom through collective law-making acts of the nation.

35
See Art 1: ‘Men are born and remain free and equal in rights. Social distinctions may be
founded only upon the general good’ (emphasis supplied).
36
M. Troper, ‘Who Needs a Third Party Effect Doctrine? The Case of France’, in A. Sajó
and R. Uitz (eds), The Constitution of Private Relations: Expanding Constitutionalism (Utrecht:
Eleven International Publishing, 2005), 115–28, at 121 et seq.
37
Ibid 120.
32  Ulrich K. Preuss
Likewise, the separation of powers—the second essential of a constitution
pursuant to Article 16 of the Declaration—can be understood as a case of the appli-
cation of a broader principle of societal organisation—the division of labour—in
the political sphere. Here the specialisation of functions and agencies enhances the
government’s capacity to cope with a growing number and diversity of problems
with which the society is confronted.38 Unsurprisingly, Tocqueville, the clear-sighted
analyst of the inherent logic of the relationship of society and political institutions,
observed that ‘extreme centralization of government ultimately enervates society
and thus, after a length of time, weakens the government itself ’.39 Here, too, Article
16 of the Declaration addresses an issue of the constitution which is only indirectly
related to the state.
This does not mean that the state does not play a role in this conception of the
constitution. The concepts of political association, of sovereignty, and of law clearly
point to the contrary. The state is an essential element of the constitution of the
society which is imbued, as it were, with statist elements. In fact, for modern Western
societies the state has served as a container which—through its sovereign power in
a particular territory—confined and shaped all social relations within its boundar-
ies.40 Yet the main purposes of a constitution—which is to reconcile ‘the will of one
person … with the will of another in accordance with the universal law of freedom’41
through legislation, adjudication, or defining and protecting individual rights—have
to be performed also in societies which are not ‘contained’ through a sovereign state.
Think of any kind of private association with a great number of voluntary members
whose actions have to be coordinated in order for the association to pursue its objec-
tives. A voluntary association also needs rules on the formation of its corporate will,
the creation of its various organs and their respective functions, and the determina-
tion of the rights and duties of its members. These requirements are by no means
occasioned by the coercive character of the territorially defined political association.
There is one open question, however, which has to do with the relationship of
a constitution and the power of an association which it constitutionalises. Consti-
tutions of non-statist associations generate, organise, channel, and distribute the
collective (or corporate) power of the association which they put in order. This
follows from their function to enable a collectivity to organise itself or, for that

38
See S. Holmes, ‘Precommitment and the Paradox of Democracy’, in J. Elster and
R. Slagstad (eds), Constitutionalism and Democracy (Cambridge: Cambridge University Press,
1988), 195–240, at 228 et seq; U. K. Preuss, Constitutional Revolution: The Link between
Constitutionalism and Progress (Atlantic Highlands, NJ: Humanities Press, 1995), 112 et seq.
39
Tocqueville, above n 6, ii. 300.
40
A. Giddens, The Nation-State and Violence (Berkeley: University of California Press, 1987),
12 et seq; Taylor, above n 29; N. Brenner, State/Space: A Reader (Malden, Mass.: Blackwell,
2004).
41
Immanuel Kant, ‘The Metaphysics of Morals’, in his Political Writings (Cambridge:
Cambridge University Press, 1991), 133.
 Disconnecting Constitutions from Statehood  33
matter, its Self.42 As I will argue below more elaborately, constitutions are instru-
ments of collective self-determination. They do not limit a pre-existing unlimited
power; rather, by transforming a multitude into a collective or corporate entity they
create the collective power of that multitude in the first place. But does this apply to
societies organised through the territorial container of the state? Here it seems that
the sovereign power of the state exists prior to the association created by the consti-
tution. After all, it is the sovereign state which creates the ‘statist’ society, ie a society
moulded by the territorial character of the state. The Self of this society is always
in danger of being absorbed by the sovereign state; consequently, the constitution
can only serve to protect the endangered society against the sovereign power of the
state. Or so the argument is made.

Sovereignty as the power of the polity

But this is not quite the case. True, sovereign power is a constitutive attribute of
the state which permeates and shapes the society contained in its territory, but it
does not exist prior to and independently of the society. This would presume a state
which has supreme power also in the absence of a society. But what could the term
supreme power then mean? Supreme power presupposes a plurality of potential or
actual powers, with one supreme because it is superior to all others. Sovereign power
is not merely relatively greater than the other powers to which it is superior; it is also
qualitatively different. As Bodin unmistakably and succinctly defined: ‘Sovereignty
is the absolute and perpetual power of a commonwealth’43—sovereignty is absolute
power because it is the power of the commonwealth (République). In other words,
the power which combines, centralises, and embodies the capabilities of the collec-
tivity as such is absolute: this is the meaning of sovereignty.
Sovereignty is not defined as the greatest quantity of power in proportion to other
power holders; rather, its quality of embodying the power of the polity as a distinct
collective entity defines it. Bodin emphasises this attribute of sovereignty when
he specifies that the law is not just a command of the sovereign, but that it ‘is the
command of the sovereign affecting all the subjects in general, or dealing with general
interests’; when he refers, as usual, to the constitution and the politics of the ancient
Romans and their legislation he stresses the point that the laws were commands of
‘the entire people’, and that ‘the nobility and the Senate as a whole, and each one
of the people taken individually, should be bound’ by them.44 In other words, the
superiority of sovereign power over the power of the particular forces within the
polity originates in its attribution to the whole of the society. Those forces are not
simply less powerful than the sovereign, which is not necessarily the case. They are

42
H. Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of
Collective Self hood’, in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism:
Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007), 9–24,
at 14 et seq.
43
Bodin, above n 2, at 1 (emphases supplied).
44
Ibid 51.
34  Ulrich K. Preuss
the sovereign’s subjects, and this unique status of superiority justifies Bodin’s char-
acterisation as ‘absolute’. Consequently, states with relatively small power resources
can be sovereign if they are able to embody the whole of the society. To paraphrase
Poggi’s statement, one can say that the state does not have power but is a power (as
is the common saying in international relations).
Note that there is a circular and mutually reinforcing relationship between sover-
eign power and the quality of a commonwealth: not only is a power absolute, ie
sovereign because it is the power of a commonwealth, but at the same time an entity
is a commonwealth because it has absolute power, or, for that matter, because it is
a power. The turn from having power to being a power constitutes a polity. This
step is not contingent upon the increase of the quantity of power in the hands of
any individual who happens to outrival all other power holders within a collectiv-
ity. It depends upon an individual’s or a group’s capacity to represent the whole of
the collectivity (which, of course, presupposes a certain amount of material power
resources from the elites which represent this collectivity).
When, in the dusk of European absolutism, the state subjects’ belief in the capac-
ity of the monarchs to represent the whole of the society declined, their power faded
although for a considerable period their tangible power resources remained. At the
end of the eighteenth century, the French monarchy (and most of the absolutist
regimes in Europe) had depleted their moral and political capital which had allowed
them to embody the whole of the polity for some 200 years. We may assume that
the discrepancy between the function of the absolutist princes to represent the
whole of the polity—which soon after became called the nation—and the frequently
debauched lifestyle of the princes and their courts contributed to their eventual
delegitimisation. After all, representing the polity requires the embodiment of such
common values as dignity, honour, and self-respect, which can only be credibly
achieved by characters who themselves command respect. Nevertheless, the main
reason was their failure to facilitate the creation of institutions through which new
and resourceful social forces could represent the whole of the polity.
Obviously, the institution which made that possible was the constitution. The
constitution—not accidentally an ‘object of all longing’ at the end of the eighteenth
century both in Continental Europe and in the United States45—embodied the claim
that the sovereign power of the state was no longer to be attributed to dynastic
families but to ‘the people’. What at a first glance seems to represent no more than
a mere replacement of one holder of the state’s sovereign power with another—the
prince with the people—in fact amounted to a genuine revolution which profoundly
changed the concept of the polity.
The reason is that power in general, and political power in particular, is not a
thing which can be transferred from one owner or holder to another. Power desig-
nates a social relationship, and among the varieties of social power political power is
characterised by what Max Weber called ‘domination by virtue of authority’ which
he defined as the ‘authoritarian power of command’ of a ruler over the ruled. In

45
Preuss, above n 38, 25 et seq.
 Disconnecting Constitutions from Statehood  35
essence, rule is a relationship of command and obedience.46 Whilst the sovereign
power of the absolutist prince over his subjects clearly is a variety of domination of
a ruler over the ruled, this pattern obviously does not apply when sovereign power
is claimed for the people (as a multitude). In this case, ruler and ruled are (or at least
appear to be) identical, and domination can no longer be defined in terms of the
polarity of rulers and ruled. Rather, it has become the problem of an appropriate
self-organisation of the people.
In order to acquire sovereign power, the multitude had to become a collective
entity which embodied the unity of the multitude; at the same time, this collective
entity could not come into being as long as sovereign power had not been arro-
gated by the multitude. The many atomised individuals are powerless, as they lack
the resources to transform themselves into an organised collectivity. The circular
causation which we observed with respect to the relationship between sovereignty
and commonwealth in the framework of Bodin’s theory resurfaces in the relation
between sovereignty and people. They are interdependent in that the processes
of collective self-organisation and the arrogation of sovereign power mutually
constitute each other. In fact, the formation of a corporate body which includes all
members of the society is tantamount to the people’s acquiring sovereign power. As
the only purpose of uniting the multitude in one body is the goal of creating their
capacity to act collectively and, consequently, to subject the individuals to the will of
the collectivity, the achievement of corporate unity means the achievement of the
capacity and authority to impose the collective will on all individuals. This is nothing
other than Bodin’s concept of absolute power which he labelled sovereignty.

v. constitutions connect sovereignty with

the people and loosen its link to territory
There is an obvious analogy to the relationship between territory and sovereignty
which I indicated above: just as the territorialisation of the French kingdom, frag-
mented by particularist feudal forces, meant the establishment of the monarchy’s
sovereignty, so was the unification of the individualised multitude to one collec-
tive body identical with the constitution of the people’s sovereignty. At the same
time there is a profound difference between the concept of sovereignty attached
to territoriality and sovereignty embodied in the corporate unity of the people. In
both cases, sovereignty means absolute power in the sense established by Bodin. But
whilst absolute power as a defining element of territoriality means comprehensive
and exclusive control of all social interactions within the territory, including all trans-
border activities, absolute power as a defining element of the corporate unity of the
people means the multitude’s capacity of self-rule.
The transition from the territorially defined concept of sovereignty to popular
sovereignty entails a change in the significance of the territory. For the former, the

46
Weber, above n 30, 941–8, especially at 943, 946.
36  Ulrich K. Preuss
territory is essential for the very existence of the polity—the state—as it defines not
only the mode of domination but also the identity of the polity itself. In order to
preserve the existence of the polity, it is necessary to maintain the coherence and
continuity of a territory. For this, the ruler needs to have the monopoly of coercive
power, including the control of the means of extraction and of violence in the hands
of a power elite. This is the pattern of the absolutist state.47 Its functioning is based
upon the status of its subjects as a passive and subaltern mass unable to govern itself.
For the latter—the unity of the multitude—the territory is still of great impor-
tance, as it continues to serve as a container which defines the boundaries of who
belongs to the multitude and hence who qualifies as belonging to the people. But
it is a defining element of the multitude, not of ‘the people’; the transformation of
the multitude into ‘the people’ is due to forces which have nothing to do with the
territory and the means of its ruler to control it. Sovereignty of the people means
their collective capacity to rule themselves, which means to be obligated only by
laws which they have given to themselves.
Basically, there are two methods to qualify a multitude to rule itself: the ‘sover-
eigntist’ and the ‘constitutionalist’ approaches. I call ‘sovereigntist’ a conception of
self-rule which is understood as collective self-determination requiring no more and
no less than the institutionalised absolute power of the collectivity over its constitu-
ent parts—unity and sovereignty of the people are identical. Acts of rule consist of
the willpower of the collectivity. ‘Constitutionalist’ is a notion of self-rule accord-
ing to which the will of the united body is embodied in a system of rules, institu-
tions, and procedures which determine the principles of how a free society wants
to be ordered. Here, too, the multitude is transformed into ‘the people’; but ‘the
people’ do not rule by joining the individual wills to one collective will but by the
application of those rules to the relevant cases through the competent institutions.
The effectiveness of this sovereignty, embodied in the constitution, is not dependent
upon the actuality of a collective will but upon the functioning of the constitutional
institutions.
For Rousseau, the forefather of the ‘sovereigntists’, the constitutional media-
tion of sovereignty was tantamount to the dissolution of the unified body of the
people and, consequently, of its sovereignty. He thought that ‘it would be against
the very nature of a political body for the sovereign to set over itself a law which it
could not infringe’.48 He was right to realise that constitutions serve the function
to set limits to the powers of governments, but he was wrong to assume that a
constitution binds the sovereign and hence is doomed to undermine sovereignty

47
See among the rich literature C. Tilly, ‘Reflections on the History of European State-
Making’, in Tilly (ed), The Formation of National States in Western Europe (Princeton, NJ:
Princeton University Press, 1975), 3–83; C. Tilly, Coercion, Capital, and European States, AD
990-1990 (Cambridge, Mass.: Blackwell, 1990); Giddens, above n 40; M. Mann, The Sources
of Social Power, i: A History of Power from the Beginning to A.D. 1760 (Cambridge: Cambridge
University Press, 1986); T. Ertman, Birth of the Leviathan: Building States and Regimes in
Medieval and Early Modern Europe (Cambridge: Cambridge University Press, 1997).
48
Rousseau, The Social Contract, i., ch 7.
 Disconnecting Constitutions from Statehood  37
altogether. A constitution ‘should pattern a political system’49 in the first place, not
limit any kind of power which allegedly exists prior to the constitution. Other-
wise, the idea of constitutionalism would have been valid also as a means of limit-
ing the power of the absolutist princes. This, however, was not the case; nowhere
did constitutions exist which were limited to the function of imposing restrains
upon autocratic rulers.50 Ever since the emergence of the modern concept of
constitutionalism, constitutions were inseparably connected with the idea of
popular sovereignty, ie with the elimination of the sovereign power of the absolut-
ist princes and the establishment of the absolute power of the people by means
of a government. The creation of constitutions was identical with the creation of
the constituent power of the people. This amounted to the transition from sover-
eignty attached to territory to sovereignty attributed to the people. More precisely,
it was the changeover from comprehensive and exclusive control of the ‘negative
community’51 to a system of popular self-rule.
This change has far-reaching consequences for our understanding of constitu-
tions. It means that the idea of the constitution is not intrinsically bound to the
concept of the territorially bounded state. The modern constitutions which, since
the end of the seventeenth (England) and the eighteenth centuries (France and the
other monarchies of the European continent), replaced the absolutist systems of
domination based upon the territorial character of the modern state, established
an alternative mode of rule. They disconnected the idea of sovereignty from
the control over a territory and connected it with the idea of collective self-rule
of a multitude. This does not mean that the modern concept of constitution has
completely severed its link to the territory; until the present day, constitutions have
been established to enable the self-rule of multitudes contained in and by state terri-
tories. But, as mentioned, the factor which affects the metamorphosis of a multitude
into a nation or a people—the corporate unity of the multitude—is not the control
over the coherence and continuity of the territory, but the constituent power of the
people themselves.
This developmental step of loosening the connection of sovereignty with the
territory to attaching it to the people has been the great achievement of the demo-
cratic revolutions at the end of the eighteenth century. The essential embodiment

49
W. F. Murphy, ‘Constitutions, Constitutionalism, and Democracy’, in D. Greenberg
et al (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (New York:
Oxford University Press, 1993), 3–25, at 7.
50
In Germany, where in the nineteenth century attempts were made to use the concept
of the constitution as an instrument of power sharing between the absolutist princes and
representatives of the rising bourgeois class, these efforts ultimately failed (see the analy-
sis of Carl Schmitt, Constitutional Theory [1928] (Durham, NC: Duke University Press,
2008), 331 et seq; E.-W. Böckenförde, ‘Die verfassunggebende Gewalt des Volkes: Ein
Grenzbegriff des Verfassungsrechts’, in Böckenförde, Staat, Verfassung, Demokratie: Studien
zur Verfassungstheorie und zum Verfassungsrecht (Frankfurt am Main: Suhrkamp, 1998), 90–112.
51
F. Kratochwil, ‘Of Systems, Boundaries and Territoriality: An Inquiry into the Formation
of the State System’ (1986) 39 World Politics 27–52, at 33.
38  Ulrich K. Preuss
is the nation state, ie the people that rules itself in and through the state. In the last
two decades this concept of sovereignty has come under stress through phenom-
ena which threaten to undermine the capacity of a state-contained multitude to
rule themselves, ie to control the main conditions of their lives. The container is
now leaking.52 As is now commonplace, the porosity of state boundaries and the
extensity and intensity of trans-border interactions and movements of capital,
people, goods, services, information, symbols, and ideas have generated trans-
national social patterns and institutions which stretch the spatial dimension of
social relations across state borders; in many respects it has become global.53 The
inside/outside distinction of what is usually called the Westphalian system—the
coexistence of ‘territorially disjoint, mutually exclusive, functionally similar,
sovereign states’54—is, at least in the world of the Organisation for Economic
Co-operation and Development, blurring. The discrepancy between the territo-
rially defined range of the states’ sovereign power and their effective infl uence
upon the living conditions of their populace reveals a significant decrease in their
capacity to shape and to control the society. The decision-making power is no
longer exclusively distributed along the lines of state borders which are no longer
‘meaningful dividers between social, economic, and cultural systems’.55
What has been evolving instead are patterns of decentralised social regulation in
which law—both national and international—originates from a plurality of sources,
among which the sovereign state remains a vital actor; but by and large it has lost its
traditional structural superiority over the social world and must learn to communi-
cate with its agents in modes of cooperation and sharing resources and infl uence.
It has become a mere component of a broad variety of legal authors, including,
aside from states and international organisations, a growing number of national
and transnational civil society actors, such as transnational chambers of commerce,
economic interest groups, trade unions, environmental and human rights groups,
law firms, churches, sports associations, university and other academic associations
and networks, which create legal and para-legal rules for different spatial levels, func-
tionally defined social spheres, and specific categories of individuals. They coexist,
partly overlap, compete and confl ict, and form a non-hierarchical pattern of trans-
border regulation in which no single ruler can be identified and held responsible for
the quality of the social order.
The European Union (EU) is an obvious case in point. Due to the direct effect
upon the citizens of the member states, EU law and the national law of the

52
See Taylor, above n 29, 157 et seq.
53
D. Held et al, Global Transformations: Politics, Economics and Culture (Cambridge: Polity
Press, 2000), 14–15.
54
J. G. Ruggie, ‘Territoriality and beyond: Problematizing Modernity in International
Relations’ (1993) 47 International Organization 139–74, at 151.
55
A. B. Murphy, ‘The Sovereign State System as Political-Territorial Ideal: Historical and
Contemporary Considerations’, in T. J. Biersteker and C. Weber (eds), State Sovereignty as a
Social Construct (Cambridge: Cambridge University Press, 1996), 81–120, at 90.
 Disconnecting Constitutions from Statehood  39
member states coexist side by side. Although the former claims primacy over
the latter, this does not mean that the EU has sovereign power over the domestic
sphere of its member states; nor is the relationship of EU law and national law
hierarchical. The primacy of EU law does not refer to the validity of the involved
legal norms (Geltungsvorrang), but merely to their application when confl icting
EU and national legal rules exist for the same facts of a case (Anwendungsvorrang).
This, then, is a matter of interpretation through courts with different, potentially
overlapping jurisdictions which have to be adjusted to each other in a non-hierar-
chical institutional setting.
These phenomena give rise to the question of whether we are entering a third
historical phase of the concept of sovereignty—the first being characterised by
exclusive territorial control, the second by collective self-rule of a multitude through
a constitution which constitutes them as a ‘We the people’, and the third by the
reconceptualisation of the idea of collective self-rule as the capacity of a collective to
interact with other communities and share with them the control of their life condi-
tions on a global scale irrespective of territorial boundaries. If this were the case, the
traditional concept of the constitution—the institutional device which constitutes a
territory-bound multitude as a political body capable of self-rule—would no longer
fit the requirements of a political universe in which state borders have lost much of
their structural importance. Would such a developmental step render the concept of
constitution meaningless?
Before having a closer look at the inherent logic of constitutions a brief compar-
ative remark about the three conceptions of sovereignty seem appropriate. Note
that the first and the second developmental forms of sovereignty have an inher-
ently coercive character. This is obvious for the control of the territory. With
respect to the concept of collective self-rule it follows from the principle of the
superiority of the collective will over the constituent members of the multitude;
the option of a merely voluntary compliance would undermine the generality of
the authority of the collective will and hence destroy it altogether. Even Rousseau,
who claimed that the individuals’ participation in the formation of the general
will become free because they share in the sovereign power, admitted that those
who refuse to obey the general will must be ‘forced to be free’,56 which ultimately
means: coerced. By contrast, the third developmental model of sovereignty is not
intrinsically connected with coercion. As it is based on the capacity to interact
and to share responsibilities it needs other instruments for the achievement of
common goals. Horizontal modes of amalgamating discrete agents seem to be
more promising. Here too the institutional construction of the EU can serve as a
relevant example. It gives rise to a more detailed view on the constitutive character
of constitutions.

56
Rousseau, above n 48.
40  Ulrich K. Preuss

vi. the constitutive role of constitutions

If a constitution ‘is that which results from an effort to constitute’,57 how can a consti-
tution transform a multitude into one unified body, ‘the people’ or ‘the nation’?
Murphy, who discussed this question, denied this possibility. He argues that ‘to agree
in their collective name to a political covenant, individuals must have already some
meaningful corporate identity as a people’ and concludes that ‘the notion of constitu-
tion as covenant must mean it formalizes or solidifies rather than invents an entity’.58
Indeed, this conceptual enigma exists if we conceive of individuals as socially
isolated atomised beings in a state of nature as hypothesised in Hobbes’s construc-
tion of the social contract. But this is not what constitutions are all about. They are
not supposed to be social contracts; rather, they are rules through which individu-
als who are thoroughly familiar with social relations and social facts create a new
social reality for themselves by constituting themselves as a body which commits
them permanently to common ventures. Constitutions are not restricted to merely
forming ‘a more perfect union’, as the preamble of the US constitution declares;
rather, they are institutional devices which constitute a union among discrete natural
or corporate individuals who live in a society.
In fact, constitutions are constitutive norms in that they create an institutional
reality in which hitherto purely physical facts are transformed into institutional
facts and gain a specific meaning through this metamorphosis. They are impor-
tant elements of what the philosopher John Searle called the construction of social
reality. Such a metamorphosis occurs when a plurality of people agree that a physi-
cal fact shall have a particular meaning and count as a normatively relevant fact. Take
one of Searle’s examples: ‘Bills issued by the Bureau of Engraving and Printing …
count as money … in the United States.’59 An empirical fact—the issuance of pieces
of paper—acquires a particular social significance in that it is transformed into an
institutional fact which consists in the recognition of this fact as constituting money.
Likewise, the rule ‘a piece of land recorded in a special register counts as private
property’ is a constitutive norm which does not refer to an antecedent social reality
but creates an institutional reality in the first place. Constitutive norms are different
from regulative norms which do not create possibilities of action but rather regulate
an antecedently existing activity by establishing dictates, prohibitions, permissions, etc.60

57
S. L. Elkin, ‘Constitutionalism: Old and New’, in S. L. Elkin and
K. E. Soltan (eds), A New Constitutionalism: Designing Political Institutions for a Good Society
(Chicago, Ill.: University of Chicago Press, 1993), 20–37, at 32.
58
Murphy, above n 49, at 9.
59
J. R. Searle, The Construction of Social Reality (New York: Free Press, 1995), 28, 43
et seq.
60
Ibid 27 et seq; see also G. Boella and L. van der Torre, ‘Regulative and Constitutive
Norms in Normative Multiagent Systems’ in Proceedings of 9th International Conference on the
Principles of Knowledge Representation and Reasoning (Menlo Park, Calif., 2004), 255–65. This
distinction between constitutive and regulative norms was at the beginning of the twenti-
eth century developed, if in a different language, by Georg Jellinek, System der subjektiven
 Disconnecting Constitutions from Statehood  41
Obviously constitutive norms presuppose a plurality of agents who agree that
some particular fact ‘counts as’ an institutional fact. The sentence of Article 78 of the
German Basic Law: ‘A bill adopted by the Bundestag shall become law if the Bundes-
rat consents to it’ constitutes the institution of the federal law, referring to a plurality
of addressees who share the understanding of what the concept ‘law’ means. With
respect to constitutions and constitutionalism we should distinguish three levels of
meaning: (1) constitutive norms create institutional facts; (2) at the same time they
create and corroborate the interactive normative system in which those facts have a
particular meaning, whereby the term ‘interactive normative system’ is just a more
neutral expression for the more traditional, but frequently normatively overloaded
phrase ‘legal community’; (3) moreover, they create the norms which specify the
conditions under which constitutive norms can be created, abolished, or altered.
They belong to the category of secondary rules of H. L. A. Hart’s concept of law:
rules of recognition, change, and adjudication.61 Rules about making, unmaking,
and changing rules exhibit the capacity of reflexivity of the interactive normative
system. Thus, it is an inherently dynamic system.
This sounds trivial as we normally know the structure of a modern constitu-
tion. We also know that, for instance, an order which any assembly may proclaim
as binding upon everybody is not a law but a mere utterance of an opinion without
authority, even if these people have power and can force us to comply with that
order. We ‘do not just accept that somebody has power, but we accept that they
have power in virtue of their institutional status’62 which has been created through
constitutive rules beforehand. Even the constituent power of the people which
constitutional theory constructs as the source of the constitution is by no means
merely an empirical fact; rather, it is a power which exists only by virtue of being
constructed as the ultimate author of the constitution, that is, as an institutional
phenomenon. Hence, the act of constitution making must be understood as an act
of ‘collective self-attribution’ through which a multitude defines ‘an interest that is
held to be common’ to all members of that multitude and thereby constitute them-
selves as a political community.63 Paradoxically this act of self-constitution of an
unconstituted multitude can only occur ‘if individuals retroactively identify them-
selves as the members of a polity in constituent action by exercising the powers
granted to them by a constitution’.64

öffentlichen Rechte [1905] (Darmstadt: Wissenschaftliche Buchgesellschaft, 1963). Jellinek

made the distinction between norms which create a ‘Können’ [can] which equate to consti-
tutive norms and ‘Dürfen’ [may] which equate to regulative norms.
61
H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 91 et seq.
62
J. R. Searle, ‘Social Ontology: Some Basic Principles’ (2006) 6 Anthropological Theory
12–29, at 18.
63
Lindahl, above n 42, at 19; see also U. K. Preuss, ‘The Exercise of Constituent Power in
Central and Eastern Europe’, in Loughlin and Walker (eds), above n 42, 211–28, at 213
et seq.
64
Lindahl, above n 42, at 19.
42  Ulrich K. Preuss
This paradox can be explained by the inherent logic of our social world which
presupposes that we interact on the basis of a construction of reality. It is not only
the case that we accept someone’s power only by virtue of its institutional character.
Our social actions are contingent upon the capacity of institutional facts and statuses
to generate obligations, rights, responsibilities, and authorisations and thereby to
expand the reach of human actions.65 For instance, civil laws establish powers of
individuals, eg the power to conclude a contract or to acquire property; contracts
and property in their turn entail rights, duties, responsibilities, and powers of further
individuals and give rise to new transactions which involve new agents. A familiar
example is the legal creature of a corporation which has a distinct legal personality
and thus allows the collection and investment of capital—which means new social
relations—in an amount which otherwise would not be available. In a word, rules
which create hitherto unknown or unavailable opportunities for social actions are
constitutive rules.
Not all constitutive rules are constitutions, but all constitutions are constitutive
rules plus some additional attributes. Grimm, who defines constitutions as ‘deriving
from the people and directed at the State power’, affirms that they do not ‘modify
rule but establish it, not particularly but universally, not here and there, but compre-
hensively’66 and thus acknowledges their constitutive character. While I share this
analysis, I disagree with the underlying premiss that constitutions must originate
from the constituent power of a people and that they are directed at binding state
power.
True, the territorial character of the state has been an essential element of demar-
cating the boundaries of the multitude who transform themselves into the corpo-
rate entity of the people; but this transformation is directed at collective self-rule
which, admittedly, occurred within the territorial boundaries of the state. Yet the
primary function of the constitution—to establish a regime of collective self-rule
by constituting ‘We the people’—can be disconnected from the territory without
destroying the meaning of the constitution. Note that the ‘We’ which is generated in
and through the process of constitution making is the first-person plural, ie a collec-
tive singular. This means that the many have the self-referential qualities and capaci-
ties of a single entity. The multitude of individuals who form the ‘We’ of a people or
a nation are able to recognise themselves as a body that is able to act, to deliberate,
and to understand itself as an artificial body which is able to act upon itself. More
precisely, the many are able to act as if they were one entity. This is what enables them
to rule themselves—the ‘We’ is the result of the self-empowerment of a multitude
to a reflexive collective actor. It is this reflexive character of the ‘We’ which is created
through the constitution.67

65
Searle, above n 62, at 18.
66
Grimm, above n 14, at 287.
67
See the remark of Grimm and his reference to Luhmann with respect to the reflexive
character of constitutional law, ibid at 286; Lindahl, above n 42, at 15 et seq.
 Disconnecting Constitutions from Statehood  43
In practical terms that means that constitutions establish a political system which
provides an institutional space in which the affairs of a multitude as such become
the matter of collective deliberation and action and are separated from the spheres
of its individual members. They determine the elements of collective will forma-
tion, the conditions under which the collective has supremacy over the individuals’
spheres and the procedures through which individual obligations are created and
their enforcement guaranteed. Moreover, they establish rules of accountability of those
who act on behalf of the collective and finally stipulate rules about changing the
rules of the constitution.
This rough definition of constitutions fits well together with constitutions of
states. But they may well cover political formations which, unlike nations or peoples,
do not incorporate territorially defined multitudes. When I speak of political forma-
tions I mean those entities which provide the common security and welfare of a
group—purposes which require a thorough control of the group and which in the
past have been performed most effectively and efficiently by states.68 Since states have
no longer the monopoly in fulfilling these functions, a modern-day definition of a
constitution as the fundamental source of authority must include both states and
new political formations not based upon territoriality. For the present I submit that,
whenever a multitude whose members are demarcated against the outside world
establish a regime through which they pursue the goals of common defence and/or
common welfare and establish rules about the formation of a common will which
are able to generate obligations and responsibilities for the individual members this
multitude has constituted itself as a distinct entity shaped by a constitution.
On this view constitutions are norms which create institutional facts that are
meaningful for the social actions and interactions of natural or artificial individu-
als and allow them to act commonly in a frame of interdependence. As a result, a
subjectless process of establishing rules of shared responsibility may arise. This inter-
active process may be able to produce not a collective will, but commonly shared
rules and principles which are binding upon the constituent parts not because they
are imposed on them, but because they are recognised by them. The rules pursuant
to which this process takes course may at times be implemented by some forms of
coercion—eg by rendering non-compliance costly—but other than in the framework
of traditional, state-centred constitutionalism coercion is not an essential element.
Thus, although this institutionalised scheme of horizontal and non-coercive social
coordination and cooperation has little if any connection with the traditional idea of
constitutionalising a multitude of socially disembedded, free, and autonomous indi-
viduals in order to enable them to form a collective, it seems reasonable to include it
in the concept of the constitution. The reason is not to exploit the aura of the term
constitution; rather, it is the objective to transfer the intellectual and moral power
which created the aura of the constitution in the first place into spheres where the
essential promises of constitutions—namely to establish systems of collective action

68
See Murray Forsyth, Unions of States: The Theory and Practice of Confederation (New York:
Leicester University Press, 1981), 160 et seq.
44  Ulrich K. Preuss
based on principles of equal participation, accountability, and rule of law—are still
largely lacking. The international community is an obvious case in point.

vi. concluding remarks: the international

community as a constitutionalised actor?
In fact, some recent developments in international law can be read and have rightly
been read by several scholars as indicators of a process of international constitution-
alisation.69 Let me briefly mention four of them.70
First, the existence of legal norms, which stipulate obligations of states not only
or not primarily towards other states but towards the international community as
such, indicates a new status of states, namely their membership status in the interna-
tional community.71 This status change entails relationships of interdependence and
mutual responsibility alien to the traditional understanding of the states’ sovereignty.
In the doctrine of international law the relevant obligations are called ‘obligations erga
omnes’.72
Secondly, closely related to erga omnes rules is the corpus of international legal
rules which are considered as so fundamental that they cannot be derogated by the
states. They are peremptory norms or ius cogens.73 Peremptory rules are as much
binding upon the states without or even against their will74 as norms erga omnes. Both
erga omnes norms and ius cogens presuppose and refer to a sphere of common matters
of mankind as embodied in the international community; they are the sources of
obligations and responsibilities of states and have a different normative status than
rules regulating interstate relations.

69
See the accounts of B. Fassbender, ‘We the Peoples of the United Nations: Constituent
Power and Constitutional Form in International Law’, in Loughlin and Walker (eds), above n
42, 269–90; for a more sceptical view, see Krisch in this volume.
70
In what follows I largely refer to parts of my previous article, Preuss, above n 15, at 35
et seq.
71
See the account of B. Fassbender, ‘The Meaning of International Constitutional Law’,
in R. S. J. Macdonald and D. M. Johnston (eds), Towards World Constitutionalism: Issues in the
Legal Ordering of the World Community (Leiden: Martinus Nijhoff Publishers, 2005), 837–51;
B. Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250
Recueil des Cours de l’Académie de Droit International 217–384, at 285 et seq; C. Tomuschat,
‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999)
281 Recueil des Cours de l’Académie de Droit International 9–438, at 72 et seq.
72
Barcelona Traction, Light and Power Company, Limited, 1970 ICJ (5 February 1970), at 3, ¶ 33.
73
See Art 53 of the Vienna Convention on the Law of Treaties which defines a peremptory
norm as ‘a norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified only by
a subsequent norm of general international law having the same character’.
74
C. Tomuschat, ‘Obligations Arising for States without or against their Will’ (1993) 241
Recueil des Cours de l’Académie de Droit International 195–374.
 Disconnecting Constitutions from Statehood  45
Thirdly, there are profound changes in international law-making. Doubtless the
main traditional sources of international law—international treaties and interna-
tional customary law—still predominate. They guarantee that states can only be
bound by obligations to which they have given their consent. Yet this principle has
become quite hole-riddled75 without, however, being superseded by mechanisms of
a unilateral creation of obligations through a centralised law-giving authority char-
acteristic of the municipal law of the states.76 The main indicator is the surfacing of
the category of world order treaties, a hybrid of treaty and law. World order treaties
are multilateral international treaties with a ‘quasi-universal membership’, the UN
Charter being the obvious primary example,77 although many others are hardly
less important, as for instance the international human rights covenants or the UN
Convention on the Law of the Sea. The more comprehensive a multilateral treaty is,
the more costly it is for a state to stay aside, an option which only few great powers
or outlaw states can afford for a certain period of time. So world order treaties repre-
sent widely or even universally shared interests and values and can be regarded as
embodying the collective will of mankind. In other words, an institutional mecha-
nism of international law-making is emerging which meets the above criterion of a
modern-day concept of a constitution, namely the cooperative and horizontal mode
of creating collectively binding obligations.
Fourthly and finally, next to international legislation the institution of an indepen-
dent compulsory judiciary would be a major step towards the constitutionalisation
of the international community. More than sixty years ago Kelsen contended that
international peace and security could only be maintained efficiently by ‘the estab-
lishment of an international community whose main organ is an international court
endowed with compulsory jurisdiction’.78 Although until our times a compulsory
international judiciary has not yet been established, there are clear tendencies which
point in that direction. In the field of international crimes the Statute of Rome, a
multilateral treaty concluded on 17 July 1998 and effective since 1 July 2002 has estab-
lished an International Criminal Court and laid down the substantive and procedural
rules for the exercise of its ‘jurisdiction over persons for the most serious crimes of
concern to the international community as a whole’.79 With 110 countries (as of 21
July 2009) having become States Parties to the Statute it can be seen as a world order
treaty in the above sense, although some important countries like, for instance, the
USA, China, India, and most countries of the Middle East have so far failed to join

75
Ibid, at 248 et seq.
76
See C. Tomuschat, ‘Multilateralism in the Age of US Hegemony’, in Macdonald and
Johnston (eds), above n 71, 31–75, at 43.
77
Tomuschat, above n 74, at 248 et seq; A. Peters, ‘Global Constitutionalism in a Nutshell’,
in K. Dicke et al (eds), Weltinnenrecht: Liber Amicorum Jost Delbrück (Berlin: Duncker &
Humblot, 2005), 535–50.
78
H. Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International
Organization’ (1944) 53 Yale Law Journal 207–20, at 214.
79
Arts 3 and 5.
46  Ulrich K. Preuss
the treaty.80 Still, the recognition of ‘crimes of international concern’ and the estab-
lishment of a permanent international criminal court—prefigured after the Second
World War in the Tribunals of Nuremberg and Tokyo against the main war crimi-
nals of Germany and Japan—is in itself a major step towards the constitution of the
international community as an entity which is able to establish rules which secure
basic principles of global responsibility.
As a preliminary conclusion I submit that the idea of constitutionalism, although
in its historical origin inherently tied to the structure of the modern sovereign state,
remains a viable concept for modes of social organisation which are not intrinsically
based on the use of the coercive means of the state. Both the EU and the inter-
national community are examples to that effect. Constitutions can create schemes
of cooperation across physical, social, and cultural boundaries because they do not
presuppose shared values or shared understandings of social practices. They may
produce a common cognitive and normative horizon in that they create institutional
facts which generate new possibilities of action among aliens who otherwise would
be relegated to largely ineffective forms of purely voluntary cooperation. Between
the extremes of the constitution of the vertical integration through coercive state
power and the mere contractualism of voluntary social coordination and coopera-
tion, new modes of non-coercive, though nevertheless obligatory cooperation, both
in and beyond the boundaries of the state, are evolving which are susceptible to
being ordered by constitutions.

80
See the website of the ICC <http://www.icc-cpi.int/Menus/ASP/states+parties/>
(accessed 10 November 2009).
  3 
What is Constitutionalisation?
Martin Loughlin

i. introduction
A new term has recently entered the vocabulary of politics: constitutionalisation.
It stands as an expression of a set of processes that are now having a significant
impact on decision making at all levels of government—local, regional, national,
transnational, international. Constitutionalisation involves the attempt to subject all
governmental action within a designated field to the structures, processes, principles,
and values of a ‘constitution’. Although this phenomenon is having an impact across
government, its prominence today is mainly attributable to the realisation that the
activity of governing is increasingly being exercised through transnational or inter-
national arrangements that are not easily susceptible to the controls of national
constitutions. Constitutionalisation is the term used for the attempt to subject the
exercise of all types of public power, whatever the medium of its exercise, to the
discipline of constitutional procedures and norms.
In this chapter, I aim to specify the character of this phenomenon, offer an
account of its dynamic, and raise some questions about the processes it engen-
ders. Constitutionalisation is, I believe, best understood by reference to the related
concepts of constitution and constitutionalism. I therefore begin by considering
the eighteenth-century movements that gave rise to the modern idea of a consti-
tution and its associated political theory, that of constitutionalism. By situating
constitutionalisation in this context, I aim to offer a perspective that will help us
to reach a judgment on the question of whether this emerging phenomenon of
constitutionalisation signals the global triumph of constitutionalism, its demise,
or its transmutation.

ii. constitutions
The concept of the constitution today generally refers to a formal contract drafted in
the name of ‘the people’ for the purpose of establishing and controlling the powers
of the governing institutions of the state. This concept came to be delineated only
in the late eighteenth century and mainly as a consequence of the American and
French Revolutions. This modern idea of the constitution results from a basic shift
48  Martin Loughlin
that took place in conceiving the relationship between government and people:
rejecting traditional orderings based on status and hierarchy, it expressed the convic-
tion that government, being an office established for the benefit of the people, must
be based on their consent.
This modern concept emerged alongside social contract theories that were
circulating in Western political thought during that critical period. Shaped by the
philosophy of the Enlightenment, such theories imagined a situation in which
somehow the people would come together to reject their traditional constitutions,
the products of ‘accident and force’, and would deliberate and devise a new frame-
work of government from ‘reflection and choice’.1 The new type of constitution
that results takes the form of a written document establishing the main institutions
of government, enumerating their powers, and specifying the norms that would
regulate their relations.
Since the late eighteenth century, many states across the world have adopted
modern constitutions. These written constitutions were generally devised at critical
moments in their history, often with the aim of protecting the people from regimes
of absolute, authoritarian, or arbitrary rule that had preceded them. Their adoption
marked the attempt to open a new chapter in the nation’s political development. The
constitution often signalled the intention to institute a republican scheme of govern-
ment, with the constitution performing the function of establishing a framework
of limited, accountable, and responsive government. Constitutions were therefore
linked to the promotion of a particular theory of government: based on contract,
enumeration of powers, institutionalisation of checks over the exercise of powers,
and protection of the individual’s basic rights, they were founded on a theory of
limited government. This is the theory of constitutionalism. It has exerted such an
impact on the drafting of written constitutions since the late eighteenth century
that the theory has almost become synonymous with the modern concept of the
constitution itself.
Before discussing constitutionalism, however, I must briefly consider three issues
relating to modern constitutions: how they differ from the older idea of the constitu-
tion, their key characteristics, and the basic changes in social life that have tended to
accompany the establishment of modern constitutional arrangements.

Constitutions, ancient and modern

The ancient sense of the constitution treats the state as an organic entity. Just as
the body has a constitution, so too does the body politic. Drawing on this meta-
phor, the ancient idea of the constitution expressed the health and strength of the
nation, and the constitution evolved as the nation itself increased in vitality. This was
the meaning Burke drew on when he argued, against French revolutionary develop-
ments, that ‘the state ought not to be considered as nothing better than a partnership
agreement in a trade of pepper and coffee, calico, or tobacco, or some other such low

1
James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788],
ed I. Kramnick (London: Penguin, 1987), 87.
 What is Constitutionalisation?  49
concern’.2 A constitution must be revered precisely because ‘it is not a partnership in
things subservient only to the gross animal existence of a temporary and perishable
nature’. It has evolved through the life of a nation and ‘becomes a partnership not
only between those who are living, but between those who are living, those who are
dead, and those who are to be born’.3
In this ancient sense, the constitution expressed a political way of being. Under-
stood as such, constitutions can no more be made than language is made: like
language, constitutions evolve from the way of life of certain groups that come to
conceive of themselves as ‘a people’ or ‘nation’. There may come moments when
attempts are made to specify some of the basic rules of political existence in a text,
but this document no more provides the source of the nation’s constitution than
a grammar book is the authoritative source of a language. In this understanding,
written constitutions cannot provide the foundation of governmental authority.4
It was this ancient understanding which the modern concept sought to replace.
In Rights of Man in 1791, Paine specified the innovations brought about by the late
eighteenth-century revolutions. Expressing frustration about disputes over the
significance of the changes, Paine stated that ‘it will be first necessary to define what
is meant by a constitution’. ‘It is not sufficient that we adopt the word’, he explained,
‘we must fix also a standard specification to it.’5 Paine provides us with the first clear
statement of the character of modern constitutions.

Characteristics of modern constitutions

Constitutions, wrote Paine, have four key elements. First, a constitution ‘is not
a thing in name only, but in fact’. That is, it has not merely ‘an ideal, but a real
existence’ and therefore, ‘whenever it cannot be produced in a visible form, there is
none’. A constitution, in short, is a thing—and specifically it is a document. Secondly,
‘it is a thing antecedent to a government, and a government is only the creature of
a constitution’. A constitution ‘is not the act of its government, but of the people
constituting a government’. Paine here draws a distinction between the consti-
tuted power (the government) and the constituent power (vested in the people),
and fixes the primacy of the people over their government. Thirdly, Paine highlights
the comprehensive nature of the constitution. It is, he states, ‘the body of elements
… which contains the principles on which the government shall be established,

2
Edmund Burke, Reflections on the Revolution in France [1790], ed C. C. O’Brien (London:
Penguin, 1986), 194.
3
Ibid 194–5.
4
A country’s constitution, Maistre noted, cannot be known from its written laws ‘because
these laws are made at different periods only to lay down forgotten or contested rights, and
because there is always a host of things which are not written’ ( Joseph de Maistre, ‘Study on
Sovereignty’ [1794–5] in J. Lively (ed), The Works of Joseph de Maistre (New York: Macmillan,
1965), 93–129, at 103–4).
5
Thomas Paine, Rights of Man [1791–2] in his Rights of Man, Common Sense and other Political
Writings, ed M. Philp (Oxford: Oxford University Press, 1995), 83–331, at 122.
50  Martin Loughlin
the manner in which it shall be organized, the powers it shall have, the mode of
elections, the duration of parliaments, or by what other name such bodies may be
called; the powers which the executive part of the government shall have; and, in
fine, everything that relates to the compleat organization of a civil government, and
the principles on which it shall act, and by which it shall be bound’. Finally, Paine
refers to its status as fundamental law: a constitution ‘is to a government, what the
laws made afterwards by that government are to a court of judicature’. That is, the
court ‘does not make the laws, neither can it alter them; it only acts in conformity
to the laws made: and the government is in like manner governed by the constitu-
tion.’ Similarly, he suggests that the government neither makes nor can alter the
constitutional laws which bind it; these can only be altered through an exercise of
the constituent power of the people.6 Although each of these elements was contro-
versial at that time,7 they have now become widely accepted principles of modern
constitutions.8
Modern constitutions, based on these key features, have since—in stages—
acquired an enhanced authority in public life. To the extent that this has occurred,
it is related to the modern processes of positivisation and juridification. Not only
are constitutional norms today accepted as being ‘fundamental law’, but this funda-
mental law is now conceived as a category of positive law, and the judiciary have
asserted their authority to act as ultimate interpreters of its meaning. The modern
constitution is now widely accepted as providing the foundation of legal order, not
only by establishing the authoritative law-making institutions of the state but also
in laying down the basic norms that guide law-making. The constitution is now
perceived as providing the basis of the legitimacy of legality.
These claims are controversial. If the constitution is simply a document why should
we have reason to believe in its power-conferring character? One answer is that the
document was ‘authorised’ by ‘the people’. But if so, then ‘the people’ must not only
be anterior to, but also superior to, the document. This leads certain social contract
theorists to postulate two different contracts: with the first, the multitude constitute
themselves as a collective entity (the people, the nation, the state) and with the second
this collective entity then agrees a framework of government (the constitution).9

6
Ibid 122–3.
7
See, eg Maistre, above n 4, at 107: ‘In his evil book on the rights of man, Paine said that
a constitution is antecedent to government [etc] … It would be difficult to get more errors
into fewer lines.’
8
See, eg D. Grimm, ‘Verfassung—Verfassungsvertrag—Vertrag uber eine Verfassung’, in
O. Beaud et al (eds), L’Europe en voie de Constitution (Brussels: Bruylant, 2004), 279–87, at
281–2 (identifying as the five key characteristics of modern constitutions: (1) a set of legal
norms, (2) establishing and regulating the exercise of public power, (3) founded on an agree-
ment of the people, (4) that forms a comprehensive framework, and is (5) erected on the
principle of the primacy of constitutional law). See also Grimm in this volume.
9
See Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law [1673],
trans M. Silverthorne, ed J. Tully (Cambridge: Cambridge University Press, 1991), ii., ch 6.
 What is Constitutionalisation?  51
What is presented as the fundamental law with respect to positive law (ie the written
constitution) cannot bind ‘the people’.
This type of argument poses specific difficulties for those who would argue that,
once adopted, the constitution binds future generations.10 But it also raises more
general complications. In particular, since ‘the people’ is to be distinguished from
a multitude, that concept is itself a legal construction. The modern constitution is
a constitution of government, but it cannot be the constitution of the state.11 That
being so, the question arises: is there a fundamental law—that which constructs
the people (the original compact)—which lies behind the fundamental law that
authorises positive law?
One alternative to the postulation of sequential contracts is to reject the histori-
cal claims being made of the foundation and assert its hypothetical character. Since
‘the people’ comes into existence only by virtue of the basic contract, it is difficult to
envisage how the multitude—with their differing interests and confl icting needs—
could ever transcend their differences and come together to devise an agreement
that creates political unity.12 Recognising the virtual character of the basic contract,
some scholars argue that—paradoxically—‘the people’ who supposedly agree the
contract come into existence only by virtue of the contract.13 That is, the foundation
can only be understood as a reflexive construct.
However those matters are resolved, examination of the foundation seems to
reveal that the modern constitution is fundamental only with respect to the office of
government, and the constitution’s authority derives from a more basic construct,
that of the people (however conceptualised). Once this is recognised, however, the

10
Paine recognised this, arguing against constitutional entrenchment: ‘Every age must be
as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity
and presumption of governing beyond the grave, is the most ridiculous and insolent of
all tyrannies. … That which the whole nation chooses to do, it has a right to do. … I am
contending for the rights of the living, and against their being willed away, and controuled
and contracted for, by the manuscript assumed authority of the dead’ (Paine, above n 5, 92
(emphasis in original)).
11
See Emmanuel Joseph Sieyès, What is the Third Estate? [1789], trans M. Blondel (London:
Pall Mall Press, 1963), 124: ‘The nation is prior to everything. It is the source of everything.
Its will is always legal; indeed, it is the law itself.’
12
See Jean-Jacques Rousseau, The Social Contract [1762] in The Social Contract and Other Later
Political Writings, ed V. Gourevitch (Cambridge: Cambridge University Press, 1997), 39–152,
at 71: ‘For a nascent people to be capable of appreciating sound maxims of politics and of
following the fundamental rules of reason of State, the effect would have to become the
cause, the social spirit which is to be the work of the institution would have to preside over
the institution itself, and men would have to be prior to the laws what they ought to become
by means of them.’
13
P. Ricoeur, ‘The Political Paradox’, in his History and Truth, trans C. Kelbley (Evanston, Ill.:
Northwestern University Press, 1965), 247–70; L. Althusser, ‘Rousseau: The Social Contract
(the Discrepancies)’ in his Politics and History: Montesquieu, Rousseau, Marx, trans B. Brewster
(London: Verso, 2007), 113–60; J. Derrida, ‘Declarations of Independence’ (1986) 15 New
Political Science 7–15.
52  Martin Loughlin
attempt to forge a sharp distinction between the ancient and modern concepts of
the constitution is less convincing; while the modern concept is directed to the
constitution of government, the ancient concept addresses itself to the constitu-
tion of the nation—and this is the issue that modern constitutions tend to suppress.
When questions are asked about the authority of the written constitution, however,
it is precisely these more basic considerations that come to the surface. The point
of Burke’s analysis was to indicate that, to be able to command authority, the
constitution must be treated as a sacred thing worthy of reverence, and the ancient
understanding carries its power precisely because it is not, at least in any simple
sense, a man-made instrument.14
We are now able to grasp the ambition that underpins modern constitutions:
specifying the structure of the office of government is one matter, but forging the
bonds of unity of the nation is quite another. Yet this is what modern constitutions
are expected to do. Modern constitutions are required to serve both instrumental
and symbolic purposes. In its instrumental role, the constitution gives guidance for
the future by establishing the authoritative modes of collective decision making of
a nation. In its symbolic function, it provides a point of unity; the constitution must
operate in such a way as to bolster the established order of things. The instrumen-
tal aspect, which expresses the principle of legality, looks primarily to the future,
whereas the symbolic, drawing on custom and myth and expressing the principle
of legitimacy, primarily makes an appeal to the past. The latter is a sacred task and,
when no longer able to rely on the power of religion or the authority of the ‘eternal
past’, this task is incapable of being fulfilled without developing a civil religion.15
It is evident, then, that although presenting themselves as instrumental documents,
modern constitutions must also perform the function—similar to that of the ancient
understanding—of nation building. This is often a delicate task, especially since
much of modern constitution making takes place under circumstances in which the
new settlement seeks to draw a line under the past. This task is often advanced by
the adoption, as part of the constitutional settlement, of new symbols of nation-
hood (flags, anthems, special anniversary dates, etc.)16 or in an exercise of ideological
re-traditionalisation, invoking an idealised version of an earlier narrative about the
customs and values of the people.17 In certain cases, however, the past is such a barrier
that reverence of the constitution must in itself provide a substitute for reverence of

14
Maistre makes a similar point to Burke: ‘One of the greatest errors of this age is to believe
that the political constitution of nations is the work of man alone and that a constitution
can be made as a watchmaker makes a watch … Men never respect what they have made.’
Joseph de Maistre, ‘Study on Sovereignty’ [1794–5], in The Works of Joseph de Maistre, ed
J. Lively (London: Allen & Unwin, 1965), 93–129, at 102–4.
15
See Rousseau, above n 12, iv., ch 8.
16
R. Smend, Verfassung und Verfassungsrecht (Munich: Duncker & Humblot, 1928), 48;
D. Grimm, ‘Integration by Constitution’ (2005) 3 International Journal of Constitutional Law
193–208.
17
See W. Kymlicka and M. Opalski (eds), Can Liberal Pluralism be Exported? Western Political
Theory and Ethnic Relations in Eastern Europe (Oxford: Oxford University Press, 2002).
 What is Constitutionalisation?  53
a political way of being of a people. And in this situation, as is illustrated by the case
of the post-war Federal Republic of Germany,18 it leads to the claim—exemplified
by Habermas—that we are now living in a post-metaphysical age orientated to the
future, where the only justifiable source of allegiance is to the set of principles of
liberty and equality that the constitution declares.19

Civil society and government

The role of modern constitutions in bolstering contemporary political identity
brings us to the third issue to consider in relation to modern constitutions: the way
in which modern constitutional relationships reflect more basic changes in modern
social life. The essential question is highlighted by asking: how in modernity is the
public sphere to be characterised?
Although social contract theories continued to use the language of sovereignty,
it seems clear that Paine was seeking to move beyond that conceptual scheme. When
arguing in defence of French revolutionary principles, he occasionally referred to
sovereignty as appertaining to the entire nation.20 But he believed that the envis-
aged ‘universal reformation’ would result in a radical shift in the nature of modern
political discourse, in which the concept of sovereignty could no longer stand as an
adequate representation of the public sphere.
Paine argued that this reformation was being driven by natural laws of social develop-
ment. These natural laws were operating to reorder governmental regimes not because
of the action of some revolutionary vanguard but as expressions of fundamental laws of
social development. This natural law ‘does not gain its validation subjectively through
the consciousness of politically active citizens’; it achieves this objectively ‘through the
effect of the uninhibited workings of society’s immanent natural laws’.21 Building on
the natural jurisprudence of Adam Smith, Paine argued that the workings of ‘society’s
immanent natural laws’ was leading to the opening up of trade and commerce and, in
its train, the formation of what might be called ‘civil society’.22

18
See, eg J. Habermas, ‘A Kind of Settlement of Damages: The Apologetic Tendencies in
German History Writing’ in Forever in the Shadow of Hitler?, trans J. Knowlton and T. Cates
(Atlantic Highlands, NJ: Humanities Press, 1993), 30–43, at 43: ‘The unconditional opening
of the Federal republic to the political culture of the West is the greatest achievement of the
postwar period.’
19
J. Habermas, ‘On the Relation between the Nation, the Rule of Law and Democracy’, in
his The Inclusion of the Other (Cambridge: Polity Press, 2002), 129–54.
20
See, eg Paine, above n 5, 140, 193. Art III of the French Declaration of the Rights of Man
and Citizen, 1789, stated: ‘The Nation is essentially the source of all Sovereignty.’
21
J. Habermas, ‘Natural Law and Revolution’, in his Theory and Practice, trans J. Viertel
(Boston, Mass.: Beacon Press, 1973), 82–120, at 94.
22
Adam Smith, The Theory of Moral Sentiments [1759], ed K. Haakonssen (Cambridge:
Cambridge University Press, 2002); id, An Inquiry into the Nature and Causes of the Wealth of
Nations [1776]; K. Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish
Enlightenment (Cambridge: Cambridge University Press, 1996).
54  Martin Loughlin
In Rights of Man, Paine remarks that the ‘great part of that order which reigns
among mankind is not the effect of government’ but has its origins in ‘the prin-
ciples and natural constitution of man’. This order pre-dates government and would
continue to exist even ‘if the formality of government was abolished’, because
human interdependence and reciprocal interest form a ‘chain of connection’ which
holds together all the parts of civilised community. And it is through the workings of
these natural laws, rather than any social contract, that humans were led into society.
Substituting the distinction made in social contract theory between the state
of nature and the civil state with that between society and government, Paine
argues that mankind is elevated by society rather than government. Government
‘makes but a small part of civilized life’, and it is ‘to the great and fundamental
principles of society and civilization … infinitely more than to any thing which even
the best instituted government can perform, that the safety and prosperity of the
individual and of the whole depends’. As civilisation evolves, Paine argues, govern-
ment dissipates, since civil society becomes more able to regulate its own affairs and
to govern itself.23 Building on the work of Locke and Smith, Paine brings natural
law into alignment with the laws of trade and commodity exchange. ‘All the great
laws of society’, Paine proclaims, ‘are laws of nature.’ But these are laws of a differ-
ent order; they are obeyed not because they are commands backed by sanctions,
but because it is in the individual’s interest to follow them. The laws of trade and
commerce ‘are laws of mutual and reciprocal interest’.24
In this world-view, society, not government, represents the public interest, and
government acts legitimately only when promoting society’s interests. The newly
emerging regime of government—that of which the American republic provides
the model—‘promotes universal society, as the means of universal commerce’.25
Paine here seeks to move beyond sovereignty as a representation of the autonomy
of the public sphere and to replace it with the separate spheres of society and
government. His argument marks the emergence of civil society as the paramount
force in the public sphere. The universal reformation he envisages goes hand in
hand with a limited role for government, and this limited role is to be defined in
its constitution. One vital function of the constitution, Paine argues, is to protect
certain rights enumerated in written constitutions—especially the rights of life,
liberty, and property—which exist to protect the operation of the natural laws of the
commercial republic from undue political interference by government.
From the perspective of public law, the critical issue is not the division of the public
sphere into civil society and government since these are not separate entities but
only distinctions in thought; the critical issue is whether or not civil society is able to
offer an adequate expression of public reason. To this question, Hegel gave a robust
answer. While acknowledging the emergence of civil society and the power of its
laws—the laws of political economy—to meet particular social needs, Hegel also

23
Paine, Rights of Man, above n 5, 216.
24
Ibid.
25
Ibid 223.
 What is Constitutionalisation?  55
recognised that, far from addressing the natural inequality of man, these laws had
the effect of reinforcing them.26 Forming a sphere of competition and antagonism,
civil society can express only particularistic interests. Contrary to Paine’s claim that
the rise of civil society will lead to a diminution in the power of government, Hegel
demonstrated that this reformation would result in governments assuming a much
greater role in the regulation of social life. Since the operation of the natural laws
of civil society lead to disequilibrium and disorganisation, Hegel suggested that civil
society stands in particular need of regulation by government.27 Hegel’s analysis gives
a different twist to Paine’s argument about the function of modern constitutions. If
the modern constitution exists mainly to protect subjective rights exercised in civil
society, then they are likely to act as barriers to the realisation of objective freedom.

iii. constitutionalism
At its core, the modern concept of the constitution requires only the adoption of
a formal document establishing a set of governmental institutions; constitutional-
ism is the political theory that generally accompanies the technique. Constitution-
alism is a theory of limited government and is concerned mainly with the norms
which modern constitutions should contain. These norms not only impose limits on
the exercise of public power but also on the procedures through which such power
should be exercised. Its key principles are independence of the judiciary, separation
of governmental powers, respect for individual rights, and the promotion of the
judiciary’s role as guardians of constitutional norms.
The theory of constitutionalism has exerted such an impact on the drafting
of constitutional documents that it is often assumed to be synonymous with
the modern concept of the constitution itself. Although modern constitutions
exhibit significant variation as to the particular form of their governing institu-
tions, they increasingly seem to acquire legitimacy only to the extent that they
measure up to the norms of constitutionalism. In this sense, the contemporary
era would appear to be one marked by the triumph of constitutionalism. This,
however, remains an ambiguous achievement. In part, this is because constitu-
tionalism has, with justification, been called ‘one of those concepts, evocative and
persuasive in its connotations yet cloudy in its analytic and descriptive content,
which at once enrich and confuse political discourse’.28 But it may also be the
case that its symbolic aspect has been enhanced as its instrumental aspect has
declined. I will return to this point later. First, we should try more precisely to
determine the content of these norms.

26
G. W. F. Hegel, Philosophy of Right [1821], trans T. M. Knox (Oxford: Oxford University
Press, 1952), § 200.
27
Ibid § 236.
28
T. C. Grey, ‘Constitutionalism: An Analytical Framework’, in J. R. Pennock
and J. W. Chapman (eds), Constitutionalism: Nomos XX (New York: New York University
Press, 1979), 189–208, at 189.
56  Martin Loughlin
This issue can most concisely be addressed by highlighting two contrasting
articulations of constitutionalism. Having informed deliberations over the US
Constitution, these rival positions have been expressed from the originating
moments of birth of modern constitutions. These positions are, in that context,
exemplified in the writing of two Federalist colleagues, James Madison and
Alexander Hamilton. For ease of exposition, I refer to these positions as republican
and liberal variations.
Madison and Hamilton agreed that, once adopted, the Constitution must be
protected from the people: modern republican government must be government
of the people and for the people, but demonstrably not government by the people.
Notwithstanding the rhetorical claim that government receives its authority from
the people, the government must possess the capacity to control and manage the
people. In framing a government, argued Madison, ‘you must first enable the govern-
ment to control the governed; and in the next place oblige it to control itself ’.29
Constitutionalism bases itself first on the necessity of accepting the authority of
the Constitution and then on the necessity of creating institutional arrangements to
ensure that the established government is able to control itself.

Republican constitutionalism
Madison and Hamilton both accepted the need for such ‘auxiliary precautions’, and
both accepted that the constitutionalist objective was to establish an institutional
configuration that would, through the reason of its principles, generate the allegiance
of the nation. Their differences flow mainly from the type of safeguards each believed
to be conducive to the realisation of that objective. Madison takes the institutional
framework created by the Constitution—the establishment of checks and balances—
as the primary mechanism of control, whereas Hamilton relies on a more centralist
and rationalist solution which places greater faith in the special role of judicial review.30
Madison’s position placed great importance on the necessity of ‘so contriving the
interior structure of the government as that its several constituent parts may, by
their mutual relations, be the means of keeping each other in their proper places’.31
And since the several departments of state are ‘perfectly co-ordinate by the terms of
their common commission, neither of them, it is evident, can pretend to an exclusive
or superior right of settling the boundaries between their respective powers’.32 The
Constitution is thus conceived as establishing an elaborate institutional configuration
through which all political action is channelled, but is held in tension—in a state

29
The Federalist, above n 1, No 51 (Madison), at 320.
30
Controversy continues over the extent to which the authors of the Federalist papers
conceived their writings as a coherent whole: see D. F. Epstein, The Political Theory of The
Federalist (Chicago, Ill.: University of Chicago Press, 1984), 2. Here, I use Madison and
Hamilton’s arguments in a stylised manner for the purpose of exposing two different strands
of constitutionalist argument.
31
Ibid at 320, 318–19.
32
Ibid No 49 (Madison), at 313.
 What is Constitutionalisation?  57
of irresolution. In the words of John Adams: ‘Power must be opposed to power,
force to force, strength to strength, interest to interest, as well as reason to reason,
eloquence to eloquence, and passion to passion.’33 By dividing, channelling, and
opposing political power in this manner, constitutional meaning—the proper order-
ing of constitutional values—remains the subject of continuing structured political
contestation. Constitutional maintenance is a political task.
Within this institutional arrangement, Madison accorded no special place to the
judiciary. Believing that these checks should remain plural, this was not an oversight.
Madison was sceptical about the desirability of vesting an appointed cadre of judges
with the powers to fix constitutional meaning and enforce the Constitution as funda-
mental law. For similar reasons, he had initially been opposed to the inclusion of a bill
of rights in the US Constitution: such rights are better protected, he maintained, by the
structure of the federal system and also ‘because experience proves the inefficacy of a
bill of rights on those occasions when its controul is most needed’.34 Madison presents
us with an account of what may be called republican (or political) constitutionalism.35

Liberal constitutionalism
Madison’s account of the nature of constitutionalism can be contrasted with
that of Hamilton, who placed greater importance on the role of a small elite in
maintaining political power and constitutional stability. For Hamilton, a strong,
independent central government was essential, a position that led, for example,
to a specific policy opposition between Hamilton and Madison over the necessity
of establishing a national bank.36 Within the structure of Hamilton’s centralising
philosophy, the judiciary was expected to perform a special role. This is most clearly
expressed in Hamilton’s analysis in The Federalist No 78, in which he argued that
because the judiciary ‘will always be the least dangerous to the political rights of the
Constitution’ they should be entrusted with the duty ‘to declare all acts contrary
to the manifest tenor of the Constitution void’.37 Although constitutional judicial
review is not explicitly provided for in the US Constitution, it is later claimed by the
judiciary in Marbury v Madison (1803), in a judgment in which Chief Justice Marshall
drew heavily on Hamilton’s analysis.38

33
Z. Haraszti, John Adams and the Prophets of Progress (Cambridge, Mass.: Harvard University
Press, 1952), 219: cited in H. Arendt, On Revolution (Harmondsworth: Penguin, 1973), 152.
34
Madison to Jefferson, 17 October 1788: cited in S. Snowiss, Judicial Review and the Law of
the Constitution (New Haven, Conn.: Yale University Press, 1990), 91.
35
See G. Thomas, ‘Recovering the Political Constitution: The Madisonian Vision’ (2004) 66
Review of Politics 233–56.
36
McCulloch v Maryland 17 US (4 Wheat.) 316 (1819). See C. A. Sheehan, ‘Madison v.
Hamilton: The Battle over Republicanism and the Role of Public Opinion’ (2004) 98
American Political Science Review 405–24.
37
See especially The Federalist, above n 1, No 78 (Hamilton), at 438–9.
38
Marbury v Madison 5 US (1 Cr) 137 (1803).
58  Martin Loughlin
In Hamilton’s constitutional philosophy, the Constitution is a type of positive law
and the judiciary, as the institution charged with the responsibility of interpreting
and enforcing the law, have the ultimate authority to determine the meaning of the
Constitution. There was nothing inevitable about this development.39 It had initially
been recognised only that the judiciary had some role to play in the determination
of unconstitutionality. Such unconstitutionality, however, was felt ‘not to be deter-
mined by judicial exposition of written supreme law but to consist of violation of
long-standing and publicly acknowledged first principles of fundamental law, written
or unwritten’.40 And there was no expectation that the judiciary would have a role in
determining confl icting interpretations of general constitutional provisions.
Only during the nineteenth century did perceptions change. Much of this is attrib-
utable to Chief Justice Marshall’s statecraft.41 In the process, the US Constitution
was transformed into a species of positive law, and the judiciary became impressed
with the duty, through the forensic processes of judicial review, of determining its
meaning and enforcing its provisions. But behind Marshall’s statecraft lay Hamilton’s
analysis. In The Federalist, he had argued that, holding neither the power of the sword
nor the purse, the judiciary possesses neither force nor will, but only judgment.42 The
authority of the judiciary thus rests on its relative weakness, and is sustained only
by its independence and the integrity of its own judgment, that is, by adherence to
‘strict rules and precedent’. Hamilton’s argument reinforces the conviction amongst
both the judiciary and the public that, in the exercise of constitutional review by the
courts, a strict analytic logic must be seen to operate in preference to a demonstrable
exercise in political prudence. Hamilton presents us with an account of what may be
called liberal (or legal) constitutionalism.

Constitutional development
These accounts are presented as two stylised interpretations for the purpose of
making a general claim. Although Hamilton and Madison’s ideas draw from a
common source, and although the detailed history reveals a considerable inter-
twining of their ideas, the general trajectory is fairly clear. Crudely expressed, the
history of the development of the US Constitution is the history of the triumph
of liberal-legal over republican-political constitutionalism. In the course of consti-
tutional development, the US Constitution has become positivised, individualised,

39
See G. S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, NC:
University of North Carolina Press, rev edn, 1998), 292: ‘There was … no logical or neces-
sary reason why the notion of fundamental law, so common to Englishmen for over a
century, should lead to the American invocation of it in the ordinary courts of law. Indeed
in an important sense the idea of fundamental law actually worked to prohibit any such
development, for it was dependent on such a distinct conception of public law in contrast to
private law as be hardly enforceable in the regular court system.’
40
Snowiss, above n 34, 37.
41
See ibid ch 5.
42
The Federalist, above n 1, No 78 (Hamilton), especially at 437.
 What is Constitutionalisation?  59
and legalised. The critical technique in this evolution has been judicial review. ‘What
in the final analysis gave meaning to the Americans’ conception of a constitution’,
comments Wood, ‘was not its fundamentality or its creation by the people, but
rather its implementation in the ordinary courts of law.’43
In this sense, the history of American constitutionalism is that of the diminu-
tion in authority of Madison’s account and the augmentation of Hamilton’s. This
involves the replacement of a relational logic, in which the interpretations and
claims of different institutions pull in different directions and it is the tautness of
that arrangement that contains the essence of constitutionalism, with an analytical
logic, in which the judiciary, through a forensic technique of textual interpretation,
assert final and exclusive authority to resolve the Constitution’s meaning. In contrast
to the idea of constitutionalism as an evolving arrangement of institutional forms,
this conception promotes the authority of an independent group to interpret and
enforce the terms of the text of the constitutional document. The Hamiltonian
position leads to a position in which the Constitution is what the judges say it is;
the history of the Constitution is reduced to the history of the work of its Supreme
Court.44
The question remains: to what extent does the development of Western consti-
tutionalism follow a similar pattern to that of the American experience? To what
extent is the history of Western constitutionalism a story about the ascendancy of
liberal-legal constitutionalism over its rival form? These questions are best addressed
with reference to the emergence of ‘constitutionalisation’.

iv. constitutionalisation
Constitutionalism is a political theory that was developed as part of a liberal
philosophy to guide the formation of modern constitutions. Predicating an arrange-
ment of limited government constructed by free, equal, rights-bearing individuals,
constitutionalism reflects the concerns of a particular time, place, and social situation.
With the emergence of welfare-regulatory states during the twentieth century, it was
often claimed that constitutionalism no longer carried much purchase. ‘Many of the
urgent problems of modern society have arisen after the heyday of constitutionalism’,
wrote Schochet in 1979, and these problems—economic inequalities, regulation of
technologies, resource conservation, and so on—‘require more decisive and resolute

43
Wood, above n 39, 291.
44
P. Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University
Press, 1982), 3: ‘The central issue in the constitutional debate of the past twenty-five years
has been the legitimacy of judicial review of constitutional questions by the United States
Supreme Court.’ See also M. Kammen, A Machine that Would Go of Itself: The Constitution in
American Culture (New York: Knopf, 1987), 9: ‘This propensity to conflate the Court and the
Constitution is hardly limited to grass roots America. It seems to have been shared by a great
many scholars because the constitutional history of the United States has been primarily
written as the history of Supreme Court decisions, doctrines, procedures and personalities.’
60  Martin Loughlin
action than limited constitutional government can provide’.45 Whatever the symbolic
function being performed by constitutionalism, from an instrumental perspective,
the mid-twentieth century marked its twilight period.46
During the last twenty or so years, however, interest in the theory of constitutionalism
has been rekindled. Some of this is attributable to the transitions made by post-fascist
(Spain, Portugal), post-communist (central and eastern Europe) and post-Apartheid
(South Africa) regimes towards the formation of market-based economies and liberal
democratic constitutional regimes. At the same time, many constitutional democra-
cies—new and old—have been reconfiguring their governmental arrangements in
response to domestic and international changes. Domestically, many regimes have
scaled back the public sector through privatisation of public service provision, and
reordered governing arrangements through the formation of public–private partner-
ship schemes, and the subjection of public processes to a range of market disciplines.47
Internationally, governments are increasingly obliged to participate in a variety of
transnational arrangements for the purpose of enhancing their ability to deliver their
economic, social, and environmental objectives.48
These various developments have led to a complicated situation, with some trends
strengthening constitutionalist values and others weakening them. Some domestic
changes, for example, have strengthened modes of review and accountability of
governmental action, while others, by blurring the public–private distinction, have
done otherwise. International developments have also resulted in governmental
action being undertaken through arrangements that are not easily susceptible to
review and control through the procedures and standards of the national constitu-
tion. For many regimes, these changes appear to erode the constitution’s status as the
authoritative and comprehensive framework for guiding and regulating the exercise
of public power.49 One type of response has been to strengthen the processes by
which governmental action can be subjected to the discipline of a constitution. This
movement has led, in turn, to a rekindling of interest in the theory of constitutional-
ism, leading to the emergence of interest in the processes of constitutionalisation.

45
G. J. Schochet, ‘Introduction: Constitutionalism, Liberalism, and the Study of Politics’, in
Pennock and Chapman (eds), above n 28, 1–15, at 6.
46
See, eg G. Teubner (ed), Dilemmas of Law in the Welfare State (Berlin: de Gruyter, 1986). In
this extensive analysis of this problem by European and American scholars, constitutional
issues are only briefly discussed (Preuss, 154; Habermas, 219; Wiethölter, 242). Teubner here
introduces the idea of ‘legal control of social self-regulation’ (308), which later becomes the
basis of his rather different concept of constitution: see Teubner in this volume.
47
See, eg E. Suleiman, Dismantling Democratic States (Princeton, NJ: Princeton University
Press, 2003).
48
See D. Held and A. McGrew, Governing Globalization: Power, Authority and Global Governance
(Cambridge: Polity Press, 2002).
49
D. Grimm, ‘The Constitution in the Process of Denationalization’ (2005) 12 Constellations
447–65.
 What is Constitutionalisation?  61
Constitutionalism reconfigured
Constitutionalisation, it is suggested, is a process born of a reconfiguration
of the political theory of constitutionalism. Traditionally conceived as a loose
template against which the framework of government of the modern state might
be drafted, constitutionalism is now being repackaged purely as an expression of
liberal-legal constitutionalism and it is presented as a more or less free-standing
set of norms. Constitutionalism is no longer treated as some evocative but
vague theory which expresses a belief in the importance of limited, accountable
government, to be applied flexibly to the peculiar circumstances of particular
regimes. It now is being presented as a meta-theory which establishes the
authoritative standards of legitimacy for the exercise of public power wherever
it is located. Once repackaged in this manner, and especially when harnessed to
the socio-economic forces that have been driving recent governmental changes
(ie liberalisation, marketisation, globalisation), it emerges as the phenomenon of
constitutionalisation. Constitutionalisation refers to the processes by which an
increasing range of public life is being subjected to the discipline of the norms of
liberal-legal constitutionalism.
The contentious character of constitutionalisation can best be explained by
bringing this process into alignment with the account of constitutions and constitu-
tionalism. The concept of constitution here being invoked is much closer to that of
the constitutional text rather than the way of being of a people. But the concept of
constitution in this new account refers not so much to the text itself but rather the
set of norms that are assumed to underpin it: it asserts a concept of constitution as a
set of rational principles. Questions about the source of authority of these principles
tend to be avoided; the norms of right conduct prescribed in these texts acquire
their authority from precepts of reason rather than approval of ‘the people’. It is the
authority of these norms that is being asserted and these norms acquire the status
of fundamental law not because they have been authorised by a people but because
of the self-evident rationality of their claims.
The process of constitutionalisation tends not to endorse decentralisation,
diversity, and the idea of constitutional meaning being derived from the competing
political values being held in tension through a taut institutional configuration.
Constitutionalisation expresses a centralising philosophy: it both proclaims basic
rights as trump cards in the political game and maintains that the nature, scope,
and status of these rights must be determined by a small cadre of judges, either in
the rarefied atmosphere of supreme courts or, in the international arena, through
a variety of tribunals of uncertain status. At its core, constitutionalisation presup-
poses legalisation; as greater swathes of public life are brought within the ambit
of constitutional norms, so too are they disciplined by formal legal procedures.
Constitutionalisation is the process of extending the main tenets of liberal-legal
constitutionalism to all forms of governmental action.
There is one final, particularly contentious, aspect of constitutionalisation to be
brought into the frame. In the form promoted today, constitutionalisation absorbs
much of Paine’s assumptions about the relationship between society and govern-
ment. Hegel was right in his observation that the emergence of civil society would
62  Martin Loughlin
lead to a growth, not a diminution, in government; extensive governmental action
has been required in the modern era, not least for the purpose of controlling and
regulating the operation of market freedoms. Constitutionalism may have lived
on as symbol but it ceased to be an effective instrument. Constitutionalisation as
it is now emerging is part of a more basic set of changes driving governmental
reform—those of privatisation, marketisation, and contractualisation—and which
are designed to make government more limited in its reach, more focused in its
goals, more responsive to its stakeholders, and more accountable to its citizens.50
Constitutionalisation is required to ensure that public power, in whatever manifes-
tation, is exercised in accordance with the canons of rationality, proportionality, and
by means that involve the least restrictive interference with the enjoyment of the
individual’s basic rights.

Domestic constitutionalisation
Although the impact of constitutionalisation has most often been discussed with
respect to international arrangements, its effect on national arrangements should
not be overlooked. In many regimes, the written constitution has occupied an
ambivalent status in national life, often owing to the existence of a significant
gap between constitutional norms and the ways in which governmental decision
making actually occurs. In this situation, the constitution may have performed
a symbolic role in presenting the public face of the regime to the world, but it
was not fulfilling its instrumental role of regulating government decision making.
Here, the enactment of a written constitution formed only an initial stage in a
more general process of making a reality of the constitution’s claims to be higher-
order law. This is what constitutionalisation has meant at the domestic level, and
it is realised through political and cultural changes that have been spearheaded by
an activist judiciary assuming the responsibility to enforce the provisions of the
constitutional text.
At the domestic level, constitutionalisation has reached a mature stage only in
recent years. This has been achieved primarily through the instigation of a ‘rights
revolution’,51 a movement that even in the United States—where the Constitution
rapidly acquired a sacred character—has been essentially a post-war phenomenon.52
Elsewhere, it has been a much more recent development,53 though one which is

50
See, eg D. Osborne and T. Gaebler, Reinventing Government: How the Entrepreneurial Spirit
is Transforming the Public Sector (Harmondsworth: Penguin, 1993) and the plethora of studies
falling under the umbrella of ‘new public management’ or ‘new governance’.
51
N. Bobbio, The Age of Rights, trans A. Cameron (Cambridge: Polity Press, 1996); C. R. Epp,
The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago,
Ill.: University of Chicago Press, 1998); M. Ignatieff, The Rights Revolution (Toronto: Anasi
Press, 2000).
52
See R. A. Primus, The American Language of Rights (Cambridge: Cambridge University
Press, 1999).
53
Epp, above n 51, chs 5–10.
 What is Constitutionalisation?  63
rapidly gathering pace.54 It is extending its reach both territorially and with respect
to scope, that is, not only across the world but also beyond the sphere of individual
rights to embrace judicial scrutiny of electoral processes, review of government
policy making in such matters of high policy as national security and macroeco-
nomic planning, and even judicial determination of major issues of nation building.55
The movement entails the absorption of broader elements of the ancient idea of
the constitution into the frame of the modern constitution, the conversion of the
Constitution into a species of ordinary law (albeit with ‘higher’ status), and the
consequent establishment of the judiciary as the authoritative determinants of its
meaning. General aspirations in the Constitution are thus rendered justiciable, and
the implicit values on which the Constitution rests are explicated as fundamental
legal norms that govern all aspects of public decision making.56
The rapid advance of the process of constitutionalisation at the national level coin-
cides with a growing recognition that, to an increasing extent, governmental decision
making is occurring beyond the structures of the nation state. Public power is now
being exercised by supranational bodies of regional or global reach. In fields such
as financial regulation, competition policy, energy and trade policy, environmental
protection, crime and security, and such like, governmental policy making is regularly
formulated through transnational arrangements. These developments undermine the
claims of modern constitutions to be comprehensive in their reach, not least because
governmental decisions in these fields appear to be made through networks that are
unknown to national constitutions and with respect to which existing accountability
mechanisms seem ill-suited. One response to this situation has been to loosen the
anchorage of these constitutional norms for the purpose of extending their reach.

Supranational constitutionalisation
The supranational aspect of constitutionalisation takes two main forms. One is to
reform the basis on which various supra or transnational bodies currently operate:
these bodies, it is suggested, should themselves become constitutionalised. A second

54
R. Hirschl, ‘The New Constitutionalism and the Judicialization of Pure Politics
Worldwide’ (2006) 75 Fordham Law Review 721–53. The British case provides an unusual but
illustrative example: lacking a modern written constitution, it has operated as the epitome
of political constitutionalism with constitutional values protected through a series of
tensions in institutional arrangements that are not expressed in the law of the constitution.
Since 1997, however, the Labour government has instituted a programme of modernisa-
tion, which incorporates devolution of governmental power, reform of the second chamber,
enhanced human rights protection, and in which a central theme has been the formalisation
of constitutional and governmental arrangements (which, of course, is the first step to their
legalisation).
55
Ibid at 729–43. See further Hirschl, Towards Juristocracy: The Origins and Consequences of the
New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004).
56
One manifestation of this movement has been the debates within various jurisdictions
over what is generally called the horizontal effects of charters of rights, that is, the degree to
which these charters may be used to regulate conduct between private actors.
64  Martin Loughlin
type of response has been to argue that the emergence of networks of transnational
governance has eroded the foundational elements of modern constitutions, thereby
undermining their authority. The proposed solution involves a reconfiguration
of the basis of constitutionalism in the light of late modern conditions. This type
of reconfiguration is promoted under the label of ‘multi-level constitutionalism’.
Although these two aspects of supranational constitutionalisation are related, they
need to be kept distinct.
Constitutionalisation of international, treaty-based bodies is a major topic in
its own right. A great deal of scholarly attention has recently been devoted to
the issue of the ‘constitutionalisation’ of such bodies as the World Trade Organi-
zation (WTO).57 What this development is intended to signify, however, remains
unclear. Having developed a set of binding rules enforced by an adjudicative body,
the WTO has certainly become more legalised.58 But the rights that the WTO
promotes are essentially market freedoms and, while there have been claims
that it promotes broader (liberal) constitutional functions,59 such claims remain
contentious.60 While the WTO continues to conceive itself as developing a lex
specialis, any constitutional claims for its status must remain highly speculative; in
this sphere, the way in which the growth of constitutional rhetoric is altering the
perception of the nature of the organisation’s task is as important as the institu-
tional changes that are occurring.
Such claims are not restricted to sectoral bodies like the WTO. A debate has also
recently evolved over the question of whether the United Nations Charter should
now be treated as the ‘constitution’ of the ‘international community’.61 This type of

57
See, eg R. Howse and K. Nicolaidis, ‘Enhancing WTO Legitimacy: Constitutionalization
or Global Subsidiarity’ (2003) 16 Governance 73–94; D. Z. Cass, The Constitutionalization
of the World Trade Organization (Oxford: Oxford University Press, 2005); J. L. Dunoff,
‘Constitutional Conceits: The WTO’s “Constitution” and the Discipline of International
Law’ (2006) 17 European Journal of International Law 647–75.
58
S. Picciotto, ‘The WTO’s Appellate Body: Legal Formalism as a Legitimation of Global
Governance’ (2005) 18 Governance 477–503; C. Carmody, ‘A Theory of WTO Law’ (2008) 11
Journal of International Economic Law 527–57.
59
See, eg E.-U. Petersman, ‘The WTO Constitution and Human Rights’ (2000) 3 Journal of
International Economic Law 19–25; Petersman, ‘Human Rights, Constitutionalism and the
World Trade Organization: Challenges for World Trade Organization Jurisprudence and
Civil Society’ (2006) 19 Leiden Journal of International Law 633–67.
60
See, eg S. Picciotto, ‘Constitutionalizing Multilevel Governance?’ (2008) 6 International
Journal of Constitutional Law 457–79, at 477–8: ‘The strong vision of the constitutionalization
of the WTO, as put forward especially by Petersman, … seems to consider all politics—
including the WTO’s rules and procedures and its deliberative democratic discourse—as
favouring a producer-biased mercantilism. … However, giving individuals, including
investors and corporations, rights they could enforce directly … could work to exacerbate
economic inequalities by handing a powerful weapon to those whose considerable economic
power could be defended in terms of morally underpinned economic rights.’
61
See B. Fassbender, ‘The United Nations Charter as Constitution of the International
Community’ (1998) 36 Columbia Journal of Transnational Law 529–619; Fassbender, ‘“We
the Peoples of the United Nations”: Constituent Power and Constitutional Form in
 What is Constitutionalisation?  65
analysis postulates the existence of an ‘international community’ as a surrogate for
‘the people’ and treats the legal framework through which this community acts as its
constitution.62 In this debate, the ‘world constitution’ is conceived as a set of norms
which not only binds all states, but which also guarantee their claims to autonomy
by protecting them from unauthorised invasions of their ‘rights’ by others. This,
then, presents itself as a purely normativist claim, an assertion of the normative
authority of general rules of international law. Without a ‘world state’, without some
agency that guarantees enforcement, the power that underpins these norms remains
ambiguous: constitutionalisation here presents itself as a free-standing process.
The most intense level of discussion on the subject of supranational
constitutionalisation concerns the question of the constitution of the European
Union (EU). It is impossible here to do justice to this issue. What is clear, never-
theless, is that our investigations should not come to rest on the failed venture of
the EU Constitution, the attempt to agree a formal constitution to mark a process
of evolution of a ‘new legal order’ for the benefit of which member states had
conceded some of their governing rights.63 It might focus instead on the ways in
which the entity has grown incrementally in capacity and competence.64 One
important indicator of constitutionalisation concerns competence, shown by the
way the EU has altered from being an international organisation creating duties
and rights binding on member states to an entity which has established itself as
a vertically integrated legal order that, within its jurisdictional limits, determines
rights and duties that are binding on all legal persons within the EU territory. A
second concerns capacity, by which is meant the way the EU has, through force
of circumstance, acquired a capacity to extend its own remit.65 The limits to
the EU’s competence and capacity are uncertain and contested, and while that is the

International Law’, in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism:

Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007), 269–90.
62
See C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of
a New Century (The Hague: Martinus Nijhoff, 2001), 72–90; J. Habermas, ‘Does the
Constitutionalization of International Law Still Have a Chance?’, in his The Divided West,
trans C. Cronin (Cambridge: Polity, 2006), 115–93.
63
The draft European Constitution was signed in October 2004 but rejected by referendums
in France and the Netherlands in 2005; for developments, see <http://europa.eu/
institutional_reform/index_en.htm>.
64
See especially 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); J. H. H. Weiler and M. Wind (eds), European Constitutionalism beyond the State
(Cambridge: Cambridge University Press, 2002); E. Stein, ‘Lawyers, Judges and the Making
of a Transnational Constitution’ (1981) 75 American Journal of International Law 1–27.
65
One illustration is the way in which respect for fundamental rights came to form part
of the general principles of law protected by the European Court of Justice. See A. Stone
Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press,
2000), 172: ‘Without supremacy, the ECJ had decided, the common market was doomed.
And without a judicially enforceable charter of rights, national courts had decided, the
supremacy doctrine was doomed.’
66  Martin Loughlin
case constitutionalisation of the entity remains partial and similarly contested. But
it is on the claim that the EU possesses its own autonomous power of innovation—
the power unilaterally to extend its own competence and capacity—that the critical
question of constitutionalisation revolves.
The crucial point to be made about constitutionalisation of the EU is that, to
the extent it has been achieved, it is the epitome of liberal-legal constitutionalism.66
The EU constitutionalisation project has been centrally devised, with the Court and
Commission setting the pace. This process of what might be termed ‘constitution-
alisation through integration’ is most evident in the work of the Court. Extending
the scope of the ‘new legal order’ to claim that the founding treaties have become
the Community’s ‘basic constitutional charter’,67 the Court has, through creative
interpretation, created a hierarchy of ‘constitutional’ norms. But although a textual
constitutional arrangement is being set in place, the question of political unity—
which ultimately is the source of power of the entity—continues to confound.68 As
promoted by Commission and Court, constitutionalisation through integration has
been a form of liberal-legal constitutionalism allied primarily to market freedoms.
A critical constitutional tension point—one that expresses the underlying ideology of
the constitutionalisation process—manifests itself whenever this normative authority
is exercised in ways that undermine the social rights established in member states.69
Tensions between national and European authorities bring us to the second,
more general, aspect of supranational constitutionalisation: the claim made by
certain jurists that these internationally driven changes are on the brink of effecting
a ‘paradigm shift’, in which the modern era of nation-state constitutionalism will
be superseded by ‘twenty-first century constitutionalism’. This movement presents
itself under the banner of ‘multi-level constitutionalism’.
Multi-level constitutionalism is founded on the notion that ‘in the era of
globalization a constitutionalist reconstruction [at the global level] is a desirable

66
See Weiler, above n 64, 221: ‘Constitutionalism is the DOS or Windows of the European
Community’. When Weiler states this, it is legal constitutionalism he has in mind. He
continues (ibid): ‘The constitutionalism thesis claims that in critical aspects the Community
has evolved and behaves as if its founding instrument were not a treaty governed by interna-
tional law but, to use the language of the European Court, a constitutional charter governed
by a form of constitutional law.’ But this, it should be noted, is not Weiler’s position on
European constitutionalisation.
67
Case 26/62 Van Gend en Loos [1963] ECR 1; Case 294/83 Parti Ecologiste, Les Verts v
Parliament [1986] ECR 1339.
68
D. Grimm, ‘Does Europe need a Constitution?’ (1995) 3 European Law Journal 282–302.
Grimm concludes (at 299) that: ‘Since this State would not … have the mediatory structures
from which the democratic process lives, the Community would after its full constitutionali-
zation be a largely self-supporting institution, farther from its base than ever.’ See also Wahl
in this volume (on the constitutional constellation).
69
F. W. Scharpf, Reflections on Multi-level Legitimacy (Cologne: Max Planck Institut für
Gesellschaftsforschung, 2007), Working Paper 07/03, especially 14–15. Scharpf (16) seeks
solutions in the establishment of arrangements drawn from a tradition of republican-politi-
cal constitutionalism. See further, Scharpf in this volume.
 What is Constitutionalisation?  67
reaction to visible de-constitutionalization at the domestic level’.70 It is claimed that
at the domestic level non-governmental actors are now exercising governmental
tasks and ‘this means that state constitutions can no longer regulate the totality of
governance in a comprehensive way and the states constitutions’ original claim to
a complete basic order is thereby defeated’.71 The solution, argues Peters, must be
found in ‘compensatory constitutionalization on the international plane’.72 Building
on the arguments of de Wet and Cottier and Hertig, Peters contributes to an emerg-
ing group of scholars advocating multi-level constitutionalism.
The core thesis of multi-level constitutionalism is that there is ‘an emerging interna-
tional constitutional order consisting of an international community, and international
value system and rudimentary structures for its enforcement’ and this requires the
concept of the constitution to be extended ‘to describe a system in which the different
national, regional and functional (sectoral) constitutional regimes form the building
blocks of the international community’.73 In de Wet’s words, it ‘assumes an increas-
ingly integrated international legal order in which the exercise of control over the
political decision-making process would be possible in a system where national and
postnational (i.e. regional and functional) constitutional orders complemented each
other in what amounts to a Verfassungskonglomerat’.74 State-based constitutionalism,
it is contended (this time in Cottier and Hertig’s words), now needs to ‘give way to
a graduated approach’ which extends ‘to fora and layers of governance other than
nations’ and which treats these ‘layers of governance … as on[e] overall complex’.75
The common feature of multi-level constitutionalism is its pervasive
normativism.76 Legal rules and values are treated as forming a set of rational moral
principles implicitly located within legal constitutionalism, with constitutional
values rooted in the constituent power of the people scarcely being mentioned.77

70
A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental
International Norms and Structures’ (2006) 19 Leiden Journal of International Law 579–610, at 580.
71
Ibid.
72
Ibid.
73
E. de Wet, ‘The International Legal Order’ (2006) 55 International & Comparative Law
Quarterly 51–76, at 51, 53.
74
Ibid 53.
75
T. Cottier and M. Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max
Planck Yearbook of United Nations Law 261–328, at 264.
76
This criticism is addressed in more detail in M. Loughlin, ‘In Defence of Staatslehre’ (2009)
48 Der Staat 1–27, especially at 17–23.
77
Peters, above n 70, at 592, does refer to the need to establish transnational democratic
structures (without details), but this concern does not seem to register on de Wet’s horizon.
Cottier and Hertig do address the point that state constitutionalism is authorised by ‘the
people’ but they claim that this concept, being ethnic or cultural in character, ought simply
to be transcended: ‘This is not a constitutional model upon which the future can build’
(ibid at 287–93). Peters shares such concerns, arguing that the claim that the Constitution
is ‘owned’ by the people suffers ‘from a gender bias and risks overstating the importance of
irrational and mythological foundations of constitutional law’ (ibid 608).
68  Martin Loughlin
Peters offers the most reflective account of the thesis, noting the existence of certain
anti-constitutionalist trends in the international arena and acknowledging that ‘the
constitutionalist reading of current international law is to some extent an academic
artefact’.78 But while accepting that objections to the thesis may come from ‘the legal
soundness of the reconstruction’ and to ‘arguably negative policy effects’, there is
no recognition that the most pressing objections to the project come from the basic
assumptions that underpin the concept of liberal-legal constitutionalism itself.79 The
concept of multi-level constitutionalism being touted is an exemplary illustration of
constitutionalisation: freed from the governing traditions of specific nation states, its
advocates present constitutionalism as an autonomous set of rational legal norms of
universal validity.

v. conclusion
The process of constitutionalisation is born of the reconfiguration of the values of
constitutionalism, an extension of their reach, and a loosening of the connection
between constitutionalism and the nation state. The process draws on some of the
achievements of modern constitutions and constitutionalism in regulating govern-
ment, but it jettisons those aspects of these modern processes which have rested on
the particularities of history and culture. In the frame of constitutionalisation, it is
not the way of being of a people (ie culture) that provides the source of authority of
constitutional norms, but neither is this authority attributable of the enactment of
a constitutional text (ie historical fact). As a social philosophy, constitutionalisation
marks the elevation of certain constitutional norms—those expressing the principles
of liberal-legal constitutionalism—to the status of rational truths. As a social move-
ment, constitutionalisation is allied to the restructuring forces of ‘new governance’
and, as such, forms a movement that extends specific types of discipline across the
range of governmental action.
The effect of this process of constitutionalisation has recently been felt across all
levels of government. It has been spearheaded domestically through a ‘rights revolu-
tion’ that has sought to extend the reach of judicially enforced constitutional rights.
But its work can also be seen, more generally, in the ways that recent government
restructuring—privatisation, reform of the administrative arrangements of the welfare
state, and emergence of the regulatory form of government—has enhanced the
importance of those constitutional norms that promote governmental accountability

78
Ibid 605.
79
Ibid 606. Habermas, who in his advocacy of constitutionalisation of the world society
is acutely conscious of issues of democratic legitimation, does appear to recognise the
tension between the logics of legal and political constitutionalism: J. Habermas, ‘The
Constitutionalization of International Law and the Legitimation Problems of a Constitution
for World Society’ (2008) 15 Constellations 444–55, at 446: ‘Whereas the world organization
would have a hierarchical organization and its members make binding law, interactions at
the transnational level would be heterarchical.’ This is, however, the statement of a problem
without any clear solution.
 What is Constitutionalisation?  69
and responsiveness. The movement has generated most interest, amongst certain
constituencies at least, in the international arena where, ironically, the loss of the
‘comprehensive’ authority of national constitutions becomes the justification for
extending the processes of constitutionalisation to trans and supranational bodies.
The fact is that, in the sense being suggested, national constitutions were never
comprehensive in their reach: modern constitutions provide a general framework for
resolving governmental issues but have been able to do their work mainly through
their gaps and silences and the vagueness of their formulations rather than because
of the precision of their normative commitments. International constitutionalisation
actually follows the same trajectory as the domestic level: it is part of a general restruc-
turing movement, founded on particular conceptions of liberty and equality, and
promoted through a rights and responsiveness agenda.
It might be objected that this argument presents constitutionalisation as some
clearly designed project with universalising objectives and that in reality the nature
of the changes that are taking place in government are more nuanced, complex,
ambiguous, and uncertain. The impact of the processes that have been outlined has
been differentially experienced across various regimes and in this sense, any general
claims made for constitutionalisation must remain qualified. Further, the impact of
transnational developments has generated sophisticated analyses from scholars who,
recognising the difficulties of bringing the assumptions of liberal-legal constitution-
alism directly to bear on these initiatives, are searching for alternative frameworks
of explanation.80 There is a measure of force in such claims. But my objective here
has been to present an account based on two assumptions: that beneath the variety
and particularism of instantiations there is a common trajectory of change, and that
before abandoning modern understandings in favour of a ‘new pluralism’ or some
‘new paradigm’, the extent to which an explanation of these developments within
the terms supplied by modern discourse should first be examined.

80
See, eg N. Walker, ‘Postnational Constitutionalism and the Problem of Translation’, in
Weiler and Wind, above n 64, ch 2; Walker, ‘Post-Constituent Constitionalism? The Case of
the European Union’, in M. Loughlin and N. Walker (eds), above n 61, ch 13; M. Maduro,
‘Contrapunctual Law: European Constitutional Pluralism in Action’, in N. Walker (ed),
Sovereignty in Transition (Oxford: Hart, 2003), 502–37; N. Krisch, ‘The Open Architecture of
European Human Rights Law’ (2008) 71 Modern Law Review 183–216; Kumm in this volume;
Teubner in this volume.
  4 
European Governance
Governing with or without the State?

Tanja A. Börzel*

i. introduction
The European Union (EU) used to be considered a unique system of multi-level
governance that cannot be compared to any other form of political order at the
national or international level.1 There is broad agreement that the EU is and has
always been more than an international organisation of states, but it is not and prob-
ably never will be a state of its own right.2 Political scientists have shown a remarkable
creativity in developing new concepts to capture the allegedly sui generis nature of
the EU, describing it as a ‘new, post-Hobbesian order’,3 ‘a post-modern state’,4 or ‘a
network of pooling and sharing sovereignty’.5 In recent years, students of the EU have
started to adopt a more comparative approach. The governance literature appears to
be particularly attractive for studying the political institutions and policy processes in

*
I wish to thank Fritz Scharpf for his very helpful comments on a previous version of this
chapter.
1
D. J. Puchala, ‘Of Blind Men, Elephants and International Integration’ (1972) 10 Journal of
Common Market Studies 267–84; J. A. Caparaso, ‘The European Union and Forms of State:
Westphalian, Regulatory or Post-modern?’ (1996) 34 Journal of Common Market Studies 29–52.
2
W. Wallace, ‘Less than a Federation, More than a Regime: The Community as a Political
System’, in H. Wallace, W. Wallace, and C. Webb (eds), Policy-Making in the European
Community ( John Wiley: Chichester, 1983), 43–80; see also Puntscher Rieckmann in this
volume.
3
P. C. Schmitter, The European Community as an Emergent and Novel Form of Political
Domination. Working Paper No. 26 (Madrid: Juan March Institute, 1991).
4
J. G. Ruggie, ‘Territoriality and Beyond: Problematizing Modernity in International
Relations’ (1993) 47 International Organization 139–74; J. A. Caporaso, ‘The European Union
and Forms of the State: Westphalia, Regulatory or Post-Modern?’ (1996) 34 Journal of
Common Market Studies 29–52.
5
R. O. Keohane and S. Hoffmann (eds), The New European Community: Decisionmaking and
Institutional Change (Boulder, Col.: Westview Press, 1991).
74  Tanja A. Börzel
the EU by offering concepts that can be equally applied to interstate institutions and
national states. Thus, the EU has been frequently portrayed as a system of ‘network
governance’,6 where the authoritative allocation of values is negotiated between state
and societal actors,7 which have also been invoked in reference to the ‘negotiating
state’8 and international politics as ‘governance without government’.9
This chapter, by contrast, argues that the EU’s ‘nature of the beast’10 is not to be
captured by one particular type of governance. Rather, the EU combines forms of
governance, which involve the member states to different degrees and are best char-
acterised as ‘governance with the state’. First, governance without the state, where
state and non-state actors cooperate on a non-hierarchical basis or non-state actors
coordinate among themselves to make public policies, is hard to find in the EU. EU
policies are largely formulated and implemented by state actors. Secondly, the EU
seems to have the power to govern without the state. Its supranational institutions
allow the adoption and enforcement of legally binding decisions without the consent
of (individual) member states. While this is often overlooked in the literature, the
EU still lacks coercive power—otherwise it would be a state. Being able to adopt
decisions against the will of the member states, the EU still relies on their voluntary
compliance and the willingness of their courts and enforcement authorities to make
EU decisions effective. Thus, the EU is first of all governance with the state rather
than without it. This has serious implications for the constitutional structure of the
EU, both with regard to its effectiveness and its legitimacy.
The chapter starts with conceptualising the relationship between state and
governance. It draws on the distinction between government or governance by the
state and governance without the state. The second part uses this typology to study
European governance. The analysis will show that EU policies are largely formulated
and implemented in multiple overlapping negotiation systems that mostly involve
supranational and state actors and give little room for business and civil society.
While forms of private self-regulation or public–private co-regulation abound in the
member states as well as in global politics, we hardly find such forms of governance
without the state at the EU level. Thus, the EU is best described as governance with
the state, whereby the role of the state varies significantly across policy areas. The

6
B. Kohler-Koch, ‘Catching up with Change: The Transformation of Governance in the
European Union’ (1996) 3 Journal of European Public Policy 359–80.
7
Cf B. Kohler-Koch and R. Eising (eds), The Transformation of Governance in Europe (London:
Routledge, 1999); C. Ansell, ‘The Networked Polity: Regional Development in Western
Europe’ (2000) 13 Governance 303–33; A. Schout and A. Jordan, ‘Coordinated European
Governance: Self-Organizing or Centrally Steered?’ (2005) 83 Public Administration 201–20.
8
F. W. Scharpf, Games Real Actors Play: Actor-Centered Institutionalism in Policy Research
(Boulder, Col.: Westview Press, 1997).
9
J. N. Rosenau and E.-O. Czempiel (eds), Governance without Government: Order and Change in
World Politics (Cambridge: Cambridge University Press, 1992).
10
T. Risse-Kappen, ‘Exploring the Nature of the Beast: International Relations Theory and
Comparative Policy Analysis Meet the European Union’ (1996) 34 Journal of Common Market
Studies 53–80.
 European Governance  75
chapter concludes by discussing some implications of this governance constellation
for the European constitutional structure. Since questions of legitimacy are covered
by the contributions of Scharpf and Puntscher Rieckmann, the focus will be placed
on the ‘problem-solving gap’ caused by the lack of governance by the state and the
challenges it poses for the constitutional design of the EU.

ii. governance and the state

The governance concept has made quite a career in European Studies. It would go
beyond the scope of this chapter to provide an overview of the European gover-
nance literature.11 This section builds on existing concepts and develops a gover-
nance typology which allows for a classification of European governance and its
systematic comparison with state and interstate systems.
Following the work of Renate Mayntz and Fritz W. Scharpf, this chapter under-
stands governance as institutionalised modes of coordination through which
collectively binding decisions are adopted and implemented.12 Governance consists
of both structure and process.13 In terms of structure, governance relates to insti-
tutions and actor constellations. Here, the literature usually distinguishes between
hierarchy, market (competition systems),14 and networks (negotiation systems).15
These are ideal types, which differ with regard to the type of actors involved and
the degree of coupling between them. Governance as process, in turn, points to the

11
Cf I. Bache and M. Flinders (eds), Multi-level Governance (Oxford: Oxford University Press,
2004); B. Kohler-Koch and B. Rittberger, ‘The “Governance Turn” in EU Studies’ (2006) 44
Journal of Common Market Studies 27–49; L. Hooghe and G. Marks, Multi-Level Governance and
European Integration (Lanham: Rowman & Littlefield, 2001).
12
R. Mayntz and F. W. Scharpf, ‘Steuerung und Selbstorganisation in staatsnahen Sektoren’,
in R. Mayntz and F. W. Scharpf (eds), Gesellschaftliche Selbstregulierung und politische Steuerung
(Frankfurt: Campus, 1995), 9–38; R. Mayntz, ‘Governance im modernen Staat’, in
A. Benz (ed), Regieren in komplexen Regelsystemen: Eine Einführung (Wiesbaden: VS Verlag für
Sozialwissenschaften, 2004), 65–75.
13
Scharpf, above n 8; Mayntz and Scharpf, above n 12.
14
In the political science literature, markets are not regarded as governance since they are a
‘spontaneous order’ (Hayek) that leaves ‘no place for “conscious, deliberate and purposeful”
effort to craft formal structures’ (O. E. Williamson, The Mechanisms of Governance (Oxford:
Oxford University Press, 1996), at 31). Yet, market mechanisms can be institutionalised to
coordinate actors behaviour through competition (A. Benz, ‘Politischer Wettbewerb’, in
A. Benz et al (eds), Handbuch Governance Theoretische Grundlagen und empirische
Anwendungsfelder (Wiesbaden: VS Verlag für Sozialwissenschaften, 2007), 54–67). This
chapter uses the concept of competition systems to describe the institutionalisation of
market-based modes of political coordination.
15
The governance literature has identified other forms of social order, such as clans
(W. G. Ouchi, ‘Market, Bureaucracies, and Clans’ (1980) 25 Administrative Science Quarterly
129–41) and associations (P. C. Schmitter and G. Lehmbruch (eds), Trends towards Corporatist
Intermediation (London: Sage, 1979); W. Streeck and P. C. Schmitter (eds), Private Interest
Government: Beyond Market and State (London: Sage, 1985). Like networks, this chapter
conceptualises them as negotiation systems (see below).
76  Tanja A. Börzel
modes of social coordination by which actors seek to achieve changes in (mutual)
behaviour. Hierarchical coordination usually takes the form of authoritative deci-
sions (eg administrative ordinances, court decisions). Actors must obey. Non-
hierarchical coordination, by contrast, is based on voluntary compliance. Confl icts
of interests are solved by negotiations. Voluntary agreement is either achieved by
negotiating a compromise and granting mutual concessions (side-payments and
issue-linkage) on the basis of fixed preferences (bargaining), or actors engage in
processes of non-manipulative persuasion (arguing), through which they develop
common interests and change their preferences accordingly.16
Institutions are crucial in shaping both governance structures and governance
processes. On the one hand, they determine the degree of coupling between actors by
defining their relationships and allocating resources to them. On the other hand, insti-
tutions set the framework for the modes of coordination on which actors draw.17 In
hierarchical structures, for instance, hierarchical and non-hierarchical modes of coor-
dination can be used. Institutions bestow upon state actors the power to unilaterally
impose decisions, but they can refrain from invoking their hierarchical authority
when they bargain or argue with others. Negotiation and competition systems, by
contrast, can only rely on bargaining and arguing. Which mode of coordination
actors choose within their institutional limits, is, again, influenced by institutions,
which render certain modes more appropriate or socially acceptable than others.
A comprehensive concept of governance as structure and process helps us delin-
eate governance by, with, and without the state.18
The essence of governance by the state is hierarchy.19 Hierarchies are based on an
institutionalised relationship of domination and subordination, which significantly
constrains the autonomy of subordinate actors (tight coupling) and allows for hier-
archical coordination. Hierarchy can force actors to act against their self-interest.20
They may be either physically coerced by the use of force or legally obliged by legiti-
mate institutions (law). Hierarchical coordination does not leave actors either the
possibility of exit or voice.21 Unlike arguing and bargaining, hierarchical coordination
does not seek to infl uence actors’ choices but to unilaterally constrain or nullify
them. Thus, hierarchy is based on coercion. While the state has many attributes, the

16
A. Benz, Kooperative Verwaltung: Funktionen, Voraussetzungen, Folgen (Baden-Baden: Nomos,
1994), at 118–27; T. Risse, ‘ “Let’s Argue!” Communicative Action in International Relations’
(2000) 54 International Organization 1–39.
17
Scharpf, above n 8.
18
The distinction draws on the work of Michael Zürn, who refers to governance by, with,
and without government (M. Zürn, Regieren jenseits des Nationalstaates (Frankfurt am Main:
Suhrkamp, 1998) ).
19
R. A. W. Rhodes, Governing without Governance: Order and Change in British Politics
(Cambridge: Cambridge University Press, 1996); Scharpf, above n 8.
20
Scharpf, above n 8, at 171.
21
A. O. Hirschman, Exit, Voice, and Loyalty: Responses to the Decline in Firms, Organizations,
and States (Cambridge, Mass.: Harvard University Press, 1970).
 European Governance  77
monopoly of coercive public power ultimately distinguishes it from other forms of
political organisations.
Governance without the state, by contrast, is based on equal relations between
actors and the absence of coercion. They may differ with regard to their bargain-
ing power, but no actor is subject to the will of the other.22 The institutions of
competition systems do not provide for any structural coupling. Actors have full
autonomy to coordinate themselves through the mutual adjustment of their
actions. Negotiation systems, finally, are characterised by loose coupling. Social
coordination is based on mutual agreement. Unlike in formalised negotiation
systems, the symmetrical relations of networks are not defined by formal institu-
tions, but constituted by mutual resource dependencies and/or informal norms
of equality.23
In sum, governance without the state refers to the involvement of non-state
actors (companies, civil society) in the provision of collective goods through non-
hierarchical coordination. It ranges from consultation and co-optation, delegation,
and co-regulation/co-production to private self-regulation in and outside the
control of the state. Governance with and without the state, hence, can involve
state actors as long as they refrain from using their coercive powers. In order to
avoid conceptual overstretch, however, certain forms remain outside this definition
(Fig 4.1). Governance without the state does not cover lobbying and mere advo-
cacy activities of economic and social actors aimed at state actors or supranational
and international organisations.24 Non-state actors who are not active participants
in negotiating or competition systems pose few challenges to existing concepts and
theories in political science and international relations. Also excluded are those
arrangements among non-state actors that
• are based on self-coordination and do not aim at the provision of common
goods and services (markets);

22
Heavy power asymmetries can, however, reduce the choices of actors (by imposing
prohibitive costs) so much so that coordination becomes largely hierarchical.
23
Networks are then informal, ie non-formalised negotiation systems (cf B. Marin and
R. Mayntz (eds), Policy Network: Empirical Evidence and Theoretical Considerations (Frankfurt
am Main: Campus, 1991)). The literature discusses other characteristics of networks,
including actor constellations that equally involve public and private actors (R. Mayntz,
‘Modernization and the Logic of Interorganizational Networks’, in J. Child, M. Crozier,
and R. Mayntz (eds), Societal Change between Market and Organization (Aldershot: Avebury,
1993), 3–18) or relations based on trust, which favour problem solving over bargaining as
the dominant action orientation (Scharpf, above n 8, at 137–8; A. Benz, Der moderne Staat:
Grundlagen der politologischen Analyse (Munich: Oldenbourg, 2001), at 171). However, such a
narrow concept of network governance is flawed both in theoretical and empirical terms (cf
T. A. Börzel, ‘Organising Babylon: On the Different Conceptions of Policy Networks’ (1998)
76 Public Administration 253–73).
24
Cf T. A. Börzel and T. Risse, ‘Public-Private Partnerships: Effective and Legitimate Tools
of Transnational Governance?’ in E. Grande and L. W. Pauly (eds), Complex Sovereignty: On
the Reconstitution of Political Authority in the 21st Century (Toronto: University of Toronto
Press, 2005), 195–216.
78  Tanja A. Börzel
• produce public goods and services as unintended consequences (for example
rating agencies) or provide public ‘bads’ (mafia, drug cartels, transnational
terrorism).
This chapter argues that the EU hardly features any forms of governance without
the state. Nor do we find much governance by the state. Rather, the EU mostly
constitutes forms of governance with the state.
governance by the state

Public regulation
no involvement of private actors
Lobbying of public actors by private actors
private actors seeking to influence public actors

Consultation/Cooptation of private actors

participation of private actors in public decision-making
(for example private actors as members of state
delegation; outsourcing)

Co-Regulation/Co-production of public and private actors

Joint decision-making of public and private actors,
(for example social partners in tripartite concertation;
public–private partnerships)

Delegation to private actors governance without the state

participation of public actors
(for example contracting-out; standard-setting)

Private self-regulation in the shadow of hierarchy

involvement of public actors
(for example voluntary agreements)

Public adoption of private regulation

output control by public actors
(for example erga omnes effect given to collective agreements of social partners)

Private self-regulation
no public involvement
(for example private regimes; social partner autonomy)

Source: based on Börzel and Risse, above n 24.

Figure 4.1
Governance with(out) the state: the non-hierarchical involvement of non-state
actors.

iii. european governance: governance with rather

than without the state
The following analysis draws on some of my previous work in which I attempt to
map the governance in the EU.25 For the purpose of this chapter, I have simplified my
original typology collapsing the different forms of EU governance into governance
by, with, and without the state.

25
T. A. Börzel, ‘European Governance: Markt, Hierarchie oder Netzwerk?’ in
G. F. Schuppert, I. Pernice, and U. Haltern (eds), Europawissenschaft (Baden-Baden: Nomos,
 European Governance  79
Governance without the state
The EU is often treated as the prototype of governance without the state. Yet, if
at all, we only find very weak forms of the non-hierarchical involvement of non-
state actors in EU policy making. Consultation and co-optation of economic and social
actors certainly abound in the EU, particularly in the committees and working
groups of the Commission and the Council.26 Yet, while non-state actors have some
say in the formulation and implementation of EU policies, the member states and
the Commission maintain a firm grip on the policy process and its outcomes.
Co-regulation is thus almost impossible to find. While non-state actors are regularly
involved in EU policy-making, they are hardly engaged on ‘a more equal footing’.27
A rare exception is the partnership principle in structural policy, which explicitly
requires the involvement of social partners in inter and transgovernmental nego-
tiation systems. Their representatives are members of the management committee
for the European Social Fund, in which the member states are represented as well
and which is chaired by the European Commission.28 There are also several EU
regulations providing for the participation of the social and economic partners at
the various stages of programming under the Social and the Regional Development
Funds.29 Moreover, a recent regulation extends the partnership principle to include
civil society.30 The extent to which business and civil society are actually involved,
however, is contested in the literature and varies significantly across the member
states. Overall, it seems that they still have a marginal role compared to national,
regional, and local governments.31
Non-state actors are equally marginalised in the Open Method of Coordination
(OMC), the epitome of so-called ‘new’ non-hierarchical modes of governance in
the EU.32 OMC was first applied in EU employment policy. It emerged as an innova-
tive way to implement the so-called Lisbon Strategy, which the European Council

2005), 613–41; id, ‘European Governance: Verhandlungen und Wettbewerb im Schatten von
Hierarchie’ (2007) Politische Vierteljahresschrift, Sonderheft ‘Die Europäische Union Governance
und Policy-Making’ 61–91; cf T. A. Börzel, ‘European Governance: Negotiation and
Competition in the Shadow of Hierarchy’ (forthcoming) Journal of Common Market Studies.
26
T. Christiansen and S. Piattoni (eds), Informal Governance in the European Union
(Cheltenham: Edward Elgar, 2003).
27
B. Kohler-Koch, ‘The Evolution and Transformation of European Governance’, in
B. Kohler-Koch and R. Eising (eds), The Transformation of Governance in the European Union
(London: Routledge, 1999), 14–35, at 26.
28
Treaty Establishing the European Community, Art 147.
29
Cf European Council, Regulation 1260/99, Ch IV, Art 8.
30
European Council, Regulation No 1083/2006.
31
Cf Börzel forthcoming, above n 25.
32
Cf D. Hodson and I. Maher, ‘The Open Method as a New Mode of Governance:
The Case of Soft Economic Policy Co-ordination’ (2001) 39 Journal of Common Market
Studies 719–46.
80  Tanja A. Börzel
adopted in 2000 to promote economic growth and competitiveness in the EU.33
OMC has facilitated the coordination of national policies in areas where member
states have been unwilling to grant the EU political powers and additional spending
capacity, particularly in the field of economic and social policy.34 In the meantime,
it has travelled beyond Lisbon and is applied in justice and home affairs,35 health
policy,36 environmental policy,37 and tax policy.38 OMC is in principle open for the
participation of non-state actors. Yet, in practice, they are neither involved in the
formulation of joint goals at the EU level nor in their implementation at the national
level.39 This is not surprising since it is precisely the intergovernmental and volun-
taristic nature that makes OMC an acceptable mode of policy coordination for the
member states in sensitive areas.
Delegation is more prominent in the EU, although it has been around for quite
some time, at least when it comes to technical standardisation. The setting of
EU technical standards is mostly voluntary since supranational harmonisation of
health and security standards is confined to national regulations concerning the
public interest.40 For other areas, the Council has delegated the task to develop
technical standards to three European private organisations, which are composed
of representatives from the member states. Since national standardising organisa-
tions are mostly public, however, self-regulation is regulated by the EU and subject
to the control of the member states through comitology. It hardly involves non-
state actors.
This also holds for other areas of risk regulation, where regulatory networks
have emerged in response to liberalisation and privatisation in the Single Market.

33
Cf K. A. Armstrong, I. Begg, and J. Zeitlin, ‘JCMS Symposium: EU Governance after
Lisbon’ (2008) 46 Journal of Common Market Studies 413–50.
34
Hodson and Maher, above n 32.
35
A. Caviedes, ‘The Open Method of Co-ordination in Immigration Policy: A Tool for
Prying Open Fortress Europe?’ (2004) 11 Journal of European Public Policy 289–310.
36
S. Smismans, ‘New Modes of Governance and the Participatory Myth’ (2006) 1 European
Governance Papers <http://www.connex-network.org/eurogov/pdf/egp-newgov-N-06-01.
pdf>.
37
A. Lenschow, ‘New Regulatory Approaches in “Greening” EU Politics’ (2002) 8 European
Law Journal 19–37.
38
C. M. Radaelli and U. S. Kraemer, ‘Governance Areas in EU Direct Tax Policy’ (2008) 46
Journal of Common Market Studies 315–36.
39
Hodson and Maher, above n 32; M. Rhodes, ‘Employment Policy’, in H. Wallace, W.
Wallace, and M. A. Pollack (eds), Policy-Making in the European Union (Oxford: Oxford
University Press, 2005), 279–304, at 295–300; S. Borrás and K. Jacobsson, ‘The open
Method of Co-ordination and New Governance Patterns in the EU’ (2004) 11 Journal of
European Public Policy 185–208, at 193–4; M. Büchs, ‘How Legitimate is the Open Method of
Co-ordination?’ (2008) 46 Journal of Common Market Studies 765–86.
40
T. Gehring and M. Kerler, ‘Institutional Stimulation of Deliberative Decision-Making:
Division of Labour, Deliberative Legitimacy and Technical Regulation in the European
Single Market’ (2008) 46 Journal of Common Market Studies 1001–23.
 European Governance  81
These market-making processes require some form of re-regulation at the EU and
the national level to ensure fair competition and in order to correct or compensate
undesired market outcomes. Since the member states have been reluctant to transfer
regulatory powers to supranational institutions, particularly in the area of economic
regulation, market-creating and market-correcting competencies are usually dele-
gated to independent regulatory agencies or ministries at the national level.41 To fill
the ‘regulatory gap’ at the EU level, national regulatory authorities have established
informal networks to exchange information and develop ‘best practice’ rules and
procedures to address common problems.42 We find these networks in an increas-
ing number of sectors, such as pharmaceuticals and foodstuffs, but also beyond risk
regulation, including competition, public utilities, financial services or data protec-
tion, and law enforcement. While these regulatory and operational networks may be
open to the participation of non-state actors (eg providers and consumers), they are
transgovernmental rather than transnational in character.
The strongest form of delegation in the EU is the Social Dialogue.43 In selected
areas of social policy, the social partners have the right to conclude agreements,
which can be turned into European Law. Moreover, the EU cannot take legal action
without consulting the social partners. If the latter abstain from collective bargain-
ing, however, the EU is free to legislate. While this form of Euro-corporatism is
unique, the negotiation procedure under the Social Dialogue has hardly been
invoked.44 Despite qualified majority voting in the Council, member states still are
too diverse to agree on EU legal standards. In the absence of a credible shadow of
hierarchy, employers had little incentive to negotiate with the trade unions. More-
over, the social partners themselves have faced problems in reaching agreement
among their members since industrial relations are still organised along national
lines. As a result, delegation has hardly been used in social policy.
Other forms of delegated or regulated private self-regulation in the shadow
of hierarchy are equally rare. While voluntary agreements at the national level
abound, they have been hardly used by European business organisations to prevent
EU regulation; if at all, they are found in the area of environmental and consumer
protection.45
Private self-regulation or true governance without the state, finally, is almost impos-
sible to find at the EU level. Non-state actors may coordinate themselves without
having a mandate from or being under the supervision of supranational institutions.
The EU is crowded with a multitude of non-state actors, representing both civil

41
D. Coen and A. Héritier (eds), Refining Regulatory Regimes in Europe: The Creation and
Correction of Markets (Cheltenham: Edward Elgar, 2006).
42
D. Coen and M. Thatcher, ‘Network Governance and Multi-level Delegation: European
Networks of Regulatory Agencies’ (2008) 28 Journal of Public Policy 49–71.
43
Treaty Establishing the European Community, Arts 138–9.
44
Rhodes, above n 39.
45
Cf A. Héritier and S. Eckert, ‘New Modes of Governance in the Shadow of Hierarchy:
Self-Regulation by Industry in Europe’ (2008) 28 Journal of Public Policy 113–38.
82  Tanja A. Börzel
society and business. They have organised themselves at the EU level in umbrella
organisations. The so-called Euro-groups have the possibility to take binding deci-
sions for their members, eg by adopting codes of conduct, negotiating voluntary
agreements, and monitoring compliance. But they seldom have embarked on
collective action and, if they do, the shadow of hierarchy looms. The few EU-level
voluntary agreements have been negotiated to avoid stricter EU regulation.46 Rather
than engaging in private interest government, business and civil society organisa-
tions focus on individual and collective lobbying of decision makers, both at the
EU and the national level.47 The emergence of governance without the state is
further impaired by European peak associations and umbrella groups being organ-
ised around and often divided along national lines, which in turn renders consensus
among its members difficult.
To conclude, governance without the state has proliferated far less in the EU than
the ever-growing literature would lead us to expect. Business and civil society do play
a role in EU policy making but political decisions are largely taken and implemented
by inter and transgovernmental actors. Delegation and private self-regulation in and
outside the shadow of hierarchy are equally rare. The dominance of state actors
distinguishes European governance from both governance within and beyond the
state. At the member state as well as at the international level, private actors play a
much more prominent role in policy making than in the EU.48

Governance with the state

While the member states are still the Masters of the Treaties and dominate EU
policy making at all levels, the EU does have the power of hierarchical coordination.
The supranational institutions of the EC-Treaty (ECT) provide ample possibility
for hierarchical coordination where supranational actors have the power to take
legally binding decisions without requiring the consent of the member states. The
most prominent case is the European Central Bank (ECB), which authoritatively
determines EU monetary policy.49 The presidents of the national central banks are
represented in the ECB Council. However, they are not subject to any mandate by
the member states.50 Likewise, the Commission can conduct investigations into cases
of suspected distortion of competition caused by member states (eg by state aid) and
anti-competitive practices of private actors (eg cartel formation), impose sanctions,
and take legal recourse to the European Court of Justice (ECJ).51 The Commission
can enforce competition rules set by Articles 81, 87 ECT, and a series of directives

46
Ibid.
47
D. Coen and J. Richardson (eds), Lobbying the European Union: Institutions, Actors, and Issues
(Oxford: Oxford University Press, 2009).
48
Cf Börzel forthcoming, above n 25.
49
Treaty Establishing the European Community, Art 105 ECT.
50
Ibid, Art 108.
51
Ibid, Art 82 ECT; Art 88 ECT.
 European Governance  83
and regulations, which have been adopted by qualified majority in the Council (since
the Amsterdam Treaty). In the case of public undertakings, it can also adopt legally
binding regulations without the consent of the member states, if privileges of public
undertakings constitute a major obstacle to the completion of the Single Market.52
Finally, the European Court of Justice (ECJ) can bind the member states against
their will through their interpretation of European law—a power that extends
beyond market-making policies. Through dynamic interpretation of the Treaties,
the ECJ has expanded European regulation beyond negative integration. For
instance, the ECJ empowered the EC to enact social and environmental regulations
at a time when the member states had not yet bestowed the EC with the neces-
sary competencies.53 In a similar vein, the ECJ established the principle of state and
damages liability for violations of European Law that requires the member states to
provide financial compensation for damages caused by breaches of European law.54
In sum, the EU entails institutionalised rule structures which offer the Commis-
sion, the European Court of Justice, and the European Central Bank ample oppor-
tunities for hierarchical coordination. Yet, although the EU can legally bind the
member states against their will, it lacks the coercive power to bring them into
compliance. Unlike modern states, the EU does not have a legitimate monopoly
of force.55 Ultimately, the effectiveness of EU Law rests on the voluntary compli-
ance of the member states. Member state governments can be held responsible by
the Commission and the ECJ for any breaches of EU Law. And domestic courts
and enforcement authorities have to execute ECJ judgments. This is particularly
the case under the preliminary ruling procedures,56 where domestic courts refer
cases of confl ict between national and European law to the ECJ to settle the issue.
Yet member states and their enforcement authorities can openly or tacitly defy
the rulings of the ECJ or the authoritative decisions of the Commission. This may
entail material (eg loss of structural funds) and reputational costs. But if member
states are willing to bear such costs, there is nothing the EU can do, particularly
when dealing with the more powerful member states which are more likely to resist
compliance with EU law.57
Even where the EU has exclusive hierarchical powers of decision, it must rely
on member states for their enforcement. The role of the latter increases under the
so-called Community Method, where the Commission holds the exclusive right of

52
Ibid, Art 86, para 3.
53
J. McCormick, Environmental Policy in the European Union (Basingstoke: Palgrave, 2001).
54
P. P. Craig, ‘Once More unto the Breach: The Community, the State and Damages
Liability’ (1997) 113 Law Quarterly Review 67–94.
55
Cf J. A. Caporaso and J. Wittenbrinck, ‘The New Modes of Governance and Political
Authority in Europe’ (2006) 13 Journal of European Public Policy 471–80.
56
Treaty Establishing the European Community, Art 234.
57
T. A. Börzel et al, Recalcitrance, Inefficiency, and Support for European Integration: Why
Member States Do (Not) Comply with European Law (CES Working Paper 148; Cambridge,
Mass.: Harvard University, 2007).
84  Tanja A. Börzel
legal initiative but the Council decides by qualified majority. This applies to almost
all policies under the First Pillar but also to the framework decisions under the Third
Pillar.58 Since majority voting entails an element of hierarchy by binding a minority of
member states against their will, the core areas of EU policy making are embedded
in hierarchical structures. At the same time, the member states retain a prominent
role in the policy process. While the Community Method grants the Commission
and the European Parliament a significant say, EU decision making is still dominated
by the Council. The Committee of Permanent Representatives, numerous Council
working groups, as well as the expert committees of the Commission prepare legal
proposals and execute Council decisions (comitology). While the ECJ has the power
of judicial review, it is again the member states which have to implement and enforce
EU law.
The role of the member states is the strongest under the Second and Third Pillars.
The (European) Council usually decides by unanimity and shares the right of initia-
tive with the Commission. The Parliament is at best consulted and the ECJ has
only limited power of judicial review.59 The areas of inter and transgovernmental
cooperation, which the member states explicitly sealed against even the shadow of
supranational hierarchy, largely correspond to the ideal type of interstate negotia-
tion systems. European decisions rest on the voluntary coordination of the member
states (unanimity or consent) and often do not have legally binding character (ie they
constitute ‘soft law’). They are prepared and accompanied by inter and transgovern-
mental networks, which act free from the shadow of hierarchy cast by supranational
institutions. This is not only true for the Second and parts of the Third Pillar, but
also for selected areas under the First Pillar (parts of social policy, macroeconomic
and employment policy, research and development, culture, education, taxation),
in which the EU has no or only very limited competencies and the infl uence of
the supranational troika (Commission, Parliament, and Court) is severely restricted.
Moreover, a new form of transgovernmental negotiation system or ‘state-centred
multi-level governance’60 has emerged, again under the First Pillar, in which member
state authorities coordinate their regulatory activities, although they are not neces-
sarily directly controlled by their governments.

iv. too much or too little state?

Governance in the EU is governance with rather than without or by the state. On the
one hand, the role of non-state actors is much more limited than often suggested by
the literature on the EU as the prototype of network or new modes of governance.
On the other hand, the EU can draw on substantial forms of hierarchical governance,

58
Treaty on European Union, Art 35, para 1.
59
Ibid, Art 35, para 6.
60
D. Levi-Faur, ‘The Governance of Competition: The Interplay of Technology, Economics,
and Politics in European Union Electricity and Telecom Regimes’ (1999) 19 Journal of Public
Policy 175–207, at 201.
 European Governance  85
which cast a strong shadow of hierarchy on both negotiations and competition in
the First and parts of the Third Pillar.61 Yet, the EU lacks (the monopoly of ) coer-
cive force and must rely on member states for the enforcement of its authoritative
allocation of values. While the member states have increasingly shared powers with
the European Commission, the European Parliament or (trans)national regula-
tory authorities, they remain the central decision makers and implementers of EU
policies.
Conceptualising the EU as governance with the state not only allows for a more
nuanced analysis of its nature focusing on the different degrees of state involvement;
it also makes the EU look less unique and facilitates comparison with other govern-
ance systems within and beyond the state. Finally, it points to some severe limitations
regarding the effectiveness of EU governance. The decline of governance by the
state at the national level resulted in the search for more effective solutions at the EU
level, creating serious problems for the legitimacy of both the EU and the member
states.62 The lack of governance by the state at the EU level, in turn, impairs the
effectiveness of EU governance in those areas where societal problems have become
more prominent and the problem-solving capacity of the member states appears to
be increasingly wanting.
The EU governs the largest market in the world. The various forms of govern-
ance with the state have produced a comprehensive regulatory framework that has
successfully prevented and corrected market failures. Even without coercive power,
compliance with EU law appears to be generally sufficient to make the Common
Policies work. Member states do not always comply, and some comply better than
others.63 Yet, a polity seeking to integrate twenty-seven and more states, which are
ever more diverse, may need a certain amount of non-compliance or ‘institutional
hypocrisy’.64 And sooner or later all member states comply with all EU laws, even
though in some cases this has taken up to eighteen years.65
The problem-solving capacity of the EU is not challenged by a lack of power
directly to enforce its policies. Rather, it is the incapacity to adopt new policies
addressing economic and social problems that concern EU citizens most. Particu-
larly in (re)distributive policy areas, member states have not been willing to yield
decision-making powers to the EU in order to counteract politically undesirable
outcomes of the Single Market. At the same time, EU market integration impedes

61
Cf Börzel forthcoming, above n 25.
62
Cf F. W. Scharpf, Governing Europe: Effective and Legitimate? (Oxford: Oxford University
Press, 1999); Scharpf in this volume.
63
Börzel et al, above n 57.
64
E. A. Iankova and P. J. Katzenstein, ‘European Enlargement and Institutional Hypocrisy’,
in T. A. Börzel and R. A. Cichowski (eds), The State of the European Union, vol.6: Law, Politics,
and Society (Oxford: Oxford University Press, 2003), 269–90.
65
Börzel et al, above n 57.
86  Tanja A. Börzel
member states in maintaining such functions.66 The Single Currency largely deprives
the member states of their major instruments for national macroeconomic stabili-
sation, while the Maastricht convergence criteria place serious constraints on state
expenditures. Softer modes of governance with a strong role of the member states
are unlikely to respond to this ‘European problem-solving gap’.67 Attempts to use the
OMC for institutionalising member state coordination in areas such as taxation of
mobile capital, employment, or social policy, where the heterogeneity and political
salience of member state preferences prohibits more hierarchical forms of govern-
ance, pale in light of the redistributive effects of the EU’s hierarchical powers in
monetary policy on the one hand and member state competition with regard to taxes
and labour costs on the other. Redistributive or normative confl icts are hard to solve
without the possibility of resorting to authoritative decision making.68 The dilemma
of European governance may be that ‘soft’ forms appear to require a shadow of
supranational hierarchy to address policy problems, which the member states refuse
to make subject to ‘hard’ hierarchical forms of EU governance in the first place. Due
to the high legitimacy requirements for imposing policies with redistributive and
normative consequences, on the one hand, and the already existing legitimacy crisis
of the EU, on the other, granting the EU more powers is hardly a solution to closing
the problem-solving gap. The dilemma remains and is exacerbated by the current
financial and economic crisis, which neither the EU (even with the new powers of
the Lisbon Treaty) nor the member states have so far been able effectively to address.
It remains to be seen how the loss of savings and investments, rising unemployment,
and cuts in social benefits will affect the legitimacy of the state. This time, it will be
hard for national policy makers to blame Brussels, which for once may emerge in the
public perception as the solution rather than the problem.

v. the constitutional challenge

The EU as a form of governance with the state closely resembles a system of coop-
erative federalism of which Germany is considered to be a prototype.69 While the
central level makes the laws, the constituent units are responsible for implement-
ing them. The vast majority of competencies are ‘concurrent’ or ‘shared’. This

66
F. W. Scharpf, ‘Negative and Positive Integration in the Political Economy of European
Welfare States’, in G. Marks et al (eds), Governance in the European Union (London: Sage,
1996), 15–39; M. Ferrera, ‘European Integration and National Social Citizenship: Changing
Boundaries’ (2003) 36 Comparative Political Studies 611–52.
67
F. W. Scharpf, ‘The Joint-Decision Trap Revisited’ (2006) 44 Journal of Common Market
Studies 845–64, at 855.
68
Scharpf, above n 9.
69
Cf F. W. Scharpf, ‘The Joint-Decision Trap: Lessons from German Federalism and European
Integration’ (1988) 66 Public Administration 239–78; T. A. Börzel, ‘What Can Federalism Teach
Us about the European Union? The German Experience’ (2005) 15 Regional and Federal Studies
245–57.
 European Governance  87
functional division of labour requires a strong representation of the interests of
the member states at the EU level, not only to ensure an effective implementation
and enforcement of EU policies for which the member states are responsible but
also to prevent member states from being reduced to mere ‘administrative agents’
of the EU. Their reduced capacity of self-determination is compensated by strong
participatory rights in the process of EU decision making, mainly in the frame-
work of the Council, which is the equivalent of a Second Chamber. The Council
as the chamber of territorial representation is organised according to the Bundesrat
(Federal Council) principle, where the member states are represented by their
governments (not by directly elected representatives or members of parliament),
and in relation to their population size, with smaller states being over-represented.
The functional interdependence of the EU and the member state levels of govern-
ment not only gives rise to ‘interlocking politics’ and ‘joint decision making’ with
a high need for consensus, but also favours the emergence of a policy-making
system in which policies are formulated and implemented by the administrations
on both levels of government (‘executive federalism’). Functional (non-territorial)
interests are only weakly represented in EU decision making and cannot even rely
on alternative forms of interest intermediation, such as the party system and/or
sectoral associations, as we find them in Germany or Austria.
All in all, governance with the state is based on a constitutional system of the
EU, where competencies are mostly shared among the EU and the member states,
where territorially defined executive interests dominate over functionally defined
societal interests, and where political decisions require a high degree of consensus.
It has resulted in the interpenetration of supranational and national constitutional
structures that have proven impossible to be disentangled. Any attempts to delineate
exclusive member state jurisdictions or re-transfer European competencies to the
member state level have fallen into the joint decision trap, from which they are
unlikely to escape.70 Even if the Constitutional Treaty has failed, a demise of the
European Constitution as it has evolved over time has been rendered impossible by
the EU-induced transmutations of the member states’ Constitutions. The transfer
of national sovereignty rights to the EU level has given rise to the creation of a
new supranational Constitution, which does not exist as an autonomous layer but is
intractably interlocked with the national Constitutions. Member states have not only
created the European Constitution; they must also implement its provisions to make
it work. Instead of trying to ‘ring-fence’ member-state responsibilities, national and
European constitutional provisions should focus on properly defining the role of
the member states and their institutions in EU policy making. Member states have
naturally lost autonomous decision-making power in the process of European
integration. Yet, some state bodies have lost more than others. While national
governments have been compensated by receiving ample co-decision rights in EU

70
Scharpf, above n 69.
88  Tanja A. Börzel
policy making, the losers are the national and regional parliaments.71 They have been
weakened in their constitutional relationship with the government and the courts.
If political decisions are increasingly made in Brussels rather than in Berlin, London,
Paris, or Warsaw, parliaments are deprived of their legislative function and seriously
constrained in holding government accountable. Moreover, the supremacy and
direct effect of European law gives national courts the power to overrule national
legislation that does not conform to European requirements. Finally, the delegation
of executive powers to independent regulatory agencies has further undermined the
possibility of controlling the execution of national and European law. Upgrading
the role of national parliaments or the European Parliament in EU policy making
will do little to compensate for this comprehensive loss of power. Even if the Lisbon
Treaty enters into force, the constitutional challenge remains: it is for member states
to redefine the balance of power between the three branches of government at the
domestic level taking into account the realities of multi-level constitutionalism in the
European Union.

71
A. Maurer and W. Wessels (eds), National Parliaments on their Ways to Europe: Losers or
Latecomers? (Baden-Baden: Nomos, 2001).
  5 
Legitimacy in the Multi-level European Polity
Fritz W. Scharpf *

i. legitimacy
In my understanding, any discussion of legitimacy in the multi-level European
polity needs to start from a functional perspective: socially shared legitimacy
beliefs are able to create a sense of normative obligation that helps to ensure
voluntary compliance with undesired rules or decisions of governing authority.1
By providing justification and social support for the ‘losers’ consent’,2 such beliefs
will reduce the need for and the cost of—controls and sanctions that would
otherwise be needed to enforce compliance.3 They should be seen, therefore, as
the functional prerequisite for governments which are, at the same time, effective
and liberal.
From this functional starting point, further exploration could take either an
empirical turn, focusing on citizen’s compliance behaviour and justifying beliefs, or
a normative turn, focusing on good reasons for such beliefs. Here, I will focus on the
normative discussion.

*
This chapter has benefited greatly from discussions at EUI Florence and BIGSS Bremen
and from the personal comments of Martin Höpner at MPIfG Cologne. As has been true of
all my recent work, the research assistance of Ines Klughardt has again been invaluable.
1
F. W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford: Oxford University
Press, 1999); O. Höffe, Demokratie im Zeitalter der Globalisierung: Überarbeitete und aktualisierte
Neuausgabe (Munich: C. H. Beck, 2002), 40.
2
C. Anderson et al, Losers’s Consent: Elections and Democratic Legitimacy (Oxford: Oxford
University Press, 2005).
3
The need for, or functional importance of, legitimacy is a variable, rather than a
constant. It rises with the severity and normative salience of the sacrifices requested, and
it falls if opt-outs are allowed—eg if the waiting lists of a national health system can be
avoided through access to foreign providers.
90  Fritz W. Scharpf
Republican and liberal legitimating discourses
Contemporary normative discourses in Western constitutional democracies are
shaped by two distinct traditions of political philosophy, which may be convention-
ally labelled ‘republican’ and ‘liberal’.4 Even though individual authors may have
contributed to both, the origins, premisses, generative logics, and conclusions of
these traditions are clearly distinguishable.
The republican tradition can be traced back to Aristotle. For Aristotle, the polity
is prior to the individual and essential for the development of human capabilities.5
What matters is that the powers of government must be employed for the common
good—and the problem, under any form of government, is the uncertain ‘virtuous-
ness’ of governors who might pursue their self-interest instead. The concern for
the common good of the polity and its institutional preconditions had also shaped
the political philosophy of republican Rome which was resurrected in the Florentine
renaissance.6 From there, one branch of the republican tradition leads through
the ‘neo-Roman’ theorists of the short-lived English revolution to the political ideals
of the American revolution,7 and to contemporary concepts of ‘communitarian’
democracy.8 The other branch leads to the radical egalitarianism of Rousseau’s
Contrat Social which shaped the political thought of the French revolution and
continues to have a powerful infl uence on Continental theories of democratic self-
government. With the classical heritage Rousseau shares the primacy of the polity
and the emphasis on the common good, to which he adds the postulate of equal
participation in collective choices.9
But then, as for Aristotle, the ‘virtuousness’ of the collective governors becomes
a critical problem—requiring the transformation of a self-interested volonté des tous
into a common-interest oriented volonté générale. This theoretical difficulty was

4
R. Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of
Democracy (Cambridge: Cambridge University Press, 2007).
5
Aristotle, Politics (c.335–323 bc), i. 1253a.
6
Marcus Tullius Cicero, De republica (c.54 bc], ed K. Büchner (Stuttgart: Reclam, 1995);
Niccolò Machiavelli, The Discourses [1531], ed B. Crick (Harmondsworth: Penguin, 1983).
7
J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic
Republican Tradition (Princeton, NJ: Princeton University Press, 1975); Q. Skinner, Liberty
before Liberalism (Cambridge: Cambridge University Press, 1998); R. A. Dahl, Democracy and
Its Critics (New Haven, Conn.: Yale University Press, 1989), ch 2.
8
H. F. Pitkin, ‘Justice: In Relating Private and Public’ (1981) 9 Political Theory 327–52;
A. MacIntyre, After Virtue (Indiana: University of Notre Dame Press, 1984); id, Whose Justice?
Which Rationality? (Indiana: University of Notre Dame Press, 1988); C. Pateman, The Problem
of Political Obligation: A Critique of Liberal Theory (Berkeley: University of California Press,
1985); F. I. Michelman, ‘Conceptions of Democracy in American Constitutional Argument:
The Case of Pornography Regulation’ (1989) 56 Tennessee Law Review 203–304; C. Taylor,
The Ethics of Authenticity (Cambridge, Mass.: Harvard University Press, 1992); cf J. Habermas,
Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats
(Frankfurt am Main: Suhrkamp, 1992), 324–48.
9
Jean-Jacques Rousseau, The Social Contract [1762], i., ch 6; ii., chs 1 and 4.
 Legitimacy in the Multi-level European Polity  91
pragmatically resolved by the invention of representative democracy, coupling
the medieval representation of estates with the aspirations of democratic
self-government.10 Here, the orientation of representatives to the common good
is to be ensured by the twin mechanisms of public deliberation and electoral
accountability,11 while the egalitarianism of democratic republicanism is reflected in
the fundamental commitment to universal and equal suffrage.
Compared to republicanism, the ‘liberal’ tradition is younger, going back to
the early modern period and Thomas Hobbes, rather than to Greek and Roman
antiquity.12 Here, priority is assigned to the individual, rather than to the polity;
the state is justified by the need to protect individual interests; and individual self-
determination replaces the value of collective self-determination. What matters,
once basic security is established by the state, are strict limitations on its governing
powers in order to protect the fundamental value of ‘negative liberty’, which—in
the tradition of John Locke and Adam Smith—should be understood as the ‘freedom
of pursuing our own good in our own way’.13
Where the need for governing powers cannot be denied, individual liberty is best
preserved by a rule of unanimous decisions,14 or, in any case, by the checks and
balances of multiple-veto constitutions and pluralist patterns of interest intermedia-
tion.15 If at all possible, decisions ought to be based on the consensus of the interests
affected, rather than on majority votes.
In the Continental branch of Enlightenment philosophy, by contrast, Immanuel
Kant had grounded the individualist position not in self-interest, but in the moral
autonomy and rationality of the individual. Being at the same time free and morally
obliged to follow their own reason, they will see that their liberty is constrained by
the equal freedom of all others—which means that their choices must be governed
by the ‘categorical imperative’.16 But given the ‘crooked timber’ of human nature,
the moral imperative alone does not suffice in practice to ensure the mutual compat-
ibility of individual liberties. There is a need, therefore, for general laws that are
effectively sanctioned by state authority. Such laws will approximate a state of
universal liberty if they define rules to which all who are affected could agree in

10
Dahl, above n 7, 28–30.
11
J. Habermas, Strukturwandel der Öffentlichkeit: Untersuchungen zu einer Kategorie der bürger-
lichen Gesellschaft (Neuwied: Luchterhand, 1962); J. Elster, ‘Introduction’, in J. Elster (ed),
Deliberative Democracy (Cambridge: Cambridge University Press, 1998), 1–18.
12
Thomas Hobbes, Leviathan: Or the Matter, Form and Power of a Commonwealth Ecclesiasticall
and Civil [1651] (New York: Collier Books, 1986).
13
I. Berlin, Two Concepts of Liberty: An Inaugural Lecture (Oxford: Clarendon Press, 1958), 11.
14
J. M. Buchanan and G. Tullock, The Calculus of Consent: Logical Foundations of Constitutional
Democracy (Ann Arbor: University of Michigan Press, 1962).
15
R. A. Dahl, Pluralist Democracy in the United States: Confl ict and Consent (Chicago, Ill.: Rand
McNally, 1967).
16
Immanuel Kant, Grundlegung zur Metaphysik der Sitten [1785] (Stuttgart: Reclam 4507, 1961).
92  Fritz W. Scharpf
their capacity as autonomous and rational actors.17 As Isaiah Berlin pointed out,
however, this potential-consensus test could justify a very intrusive regulatory state,
especially when decisions are delegated to the ‘deliberation’ of politically indepen-
dent agencies or courts.18 In other words, Kantian liberalism based on the categorical
imperative, just like Rousseau’s republicanism based the volonté générale, may well
be invoked to legitimate laws and policies that depart widely from the empirical
preferences of self-interested citizens.

Constitutonal democracies—and the EU?

This rough sketch obviously exaggerates the differences between the dual tradi-
tions of Western political philosophy, and a fuller treatment would have to be
more nuanced and differentiated. What matters here, however, is the fact that the
legitimacy of Western constitutional democracies rests on normative arguments
derived from both of these traditions. They are all liberal in the sense that govern-
ing powers are constitutionally constrained, that basic human rights are protected
and that plural interests have access to the policy-making processes by which they
are affected. At the same time, they all are republican in the sense that they are
representative democracies where governing authority is obtained and withdrawn
through regular, universal, free and equal elections, where policy choices are shaped
through public debates and the competition of political parties, and where institu-
tions that are exempt from electoral accountability will still operate in the shadow
of democratic majorities or, at least, of a democratic pouvoir constituant. In other
words, republican and liberal principles coexist, and they constrain, complement,
and reinforce each other in the constitutions and political practices of all Western
democracies.19 In a sense, they are mutual antidotes against each other’s characteris-
tic perversion: republican collectivism is moderated by the protection of individual
liberties, whereas libertarian egotism is constrained by the institutions of collective
self-determination.
Nevertheless, the actual combinations vary, and differences matter: republican poli-
tics are facilitated in unitary states and impeded by federal constitutions; individual
interests receive less judicial protection where the constitution emphasises parlia-
mentary sovereignty; and consensus-dependent pluralism is stronger in the United
States or in Switzerland than it is in the UK, New Zealand, or in France.20 But these

17
Immanuel Kant, Metaphysik der Sitten: Einleitung in die Rechtslehre [1797] (Hamburg: Felix
Meiner, 1966); id, Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für
die Praxis [1793] (Hamburg: Felix Meiner, 1992).
18
Berlin, above n 13, 29–39; see further A. Somek, Individualism: An Essay on the Authority of
the European Union (Oxford: Oxford University Press, 2008).
19
Bellamy, above n 4.
20
Looking at the ‘semantics’ of national normative discourses, rather than at institutions and
practices, Richard Münch identifies France with republicanism and Britain with liberalism,
identifying the one with French and the other one with British political discourses. In his view,
however, both are manifestations of a common European commitment to ‘moral universal-
ism and ethical individualism’ which drives the European transformation of national societies
 Legitimacy in the Multi-level European Polity  93
differences seem to fade in importance once we turn our attention from the world
of democratic nation states to the European Union (EU). If seen by itself and judged
by these standards, the Union appears as the extreme case of a polity conforming to
liberal principles which, at the same time, lacks practically all republican credentials.
Its liberalism is most obvious in the priority accorded to the protection of (some)
individual rights and the tight constraints impeding political action: the European
Court of Justice (ECJ) is more immune from political correction than the consti-
tutional court of any democratic state. It has from early on interpreted the Treaty
commitment to establish a Europe-wide market and the free movement of goods,
persons, services, and capital not as a programmatic goal to be realised through
political legislation, but as a set of directly enforceable individual rights that will
override all laws and institutional arrangements of EU member states. In the same
spirit, the principle of non-discrimination on grounds of nationality and the politi-
cally rudimentary European citizenship have been turned into individual rights of
EU nationals to access the social benefits and public services of all member states.21
At the prodding of national constitutional courts, moreover, the ECJ has also begun
to protect non-economic human rights, and with the inclusion of the Charter of
Basic Rights in the Constitutional Treaty the Court will be able to complete the
European protection of individual rights.
At the same time, the capacity for collective political action of the European
polity is impeded by extremely high consensus requirements, and the input-side of
its political processes could not be more pluralist, and less majoritarian in charac-
ter. The Commission itself, which has a monopoly of legislative initiatives, relies on
an extended infrastructure of committees and expert groups that allow access for
a wide range of organised interests. Through the Council of Ministers, moreover,
whose agreement by at least a qualified-majority vote is required for all legislation,
all interests that have access to the national ministries in charge will also have access
to the European level. The European Parliament, finally, whose role in legislation
has been considerably expanded in recent Treaty revisions, also prides itself on
giving voice to interests and concerns that might possibly have been ignored in the
Commission and the Council. In short, European legislation is characterised by very
open and diversified access opportunities which, combined with very high consensus
requirements, make it unlikely that its effect on major (organised) interests might
be ignored in the process. And consensus is of course also the hallmark of the ‘new
modes of governance’ which are employed to achieve policy coordination through
‘soft law’, ‘benchmarking’, ‘deliberation’, and ‘institutional learning’ in fields where
the Union may still lack the power to legislate.22

(R. Münch, Die Konstruktion der europäischen Gesellschaft: Zur Dialektik von transnationaler
Integration und nationaler Desintegration (Frankfurt am Main: Campus, 2008), ch 4).
21
F. Wollenschläger, Grundfreiheit ohne Markt: Die Herausbildung der Unionsbürgerschaft im
unionsrechtlichen Freizügigkeitsregime (Tübingen: Mohr Siebeck, 2007).
22
A. Héritier, ‘New Modes of Governance in Europe: Increasing Political Capacity and
Policy Effectiveness?’, in T. A. BÖrzel and R. A. Cichowski (eds), The State of the European
Union, vol.6: Law, Politics, and Society (Oxford: Oxford University Press, 2003), 105–26;
94  Fritz W. Scharpf
To complete the liberal model on the output-side, the EU has developed
considerable effectiveness as a regulatory authority. It is most powerful in the field of
monetary policy, where policies of the European Central Bank (ECB) are completely
immunised against political intervention. Moreover, the Commission and the Court
have enjoyed similar political independence in developing a very effective competi-
tion regime not only for the private sector but also for state aids and the public-
service and infrastructure functions that might distort market competition. Some
of these regimes could be based directly on the Treaties, while others depended on
political compromises and European legislation. Even there, however, the Commis-
sion, the Court, and standard-setting agencies have come to play such important
roles in the licensing of pharmaceuticals and the regulation of product safety, food
qualities, environmental standards, or workplace discrimination, that its effective-
ness as a ‘regulatory state’ could be described as the EU’s paramount legitimating
achievement.23
But if the EU might well qualify by liberal standards, it would definitely fail by
the criteria of republican democracy. On the output side, the Union’s capacity
to promote the common good is constrained by the extremely high consensus
requirements of EU legislation. They prevent effective collective action in response
to many problems that member states could not deal with nationally. The notori-
ous inability to regulate competition over taxes on company profits and capital
incomes is just one example.24 Worse yet, these same decision rules are respon-
sible for an extreme conservative bias of EU policy. New legislation may be based
on broad consensus but, once it is adopted, it cannot be abolished or amended
in response to changed circumstances or changed preferences as long as either
the Commission refuses to present an initiative or a few member states object.
Beyond that, rules derived from the judicial interpretation of the Treaties could
only be corrected through Treaty amendments that must be adopted unanimously
by all member governments and ratified by parliaments or popular referenda in
all member states. In other words, once EU law is in place, the acquis is nearly
irreversible and its correspondence with the common good becomes progressively
more tenuous as time goes on.
The constraints of consensual decision making cannot be significantly relaxed
as long as the peoples of twenty-seven member states lack a collective identity

A. Héritier and D. Lehmkuhl, ‘Introduction: The Shadow of Hierarchy and New Modes of
Governance’ (2008) 28 Journal of Public Policy 1–17; B. Kohler-Koch and B. Rittberger, ‘The
“Governance Turn” in EU Studies’ (2006) 44 Journal of Common Market Studies 27–49.
23
G. Majone, ‘Regulatory Legitimacy’, in G. Majone (ed), Regulating Europe (London:
Routledge, 1996), 284–301; id, ‘Europe’s “Democratic Deficit”: The Question of Standards’
(1998) 4 European Law Journal 5–28.
24
S. Ganghof and P. Genschel, ‘Taxation and Democracy in the EU’ (2008) 15 Journal
of European Public Policy 58–77; S. Ganghof and P. Genschel, ‘Deregulierte Steuerpolitik:
Körperschaftsteuerwettbewerb und Einkommensbesteuerung in Europa’ in M. Höpner
und A. Schäfer (eds), Die politische Ökonomie der europäischen Integration (Frankfurt am Main:
Campus, 2008), 311–34.
 Legitimacy in the Multi-level European Polity  95
that could legitimate Europe-wide majority rule. And even if citizens were to
develop a sense of common solidarity and a stronger attachment to the Euro-
pean polity than to their own nation state (perhaps in response to external
challenges from America, Russia, or China), they would presently lack all the
societal and institutional prerequisites of input-oriented democracy: no Europe-
wide media of communication and political debates, no Europe-wide political
parties, no Europe-wide party competition focused on highly salient European
policy choices, and no politically accountable European government that must
anticipate and respond to the egalitarian control of Europe-wide election returns.
There is no theoretical reason to think that these deficits should be written in
stone. But at present, input-oriented republican legitimacy cannot be claimed for
the Union.
While these stylised diagnoses may be somewhat overdrawn, they suggest a
prima facie plausible interpretation of current disputes over the existence of a
‘European democratic deficit’. Authors and political actors starting from a ‘liberal’
framework of normative political theory will find it easy to attest to the democratic
legitimacy of the EU by pointing to its protection of individual rights, to its plural-
ist openness to policy inputs, its consensual decision rules, and the effectiveness of
its regulatory policies.25 By contrast, authors and political actors viewing the EU
from a ‘republican’ perspective will point to deficiencies on the output side, where
the concern for individual rights and the responsiveness to organised interests
are accompanied by a systemic neglect of redistributive policy goals. Their more
salient criticism is, however, directed at the glaring democratic deficits on the input
side, emphasising the lack of a common public space, the lack of Europe-wide
political debates, party competition, and political accountability.26 If some of these
authors nevertheless assume that these deficiencies might eventually be overcome
through institutional reforms and the mobilisation strategies of European parties,
they seem to underestimate the disruptive potential of political mobilisation and
confrontation in an institutional framework which, in the absence of a strong
collective identity, would still require consensual decision making.27

25
A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht
(Ithaca, NY: Cornell University Press, 1998).
26
M. T. Greven, ‘Can the European Union Finally Become a Democracy?’, in M. T. Greven
and L. W. Pauly (eds), Democracy beyond the State? The European Dilemma and the Emerging
Global Order (Lanham: Rowman & Littlefield, 2000), 35–62; C. Harlow, Accountability in the
European Union (Oxford: Oxford University Press, 2002); A. Follesdal and S. Hix, ‘Why There
Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 Journal of
Common Market Studies 533–62; S. Hix, What’s Wrong with the European Union and How to Fix It
(Cambridge: Polity, 2008).
27
S. Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Restructuring
between the Nation State and the European Union (Oxford: Oxford University Press, 2005); id,
Taking ‘Constitutionalism’ and ‘Legitimacy’ Seriously (MS Florence: Robert Schuman Centre for
Advanced Study. European University Institute, 2008).
96  Fritz W. Scharpf

ii. legitimacy in multi-level polities

In any case, however, the EU in its present shape is so far from meeting the repub-
lican criteria of democratic legitimacy that it cannot benefit from the coexistence
and mutual reinforcement of liberal and republican principles that supports the
legitimacy of constitutional democracies at the national level.28 But does this
matter if it is acknowledged that the EU is not a free-standing, single-level polity?
In the two-level constellation of the European polity, the member states are indeed
expected to conform to the full range of liberal as well as republican criteria of
legitimacy. It seems reasonable to ask, therefore, how this constellation should be
treated in normative discussions about the legitimacy of the European polity.
For an answer, it is useful to compare the compliance and legitimating relation-
ships between citizens and governments in different institutional constellations. In
a unitary state, these relationships are congruent: compliance is demanded by the
central government through its administrative agencies, and the legitimacy of these
requests is established through national public discourses and the accountability of
the central government to the national electorate. Congruence can also be achieved
in two-level polities if their institutional architecture conforms to the model of ‘dual
federalism’. There, each level of government has its own domain of autonomous
legislative authority, its own implementation structures, and its own base of elec-
toral accountability.
Matters are more complicated, however, in a ‘unitary federal state’ like Germany
where most legislative powers are exercised nationally, whereas national legislation
is implemented by the Länder. Hence Land authorities are expected to comply with
federal mandates, and citizens are expected to comply with the rules enforced by the
Land authorities, regardless of their national or local origin. In the unitary political
culture of the German two-level polity, however, this two-step compliance relation-
ship does not create problems of democratic accountability. Public attention and
public debates are almost exclusively focused on the politics and the policy choices at
the national level. Länder elections, which may affect party-political majorities at the
national level (in the Bundesrat), are generally and justifiably considered as second-
order national elections where parties fight about national issues and voters express
their approval or disapproval of the national government’s performance.29 In other
words, while the compliance relationship runs between citizens and their respective
Länder authorities, the dominant legitimacy relationship in Germany runs between
citizens and the national government, which is held accountable for public policies
that affect the citizen.

28
U. K. Preuss, ‘National, Supranational and International Solidarity’, in K. Bayertz
(ed), Solidarity: Philosophical Studies in Contemporary Culture 5 (Dordrecht: Kluwer, 1999),
281–92.
29
S. Burkhart, Blockierte Politik: Ursachen und Folgen von ‘Divided Government’ in Deutschland
(Frankfurt am Main: Campus, 2008).
 Legitimacy in the Multi-level European Polity  97
The two-level polity comprising the EU and its member states shares some impor-
tant structural characteristics with German federalism,30 but in the context of a discus-
sion about political legitimacy the differences appear to be much more important.
Compared to Germany, the Union is far more dependent on its member states: Euro-
pean legislation must be transposed through national legislatures; European law must
be implemented through the administrative agencies and courts of the member states;
and European revenue depends almost entirely on national contributions. As a conse-
quence, compliance is even more a two-step process than is true in Germany.
From the perspective of citizens, compliance is exclusively demanded by national
administrative agencies, tax authorities, and courts. And except where the Commis-
sion may directly prosecute the violation of competition rules, even business firms
are never directly confronted with the EU as a governing authority. By the same
token, the compliance that matters from the perspective of the Union is the will-
ingness and ability of its member governments to ensure the implementation of
European law. This is the compliance which the Commission keeps monitoring, and
which is also the subject of a growing body of compliance research.31

Highest Level
Government
Legitimation

Compliance

Intermediate Level
Government

Citizens/Subjects

Unitary Dual Federalism Unitary European Union

Government Federalism

Figure 5.1
Compliance and legitimation in multi-level governments.

30
F. W. Scharpf, ‘The Joint Decision Trap: Lessons from German Federalism and European
Integration’ (1988) 66 Public Administration 239–78.
31
G. Falkner et al, Complying with Europe: EU Harmonisation and Soft Law in the Member
States (Cambridge: Cambridge University Press, 2005); M. Zürn and C. Joerges (eds), Law and
Governance in Postnational Europe: Compliance beyond the Nation-State (Cambridge: Cambridge
University Press, 2005); T. A. Börzel et al, Recalcitrance, Inefficiency, and Support for European
Integration: Why Member States Do (Not) Comply with European Law (CES Working Paper 148;
Cambridge, Mass.: Harvard University, 2007).
98  Fritz W. Scharpf
As in Germany, therefore, we have a two-step compliance relationship—between
citizens and their respective national governments, and between these and the EU. In
contrast to Germany, however, we also have a two-step legitimating relationship in
the European polity. Whereas in German federalism, citizens address their demands
and their electoral responses to the higher (national) level of government, the higher
level of the European polity is beyond the horizon of citizen’s expectations and politi-
cal demands, it is not the target of public debates and party competition, and it is
not vulnerable to electoral sanctions.32 As far as citizens are concerned, they are only
connected to the lower (member-state) level of government through a legitimating
feedback loop. And since voters are not obliged to be fair and, in any case, could not
know the origin of the rules with which they are asked to comply, ‘the politics of
blame avoidance’33 is not a useful option for member governments. They must in fact
carry the full burden of political accountability for their exercise of governing author-
ity, regardless of how much European law may have contributed to it.
In the two-level European polity, therefore, the EU must be seen and legitimated
not as a government of citizens, but as a government of governments. What matters
foremost is the willingness and ability of member states to implement EU law and
to assume political responsibility for doing so. It seems fully appropriate, therefore,
that compliance research focuses exclusively on the relationship between the EU
and its member states. But if that is so, then it is not obvious that normative discus-
sions of EU legitimacy should treat the Union as if it were a free-standing polity,
and that normative discussions of EU legitimacy should employ monistic concepts
that ignore the two-step relationship and focus almost exclusively on the presence
or absence of a ‘democratic deficit’ in the relation between the EU and its citizens
or subjects. Instead, we need to discuss the legitimating arguments that justify the
compliance of member states with EU mandates, and the conditions that allow
member states to legitimate this compliance in relation to their own citizens.

iii. legitimating member state compliance

From the perspective of member governments, membership in the EU is fully justi-
fied by its contribution to peace and democracy on the European continent, while
the record appears more ambivalent with regard to the economic promises of inte-
gration. In any case, the attraction of membership continues to exercise its pull in
the near abroad, and secession does not seem to be on the agenda of any of the old
and newer member states. But just as the fact that most citizens will not emigrate
is no sufficient indicator of the democratic legitimacy of a nation state, the holistic
assessment of the benefits of membership will not, by itself, establish the legitimacy
of all Union mandates. As is true in democratic nation states, what matters are more
specific characteristics of the policy-making institutions and processes that generate

32
P. Mair, ‘Popular Democracy and the European Union Polity’, in D. Curtin and A. Wille
(eds), Meaning and Practice of Accountability in the EU Multi-Level Context (Connex Report
Series No 07; Mannheim: University of Mannheim, 2008 ), 19–62.
33
R. Kent Weaver, ‘The Politics of Blame Avoidance’ (1986) 6 Journal of Public Policy 371–98.
 Legitimacy in the Multi-level European Polity  99
the mandates with which member governments are expected to comply. Here, I find
it useful to distinguish between two fundamentally differing modes of EU policy
making, for which I use the labels ‘political’ and ‘non-political’.34
Political modes are those in which member governments have a voice—most
directly in Treaty negotiations and in those policy areas where EU legislation still
requires unanimous agreement. But even where legislation by the ‘Community
Method’ depends on an initiative by the Commission and the agreement of the
European Parliament, the requirement of qualified majorities in the Council and the
consensus-enhancing procedures of the Council ensure member governments of a
significant voice in the process. This is not so in the non-political modes of EU policy
making. Member states, or the European Parliament, for that matter, have no voice
when the ECB determines the course of monetary policy, when the Commission
decides to prosecute certain practices of EU member states as Treaty violations, and
when the ECJ uses its powers of interpretation to shape the substance of primary
and secondary European law. Since the effects of policies so adopted may exceed the
importance of many acts of EU legislation, their legitimacy needs to be explicitly
discussed as well.

Political modes of policy making

From the perspective of member governments, the high consensus requirements
of EU legislation seem to ensure its input legitimacy. Policies are adopted with
their agreement, and even where Council votes are taken by qualified majority,
consensus-seeking practices are so effective, that politically salient national interests
that are vigorously defended by the respective governments are rarely overruled. But
that does not mean that EU legislation is without problems from the perspective of
member governments.
The most obvious problem is that high consensus requirements will often35
prevent majorities of member states from achieving ‘European solutions’ to
problems which, in their view should and could be resolved at the European level.

34
F. W. Scharpf, ‘Notes toward a Theory of Multilevel Governing in Europe’ (2001) 24
Scandinavian Political Studies 1–26.
35
Often, but not always. There are indeed policy areas where EU legislation appears more
‘progressive’ and ‘perfectionist’ than one should expect in light of the political preferences
of the median member state—for instance the fields of consumer protection, work safety, or
environmental policy. One reason may be the strong commitment to the success of EU initi-
atives of ‘Europhile’ national representatives in the Council Secretariat and in COREPER:
see J. Lewis, ‘The Janus Face of Brussels: Socialization and Everyday Decision Making in
the European Union’ (2005) 59 International Organization 937–71. But at least a contribut-
ing cause may also be the relative weakness of cross-sectional policy coordination within
the Commission and in the Council. This may allow policy specialists whose aspirations
are frustrated in interministerial bargaining at home to pursue these in intergovernmental
consensus within their specialised Council. Thus blockades and compromises on the lowest
common denominator should be primarily expected where intergovernmental confl icts
occur within the same specialised policy area—as seems to be true for tax harmonisation,
industrial relations, or social policy.
100  Fritz W. Scharpf
From their perspective, therefore, the output legitimacy of European legislation
remains systematically constrained. Nevertheless, where this is a first attempt at
European regulation, failure to agree on common rules leaves member governments
free to cope with the problem as best as they can at the national level. A potentially
much more difficult problem arises, however, once a European rule is in place. Its
‘supremacy’ will not only displace all existing national law that is inconsistent with it,
but it will also ‘occupy the field’ and pre-empt future attempts to deal with the same
matter through national legislation.
At the same time, moreover, the existing European rule is now protected against
changes by exactly the same high consensus requirements that had impeded its
earlier adoption. So even if the policy does not work, or if circumstances or the
political preferences of most member governments have changed significantly, it
will remain in force and cannot be reformed as long as it is still supported by either
the Commission (without whose initiative no amendments are possible) or by a
small blocking minority in the Council.36 In other words, European legislation is
much less reversible than national legislation which may be adopted, amended, and
revoked by the same simple majorities.37 As a consequence, the presumption that
existing legislation continues to be supported by a political consensus is less plau-
sible for the EU—and the potential discrepancy is bound to increase over time.

Non-political policy making

The presumption of consensus is, of course, even more attenuated for the
non-political modes of EU policy making in which member states have no voice. For
the monetary policy choices of the ECB, an unconditional preference for price stabil-
ity over all other goals of economic policy was stipulated in the Maastricht Treaty
(Article 105 ECT). And even if governments might prefer a more flexible mandate
today, they could not adopt it over the objections of even a single member state.
The same is true of the Court’s power to interpret European law (Article 220 ECT).
If the interpretation is based on provisions of the European Treaties, reversals by
unanimous Treaty amendments are practically impossible, and they are extremely
difficult for the ‘secondary law’ of European regulations and directives.

36
In fact, resistance to reform may be stronger than resistance to the initial adoption of a
policy—which may benefit from a widely shared interest in having some ‘European solution’ to
pressing national problems. Once this interest is satisfied, later reforms may be resisted by the
beneficiaries of the status-quo rule. The problem must be particularly acute for the new member
states which are bound by an aquis in whose adoption they had no voice, which may not fit their
conditions, and which cannot be modified to accommodate their interests and preferences.
37
Even more than two decades ago, Cappelletti et al spoke of the ‘acute danger of legal
obsolescence’ arising from ‘the combination of binding instruments and irreversible
Community competence coupled with the increasingly tortuous Community decision-
making process’. It did not become attenuated over time. See M. Cappelletti, M. Seccombe,
and J. H. H. Weiler (eds), Integration through Law: Europe and the American Federal Experience
(Berlin: DeGruyter, 1985), 40.
 Legitimacy in the Multi-level European Polity  101
If the difficulty of reversing or amending EU law creates an asymmetry between
the defenders of the status quo and the promoters of change, what matters here
is that it also creates an asymmetry in the principal–agent relationship between
those who are politically legitimated to formulate European law and those who
have a mandate to apply it. Since application always requires some interpretation,
the agents necessarily have some power to shape the content of the rules under
which they operate. And the domain of that power will expand if legislators are
unable to correct interpretations that deviate from the legislative intent.38 Given
the immense obstacles to amending the European Treaties and secondary Euro-
pean law, the potential scope for judicial legislation is wider in the EU than it is in
all constitutional democracies at the national level. But should this wider scope of
judicial review give rise to problems of legitimacy? If the question is considered
at all, a negative answer is generally based on one of two arguments, neither of
which seems fully convincing.
The first sees the Court in a role that was institutionalised by member states
to serve their rational self-interest. They agreed to give to the Commission the
power to prosecute, and to the Court the power to decide on, alleged violations of
their obligations under the Treaties—and (like the ECB) Commission and Court
are doing exactly what they are supposed to do, even if individual governments
may not like the decision in a particular case that affects them individually.39
The basic argument is analytical and game-theoretical. It presumes that Treaty
commitments of member governments should be modelled as solutions to a
(symmetric) N-person Prisoners’ Dilemma—ie a constellation where all will
benefit from cooperation, but all are tempted to free ride, in which case the
cooperative arrangement would unravel and all would be worse off. Under these
conditions, it was rational for all governments to create agencies beyond their
direct political control, and to invest these with the authority to monitor and
sanction violations of their commitments.
Empirically, this argument is surely overgeneralised. The assumption that EU
law reflects constellations of a symmetrical Prisoners’ Dilemma may be plausible
for free-trade rules, but the jurisdiction of the Court extends to a wide range of
policy areas that cannot be so characterised. Moreover, even within its empiri-
cal domain, the argument is theoretically overextended. The Dilemma model
provides justification for creating politically independent enforcement agencies
that will monitor compliance and may prosecute and sanction free riders. But it
provides no analytical or normative support for taking the rule-making function

38
G. Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ: Princeton University
Press, 2002).
39
G. Garret, ‘International Cooperation and Institutional Choice: The European Community’s
Internal Market’ (1992) 46 International Organization 533–60; id, ‘The Politics of Legal Integration
in the European Union’ (1995) 49 International Organization 171–81.
102  Fritz W. Scharpf
out of the hands of politically accountable principals.40 Not much is gained, more-
over, if the Dilemma argument is complemented by an ‘incomplete-contracts’
extension.41
It suggests that in a contract situation, rational actors, realising that they could
not foresee and regulate all future eventualities, and appreciating the high trans-
actions costs of continuous renegotiation, would agree on having future disputes
over the interpretation of their contract settled by a neutral agent. In game-theoretic
terms, this argument presupposes an underlying interest constellation resembling
the ‘Battle of the Sexes’, where all parties prefer agreement over non-agreement but
disagree over the choice among specific solutions.42 But while the argument may
support a strong role of the Commission as an ‘honest broker’ in the process of
European political legislation, it does not support judicial legislation.
For an explanation, assume two sets of member states, one with status-quo insti-
tutions resembling ‘liberal market economies’ and political preference for a liberal
European regime, and the other one with the status-quo institutions of a ‘coordi-
nated market economy’ and preferences for regulated capitalism at the European
level.43 In political legislation, it might be possible to find a compromise that both
sides prefer over their respective status-quo solutions. If not, the different national
regimes would remain in place. If the Court is allowed to define the European rule,
however, it must do so in a specific case that challenges and may invalidate the exist-
ing law of a particular member state without its consent. In doing so, however, the
Court could not create a new European regime to replace national solutions; it can
only remove existing national impediments to the free movement of goods, services,
capital and persons, to the freedom of establishment, to undistorted competition,
and to the principle of non-discrimination. In other words: for structural reasons
(which are quite independent of any ‘neoliberal’ preferences of the judges), judicial
legislation must have an asymmetric impact on our two sets of member states: by
itself, it can only impose liberalising and deregulatory policies. Under conditions of
complete information, therefore, member states with coordinated market economies
and concomitant political preferences would not be persuaded by an incomplete-
contracts argument and would not accept rule making by judicial legislation.

40
Similar empirical and theoretical objections apply to efficiency-based arguments trying
to exempt the European ‘regulatory state’ from the need for political legitimation (Majone,
above n 23). They apply at best to a narrow subset of European policy areas. And even there,
efficiency arguments presuppose value judgments about ends and means, and efficiency-
oriented decisions generate distributional consequences that require political legitimation
(Follesdal and Hix 2006, above n 26; Hix 2008, above n 26).
41
E. Maskin and J. Tirole, ‘Unforeseen Contingencies and Incomplete Contracts’ (1999) 66
Review of Economic Studies 83–114.
42
F. W. Scharpf, Games Real Actors Play: Actor-Centered Institutionalism in Policy Research
(Boulder, Col.: Westview, 1997), ch 6.
43
P. A. Hall and D. Soskice (eds), Varieties of Capitalism: The Institutional Foundations of
Comparative Advantage (Oxford: Oxford University Press, 2001).
 Legitimacy in the Multi-level European Polity  103
In the actual history of European integration, however, that choice was not available.
Since the ‘Luxembourg Compromise’ had reinforced the unanimity rule in the Council,
the greater diversity of national interests after the original Six had been joined by the
UK, Denmark, and Ireland had almost stopped the progress of integration through
political legislation. In particular, attempts at harmonising national trade regulations
had bogged down in interminable bargaining rounds. Hence the Court was widely
applauded when its Dassonville44 and Cassis45 decisions began to remove national non-
tariff barriers by giving direct effect to Treaty-based economic liberties. In effect, ‘good
Europeans’ everywhere came to welcome ‘Integration Though Law’46 as an effective
substitute for the perceived erosion of the ‘political will’ of member states.
Paradoxically, however, the immediate effect was a new stimulus to political integra-
tion. The Cassis decision had confronted all member states with the threat of having
their own regulations displaced by a rule of ‘mutual recognition’—a threat which,
whenever the Commission so chose, could be made real through Treaty infringement
prosecutions.47 With this change of the ‘default condition’, agreement on political
harmonisation became considerably more attractive. Thus member states responded
positively to Jacques Delors’s Single Market initiative and agreed to adopt the Single
European Act which introduced qualified-majority voting in the Council for the
harmonisation of rules affecting the functioning of the internal market (Article 95
ECT). And since Cassis had reduced the bargaining power of high-regulation coun-
tries, the new legislation also had a liberalising and deregulatory tendency.
In the 1980s, it is true, that effect did indeed correspond to the political prefer-
ences of a majority of ‘liberal’ governments in the Council.48 But it is not explained
by these preferences. And it was not reversed when, in the second half of the 1990s
there was a preponderance of left-of-centre governments in the EU. Instead, the
overall pattern is shaped by an institutional constellation in which political legisla-
tion must be negotiated in the shadow of judicial decisions which, for structural
reasons, have a liberalising and deregulatory impact. In other words, the empow-
erment of judicial legislation in the European polity cannot be justified by game-
theoretic or contract-theoretic arguments that try to show that it would, or ought
to be, chosen as an efficiency-increasing solution by all self-interested member states
or their governments.

44
Case 8/74 Procureur du Roi v Benoit and Gustave Dassonville [1974] ECR 837.
45
Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
46
This is the common title of the series of volumes produced by the famous ‘European
Legal Integration Project’ of the EUI Law Department. It should be noted, however, that the
editors of the series were very much aware of the normative and pragmatic ambivalences
implied by the divergence of legal and political integration: see Cappelletti et al, above n 37.
47
S. K. Schmidt, ‘Mutual Recognition as a New Mode of Governance’ (2007) 14 Journal of
European Public Policy 667–81; K. Nicolaïdis and S. K. Schmidt, ‘Mutual Recognition “on Trial”:
The Long Road to Services Liberalization’ (2007) 14 Journal of European Public Policy 717–34.
48
Moravcsik, above n 25.
104  Fritz W. Scharpf
For most governments, of course, justifications derived from normative rational-
choice theory are not of crucial relevance. What did and does matter much more
for them is the socially shared expectation that they should operate as ‘a govern-
ment of laws and not of men’, that courts should have the authority ‘to say what
the law is’, and that respect for the rule of law obliges them to respect and obey
the decisions of the ECJ.49 By itself, of course, this syllogism would not define the
proper domains of judicial and political legislation.50 It is true that judge-made law,
disciplined by its internal juristic logic and by the running commentary of the legal
profession, continues to play a very important and legitimate role in common-law
as well as in civil-law countries. But in constitutional democracies, it is developed in
the shadow of democratically legitimated legislation which could (but generally will
not) correct it by simple-majority vote. Since ECJ jurisprudence cannot be politically
corrected, the fact that member states have, by and large, acquiesced when decisions
were going against them, cannot be invoked as an indirect legitimation of judicial
legislation.
The more pertinent question is therefore whether the legitimacy of ECJ jurisdiction
could be equated with that of national constitutional courts. They may indeed override
parliamentary legislation—and for that reason, the legitimacy of judicial review
continues to be considered problematic in polities with a strong democratic tradi-
tion.51 But even if these fundamental doubts are set aside for the moment, the status
of ECJ jurisprudence cannot be equated with that of judicial review under national
constitutions. First, as Stefano Bartolini noted, it would have to ignore the fact that
national constitutions are generally limited to rules that organise the institutions of
government and protect civil liberties and human rights.52 By contrast, the European
Treaties, as they are interpreted by the ECJ, include a wide range of detailed provisions
which in constitutional democracies are matters for legislative determination, rather
than constitutional interpretation. As a consequence, the politically unconstrained
powers of the ECJ reach so much further than the powers of judicial review under any
national constitution. Even more important, however, is a second difference.
The judicial review exercised by national constitutional courts is embedded in national
political cultures with taken-for-granted normative and cognitive understandings and
shared discourses about appropriate policy choices.53 In public debates, the courts are
important, but by no means the only, interpreters of common value orientations.

49
K. Alter, Establishing the Supremacy of European Law (Oxford: Oxford University Press,
2001).
50
C. Möllers, Die drei Gewalten: Legitimation der Gewaltengliederung in Verfassungsstaat,
Europäischer Integration und Internationalisierung (Göttingen: Velbrück Wissenschaft, 2008).
51
A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Ind.:
Bobbs-Merrill, 1962); L. D. Kramer, The People Themselves: Popular Constitutionalism and Judicial
Review (Oxford: Oxford University Press, 2004); Bellamy, above n 4.
52
Bartolini (2008), above n 27.
53
J. G. March and J. P. Olsen, Rediscovering Institutions: The Organizational Basis of Institutions
(New York: Free Press, 1989).
 Legitimacy in the Multi-level European Polity  105
They must assume that the commitment to the common values of the polity is shared
by all branches of the national government, and that all are oath-bound to uphold the
constitution. They will thus approach legislation in a sprit of judicial self-restraint, and
with a presumption of its constitutionality. And if they must nevertheless intervene
against the majorities of the day, the legitimacy of their intervention depends on their
capacity to express ‘the sober second thought of the Community’.54
From the perspective of member states, these preconditions of judicial self-
restraint, which at the same time limit and legitimate judicial review, are lacking in
their relationship to the ECJ. Regardless of what may be true in its relationship to the
Commission and the European Parliament, there cannot be such shared orientations
between the Court and the governments, legislatures, and publics of the Union’s
twenty-seven extremely heterogeneous member states, and there is certainly no
presumption of Treaty conformity when the Court is dealing with national legisla-
tion. Instead, from the Court’s perspective, European integration is a mission to be
realised against the inertia or recalcitrance of member states; and European law is
not the expression of shared values but an instrument to discipline, and transform
national policies, institutions, and practices.
So where has this discussion led us? There is of course no question of the formal
legality of the Court’s jurisdiction. Article 220 ECT has clearly empowered it to apply
and interpret European law. Lawyers may dispute some of its interpretations, but
they will not judge them ultra vires.55 Given the sweeping generality of some Treaty
provisions and the intentional ambiguities in secondary law, it would in any case be
extremely difficult for the Court to follow the ‘original intent’ of the masters of the
Treaties or of the multiple authors of legislative compromises. But as Europeans have
had to learn through bitter experience, formal legality does not necessarily equate
with legitimacy.56 It suffices for ensuring acquiescence with the everyday constraints
and demands imposed by governing authorities in fundamentally legitimate polities.
But when highly salient interests and normative preferences are violated, positive
legitimating arguments are needed to stabilise the routines of voluntary compliance.
In the relationship between member states and the EU, the Roman-law maxims
of pacta sunt servanda and volenti non fit injuria will have considerable weight. Their
governments or their predecessors have participated in creating present-day EU insti-
tutions, including the authorisation of policy making in the non-political decision
modes; and governments of the newer member states have knowingly joined the

54
Bickel, above n 51, 26; L. Fisher, Constitutional Dialogues: Interpretation as Political Process
(Princeton, NJ: Princeton, University Press, 1988); M. Höreth, Die Selbstautorisierung des
Agenten: Der Europäische Gerichtshof im Vergleich zum U.S. Supreme Court (Baden-Baden: Nomos,
2008).
55
The most obvious characteristic of ECJ jurisprudence is its extreme form of teleological
interpretation (effet util). But this tendency is shared by modern national jurisprudence as
well: G. Lübbe-Wolff, ‘Expropriation der Jurisprudenz?’, in C. Engel and W. Schön (eds),
Das Proprium der Rechtswissenschaft (Tübingen: Mohr Siebeck, 2007), 282–92.
56
C. Joerges and N. Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of
National Socialism and Fascism over Europe and its Legal Traditions (Oxford: Hart, 2003).
106  Fritz W. Scharpf
previously established institutions and the accumulated acquis. But these obliga-
tions are limited by the third Roman maxim of ultra posse nemo obligatur. And as I
suggested above, the capacity of member states to comply with EU law reaches its
limits when doing so would undermine their own legitimacy in relation to their
national constituencies. In the following sections, I will first explore the general
conditions of this legitimating relationship, and I will then turn to a series of recent
decisions where the jurisdiction of the ECJ seems to pushing against the limits of
legitimate compliance.

iv. the need for justification

Since the law of the Union must be implemented by its member states, it is the
legitimacy of the member state that must ensure citizen compliance and citizen
support. As conceptualised above, it is based on ‘liberal’ as well as ‘republican’ norma-
tive foundations. By and large, however, the EU law generated through judicial
legislation is unlikely to challenge the specifically liberal principles of national
constitutions.57 But what may indeed be at stake is the ‘republican’ legitimacy of
national governments.
Democratic republicanism requires not merely the formal existence of general
elections and representative parliaments, but it presumes that the mechanisms of
electoral accountability may make a difference for public policy. At a minimum,
this (input-oriented) requirement implies that governments will be responsive to
citizen interests and preferences, and that changing governments may have an
effect on policies that are strongly opposed by popular majorities. At the same
time, however, governments are under a ‘republican’ (and output-oriented) obliga-
tion to use the powers of government for the common good of the polity. In the
normative traditions of constitutional democracies, both of these obligations are
of equal and fundamental importance. But their implications may confl ict when
public-interest oriented policies are unpopular while popular policies may endan-
ger the public interest. Under these conditions, normative political theory from
Aristotle to Edmund Burke did accord priority to the public interest, whereas even
theorists of democracy who reject the paternalistic or technocratic implications of

57
It is true that the protection of human rights was in issue when the German constitutional
court initially considered the possibility that it might have to review the constitutionality of
EU law in its Solange decisions—BverfGE 37, 271 (29.05.1974), BverfGE 73, 339 (22.10.1986).
In the meantime, the ECJ responded and this issue has been laid to rest: J. H. H. Weiler and
N. J. S. Lockhart, ‘Taking Rights Seriously: The European Court and Its Fundamental Rights
Jurisprudence’ (1995) 32 Common Market Law Review 51–94 (Pt I), 579–627 (Pt II). The rights
to collective industrial action that are involved in the Viking and Laval cases discussed below
could, in my view, not be classified as an implication of ‘liberal’ constitutional principles.
 Legitimacy in the Multi-level European Polity  107
output-oriented arguments58 will rarely defend radical populism as a normatively
acceptable alternative.59
Instead, modern democratic theory focuses on the interactions between
governors and the governed. Responsible governments must pursue the common
good, but its substantive understanding, and the policies serving its attainment,
should arise from deliberative interactions in the shared public space of the
polity.60 More specifically, Vivien Schmidt focuses on the role of policy-oriented
‘communicative discourses’ in which governors must explain and justify the
unpopular policies which they consider necessary and normatively appropriate.61
The more these policies violate highly salient interests or deviate from the strongly
held normative preferences of their constituency, the more urgent is the need for
justification showing how the measures in question will serve the values of the
polity under present circumstances.
If these communicative discourses succeed in persuading the constituency, input-
oriented policy legitimacy is maintained. If they fail to persuade, governments are
at risk. In general, of course, electoral accountability is neither a precisely targeted
nor a very sensitive mechanism of popular control. Voters only have a single ballot
to express their pleasure or displeasure over a multitude of policy choices, assorted
scandals and the personality traits of leading candidates; and even if public protest
was concentrated on a single issue yesterday, it may have disappeared from public
attention by the next election.62 But if a policy does violate highly salient interests
or deeply held normative convictions of the constituency, a government that sticks
to its guns but fails to convince may indeed go down in defeat.63 If that happens, the

58
Greven, above n 26; Bartolini (2005), above n 27; Hix 2008, above n 26.
59
Y. Mény and Y. Surel (eds), Democracies and the Populist Challenge (Houndmills: Palgrave
Macmillan, 2002).
60
Habermas, above nn 11, 8; J. Habermas, ‘Hat die Demokratie noch eine epistemische
Dimension? Empirische Forschung und normative Theorie’, in J. Habermas, Ach Europa:
Kleine politische Schriften XI (Frankfurt am Main: Suhrkamp, 2008), 138–91; J. S. Dryzek,
Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford: Oxford University
Press, 2000); Greven above n 26; C. de Vreese and H. Schmitt (eds), A European Public Sphere:
How much of it do we have and how much do we need? (Connex Report Series No 02; Mannheim:
University of Mannheim, 2007).
61
V. A. Schmidt, ‘The European Union: Democratic Legitimacy in a Regional State’ (2004) 42
Journal of Common Market Studies 975–99; ead, Democracy in Europe: The EU and National Politics
(Oxford: Oxford University Press, 2006).
62
In real-world democracies, political responsiveness may nevertheless be quite high: In
Germany, national governments are tested in 16 Land elections during the four-year term of
the national parliament; in all competitive democracies, opposition parties will try their best
to refresh voters’ memories before the next election; and in any case, governments cannot
know in advance which issue will ultimately be decisive for which voters. By the ‘rule of
anticipated reactions’ they will therefore try to respond to all potential grievances if they can
(Scharpf, above n 42, 183–8).
63
This was true when the Dutch government reformed disability pensions in the early
1990s: A. Hemerijck, B. Unger, and J. Visser, ‘How Small Countries Negotiate
108  Fritz W. Scharpf
government will not have established the input legitimacy of these policies. But it
will have reaffirmed the institutional legitimacy of the system of responsible and
democratically accountable government.
The opposite is true, however, if policies that violate politically salient interests
and normative convictions in national polities are not, and cannot be explained and
justified in communicative discourses. When that happens, the legitimacy of consti-
tutional democracies will be undermined and may ultimately be destroyed. This is
the critical risk if governments are required to implement European law that has
been created without the involvement of politically accountable actors by institu-
tionally autonomous judicial legislation.
That is not meant to say that judge-made European law that violates politically
salient interests or deeply held normative convictions in member-state polities could
never be justified as being necessary and appropriate. But it suggests that justifica-
tion is more demanding here than it is in the case of political legislation in which
governments had a voice and for which they therefore should be able to provide
good reasons. In principle, there could be two types of justification.
The first would appeal to ‘enlightened’ national self-interest. It would try to
show how, all things considered, the country will benefit more from the policy
or rule in question than from its absence. In essence, these are arguments that
would facilitate agreement in a political bargaining process—and they would justify
compliance with European rules that are in fact providing effective solutions under
conditions which, in game-theoretic terms, resemble Pure Coordination, Assur-
ance, Battle of the Sexes, or (symmetric) Prisoners’ Dilemma constellations.64 But
what if the constellation is characterised by asymmetric confl icts—so that the rule
that is imposed by non-political European authority cannot be justified in terms
of the enlightened self-interest of the member state in question? Analytically, one
might then try to justify uncompensated national sacrifices by reference to the
collective self-interest of the Union as a whole. However, depending on the salience
of the sacrifice requested, this justification would presuppose a collective Euro-
pean identity that is strong enough to override concerns of national self-interest.
Unfortunately, however, that is a precondition which not even the most enthusiastic
‘Europeans’ would claim to see presently fulfilled in the Union of twenty-seven
member states.65

Change: Twenty-Five Years of Policy Adjustment in Austria, the Netherlands, and Belgium’,
in F. W. Scharpf and V. A. Schmidt (eds), Welfare and Work in the Open Economy, Vol.II:
Diverse Responses to Common Challenges (Oxford: Oxford University Press, 2000), 175–263, at
220–4. It was again true in Germany when the Schröder government pursued its ‘Agenda
2010’ reforms in spite of mass protests and rapidly declining popular support: C. Egle and
R. Zohlhöfer (eds), Ende des rot-grünen Projekts: Eine Bilanz der Regierung Schröder 2002–2005
(Wiesbaden: VS Verlag, 2007).
64
Scharpf, above n 42, ch 6.
65
J. Pollak, ‘Ist eine europäische Identität möglich? Warum wir lernen müssen, Zwiebeln
zu lieben’, in C. Joerges, M. Mahlmann, and U. K. Preuß (eds), ‘Schmerzliche Erfahrungen der
Vergangenheit’ und der Prozess der Konstitutionalisierung Europas (Wiesbaden: VS Verlag, 2008),
63–80.
 Legitimacy in the Multi-level European Polity  109
But that does not mean that asymmetric national sacrifices could never be justified
in national discourses. The most powerful of such justifications is, of course, the
achievement of European integration itself. The outcome has not been, and may
never be, the creation of a ‘United States of Europe’ modelled after successful
federal nation states.66 But integration has been able to establish peace and coop-
eration among European nations after centuries of internecine warfare, and to
secure democracy and respect for human rights on a continent that has brought
forth the most pernicious regimes in human history. These outcomes could not
have been attained by the bloody-minded pursuit of national self-interest. Being part
of the European community of nations presupposes member states whose institu-
tions and policies are compatible with the basic requirements of communality, and
whose preferences are modified by a normative commitment to the ‘inclusion of the
other’.67 The preservation of these achievements may indeed justify constraints on
national autonomy even where these may confl ict with politically salient interests
and preferences in member polities. Hence European rules protecting the precon-
ditions of communality, regardless of whether they are formulated in political or
non-political processes, may be justified on substantive grounds—and if that is so,
they also can and should be defended by member governments even against strong
domestic opposition.

v. is the court pushing against

the limits of justifiability?
Given the equally valid legitimation arguments supporting democratic self-
determination at the national level and the normative claims of European commu-
nality, however, a convincing justification must assess the relative weight at stake in
the specific case. The greater the political and normative salience of the national
institutions and policy legacies that are being challenged, the greater must be the
normative and practical significance of the countervailing European concerns. For
many decades, however, the need to develop explicit criteria for that normative
balance did not arise. Most issues of European law never did catch the attention of
national publics, and the Court itself seems to have taken care to develop its doctrines
in a long series of decisions where the substantive outcomes at stake were of very
low political salience or downright trivial. Thus it was hard to get politically excited
about the Cassis decision which told Germany that it could not exclude a French
liqueur on the ground that its alcohol content was too low—but which, in doing
so, also introduced the crucial doctrines of mutual recognition and home-country
control.

66
K. Nicolaidis and R. Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in
the United States and the European Union (Oxford: Oxford University Press, 2001).
67
J. Habermas, Die Einbeziehung des Anderen: Studien zur politischen Theories (Frankfurt am
Main: Suhrkamp, 1996); J. H. H. Weiler, ‘To Be a European Citizen: Eros and Civilization’, in
his The Constitution of Europe (Cambridge: Cambridge University Press, 1999), 324–57.
110  Fritz W. Scharpf
That is why earlier warnings of the implications of ECJ jurisprudence for the
viability of national social systems68 could be dismissed as unrealistic scares.69 But
now, as the legal principles seem firmly established in its case law and accepted by
national courts, the European Court and the Commission seem ready to face more
serious political confl icts. I will briefly mention only a few recent decisions that
illustrate this more intrusive and potentially more damaging judicial strategy.
The first case has nothing to do with the neoliberal preferences which are often
ascribed to the Court and the Commission. Austria, where university education is
free and accessible to all graduates of a gymnasium saw its medical faculties over-
crowded by applicants from Germany whose grades were not good enough to qualify
under the German numerus-clausus regime. In defence, Austria had adopted a rule
under which applicants from abroad had to show that they would also be eligible to
study medicine in their home country. The Commission initiated a Treaty violation
procedure, and the Court found that the Austrian rule was violating students’ rights
to free movement and non-discrimination under Article 12 ECT.70 As an immediate
result of the decision, more than 60 per cent of applicants at some Austrian medical
faculties came from Germany.
The second series of recent decisions was indeed about the priority of economic
liberties over social rights guaranteed by member-state constitutions. In Viking,71 a
Finnish shipping company operating from Helsinki had decided to reflag its ferry
as an Estonian vessel. The Finnish union threatened to strike, the company sued
for an injunction, and the case was referred to the ECJ which defined the strike as
an interference with the company’s freedom of establishment. In the Laval case,72 a
Latvian company building a school in Sweden refused to negotiate about wages at
the minimum level defined by Swedish collective bargaining agreements. The ECJ
defined the Swedish union’s industrial action as violation of the company’s freedom
of service delivery that was not covered by a narrow reading of the Posted Workers’
Directive.73
If Viking and Laval were directed against the constitutionally protected rights of
Finnish and Swedish unions to pursue collective interests through industrial action,
the Rüffert74 and Luxembourg75 cases established the priority of free service delivery over
national wage legislation. Rüffert disallowed a statute of Lower Saxony that required
providers in public procurement to pay locally applicable collective-bargaining wages,

68
eg Scharpf, above n 1.
69
A. Moravcsik and A. Sangiovanni, ‘On Democracy and “Public Interest” in the European
Integration’, in R. Mayntz and W. Streeck (eds), Die Reformierbarkeit der Demokratie: Innovationen
und Blockaden (Frankfurt am Main: Campus, 2003), 122–50.
70
Case C-147/03 Commission v Republic of Austria [2005] ECR I-5969.
71
Case C-438/05 ITWF and Finnish Seamen’s Union v Viking Line ABP [2007] ECR I-10779.
72
Case C-341/05 Laval un Partneri Ltd v Svenska [2007] ECR I-11767.
73
Dir 96/71/EC.
74
Case C-346/06 Rüffert v Land Niedersachsen [2008] ECR I-1989.
75
Case C-319/06 Commission v Luxembourg [2008] ECR I-4323.
 Legitimacy in the Multi-level European Polity  111
whereas Luxembourg had transposed the Posted Workers’ Directive in a statute
requiring all providers to observe local labour law including the automatic adjustment
of wages to the rate of inflation. In both cases, the Court defined the Directive as
setting maximum, rather than minimum standards, with the consequence that local
legislation exceeding these was held to violate the freedom of service delivery. At
the same time, the freedom of establishment is being used to hollow out the capac-
ity of member states to shape the rules of corporate governance in their economies
in accordance with national institutional traditions and political preferences.76 In
other cases the Court has drastically reduced the capacity of member governments
to protect their revenue systems against tax avoidance that is facilitated by decisions
protecting the freedoms of capital movement and of service delivery.77 Here, as in
the line of decisions enforcing the access of EU citizens to public services and social
transfers in other member states,78 the Court gives priority to the subjective rights to
free movement and non-discrimination without regard to reciprocal obligations to
contribute to the resources of the polity.

vi. the liberal undermining of republican legitimacy

In these decisions and others, the Court has obviously intervened against important
and politically salient laws, institutions, and practices of individual member states. But
why should it be impossible to justify these interventions in national communicative
discourses? The root of the problem is a basic asymmetry in how the Court defines
the balance between the legitimate concerns of member-state autonomy and the
legitimate requirements of European community.79 It has its origin in the very first
decision postulating the direct effect of European law in Van Gend en Loos (1963).80 In
order to establish this doctrine, the Court had to interpret the obligation of a member
state to maintain existing tariffs as the subjective right of a company against the state.
Combined with its nearly simultaneous assertion of the supremacy of European

76
See, eg Case C-212/97 Centros Ltd v Erhvervs-og Selskabsstyrelsen [1999] ECR I-1459;
Case C-112/05 Commission v Federal Republic of Germany [2007] ECR I-8995.
77
Ganghof and Genschel, ‘Steuerpolitik’, above n 24.
78
M. Ferrera, The Boundaries of Welfare: European Integration and the New Spatial Politics of
Social Protection (Oxford: Oxford University Press, 2005); D. Martinsen, ‘The Europeanization
of Welfare: The Domestic Impact of Intra-European Social Security’ (2005) 43 Journal of
Common Market Studies 1027–54; D. Martinsen and K. Vrangbaek, ‘The Europeanization of
Health Care Governance: Implementing the Market Imperatives of Europe’ (2008) 86 Public
Administration 169–84.
79
As Weiler explained in a different context, the issue is not, or at least not initially, a
confl ict over the location of a Kompetenz-Kompetenz in the multi-level European polity, but
a deep concern about the political consequences following from the asymmetric logic of
the Court’s jurisdiction: J. H. H. Weiler, ‘The Autonomy of the Community Legal Order:
Through a Looking Glass’, in his The Constitution of Europe (Cambridge: Cambridge
University Press, 1999), 286–323.
80
Case 26/62 van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1.
112  Fritz W. Scharpf
law,81 this construction has permitted the Court to define and expand subjective rights
against member states, and thus to shift the balance between the rights and obligations
of citizens or subjects that had been established in national polities.
Since the commitments in the original Treaty were primarily intended to achieve
economic integration, their transformation into ‘economic liberties’ does account for
the strongly ‘market-liberal’ effects of the Court’s jurisprudence. It should be noted,
however, that where the primary or secondary European law provided a handle for
the definition of non-economic subjective rights, the Court has been similarly ready to
intervene against national impediments to their exercise. This has long been true for
decisions enforcing and extending the equality of men and women in the workplace
under Article 141 ECT;82 and it is now also true of the extension of rights to the free
movement of persons outside of the labour market, of rights of non-discrimination on
accounts of nationality, and of the generalisation of (non-political) citizenship rights.
This has been hailed by some as a fundamental reversal of the Court’s market-liberal
bias,83 whereas it is in fact only the application of its negative-integration and liberalis-
ing logic to fields that have newly become accessible to the Courts jurisdiction.
In the framework developed by the ECJ, the European concerns that might justifiably
override democratically legitimated national institutions and policy legacies are defined
as subjective rights of individuals and firms, rather than as substantive requirements
on which the viability of the European community of nations, or the internal market,
for that matter, would depend. Given the simultaneous assertion of the supremacy
doctrine, this definition has the effect of transforming the hierarchical relation between
European and national law into a hierarchical relationship between liberal and repub-
lican constitutional principles.84 Subjective rights derived from (the interpretation of )
European law may, in principle, override all countervailing national objectives, regard-
less of their salience as manifestations of democratic self-determination.
Given the impossibility of political correction, the Court was and is of course free to
extend the reach of European rights. In the field of free trade, for instance, the Treaty
forbids quantitative restrictions and ‘measures having equivalent effect’ (Article 28
ECT). Originally that had been understood to exclude the discriminatory treatment of
imports. In the early 1970s, however, that understanding was replaced by the famous
Dassonville formula, according to which ‘all trading rules enacted by member states

81
Case 6/64 Costa v ENEL [1964] ECR 585.
82
R. A. Cichowski, ‘Women’s Rights, the European Court, and Supranational
Constitutionalism’ (2004) 38 Law & Society Review 489–512.
83
J. A. Caporaso, The European Union: Dilemmas of Regional Integration (Boulder, Col.: Westview,
2000); J. A. Caporaso and S. Tarrow, ‘Polanyi in Brussels: European Institutions and the
Embedding of Markets in Society’, paper presented at the APSA 2008 annual meeting, Boston,
Mass., 28 August 2008.
84
Münch has described the legal order created by the jurisdiction of the ECJ as being ‘made
for competitive economic actors. It is more appropriate for the market citizen of liberalism
than for the political citizen of republicanism or for the social citizen of welfare states in the
social democratic or conservative sense’ (R. Münch, ‘Constructing a European Society by
Jurisdiction’ (2008) 14 European Law Journal 519–41, at 540).
 Legitimacy in the Multi-level European Polity  113
which are capable of hindering, directly or indirectly, actually or potentially, intra-
community trade are to be considered as measures having an effect equivalent to
quantitative restrictions’.85 In other words, instead of effective discrimination, a merely
hypothetical impediment to free trade, free capital movement, free service delivery, or
free establishment would now be enough to strike down a national rule.
It is true that after Dassonville, the Cassis decision also began to systematise the
somewhat haphazard public-order exceptions (eg in Articles 30, 39/3, 46/1, 55, or
58/1b ECT) through which the Treaty had tried to limit the obligations to liber-
alise national economies. In most areas, therefore, the Court does now allow for the
possibility that the exercise of European liberties could be limited by (some) coun-
tervailing national concerns.86 But if this has the appearance of a balancing test, the
balance is highly asymmetrical—which manifests itself in three dimensions.
First, some national concerns of major importance are simply defined as irrel-
evant to begin with. Of greatest practical importance among these is the consistent
refusal to consider national fiscal concerns as a potential limit on the exercise of
European liberties. Thus in the Austrian case mentioned earlier, the effect which
the free movement and non-discrimination of German students would have on the
budgetary constraints of Austrian medical education is entirely ignored. The same
is true in cases where the free movement of persons is invoked to allow the access
of migrants to national social transfers,87 or where the freedom of service provision
requires national health (insurance) systems to pay for services consumed abroad.88
Moreover, revenue concerns are declared irrelevant when national rules against tax
avoidance are treated as violations of free capital movement.89
By treating the fiscal implications of its decisions as irrelevant, the Court is destroy-
ing the link between the rights and duties of membership in the polity which is
reflected in centrality of parliamentary taxing and spending powers in all constitu-
tional democracies.90 In a republican perspective, German students and their taxpay-
ing parents may have good reasons to protest against the spending priorities of their
own governments, but that would not give them a legitimate claim against taxpayers
in Austria. The same would be true of other tax-financed services, of social transfers

85
Dassonville, above n 44.
86
U. Haltern, Europarecht: Dogmatik im Kontext (Tübingen: Mohr Siebeck, 2nd edn, 2007),
742–55.
87
See, eg Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119; Joined cases C-245/94
and C-312/94 Hoever and Zachow v Land [1996] ECR I-4895; Case C-131/96 Romero v Land
[1997] ECR I-3659; Case C-160/96 Molenaar v Allgemeine [1998] ECR I-843; Case C-85/96
Sala v Bayern [1998] ECR I-2691.
88
See, eg Case C-120/95 Decker v Caisse de maladie [1998] ECR I-1831; Case C-158/96 Kohll v
Union des caisse de maladie [1998] ECR I-1931; Case C-157/99 Geraets-Smits and Peerbooms
[2001] ECR I-5473; Case C-385/99 Müller-Fauré and Van Riet [2003] ECR I-4509 (Martinsen,
above n 5; Martinsen, above n 78.)
89
Ganghof and Genschel, ‘Steuerpolitik’, above n 24.
90
Ganghof and Genschel, ‘Taxation’, above n 24.
114  Fritz W. Scharpf
or of public health systems, and of compulsory health insurance systems in which
total contributions must finance an adequate capacity on the supply side.91 Similarly,
firms and individuals availing themselves of the public infrastructure and public
services in one country would be under a republican obligation to contribute to the
tax price of their maintenance.
By replacing the reciprocal link between entitlements and contributions with the
assertion of unilateral individual rights, the Court may seem generous. But its gener-
osity ignores the club-good character of most of the benefits and services provided
by the solidaristic nation state. Allowing the easy exit of contributors and the easy
entry of non-contributors must undermine the viability of these clubs. If the logic
of these decisions will shape national responses, the most likely outcome will not be
universal generosity but private insurance, private education, and gated communi-
ties for those who can afford them, and eroding public benefits, public services, and
public infrastructure for those who cannot pay for private solutions (including the
no-longer discriminated migrant students, workers, and their families).
Second, even where national public-interest objections, or nationally protected
collective rights, are in principle considered as potential limits on the exercise of
European rights, the Court’s treatment is highly asymmetrical. Whereas European
liberties, no matter how trivial their violation may be in the specific case, are
accorded full value, all countervailing arguments are discounted by a substantive
and procedural ‘proportionality’ test.92 In this, the Court will first evaluate (by its
own lights) the normative acceptability of the specific purpose that is allegedly
served by a national measure. And even if the purpose is accepted in principle,
the government must show that, first, the measure in question would in fact be
effective in serving the stated purpose and, second, that this purpose could not also
have been served by other measures that would be less restrictive on the exercise
of European liberties.93 For all of these conditions, the burden of proof is on the
member state defending a particular impediment to the exercise of European liber-
ties and, as Dorte Martinsen shows, the procedural requirements for establishing
(scientific) proof can be tightened to an extent that will ensure a negative outcome
for the member state.94
For an illustration, take the decision striking down the Volkswagen statute95 which
had defined 20 per cent of all shares (instead of the usual 25 per cent) as a block-

91
This is not meant to deny that the ‘inclusion of the other’ may imply an obligation to
provide non-contributory benefits in many constellations. If this obligation were
asymmetrically subordinated to fiscal concerns, the trade-off would indeed need to be
corrected through judicial intervention. But that balancing question cannot be addressed if
fiscal considerations are treated as being by definition irrelevant.
92
Case 261/81 Rau v De Smedt PvBA [1982] ECR 3961 [12].
93
Haltern, above n 86, 751–7.
94
D. Martinsen, ‘Confl ict and Confl ict Management in the Cross-border Provision of
Healthcare Services’ (2009) 32 West European Politics 792–809.
95
Volkswagen, above n 76. The discussion quoted is at [55].
 Legitimacy in the Multi-level European Polity  115
ing minority. In the Court’s view, this rule created a potential deterrent to direct
investments from other member states,96 while evidence showing that VW stock was
in fact widely traded internationally and that the share of direct foreign investments
was as high as in comparable companies was declared irrelevant. In other words,
the existence of an impediment to the free movement of capital is treated as an
incontrovertible presumption.97
Or take the Austrian case, where the Court did at least entertain the idea that the
danger of overcrowding in Austrian universities might be a valid national concern.
But the idea was quickly dismissed with the suggestion that this problem could be
averted through non-discriminatory entry exams.98 The fact that Austria may have
needed to give priority to Austrian students in order to train a sufficient number of
medical practitioners for its own healthcare system remained completely outside the
range of permissible arguments. In the asymmetrical jurisprudence of the Court, in
other words, European rights are substantively and procedurally privileged and will
generally prevail over even very important and politically salient national concerns.
A third problem arises from the discrepancy between the uniformity of European
law and the diversity of national republican institutions. The Treaty-based economic
liberties are of course defined at the European level and without regard to national
differences. The same is true where the Court recognises other subjective rights at
the European level—which may increase in number and variety if the Lisbon Treaty
comes into force.99 And where countervailing national concerns are considered at all,
these are also defined in uniform and (highly restrictive) terms by the Court. For an
example, take the decision in the Laval case, where the Court would have accepted
minimum wages to be set by state legislation, but disallowed the delegation to
collective-bargaining agreements. In doing so, it ignored the fact that minimum-wage
legislation, while common in many EU member states, was totally unacceptable
in ‘neo-corporatist’ Sweden, where wage determination since the 1930s has been
left entirely to highly organised unions and employers’ associations.100 In short, the
Court’s regime of Treaty-based rights and of potentially acceptable national excep-
tions makes no allowance whatever for the fact that uniform European law has
an impact on national institutions and policy legacies that differ widely from one

96
The Court conceded that private shareholders might set the blocking minority at 20 per
cent of all shares, but insisted that a democratically accountable legislature could not do so.
97
Since under the Dassonville formula a potential impediment is sufficient to constitute a
violation of free-movement rights, it is indeed difficult to see what kind of evidence could
disprove the assertion.
98
Austria, above n at [61].
99
As the Laval decision made clear, however, such rights (including the freedoms of expres-
sion, assembly, and the protection of human dignity) can be exercised only within the tight
constraints of the proportionality test whenever they might impede the economic liberties
rooted in the Treaty (Laval, above n 72, at [94]).
100
P.-A. Edin and R. Topel, ‘Wage Policy and Restructuring: The Swedish Labor Market since
1960’, in R. B. Freeman, R. Topel, and B. Swedenborg (eds), The Welfare State in Transition:
Reforming the Swedish Model (Chicago, Ill.: University of Chicago Press, 1997), 155–201.
116  Fritz W. Scharpf
member state to another. Such differences exist not only in the field of industrial
relations, but also in corporate governance, public services, public infrastructure,
media policy, social policy, pension policy, healthcare, vocational and academic
education, or public infrastructure, and so on. Present solutions differ because they
have been shaped by country-specific historical cleavages and by difficult compro-
mises between conservative, progressive, and liberal political forces—which is why
attempted changes tend to have very high political salience everywhere.
Political resistance to change is likely to be strongest where institutions and poli-
cies have a direct impact on the lives of citizens—which is most obvious for welfare
state transfers and services, industrial relations, employment conditions, education,
or healthcare. In many instances, existing policies have attained the status of a ‘social
contract’ whose commitments support the legitimacy of the national polity. That
is not meant to suggest that such normatively charged institutions and policy lega-
cies should or could be immune to change. In fact, their continuing viability under
external and internal pressures is often quite uncertain.101 But if the legitimacy of
the national polity is to be preserved, such changes must be defended and justified in
national communicative discourses—by governments who must be ready to face the
consequences of their electoral accountability.
In fact, the text of the Treaty does recognise the need to respect the autonomy
of member-state political processes in precisely these policy areas. In Maastricht and
Amsterdam, European competences have been explicitly denied in policy areas of
high normative salience at the national level. Thus Article 137/5 ECT stipulates that
European competencies in the field of social affairs ‘shall not apply to pay, the right
of association, the right to strike or the right to impose lockouts’. Similarly, European
measures in the field of employment ‘shall not include harmonisation of the laws and
regulations of Member States’ (Article 129/2 ECT), and exactly the same formula is
repeated for education (Article 149/4 ECT), for vocational education (Article 150/4),
and for culture (Article 151/5), while Article 152/5 ECT provides that ‘Community
action … shall fully respect the responsibilities of the Member States for the organisa-
tion and delivery of health services and medical care’. In other areas, the Treaty has for
similar reasons maintained the requirement of unanimous decisions in the Council.
In the Court’s legal framework, however, these prohibitions could at best102
impede political legislation at the European level. But they are considered irrelevant
for judicial legislation where it is protecting Treaty-based liberties.103 That is why the

101
F. W. Scharpf and V. A. Schmidt (eds), Welfare and Work in the Open Economy (Oxford:
Oxford University Press, 2000), 2 vols.
102
If the Commission should find that the difference between national rules (provided that
they individually have passed the proportionality test) interferes with the internal market
or constitutes a distortion of competition, a harmonising directive could still be introduced
under Arts 95 and 96/2 ECT: see Haltern, above n 86, 740–1.
103
The typical formula is that, yes, member states retain the right to shape their own social
security and healthcare systems. But in doing so, they must of course observe Community
law. See, eg Kohll, above n 88, at [16], [19–20]. This illustrates the fundamental significance
of the Court’s initial dogmatic choice: by treating the Treaty commitments to creating a
 Legitimacy in the Multi-level European Polity  117
cases cited could and did indeed regulate strikes in Finland and Sweden, and they did
abolish national pay regulations in Germany and Luxembourg or national regula-
tions of university admissions in Austria as well as national regulations of health
services and medical care in Luxembourg and the Netherlands.
In short, even unanimous amendments to the Treaties, formally ratified in all
member states, could not protect the autonomy of national political processes
against judicial intervention. In the absence of a political mandate, and ignoring
explicit Treaty provisions that were intended to limit the reach of European law, the
Court is now intervening in areas that are of crucial importance for the maintenance
of democratic legitimacy in EU member states.

vii. needed: a political balance of community

and autonomy
From a pragmatic perspective, this appears dangerous: national welfare states are
under immense pressure to cope with and adjust to external and internal changes.104
But this adjustment must be achieved through legitimated political action. The
Court can only destroy existing national solutions, but it cannot itself create ‘Social
Europe’. At the same time, political action at the European level is impeded by the
prohibitions stipulated in the Maastricht and Amsterdam Treaties, and if these were
lifted, by high consensus barriers and the politically salient diversity of existing
national solutions. In short, European law as defined by the Court is undermining
national solutions without being able to provide remedies at the European level. The
practical effect must be a reduction of the overall problem-solving capacity of the
multi-level European polity.
From a normative perspective, what matters is that the Court’s interventions
are based on a self-created framework of substantive and procedural European law
that has no place for a proper assessment of the national concerns that are at stake,
and in which the fl imsiest impediment to the exercise of European liberties may
override even extremely salient national policy legacies and institutions. Within this
highly asymmetrical juristic framework a normatively persuasive balance between
the essential requirements of European communality and the equally essential
respect for national autonomy and diversity cannot even be articulated. By the
same token, the legal syllogisms supporting these judicial interventions could not

common market characterised by the free movement of goods etc, not only as a source
of legislative competencies, but as a guarantee of individual rights, the Court eliminated
the legal possibility of defining areas of national competence that cannot be reached by
European law. As is true in national federal constitutions, nationally defined and enforced
individual rights are a powerful centralising force which may reach any and all substantive
fields. While legislative powers may be limited through constitutional amendments, the judi-
cial protection against impediments to the exercise of individual rights knows no legal limits.
If limits are considered desirable, therefore, they can only be political.
104
Scharpf and Schmidt, above n 101.
118  Fritz W. Scharpf
possibly persuade opponents in communicative discourses between member-state
governments and their constituents. In short, the politically unsupported extension
of judge-made European law in areas of high political salience within member-state
polities is undermining the legitimacy bases of the multi-level European polity.
But this cannot be a plea for unconstrained member-state autonomy or a reloca-
tion of the Kompetenz-Kompetenz to the national level.105 The result might indeed
be an escalation of protectionist and beggar-my-neighbour policies that could well
disrupt the Union. It should be realised, after all, that Viking and Laval did obvi-
ously involve a distributive confl ict between high-wage and low-wage member states
whose fair resolution would have raised difficult normative issues—and the same
may also be true of the Rüffert and Luxembourg cases.106 There are, therefore, good
theoretical reasons for some kind of European review of national measures imped-
ing free movement among member states. But the review would need to allow for a
fair consideration of all concerns involved—which the jurisdiction of the ECJ does
not. Its self-referential legal framework prevents any consideration of the normative
tension between solidarity achieved, with great effort, at the national level and a
moral commitment to the ‘inclusion of the other’ in a European context.
But which institution would be better qualified to assess the balance between
politically legitimate, and divergent, national concerns on the one hand, and the
equally legitimate constraints that national polities must accept as members of a
European community of states? In my view, the European institution that would
be uniquely qualified to strike a fair balance is the European Council.107 From the
perspective of individual member states, its decision would be a judgment of peers
who are aware of the potential domestic repercussions which may be caused by the
obligation to implement European law, and who must realise that they might soon
find themselves in the same spot. At the same time, however, these peers would also

105
Weiler, above n 67.
106
But we should remain realistic: the transnational redistributive benefits (for workers
from low-wage countries) that may follow from these judgments are likely to be dwarfed by
intranational redistributive damages, as wages of national workers are pushed downwards if
protective legislation and collective agreements are being disabled.
107
Weiler, above n 67, 322, called for a ‘Constitutional Council’ composed of sitting
members of national constitutional courts to decide issues of competence; and a similar
proposal was recently promoted by Roman Herzog, former president of the German consti-
tutional court and of the European convention that produced the Charter of basic rights
(R. Herzog and L. Gerken, ‘Stoppt den Europäischen Gerichtshof ’ in Frankfurter Allgemeine
Zeitung, 8 September 2008, p 8). In my view, being a judicial body that is bound by its own
precedents and obliged to generalise its decision rules, this Council would also tend to define
uniform standards that could not accommodate the legitimate diversity among member-
state institutions and practices. What is needed is the disciplined ‘adhocery’ of a political
judgment that understands that it may be necessary to allow, for the time being, national
parliaments and courts to have the last word on abortion in Ireland, alcohol in Sweden, and
drugs in the Netherlands, even if that should interfere with European liberties protected
elsewhere (Paulette Kurzer, Markets and Moral Regulation: Cultural Changes in the European
Union (Cambridge: Cambridge University Press, 2001)).
 Legitimacy in the Multi-level European Polity  119
be fully aware of the dangers of protectionist free-riding, of beggar-my-neighbour
policies and of discriminatory practices that would violate solidaristic obligations.
Moreover, and most importantly, in their role as ‘masters of the Treaties’, the
members of the European Council would be best placed to determine whether and
where the Court, in its interpretation of primary and secondary European law has
so far exceeded the legislative intent that a political correction appears necessary.
Even if the basic logic of this suggestion should be accepted, however, its adop-
tion by a unanimous Treaty amendment seems most unlikely. But there is a scenario
that might change these probabilities. Remember what I said about the fundamen-
tal dependence of the EU and its legal system on the voluntary compliance of its
member states, and about the lack of control of political actors over the expansion of
judicial legislation. And now imagine that the governments of some member states,
say Austria or Sweden or Germany, would openly declare their non-compliance with
specific judgments that they consider to be ultra vires. Without more, such a declara-
tion would surely trigger a constitutional crisis. There is of course a lot of incomplete
compliance and tacit non-compliance among EU member states, but a declaration of
open non-compliance would strike at the foundations of the European legal system.
That is why governments would, and indeed should, hesitate to trigger this ‘nuclear
option’. But what if the declaration was presented as a reasoned appeal to the political
judgment of the European Council and coupled with the promise that a (majority)
vote affirming the ECJ decision would be obeyed? This would separate the protest
against the ECJ from the charge of disloyalty to the Union.
Whether the Council would accept the role thrust upon it by such a declaration
is of course highly uncertain. If it did, however, the Union would finally have a
forum108 and procedures109 in which the basic tension between the equally legitimate
concerns of community and autonomy could be fairly resolved.110 Similarly welcome
would be the probable effects on the jurisprudence of the Court itself. Faced with
the possibility of political reversal in the Council, it could be expected to pay more
systematic attention to the relative weight of national concerns that might justify
minor impediments to the exercise of the Treaty-based liberties. If that were the
case, European law, even in the absence of ‘republican’ input legitimacy, would cease
to be characterised by the single-minded pursuit of rampant ‘individualism’.111

108
In order to ensure procedural viability, the Council would need to relay on the prepara-
tory work of a permanent committee that would hear and evaluate the relevant claims and
arguments. But the final decision would have to remain with the heads of governments.
109
In my view, the affirmation of the ECJ judgment should need only a simple majority in
the Council.
110
Once introduced, the same rules might also be used to allow ‘conditional opt-outs’ from
the pre-emptive effect of the legislative acquis. This would ease the problems caused by the
near-irreversibility of existing secondary law, and the possibility of later opt-outs could also
facilitate political agreement on new legislation. But these extensions go beyond the present
argument and their discussion would exceed the limits of this article.
111
Somek, above n 18.
  6 
Constitutionalism and Representation
European Parliamentarism in the Treaty of Lisbon

Sonja Puntscher Riekmann

i. introduction
Modern constitutionalism is bound to representation.1 This claim holds true for the
pouvoir constituant as much as for the pouvoir constitué. Even if driven by ‘constitu-
tional moments’,2 constitutions are not brought about—let alone written—by the
people in a collective effort. But they do have to be accepted by the people to be
legitimate and functional. Such acceptance may come through popular elections of
constitutional assemblies or conventions and by referenda on the outcome of these
assemblies’ deliberations and negotiations. At the heart of any democratic institu-
tional setting lies the parliament that is normally entitled to change the fundamental
law according to specific rules that may or may not give again a voice to the people.
Since the eighteenth century, constitutionalism has relied on the people (gener-
ally identified with the nation) to legitimate the political order created by represen-
tative bodies that in turn must demonstrate that their product ‘bears the imprint of
the people’.3 If the product is rejected, that demonstration has failed and the rela-
tion between representatives and represented is flawed. This was the situation in the
European Union (EU), where the constitutional process had come to a halt after its
rejection in three national referenda.4 The European constitutional process is, however,
peculiar in that changes to the fundamental law are to be ratified not by supermajori-
ties as in the member states, but by unanimity. We may thus question the real meaning
of the rejection by one or two, if all others have ratified. European constitutionalism

1
For the discussion about premodern and modern constitutionalism, see D. Grimm, Die
Zukunft der Verfassung (Frankfurt am Main: Suhrkamp, 2nd edn, 1994), 31 et seq and 101 et seq.
2
B. Ackerman, We the People I: Foundations (Cambridge, Mass.: Belknap Press, 1991).
3
A. Somek, ‘The Owl of Minerva: Constitutional Discourse before its Conclusion’ (2008) 71
Modern Law Review 473.
4
I subsume the two negative referenda on the Treaty establishing a Constitution for Europe
in France and the Netherlands together with the Irish referendum rejecting the Treaty of
Lisbon, the latter being the continuation of the former and thus pertaining to the same
constitutional process.
 Constitutionalism and Representation  121
is said to be unique or in any case different from constitutional processes of the nation
states, whereas a number of political actors and academic scholars continue to deny
even the plausibility of an EU-related constitutionalism. Indeed, the very idea of consti-
tutionalism beyond the nation state is contested.
Taking up the general theme of this volume, I discuss the question about the
possible demise or transmutation of constitutionalism due to the fading of politics
into the twilight of transnationalism from the specific perspective of the EU. Two
premisses will guide my arguments. The first premiss is that the process of European
integration is not simply to be described in terms of globalisation and global govern-
ance. The pooling of sovereignty at the European level was strategically meant to
remove the very sting of national sovereignty which is considered to be one cause
of the past political, economic, and cultural disasters in Europe.5 By birth and subse-
quent setting the transnational order of the EU is of a different kind to other inter-
national regimes. Conceived as a novel form of transnational cooperation with the
explicit aim of preserving peace on a torn continent, the Union is based on a mix
of intergovernmental and supranational institutions geared towards ‘an ever closer
community/union’ whose legal order came to supersede and effectively transform
national legal orders by the principles of supremacy and direct effect.6 From its incep-
tion, the new construct bore federative elements, whereas intergovernmentalism
slowly but steadily became mitigated by the principles of loyalty and solidarity as
well as by decision making allowing for qualified majority voting.7 The European
Commission, the Court of Justice, and the Parliament (in particular after its first
direct election in 1979) have at different stages and at a different pace countervailed
and undermined the role of member states as the sole ‘arbiters of the treaties’. This
phenomenon is to be distinguished from international regimes and institutions
evolving from global socio-economic activities, although today the two realities may
overlap and mutually reinforce each other.8

5
Judgments about the degree of success of this aim differ considerably: Milward’s thesis
that in reality national sovereignty was rescued through European integration marking one
extreme and Leonard’s projection about the bright future of the Union in the twenty-first
century the other. See A. S. Milward et al (eds), The Frontier of National Sovereignty: History
and Theory 1945–1992 (London: Routledge, 1994), 1–32; M. Leonard, Why Europe will run the
21st Century (London: Fourth Estate, 2005).
6
See M. Eilstrup-Sangiovanni and D. Verdier, ‘European Integration as a Solution to War’
(2005) 11 European Journal of International Relations 99–135; P. Gerbet, La Construction de
l’Europe (Paris: Imprimerie Nationale, 1983); T. Judt, Post-War: A History of Europe since 1945
(London: Heinemann, 2005).
7
Even if the mode of decision by consensus prevails up to this very day (see F. Hayes-
Renshaw and H. Wallace, The Council of Ministers (Basingstoke: Houndmills, 2006, 154)), the
possibility of qualified majority voting has changed the game in particular after the last two
rounds of enlargement.
8
On the juncture between European integration and globalisation, see H.-P. Kriesi et al,
‘Globalization and the Transformation of the National Political Space: Six European
Countries Compared’ (2006) 45 European Journal of Political Research 921–56.
122  Sonja Puntscher Riekmann
As a second premiss I hold that the European polity making does indeed require
constitutionalisation. The controversy on the question about whether the Union
should or should not have a constitution or whether it already has one is an instance
for an unequalled level of fusion of nation states into a novel polity, even if defi-
nitions of that polity remain contested. The transfer of the constitutional concept
onto the supranational level can be interpreted as an example of constitutional trans-
mutation rather than of demise. Without prejudging the quality of this transfer, it is
notable that it has been accompanied by the appearance of a considerable quantity
of scholarly work on the European constitutional process.9
This chapter is written in the light of progress, and in the shadow of failure: in
the light of a decade-long debate on a European constitution within and without
European institutions,10 in the European Parliament (launched by Spinelli), in two
Conventions as well as in a number of Intergovernmental Conferences (IGCs), and
in the shadow of the rejection of their outcome. The Treaty Establishing a Consti-
tution for Europe failed in the French and Dutch referenda of 2005 and so did the
attempt to save the substance of the Constitutional Treaty in the Treaty of Lisbon
rejected by the Irish referendum in 2008. Although all references to the classical
constitutional aspects, in particular the very term ‘constitution’, had been shed, the
Treaty of Lisbon could not gain the acceptance of the Irish people. The parties advo-
cating ‘No’ won the battle, however spurious their arguments.
The thesis guiding my argument is that negative referenda in France, the
Netherlands, and Ireland revealed a deep cleft between representatives and repre-
sented: even if parliaments had voted favourably, the people did not follow
suit. Apparently, the involvement of European and national parliamentarians
in the work of the Conventions had hardly added legitimacy to the process of
constitutionalisation, whereas in some member states the instances of rejection had
negative repercussions on the parliamentary ratification. In Austria, for instance, the
social-democratic chancellor, under the infl uence of the Irish rejection of the Treaty
of Lisbon, went so far as to declare that the already concluded ratification by the
parliament was mistaken and promised to submit any further Treaty revision to a

9
See, among others, J. H. H. Weiler, The Constitution of Europe: Do the New Clothes have an
Emperor? (Cambridge: Cambridge University Press 1998); K. Laenerts and P. van Nuffel,
Constitutional Law of the European Union, ed R. Bray (London: Sweet & Maxwell, 1999);
A. von Bogdandy, ‘Constitutional Principles’, in A. von Bogdandy and J. Bast (eds), Principles
of European Constitutional Law (Oxford: Hart, 2006), 1–52; A. von Bogdandy, ‘A Disputed Idea
Becomes Law: Remarks on the European Democracy as a Legal Principle’, in
B. Kohler-Koch and B. Rittberger (eds), Debating the Democratic Legitimacy of the European
Union (Lanham: Rowman & Littlefield, 2006), 33–44; A. Peters, Elemente einer Theorie
der Verfassung Europas (Berlin: Duncker & Humblot, 2001); S. Puntscher Riekmann and
W. Wessels, The Making of a European Constitution: Dynamics and Limits of the Convention
Experience (Wiesbaden: VS-Verlag, 2006), 35–67. See also the Jean Monnet Working Paper
Series ‘Altneuland’: The EU Constitution in a Constitutional Perspective (New York: NYU School
of Law, 2004 et seq).
10
W. Loth, Entwürfe einer europäischen Verfassung: Eine historische Bilanz (Bonn: Europa Union
Verlag, 2002).
 Constitutionalism and Representation  123
national referendum, whereas the Czech President hailed the Irish rejection as ‘a
triumph of freedom’. The different reasons provoking the popular rejection of the
Constitutional Treaty and the Treaty of Lisbon notwithstanding, ratification points
to a classical dilemma of any constitutional process, namely, that that the legitimacy
of the few writing a constitution for all is open to question.
Constitutional processes are driven by unexpected dynamics and may produce
unintended results. In the case of the EU, neither Convention was elected by the
people but installed by governments, even though the second Convention was
given a very broad list of tasks to tackle. The Declaration of Laeken in 2001, while
broaching the idea of a constitution, envisaged it only as a long-term goal. Moreover,
despite two-thirds of European citizens approving of a ‘European Constitution’
in principle,11 citizens were hardly aware of the concrete constitutional strug-
gles within the Convention. We may not share the verdict about the ‘accidental
constitution’,12 but we must acknowledge that, although the Convention’s majority
was composed of directly elected European and national members of parliaments,
it did not succeed in communicating the constitutional preferences that were repre-
sented and negotiated to the general public. Similar allegations could of course be
made to most constitution-making bodies since the eighteenth century, but time
and again we are taught that the historical examples associated with the nation
state cannot serve as a yardstick for the EU.13 Even if there are good arguments
against the categorical ruling out of historical comparison,14 important questions
are raised. Does the actual problem really lie in the often-cited lack of a European
public sphere or the lack of the Convention’s legitimacy? What is at stake, given
the fact that the Convention had been installed by the European Council, whose
legitimacy is not (at least not overtly) put into question, whereas the final text was
approved by the Intergovernmental Conference according to Article 48 TEU and
thus unanimously?
The problem of European constitution-making seems to lie first and foremost in
the existence of colliding political arenas and thus of colliding forms of representa-
tion. The European Council in its role of constituent power has created the Conven-
tion and endowed it with the interim power to prepare a new text for treaty revision
after it had itself failed to produce satisfactory results in past IGCs. However, once it
became obvious that the Convention was prone to transcend its mandate, member
states again claimed the driver’s seat. The idea of enhancing the legitimacy of the
constitutional process by giving some of the power to parliamentarians foundered

11
Standard Eurobarometer 66 (2006) <http://ec.europa.eu/public_opinion/archives/eb/
eb66/eb66_highlights_en.pdf>.
12
P. Norman, The Accidental Constitution: The Story of the European Convention (Brussels:
EuroComment 2003).
13
Somek, above n 3, 487.
14
S. Puntscher Riekmann, Die kommissarische Neuordnung Europas: Das Dispositiv der
Integration (Vienna: Springer, 1998). Here I elaborate on the question of tackling integration
in a historical comparative perspective.
124  Sonja Puntscher Riekmann
on the fear of national governments of losing control. During the referenda govern-
ments half-heartedly advocated the Constitutional Treaty which they themselves
had manipulated, whereas the Convention no longer existed to defend its results.
In this twilight zone created by member states’ governments, the protest of discon-
tent organised by euro-sceptic movements on both the left and right of the political
spectrum flourished.
In the EU, however, there is another inconsistency to be tackled: the Union is
based on international treaties which have repeatedly been accepted, by the Euro-
pean Court of Justice (ECJ) as well as by academic scholars, as her ‘constitutional
charter’.15 The contracting parties, so it may be argued, have allowed for a process
of integration by stealth, thereby creating a novel supranational polity incrementally
and developing a ‘veiled constitution’.16 In this vein, it might be said that the Conven-
tion of 2002–3 did not crown a ‘revolution’ with a constitution, but tore off the veil
by revising the treaties and finally by calling them by their proper name. After the
product had been rejected, however, constitutionalism was discovered to be the real
culprit, and governments turned again to hide the constitution behind the veil.17
This masque of European constitutionalism seems to be a tactical response to the
general citizens’ feeling of unease and uncertainty stemming from the tectonic shifts
in the political order of their nation states due to European integration. European
citizens today are haunted by questions such as: Who are we? What is Europe and
what is the nation state? Where is the place of ‘the political’? Where is the centre and
where the periphery? Who represents whom or what? Who gets what and why? Who
is to be trusted? How can I verify and judge political action? These are questions raised
by members of many political communities, but they become all the more salient if
the old communities are merged into a new one. For over two centuries, one answer
of paramount importance has been given by constitutionalism: the device that defines
norms, institutions, and procedures, taming and thus ‘constituting’ power in the new

15
With regard to the ECJ, see Case 294/83 Les Verts v European Parliament [1986] ECR 1339.
As a more recent instance of the constitutional ECJ discourse, see AG Poiares Maduro’s
opinion of 23 January 2008 on an alleged fundamental rights breach by the Council and the
Commission where he states that in the Van Gend en Loos ruling the Court ‘considered that
the Treaty has established a “new legal order”, beholden to but distinct from the existing
legal order of public international law. In other words, the Treaty has created a municipal
legal order of transnational dimensions, of which it forms the “basic constitutional charter”.’
And thus, the AG continues, the Court ‘seeks, first and foremost, to preserve the constitu-
tional framework created by the Treaty’ ( Joined cases C-402/05 P and C-415/05 P Kodi and
Al Barakaat IF v Council of the EU and Commission of the European Communities [2008] ECR
I-6351).
16
Wiener writes about the ‘invisible constitution’, see Antje Wiener, Evolving Norms of
Constitutionalism in Europe: From ‘Treaty Language’ to ‘Constitution’ in Altneuland: The EU
Constitution in a Constitutional Perspective, Jean Monnet Working Paper 5/04 (New York: NYU
School of Law, 2004), 26.
17
Council of the European Union, Presidency Conclusions 21–22 June 2007, Annex I, 15: ‘The
constitutional concept, which consisted in repealing all existing Treaties and replacing them
by a single text called “Constitution”, is abandoned.’
 Constitutionalism and Representation  125
polity.18 The question today is whether constitutionalism is still capable of delivering
the answer, especially with respect to a Union which has continuously been growing
in size and depth and whose sub-units are still said to be the epitome of difference.
This chapter aims, firstly, at challenging the nexus between constitutionalism and
nationhood, arguing that like the nation states, which are also the outcome of inte-
gration processes merging regions into states, the EU must accommodate difference
and that until now she does so by veiling constitutionalism. It will, secondly, argue
that the current problems of the Union resulting from the rejection of treaty revi-
sions stem from the citizens’ lack of trust in organs of supranational and national
representation and that this wont is fuelled by the colliding systems of represen-
tation simultaneously based on supranationalism and on intergovernmentalism. It
will also, thirdly, discuss the citizens’ ambivalences regarding their trust in European
institutions as they surface in public opinion polls, and interpret them as a misfit of
expectations and results of European politics. Fourthly, and by way of conclusion, I
will discuss the democratic potential offered by the Treaty of Lisbon to bridge the
gap between representatives and represented through a combination of enhanced
parliamentarism and citizens’ involvement. Despite all the shortcomings and para-
doxes created by the IGC, the ‘Treaty of Parliaments’,19 I argue that it would indeed
mark a significant turn in European constitutionalism.

ii. accommodating difference and

constituting power
The EU is first and foremost a construction to accommodate difference by a set of
institutions combining intergovernmentalism and supranationalism and ultimately
fusing the two principles to the extent that today the term ‘intergovernmental
supranationalism’20 is perfectly justified. The Union is not a copy of the national states;
it emulates some of their institutions, while others are new inventions. However,
all its institutions and procedures serve the purpose of facilitating and promoting
cooperation for the purposes of preventing war between the Union’s members and
fostering their socio-economic success. Their task is to identify shared problems
and to negotiate European solutions according to the competencies delegated to
the Union by primary law. After the defeat of the European Defence Community
in 1954, creating a single market became the guiding idea of integration, with the
four freedoms and competition law as its linchpin. As expected, the idea was always
jeopardised by the reality of diverging national and subnational interests. In spite of

18
See Grimm, above n 1, 37.
19
E. Brok and M. Selmayr, ‘Der “Vertrag der Parlamente” als Gefahr für die Demokratie?
Zu den offensichtlich unbegründeten Verfassungsklagen gegen den Vertrag von Lissabon’
(2008) 3 Integration, 217–34.
20
P. Ludlow, The Leadership in an Enlarged European Union: The European Council, the Presidency
and the Commission (Brussels: EuroComment, 2005).
126  Sonja Puntscher Riekmann
the many difficulties and fallbacks stemming therefrom, in the course of six decades
a considerable quantity of power was shifted onto the European level.
Thus, from the Coal and Steel Community to this very day, the Union has come a
long way on the path to closer Union. Despite the exclusion of the use of force
and identity building measures, this process is not completely dissimilar to the
one leading regions into nation states.21 At its core lies the construction of a new
legal order to foster community building by giving all citizens the same rights of
movement and exercise of socio-economic activities, although the term of European
citizenship were enshrined in primary law only by the Treaty of Maastricht.22 And
whereas nation states were successful in constructing the homogeneity of their
peoples through cultural and coercive devices, the Union cannot avail itself of such
instruments. Nevetheless, in most nation states, homogeneity is less than perfect;
nor does homogeneity of culture and language preclude political or socio-economic
differences. As shown by a number of EU member states the capacity to accom-
modate difference is continuously put to the test: recently, resolutions of confl icts
between majority and minority populations or between centre and periphery in the
UK, France, Italy, and Spain have been brought about by constitutional (re)arrange-
ments and the devolution of power. Moreover, redistribution of wealth between
regions or groups of citizens is, if to different degrees, a permanent issue of conten-
tion in all member states.
Turning to the issue in question in this volume, something other than the
dichotomy of heterogeneity and homogeneity is of equal importance: this is the
issue of the legitimate use of Community instruments in matters of the distribution
of power and the redistribution of wealth. Even if we accept Majone’s definition of
the Union as a ‘regulatory state’ rather than a redistributive one, we must conclude
that the creation and imposition of regulations is an act of power. So much so that
Majone finds the term ‘state’ appropriate for the Union as well.23 By way of European
governance today, some 500 million citizens are subjected to supranational rule in
order to accommodate differences of all kinds.
Here lies the very simple reason why it was only a matter of time before
constitutionalism entered the stage of European politics. Constitutionalism is, first
and foremost, a device that seeks to tame power by constituting it. It concerns the
creation of a system of checks and balances, of power sharing and control, of the
differentiation of ‘state’ functions, of creating mechanisms to avoid deadlocks (eg by
calling in the electorate as ultimate arbiter), and of the peaceful adjustment of the
fundamental law. Last but not least, it concerns the creation of individual rights and

21
Puntscher Riekmann, above n 14.
22
TEU Arts 17–20; see P. Craig and G. de Búrca, EU Law: Text, Cases and Materials (Oxford:
Oxford University Press, 3rd edn, 2003), 706–11.
23
G. Majone, ‘The Rise of the Regulatory State’ (1994) 17/3 West European Politics 1–41.
See also S. Puntscher Riekmann, ‘The State of Europe: Towards a Theory of European
Integration. From Grand Theories to Metaphorical Description and Back’, in S. Puntscher
Riekmann, M. Mokre, and M. Latzer (eds), The State of Europe (Frankfurt am Main: Campus,
2004), 9–31.
 Constitutionalism and Representation  127
liberties protected against encroachment by any or all power holders.24 Why should
these fundamental functions of constitutionalism not apply to the power wielded
by the Union? If its rule is to be democratic, its power has, by the same token, to be
limited and ‘constituted’.
But time and again the Union’s capacity to accommodate differences has been chal-
lenged by the argument of size and boundaries.25 Although the Union’s boundaries
coincide with those of her outer members, enlargement from six founding to twenty-
seven member states in 2007 seems to create a feeling of boundlessness. Moreover,
and in spite of the rule that only European states are entitled to apply for membership,
we cannot shun the problem of defining Europe’s limits. The continent is indeed an
‘Asian peninsula’.26 The debate on Turkish membership has only highlighted the issue.
Yet, the question of size can hardly be settled by abstract reasoning. How big or small
a political community can be in order to guarantee democratic rule is open to inter-
pretation. EU enlargement has been driven by (geo)political as much as economical
considerations, and it has also depended on contingencies of historical development
such as the transformation of authoritarian regimes and the fall of the iron curtain.
The constitutional debate was also provoked by enlargement, in that an institutional
set-up that had been created for six could hardly be said to work equally well for
twenty-seven members.27 This is not to frivolously downplay the extraordinary situa-
tion the Union is facing after the last rounds of enlargement; issues of governability
and compliance with supranational rules and regulations are indeed one of a kind.
Still, as the current financial crisis has demonstrated, the unity of the many is
less a matter of lofty identity debates than of sheer necessity. The turmoil of global
financial markets is a ‘state of emergency’ compelling even anti-Europeans to
acknowledge the usefulness of the Union. In the end utilitarianism has always been a
stronger driving force of integration than the evocation of a common culture.28 It is
difficult though to imagine that common action in the current financial crisis could
have been easily orchestrated without the long-standing practice of cooperation in
many other policy fields. And yet, bearing in mind the general topic of this volume,
the argument has to be qualified in two respects. Firstly, the example of the Euro-
pean reaction to the financial crisis is not to be misinterpreted in a neo-functionalist

24
K. Loewenstein, Political Power and the Governmental Process (Chicago, Ill.: University of
Chicago Press, 2nd edn, 1965), 127.
25
Somek, above n 3, 487.
26
P. Valéry, ‘La Crise de l’Esprit’, in his Oeuvres, ed J. Hytier (Paris: Gallimard, 1957),
i. 988–1014.
27
The debate on size had incidentally haunted also the American founding fathers chal-
lenged by the Anti-Federalists on similar grounds: see Alexander Hamilton, James Madison,
and John Jay, The Federalist (London: Dent & Tuttle, 1992); The Debate on the Constitution:
Federalist and Antifederalist Speeches, Articles, and Letters during the Struggle over Ratification
(Washington, DC: The Library of America, 1993), 2 vols.
28
The importance of national economic preferences was forcefully demonstrated by
A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht
(London: UCL, 1999).
128  Sonja Puntscher Riekmann
perspective: it does not per se allow for any conclusions about constitutional issues,
since all actions were taken by heads of governments or states in a largely intergov-
ernmental approach. Secondly, states of emergency may embolden the European
executives to reaffirm themselves as arbiters of the treaties rather than to strengthen
other institutions such as the Commission or the European Parliament or national
parliaments. The future will show whether this development exacerbates the system
of colliding arenas of representation, or even displaces the axis of power toward
strong executives and thus further undermines the constitutional and democratic
progress reached by the Treaty of Lisbon. It may, however, enhance the citizens’
uncertainties about whom they are to trust and thus their swaying loyalties.

iii. representation and trust: the riven soul of

european citizens
Although an old political concept, representation has become of paramount
importance in modern democracy. Hence, constitutionalism to a significant extent
concerns the definition of representative organs, their norms, competencies, and
decision-making procedures. Leaving aside the complexities of the politico-philo-
sophical debate on the issue,29 I will focus on one crucial aspect of this: the link
between representation and trust. The represented must trust that their representa-
tives somehow act on their behalf; representation is thus associated with responsibil-
ity. As a sub-function of legitimate representation, responsibility concerns the public
justification of decisions and the bearing of the consequences of public assessment.30
Responsibility entails sanctions, in legal, political, and social terms. While legal sanc-
tions for wrongdoing can be clearly spelled out, political and social sanctions are
more difficult to grasp.31 Because power is delegated to representatives for a given

29
See E. Voegelin, Die Neue Wissenschaft der Politik (Munich: Alber, 4th edn, 1991);
H. Pitkin, The Concept of Political Representation (Berkeley: University of California Press,
1967); J. Pollak, Repräsentation ohne Demokratie: Kollidierende Systeme der Repräsentation in der
Europäischen Union (Vienna: Springer 2007).
30
The legitimacy of a democratic system to a degree, yet not exclusively, depends on the
well-functioning of procedures of control. Besides elections one core element of modern
constitutionalism is the creation of checks and balances in the organisation of power. From
Montesquieu’s famous dictum ‘le pouvoir arrête le pouvoir’ to the Federalist Papers stress-
ing at length the problem of political actors being prone to the abuse of power and of how
to prevent them from actually abusing it, authors have laid the foundations of a theoretical
discourse on legitimacy and responsibility which remain valid until this very day.
31
Today, responsibility and accountability have almost become synonyms. Accountability in
particular has become the magic word of modern political discourse. It is suggested that as
long as decision makers are accountable, things will work out well. However, this term is far
from being clear. Accountability is generally understood as reporting of one institution to
another. The notion is per se devoid of consequences. See S. Puntscher Riekmann, ‘In Search
of Lost Norms: Is Accountability the Solution to the Legitimacy Problems of the European
Union?’ (2007) 13 Comparative European Politics 121–37.
 Constitutionalism and Representation  129
period of time and generally with a broad mandate, representatives must account
for what they have done during that period, how they have fulfilled their duties, and
whether they have met expectations. Representative democracy has to reckon with
the human fabric made of two seemingly contradictory, but actually complemen-
tary attitudes, namely trust and distrust. By electing them, we entrust candidates
with the power to rule. But that trust is never absolute. And even if we trust, we wish
to verify. Consequently, we establish mechanisms for ‘operationalising’ control, with
elections being of paramount importance.
How are these preconditions of legitimate rule met in the EU? By way of
generalisation, it may be said that procedures of responsibility and the channels
of control are impaired. This judgment results not only from a scrutiny of the
peculiar institutional set-up of the Union. Not exactly replicating the classical
triad derived from nation-state structures, European institutions are dominated
by the Council as an organ exercising legislative and executive functions at the
same time without being under the control of the Parliament; national parlia-
ments, by contrast, may in theory control their executives even when acting at
the European level, but not with respect to the Council as a collective organ. The
Commission is responsible to the Council, as well as to the Parliament. All three
organs are controlled by the ECJ, but only if a lawsuit is filed either by one of
the other organs, by members states, or by individual citizens.32 The predomi-
nance of the Council (and the European Council) stems of course from the initial
construction of the Union as a semi-international regime. Despite Monnet’s
dream of the Council being eventually transformed into a second chamber, this
has not yet occurred and will not occur in the foreseeable future. The members of
the Council, though, claim to be as (if not more) representative of their national
citizens as the European Parliament.
The clash between two forms of representation and thus of legitimation consti-
tutes the core confl ict: it is a dispute about directly and indirectly legitimated
representation. The issues though are complex. The directly elected represent-
atives in the European Parliament struggle against citizens’ ignorance of their
work as well as against the image of emerging from ‘second order elections’,
demonstrated by the reduced interest of national parties or media in European
election campaigns and ever lower turnouts.33 On the other hand, the indirectly
elected members of government, by veiling their role at the European level, enjoy
considerable ‘permissive consensus’ with respect to day-to-day politics. National
executives have successfully sold the idea of ‘Brussels’ as an autonomous source

32
Financial correctness is checked by the Court of Auditors and OLAF, whereas the
Treaty of Maastricht created the European Ombudsman empowered to receive individu-
als’ complaints concerning instances of maladministration by one of the organs with the
exception of the ECJ and the Court of First Instance. However, the latter institutions are not
representative organs strictly speaking.
33
J. Gaffney (ed), Political Parties and the European Union (London: Routledge, 1996);
S. Puntscher Riekmann ‘Autriche’ [with R. Picker], in Y. Deloye (ed), Dictionnaire des élections
européennes: collection études politiques (Paris: Economica, 2005), 38–43.
130  Sonja Puntscher Riekmann
of power identified with the Commission and, though less so, with the ECJ
impinging upon national orders, whereas they tend to present themselves to their
domestic audiences as ‘warriors of national interests’. If successful, they claim
all the credit; if they fail they may scapegoat Brussels. Such behaviour is well
known from national federations, but it works particularly well within the opaque
structure of the Union.
Another difficulty to be considered in this context is the growing loss of power by
national parliaments due to European integration. Although this is not the case to
the same degree in all member states, the dominance of the Council and the Euro-
pean Council also have repercussions for national relations between the legislative
and executive branches of power. European politics is the privilege of the execu-
tives, which have a lead over the legislatures in terms of knowledge and resources.
Owing to these advantages, executives succeed in projecting themselves as efficient
decision makers also in the eyes of the public and this feeds into a general, if ambiva-
lent, fascination with decision making trumping deliberation.34 In the Union, moreo-
ver, a considerable part of political deliberations also takes place in the plethora of
committees and working groups of the Commission as well as of the Council, and
this adds to the picture of European politics as the realm of fused bureaucracies.35
The flourishing of European agencies created at the European level to carry out
such diverse tasks as the administration of fisheries, medicines, or external borders
has added yet another layer of decision making.
The purpose of this rough sketch of the European institutional web is to demon-
strate the difficulties Union citizens encounter when they are to judge by whom
and how they are represented, how they may gather information about the issues
at stake, and whom they may hold responsible for the decisions taken. Interestingly
though, citizens appear quite ambivalent when the question of trust in institutions is
posed to them in surveys, such as those conducted by Eurobarometer. They claim to
trust parliaments more than executives and they give greater credit to supranational
than to national institutions, parliaments, and governments alike.36 Thus, with all
cautions against opinion polls taken into account, we might propose some working
hypotheses to be tested by further in-depth studies. European citizens recognise

34
See, eg H. C. Mansfield, Jr, Taming the Prince: The Ambivalence of Modern Executive Power
(Baltimore Md.: Johns Hopkins University Press, 1993).
35
See M. Bach, ‘Eine leise Revolution durch Verwaltungsverfahren: Bürokratische
Organisationsprozesse in der Europäischen Gemeinschaft’ (1992) 21 Zeitschrift für Soziologie
16–30; W. Wessels, ‘Staat und (westeuropäische) Integration: Die Fusionsthese’, in
M. Kreile (ed), Die Integration Europas, special issue, (1992) 23 Politische Vierteljahresschrift
36–61. S. Puntscher Riekmann, ‘Die Meister und ihr Instrument: Institutionenkonfl ikte
und Legitimitätsprobleme in der Europäischen Union’, in M. Bach (ed), Europäische
Integration, special issue, (2000) 4 Kölner Zeitschrift für Soziologie und Sozialpsychologie
131–50.
36
Standard Eurobarometer 69 and 70 (2008) <http://ec.europa.eu/public_opinion/archives/
eb/eb69/eb69_en.htm>, <http://ec.europa.eu/public_opinion/archives/eb/eb70/eb70_
en.htm>.
 Constitutionalism and Representation  131
and accept that, owing to European integration, inter-institutional power relations
have deeply changed. Coming to terms with the new reality, they are willing to trust
European institutions; but they also wish to have a voice in regards to the decisions
stemming therefrom. They are, however, confined to their national settings in which
they are continuously confronted with a paradoxical discourse: political actors whose
vote and office seeking depends on national elections simultaneously advocate the
sustainability of national sovereignty and the need (if not irreversibility) of European
integration, whereas anti-European parties live and thrive on the exploitation of
that paradox. The paradox—thus my last hypothesis—is not to be resolved without
offering constitutional answers to the classical questions already outlined.

iv. constituting supranational power

If in times of transnational politics constitutionalism were on its way to demise
then democracy too is doomed to disappear. Hence, if democracy is to survive, the
exclusive nexus between constitutionalism and the nation state must be reconsid-
ered. As mentioned, I will not dwell on the conditions created by global regimes; I
limit myself to an analysis of the EU that until now could offer the best option for
recasting democracy at the supranational level. Owing to the degree of integration
and democratic institution building, it is not by accident that the Union has already
developed a number of constitutional principles and has embarked on a more funda-
mental constitutional debate. Indeed, as von Bogdandy argues, ‘the Union’s and the
Member States’ constitutions confront the same central problem: the phenomenon
of public power as the heart of every constitutional order’.37
Even if the difference between the Union and the member states is marked by
the degree of political unity, and even though the Union’s exercise of power does
not stem from the will of a single sovereign but rather from the common action of
various actors, constitutionalism has gradually entered European legal thinking. Was
this to be expected? I deem the answer is yes. If the problem we are discussing here
concerns power, and if power has to be defined and tamed, then constitutionalism
seems the right answer; this because for more than two centuries constitutionalism
has been one important line of European political and legal thinking. In the vein of
historical institutionalist theory, we are also confronted with a phenomenon of path
dependence demonstrated by the fact that, from the outset, constitutional discourse
accompanied European unification.38 Thus the conclusions drawn by a group of
French constitutional scholars in 1998 should not come as a surprise: ‘L’identité de
l’Europe sera constitutionelle ou elle ne sera pas.’39
The importance of this statement is underlined by the evolution of the European
constitutional history: despite incomplete polity building, the Union has already
developed a number of constitutional principles largely based on judicial and scholarly

37
Bogdandy, ‘Constitutional Principles’, above n 9, 10.
38
Loth, above n 10.
39
Le Monde, 5 May 1998, p 17.
132  Sonja Puntscher Riekmann
work and which were codified in Article 6 EU of the Treaty of Amsterdam.40 Even
if these principles are often hazy with regard to their content and are ambiguous
in their relations, von Bogdandy’s argument that ‘[t]he development of a European
doctrine of principles may channel and perhaps rationalise political and social
confl icts, treating them as confl icts of principles which can be resolved according
to the rules of legal rationality’41 is convincing. What are these principles, and how
do they relate to the topic at hand? The main principles as spelled out in Article 6
EU are liberty, democracy, and respect for human rights and fundamental freedoms
and the rule of law. The Treaty of Lisbon in Article 2 EU adds some more, when
it postulates: ‘The Union is founded on the values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human rights, includ-
ing the rights of persons belonging to minorities. These values are common to
the Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail.’
For the purpose of this argument, the most important principle is democracy,
though this must, of course, be discussed in relationship with the others.
Democracy is a form of rule entailing a specific organisation of power that draws its
legitimacy from the citizens. Giving preference to the term ‘citizens’ rather than to
the notion of ‘people’ is not only to avoid the sterile debate about the Union lacking
a people: it is consistent with the opening article of the Constitutional Treaty, which
states that the Constitution establishing the Union reflects ‘the will of the citizens
and the States of Europe’.42 Moreover, as a corollary of the principle of liberty as
the first to be mentioned in Article 6 EU (Treaty of Amsterdam), the term ‘citizen’
is much more appropriate to modern Europe. Liberty is a principle constituting the
individual citizen and not the people, and the same holds true for the principles
of the respect of human rights and fundamental freedoms that were subsequently
enshrined in the Charter of Fundamental Rights solemnly declared at the European
Council of Nice 2000 and now part of the Treaty of Lisbon. These principles relate to
the provisions establishing the Citizenship of the Union (Articles 20–4 EC Treaty of
Lisbon). Further, the Provisions on Democratic Principles (Articles 9–12 EU Treaty
of Lisbon) do not mention the people, but citizens as addressees of rights; these
provisions introduce the Citizens’ Initiative (Article 11, para 4) as a new element of
participative democracy to be organised transnationally and thus transcending the
concept of people when stating that ‘one million citizens who are nationals of a
significant number of Member States’ are entitled to pursue such initiative.
What is most of interest here, however, is that the principle of liberty constituting
the individual citizen has to be put in relation to the principle of democracy which
is expressis verbis qualified in terms of representation: ‘The functioning of the Union
shall be founded on representative democracy’ (Article 10, para 1 EU), whereby
‘citizens are directly represented in the European Parliament’ (para 2). Indeed, the

40
Bogdandy, ‘Constitutional Principles’, above n 9, 6 (n 15).
41
Ibid.
42
Treaty Establishing a Constitution for Europe 2006, Art I, 1.
 Constitutionalism and Representation  133
Treaty of Lisbon aims to significantly enhance parliamentarism at the European and
at the national level, whereas the upgrading of parliaments is in itself the result of a
‘revolution’ of the parliamentarian majority in the Constitutional Convention against
the dominance of governments. Due to the transfer of relevant provisions to the
Treaty of Lisbon, the latter may appropriately be called ‘The Treaty of Parliaments’.43
What these provisions will mean in practice is considered in the concluding section.

Parliaments decentred
The institutional centrepiece of modern democracy is the parliament, its absence
being considered the most obvious instance of the lack of democracy. Interestingly,
from its inception intergovernmental cooperation in European institutions went
hand in hand with the establishment of an assembly whose members quickly called
it a Parliament and whose powers were gradually expanded, including direct election
and co-legislative competencies. But the European Parliament does not engender
a European government; it does not rest on a fully-fledged trans-European party
system, and neither does it elicit turnouts comparable to national elections. At the
same time, national parliaments have witnessed their downgrading, due to the rising
power of national as well as supranational executives, courts and (semi)-independent
agencies. Thus, the centrepiece of democracy appears decentred and often devalu-
ated to the role of rubber-stamping its government’s initiatives.
This general assessment varies from member state to member state, with some
parliaments being more self-assertive than others, some even regaining impor-
tance. Parliaments may be decentred but they are not dead. Although battered, they
remain an important part of any constitution for several reasons: in modern democ-
racy, parliaments symbolise the place of ‘the political’ defined as a principle based on
the recognition of difference and hence on the agonism and antagonism of societal
interests; they visualise the representation of interests; they legitimise legislation as
a result of deliberation and accommodation of difference; parliamentary elections
lead to the formation of governments (with the notable exception of presidential
systems such as the USA or the special supranational system of the EU), whereby
the executive power is to be balanced and controlled by parliamentary power; and,
most importantly, members of parliaments are responsible to the electorate. The
scoundrels may be thrown out in a peaceful way, without jeopardising the whole
system of governance.
However, parliamentarism has fallen prey to discontent due to two contradicting
arguments: one advocating output-legitimacy and the other input-legitimacy.44 Since
the emergence of the democratic deficit discourse in the 1990s, both arguments
have also come to dominate the debate on European democracy. The first argument
stresses the need for good and efficient governance by experts, whereas the second

43
Brok and Selmayr, above n 19.
44
On this issue, see F. W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford:
Oxford University Press, 2004).
134  Sonja Puntscher Riekmann
points to the need for greater input by opening channels for direct participation.
Moreover, advocacy for good governance is enhanced by advocacy for deliberative
democracy ensured by expert argumentation. Deliberative democracy is said to be
an alternative to adversary, economic, or aggregative models of democracy because
it operates under strict criteria of truth and justice and in a context of free and open
discourse in which decisions are justified towards the affected parties. Yet, are these
criteria not pertinent to parliamentarism as well, at least in its ideal form? That the
ideal is time and again perverted has its reason in the crude fact that deliberation is
only one part of the coin, the other one being constituted by the power plays of all
interested parties. Thus, the critical question to be posed to the advocates of delib-
erative democracy is how they incorporate interests and powers into their model.
Expert committees are not interest-free zones, and if experts have no stakes in the
issue, they remain agents whose principals most certainly have. Since there is no
such thing as depoliticised politics, we cannot rid ourselves of the question of who
nominates experts, how experts are to be held accountable for their advice, and how,
if need be, the eventual scoundrel is to be thrown out. Herein lies the role of parlia-
ments, who should have a voice in the nomination of experts, and to whom the
latter should be accountable.
Yet, parliaments also face the challenge of advocates of participatory democracy.
In the wake of transnational politics dominated by executives and administrations,
which increasingly escape parliamentary control, social movements hardly call for
the empowerment of their parliaments, but rather for direct participation. In the
EU as a polity in the making, direct participation has engendered ambivalent elite
positions due to the repeated negative votes in referenda on Treaty revisions and
membership. Elites who fear the dismantling of the whole process of integration
that for decades had been pushed forward by stealth tend to abhor plebiscites. As
a matter of fact, referenda on Treaty revision are about approval or rejection of
a rather complex text negotiated behind the closed doors of IGCs. Proposals of
amendment are impossible. For executives having negotiated the reform generally in
difficult processes of accommodating the most diverse national interests, acceptance
has become synonymous with good ‘Europeanness’, whereas rejection is labelled as
old-fashioned nationalism. When confronted with such denial, pro-European politi-
cal and academic actors almost by reflex resort to the interpretation that the Union is
far too complex and has therefore to be conducted by enlightened elites. This stance,
however, was time and again only to provoke even greater support for the advocates
of direct participation. Astonishing as it may be, the Constitutional Convention has
responded to this claim by inventing the Citizens’ Initiative, also maintained by the
Treaty of Lisbon.

Parliaments recentred
The Treaty of Lisbon contains novel provisions which are to enhance European
democracy by paying tribute to both representative and participatory democracy.
In line with the declaration that the EU is based on representative democracy, the
further extension of the powers of the European Parliament, which will become
 Constitutionalism and Representation  135
the true co-legislator of the Council, is perhaps less astounding. The upgrading of
national parliaments and the Citizens’ Initiative, however, are important additional
steps that are needed to bolster the Union’s commitment to democracy.
According to calculations by legal scholars, the Treaty of Lisbon upgrades the
European Parliament as co-legislator in 95 per cent of all cases by subjecting them
to ordinary legislative procedure.45 Thus, co-legislation will apply to the common
agricultural policy (Article 43, para 2 TFEU46), energy policy (Article 194, para
2 TFEU), the use of the euro (Article 133 TFEU), trade policy (Article 207, para
2 TFEU), and most notably in matters of judicial and police cooperation, where
not only the European but also the national parliaments are given a voice (Articles
82, para 2; 83, para 1; 85, para 1; 88, paras 2 and 69 TFEU). Moreover the distinc-
tion between legal acts, non-legal acts, delegated acts, and implementation acts
(Articles 289–91 TFEU) could finally create a hierarchy of norms which eventually
will become decisive in cases of norms collision. Giving the European Parliament’s
equal rights regarding decisions on the EU budget, the distinction between obliga-
tory and non-obligatory expenditures being abolished (Article 314 TFEU), is of para-
mount importance. And so too are the provisions regarding the Parliament’s role in
Foreign and Security Policy: first, the High Representative for Foreign and Security
Policy as a member and vice-president of the Commission is also responsible to the
European Parliament (Article 18 TEU47), whose clout will also gain by the nomina-
tion of the Commission’s president according to the results of European elections
(Article 17, para 7 TEU). Last but not least, the European Parliament’s consent is
required for most of the international treaties (Article 218, para 6 TFEU).
In terms of democracy, the promotion of national parliaments may appear more
surprising, yet it is simply the concession of governments to the long debated principle
of subsidiarity. Interestingly, national parliaments (Article 12 TEU) appear in the Treaty
of Lisbon even before the European Parliament (Articles 13 and 14 TEU). National
parliaments are to be informed by the Commission about new initiatives directly and
without interference of governments (Article 5, para 3 TEU). This will significantly
reduce the advantages the latter have enjoyed in the past. Each parliament will be
endowed with the right to voice concern about a possible infringement of the principle
of subsidiarity (Article 7, para 1, Protocol on Subsidiarity and Proportionality). If
such concern is shared by a third of other national parliaments the Commission is
compelled to review its proposal. If the issue at stake regards justice and home affairs
a quarter of votes will suffice (Article 7, para 2). The opinion of the Commission will
then be presented to the European Parliament and the Council together with those
of national parliaments. They will also be given the right to bring a case of infringe-
ment of subsidiarity before the ECJ (Article 8). National parliaments will, moreover,
have a voice regarding Treaty revisions (Article 48, para 7 TEU), new memberships

45
Brok and Selmayr, above n 19, 228.
46
Consolidated Version of the Treaty on the Functioning of the European Union (TFEU),
Official Journal C115, 9 May 2008.
47
Ibid.
136  Sonja Puntscher Riekmann
(Article 49, para 2 TEU), and financial resources of the Union (Article 311, para 3
TFEU), and most notably the so-called ‘flexibility clause’ (Article 352 TFEU).
By enshrining the principle of multi-level parliamentarism in the Constitutional
Treaty and subsequently in the Treaty of Lisbon, the founders have not only taken
an important symbolic step but have also opened new channels for concrete action
and infl uence of national parliaments. Whether and how these channels will be used
remains to be seen. In particular, as practice implies parliamentary multilateralism
in order to be effective, parliaments have to find allies to force the Commission to
review a legislative proposal they characterise as transgressing the red line of subsid-
iarity. For such initiatives to succeed a transnational political culture has still to be
developed. In that respect, the inter-parliamentary cooperation spelled out in Proto-
col No 1 on the role of national parliaments in the Union has to find effective forms
of information exchange and of negotiating common positions in order to be heard
at the supranational level.
At last, the new provisions on direct participation are to create a new democratic
culture in the Union that is also a novelty to some member states. However, the Citi-
zens’ Initiative implementation procedures have still to be worked out, as the Treaty
just tells us that ‘not less than one million citizens who are nationals of a significant
number of Member States may take the initiative of inviting the European Commis-
sion, within the framework of its powers, to submit any appropriate proposal on
matters where citizens consider that a legal act of the Union is required for the
purpose of implementing the Treaties’ (Article 11, para 4). Derided by most euro-
sceptics, it could, if taken seriously, initiate popular mobilisation and thus promote
the formation of a European public sphere.

vii. conclusions: european constitutionalism

as a tool to bring citizens back in?
Has then the story of European constitutional debate been a success in terms of
representative as well as participatory democracy? Does it allow for an optimistic
perspective on the future integration process? There are no clear-cut answers. Even
after the second referendum in Ireland positively conduded in October 2009, the
affirmative ruling of the German Constitutional Court and the subsequent legisla-
tive charges by the German Bundestag as well as the assert of Poland and the Czech
Republic, a cautionary approach is appropriate. This chapter, though, has aimed at
investigating the problems that led to the constitutional debate as well as the solu-
tions worked out by two Conventions and the subsequent IGC.
Parliamentarisation appears to be one strategy chosen by European political elites
to court their disgruntled electorates who may also voice their concern directly by
the instrument of the Citizens’ Initiative. Whereas the empowerment of the Euro-
pean Parliament is in line with the past logic of constitutional change, the new role
of national parliaments opens new channels of power to be exploited by national
actors that until now, regardless of some exceptions, had merely been onlookers.
While this shift to more intensive parliamentary activity may be qualified positively
 Constitutionalism and Representation  137
in democratic terms, it may also be viewed more sceptically in terms of further deep-
ening and widening of the Union. In particular, little can be said on how national
parliaments will cope with the public shift ‘from permissive consensus to constrain-
ing dissensus’,48 and how they will at the same time maintain a positive role in the
construction of Union.
But some of the problems, at least, are not to be shunned. First, the new powers
given to national parliaments will only become real if they are capable of opening a
new chapter in their history and if they allow for new experiments of transnational
cooperation going beyond the niceties of COSAC. Second, with regard to further inte-
gration, national parliaments must not only think in terms of subsidiarity red lines,
and thus invoke national or subnational interests as being sacrosanct; they must also
consider their role in terms of giving a contribution to the unification process. The
danger of subsiding to populisms of all shades obviously looms large. In this respect,
cooperation with their counterparts in the European Parliament is of utmost impor-
tance. Last but not least, they have to cope with the fact that today complex issues
are discussed and prepared for decision in different fora than their own committees,
independent agencies being one case in point. Consequently, in order to be them-
selves able to take their own responsibilities seriously, parliaments at all levels must
envisage how such agencies are to be controlled and held accountable. In order to
re-establish appropriate systems of checks and balances, parliaments also need, to a
degree, to distance themselves from governments. If parliaments yield all power to
the executives, they make themselves superfl uous. European constitutionalism as
enshrined in the Treaty of Lisbon could create the instruments to open a new game
in the history of integration.

48
L. Hooghe and G. Marks, ‘A Postfunctionalist Theory of European Integration: From
Permissive Consensus to Constraining Dissensus’ (2008) 39 British Journal of Political Science 1–23.
  7 
More Law, Less Democracy?
Democracy and Transnational Constitutionalism

Petra Dobner

i. introduction
Constitutionalism has an impressive past as a means of framing and taming the
political, guiding legislation and uniting societies in tacit consensus. This success
has powered the worldwide conviction that the political has either to be organised
constitutionally or will fail the demands of democracy if not modernity. But while
the process of national constitutionalisation is still going on, we are simultaneously,
confronted with the decline of state-centred constitutionalism as an effective way of
fully subordinating political power to constitutional law. The main reason for this
increasing inability of the state’s constitution to fulfil its tasks is the changing quality
of statehood itself. The transformation of statehood shatters the former unity of
territory, power, and people, and challenges the constitution’s ability comprehen-
sively to encompass the political entity of the state.
One answer to this problem has been to extend the concept of constitutionalism
to the global arena and to promote the idea of a global constitutionalisation. The
constitution’s journey from a state-centred concept to a transnational project has
opened new perspectives, not only in theory but also by the practical achievement
of subjecting the exercise of public authority to higher law. Recent trends towards
the transnationalisation, privatisation, and sectoralisation of public policy have,
during the last decade, captured the attention of constitutional scholars and are
leading to the promotion of new ideas about how to theorise the emerging world of
globalised law, which extend from positions that defend the state’s indispensability to
visions of a truly new global constitutionalism beyond the state.
But this transfer of constitutional thinking from the state to the postnational
constellation does not come about without losses. One blind spot is remarkable:
throughout the debate, there exists general perplexity about how to meet the
normative demand of a democratic legitimation for legal arrangements in the
globalised world. Since the idea of global democracy remains an unfinished project
both theoretically as well as practically, this does not come as a surprise. But the lack
142  Petra Dobner
of democratically legitimised legal arrangements still renders the project of global
constitutionalisation not only incomplete but also dangerous.
The future democratic quality of law is also called into question by a third devel-
opment. In recent years, the promotion of democracy has tended to be substituted
by the promotion of the rule of law. As the American Bar Association puts it, there
is a growing belief ‘that rule of law promotion is the most effective long-term
antidote to the pressing problems facing the world community today, including
poverty, economic stagnation, and confl ict’.1 While there can be no doubt that the
rule of law forms a necessary part of democratic governance, it is doubtful that
its external promotion can of itself foster democratic governance. The rule of law
as such is not necessarily democratic, and was not in the beginning of its installa-
tion in Western societies.2 In order to fulfil democratic needs, the rule of law has
itself to be democratised. The question therefore remains whether and how the
promotion of the rule of law can be turned into a precondition for democratic
self-government.
There is, then, a growing drift between law and democracy. Surprisingly, this has
so far stirred little commotion among legal scholars. Pragmatic answers prevail, and
the urgent question of democratic legitimacy is put aside or postponed. There is,
to be sure, no ready-made solution to the question of how the normative call for
democratic legitimacy is to be reconciled with the political and legal evolution of
global rule. Yet concealing the vacancy is no remedy either: it merely shrouds the
fact that it has remained indispensable for any legitimate exercise of power to be
based upon the consent of the governed and that this major achievement of moder-
nity is seriously threatened by the process of globalisation in general as well as by the
globalisation of law in particular.
The practical effects of the dissolution of law and democracy and the normative
desirability of promoting democratised law will in this chapter be examined in four
steps. The first section recalls the mutual constituency of state, democracy, and
constitution, identifies the major drivers for processes of deconstitutionalisation,
and interprets them as indicators of a loosening relationship between democratic
legitimacy and constitutional law within the state. The second shows how and why
the move towards global law does not compensate for the losses in democratic
legitimacy, and instead adds to it. The third section presents and evaluates the most
salient normative approaches in the neo-Kantian tradition, which claim to present
an answer to the open question of the democratic legitimacy of global law. Finally,
the last section takes a deflated outlook on the prospects of a fully legitimised rule
of law in the globalised world.

1
American Bar Association, ‘Promoting the Rule of Law’, <http://www.abanet.org/rol/>
(accessed 25 June 2009).
2
E.-W. Böckenförde, ‘Entstehung und Wandel des Rechtsstaatsbegriffs’, in his Recht, Staat,
Freiheit: Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte (Frankfurt am
Main: Suhrkamp, 1991), 143–69, at 148.
 More Law, Less Democracy?  143

ii. state, democracy, and constitution

For classical constitutional thought, the state and its constitution are mutually
constituent and dependent. It is the state’s material and geographical existence
which necessitates constitutions. Without the state’s will to act constitutionally, and
without the state’s ability to preserve and defend the viability and validity of the
constitution, it would be merely a piece of paper. For the democratic state at least,
the reverse is also true, namely that the state depends on the constitution, for there
has thus far been no other means of regulating in a binding manner both the demo-
cratic practices and the legitimation of rule in secular societies.
In order to serve as an institution which guarantees democratic governance, the
constitution must be conceptualised as a specific form of legal regulation. In this
perspective, the particularities of constitutional regulation can be determined by
three key characteristics. Compared to their predecessors in the form of contracts
with rulers, constitutions not only limit the ruler’s exercise of power but also legiti-
mise such exercise; their coverage of matters is not individualised but universal; and
they bind not only some people in a given territory but all people.3 A democratic
constitution then, in contrast to other kinds of regulation, is a set of norms which
a community has agreed upon, which at least in principle is applicable to all impor-
tant matters of this community, and which is equally valid and mandatory for all
members of this community.
Thus understood, constitutions can be considered to be the ingenious answer to
the demands of secular societies to be free and bound to rules at the same time, by
forming a mutual contract—one individual with every other—in which the security
and freedom of the individual are preserved by putting the ‘natural rights’ of every-
one in the hands of the elected few. Constitutions are hence a functional solution
to a problem which could only evolve historically and culturally. In response to the
problem of how to preserve freedom and security in societies which had discovered
what Lefort calls the ‘empty place of power’, constitutions have filled this place with
their own production of legitimate rule.
With the constitution being a set of norms given by a state, for a state, and which
is valid within a state, it is coextensive with the state. The constitutional order ends
at the borders of a state, with both of them, states and constitutions, having to give
way to other states, people, and constitutions at these borders. As the normative
counterpart of the state, a constitution must address all of the state’s components,
ie the territory, power, and people. The unity of these elements in the state also has
to be represented in the institutional design of the constitution, which, to be the
order of the totality of the state, is a territorial order, a power order, and social order
in one.
Crucial to this picture of statehood and the modern constitution is the idea of
congruence: in a given territory, but not beyond, the state and only the state is
legitimised to rule over the people, who, by their consent, agree to be ruled under the

3
D. Grimm, Deutsche Verfassungsgeschichte 1776–1866 (Frankfurt am Main: Suhrkamp, 1988), 12.
144  Petra Dobner
laws of the constitution. On considering the major transformations of the political,
however, one finds that all of the classical elements of statehood are changing. In
sum, it is this congruence of territory, power, and people—which is reflected in the
constitution as a territorial, power, and social order—that is dissolving, thus changing
the conditions of constitutional rule.4
The principle of territoriality is most decisive for the modern state. It relies on
the acceptance of territorial borders as the material limit to the exercise of power.
Prepared for in the 1555 peace treaty of Augsburg and resolved in the 1648 peace
treaty of Osnabrück and Münster, the overlapping power claims based on personal
loyalties were replaced by a system of defined territorial borders. Modern states
‘explicitly claim, and are based on, particular geographic territories, as distinct from
merely occupying geographic space which is true of all social organizations. …
Territory is typically continuous and totally enclosed by a clearly demarcated and
defended boundary’.5 Altogether, the system of modern territorial states organises
geographical space by a system of ‘territorially disjoint, mutually exclusive, func-
tionally similar, sovereign states’.6
The territorial foundation of the state is an issue which was taken for granted as
soon as it was established. The political philosophers of the period in which the shift
from personal to territorial systems took place easily incorporated the geographic
border into their theories.7 Despite its revolutionary effects on the structures of
legitimation, the extension of power, the general self-understanding of states, the
organisation of the international system, the concept of security, and the formation
of a people, territoriality has only become a major issue of political and scientific
concern in the last few years.
This concern follows from the fact that the territorial basis is fading due to changes
both in and of space. Changes in space take place where territory formerly controlled
by the state’s authorities now is ruled by various competing actors, among which the
state is but one. Changes in space reorganise the relation between geographic space,
its users and/or usage, and its organising forces. A similar degree of attention devoted
to changes in space has been paid to changes of space and/or our perception of space.
The sense of territoriality in general is being questioned by the growing importance of
non-geographic spaces such as the virtual space of digitality. Without taking the posi-
tion that geography no longer matters, the geographically organised state is still losing
control of the growing virtual space, a fact which also undermines its authority in

4
P. Dobner, Konstitutionalismus als Politikform: Zu den Effekten staatlicher Transformation auf
die Verfassung als Institution (Baden-Baden: Nomos, 2002).
5
J. Anderson, ‘Nationalism and Geography’, in J. Anderson (ed), The Rise of the Modern State
(Atlantic Highlands, NJ: Humanities Press, 1986), 115–42, at 117.
6
J. G. Ruggie, ‘Territoriality and Beyond: Problematizing Modernity in International
Relations’ (1993) 47 International Organziation 139–74, at 151.
7
Thomas Hobbes, Leviathan oder Stoff, Form und Gewalt eines Kirchlichen und Bürgerlichen
Staates, ed I. Fetscher (Frankfurt am Main: Suhrkamp, 1984), 173; Jean Bodin, Über den Staat
(Stuttgart: Reclam, 1976), 11; John Locke, Two Treatises of Government [1689], ed P. Laslett
(Cambridge: Cambridge University Press, 1963), 343, 92.
 More Law, Less Democracy?  145
geographic territories. Virtual space challenges the notion of locus; it raises the question
of whether it can make sense to speak of space and place anymore, and if so how, if
territorial fixation is abandoned. With a restructuring of the geopolitical landscape on
the one hand, and a redefinition of space in general on the other, the state enters into
a new competition over the control of space and territory. Being territorially fixed, and
having a concept of agency and power adjusted to geographic space understood in
terms of unquestionable property, the state is ‘territorially left behind’ vis-à-vis other
actors engaging in territorial fluidity.8 Once an unquestioned and reliable structure of
the political, territory is today marked by an increasing number of contingencies.
Among the terms used to describe political modernity, ‘sovereignty’ occupies
an outstanding position: ever since it was transplanted from its original theological
background to political reasoning, it has served as a focal point of political action and
self-understanding.9 The continuity in the use of the term, though, can easily betray
the fact that ‘sovereignty’ has undergone a severe change of meaning (from Fürsten-
souveränität to Volkssouveränität), so modern usage of the term is not only different
from but in some respects even contradicts the original intentions of its inventor.
When in the sixteenth century Jean Bodin first applied the idea of sovereignty to the
political context, his main concern was to pacify a multitude of competing powers by
the means of centralisation and hierarchy, and to put an end to religious and civil war.
Following the philosophical reasoning about sovereignty up to the Federalist Papers
and the constitution of the USA, the concept of sovereignty has been successively
enriched and partly redirected. Whereas Bodin basically argued for the centralisation
of power, Hobbes claimed the rationality of absolute power, and although his inten-
tions were different, he opened rather than closed the door to a democratic share of
this power. This door was swung open wide by Locke, who argued that there is no
remedy to the uncertainties of the state of nature so long as power is held by an
absolute monarch, who ‘commanding a multitude, has the Liberty to be Judge in
his own Case, and may do to all his Subjects whatever he pleases, without the least
liberty to any one to question or controle those who Execute his Pleasure’.10 Locke
therefore claims that government has to be resigned to the public, for ‘there and only
there is a Political, or Civil Society’.11 Following this line on to the Federalists as the
ones to finally constitutionalise sovereignty, one should not neglect the contribution
made by Paine in Common Sense, who promoted a mass democratic acceptance of
the right to self-government.12

8
W.-D. Narr and A. Schubert, Weltökonomie: Die Misere der Politik (Frankfurt am Main:
Suhrkamp, 1994), 28.
9
For the early history of sovereignty cf H. Quaritsch, Souveränität: Entstehung und
Entwicklung des Begriffs in Frankreich und Deutschland Vom 13. Jahrhundert bis 1806 (Berlin:
Duncker & Humblot, 1986).
10
Locke, above n 7, 316.
11
Ibid 368.
12
Thomas Paine, Rights of Man and Common Sense (New York: Everyman, 1994).
146  Petra Dobner
Ever since the first constitution of modern times, sovereignty has shown a two-
sided face: it claims the centralisation of power in the state and binds it to democratic
consent. The concept of democratically exercised sovereignty (Volkssouveränität)
now links two questions about power: the question as to the objects and extent of
power, and locating them within the state; and the question of the formal responsi-
bility for the exercise of this power by situating it ultimately with the people.
The concept of sovereignty for a long time has had its critics. During the early
decades of the twentieth century, Harold Laski questioned whether sovereignty was
but a hiding place for the issue of power and if there was any more legitimation to
locating it in the state than in the individual wills of the people.13 At the same time,
Hans Kelsen argued that sovereignty is incompatible with international law (Völker-
recht), with his preferences being clearly in favour of the latter.14 This early theo-
retical reasoning for a critical view on the concept of state sovereignty has recently
gained renewed support as a result of the state acquiring the status of primus inter
pares—as a national actor within the ‘corporate state’, and as an international actor
within the structures of global politics.
Taking up the differentiation of the objects and extent of power as one side of
sovereignty and the democratic responsibility as the other, the changes in sover-
eignty can now be evaluated in two steps. First, we see an exodus of objects of
power out of the state, in the sense that an increasing number of basic issues such
as environmental matters, trade relations, legal affairs, and also legal sanctions and
tax matters are no longer either adequately or completely covered by one state.
And second, this also leads to a decrease in the number of democratic options for
controlling the ways in which this power is exercised, for these options have been
till now located only in the state. Although these two processes are linked, they
can be differentiated analytically and should be valued differently. Assessing the
loss of the state’s supremacy is purely a matter of measuring the output efficiency
of decision-making processes, and this assessment should be based on empiri-
cal studies rather than political convictions. But political convictions quite rightly
have their place in evaluating the loss of democratic control accompanying this
process.
Political theory insists that the legitimation of the constitutional order must
be based directly or indirectly on the consent of the people. Ever since Rous-
seau’s formulation of the social contract, the problem has been how consent can
be formed if the people have free and different wills. One answer has prevailed,
namely the assumption of homogeneity on the basis of traditional, cultural,
or ethnic bonds, which either legitimates excluding the dissenters as irrelevant
‘others’, or which ideally includes the dissenting minority into the community by

13
H. Laski, ‘Die Souveränität des Staates’, in H. Kurz (ed), Volkssouveränität und
Staatssouveränität (Darmstadt: Wissenschaftliche Buchgesellschaft, 1970), 90–108.
14
H. Kelsen, ‘Der Wandel des Souveränitätsbegriffs’, in H. Kurz (ed), Volkssouveränität und
Staatssouveränität (Darmstadt: Wissenschaftliche Buchgesellschaft, 1970), 164–78; H. Kelsen,
Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer Reinen Rechtslehre
(Aalen: Scientia, 1981).
 More Law, Less Democracy?  147
assuming that sooner or later it will be part of a majority again. The construction
of homogeneity can come about aggressively as in the version of Carl Schmitt,15
or be seen as a constitutional goal as expressed by Otto Kirchheimer,16 or simply
be presented as a normatively necessary precondition for success in the general
deliberation as maintained by Jürgen Habermas.17 Without denying important
differences between these theories, one significant concurrence of these argu-
ments must be stated: there is no other way of constructing legitimate rule
under secular and democratic conditions than by assuming the ability to achieve
consent on the basis of shared views and values.18 Ever since they were intro-
duced into constitutional theory, homogeneity and consent have been theoretical
constructions as opposed to realistic descriptions. Nevertheless, we seem to have
reached a period in which these fictions have become less convincing, especially
if we take seriously the sociological observations of a growing self-reflexivity,
individualisation, differentiation, and transnational migration. These social
changes challenge the political fiction of a ‘closed society’,19 a fiction which lies
at the foundation of democratic theory and the democratic practices in most
countries.
Territorial contingency, the diff usion of power, and social plurality together
alter the conditions under which the supremacy of democratic constitutionalism
within the state was established. The exercise of public authority within the state
can no longer be considered to be under the full control of constitutional law.
Insofar as the constitution is understood as the legal realisation of the social
compact of a people, these changes also imply that democratic control by means
of constitutional law gives way to an exercise of political power beyond constitu-
tional norms, or to put it differently: that the linkage between law and democracy
is loosened. Globalising law is one remedy to put the exercise of public authority,
which has escaped the nation state, anew under legal regulations. But while the
establishment of transnational law undoubtedly can produce norms for matters
beyond the state, it fails to meet the criteria for democratic legitimacy of legal
arrangements.

15
C. Schmitt, ‘Legalität und Legitimität’, in his Verfassungsrechtliche Aufsätze aus den Jahren
1924–1954 (Berlin: Duncker & Humblot, 3rd edn, 1985), 263–350, at 235.
16
O. Kirchheimer, ‘Weimar—was dann?’, in his Politik und Verfassung (Frankfurt am Main:
Suhrkamp, 1981), 9–56, at 17–18.
17
J. Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokra-
tischen Rechtsstaates (Frankfurt am Main: Suhrkamp, 1994).
18
A noteworthy exception to this rule is the idea of nichtüberzeugter Verständigung (‘uncon-
vinced understanding’) in N. Luhmann, Beobachtungen der Moderne (Opladen: Westdeutscher
Verlag, 1992), 202 (unfortunately Luhmann used the term once only, and failed to provide
further explication).
19
S. Benhabib, ‘Democracy and Identity: Dilemmas of Citizenship in Contemporary
Europe’, in M. T. Greven (ed), Demokratie—Eine Kultur des Westens? 20. Wissenschaftlicher
Kongreß der Deutschen Vereinigung für Politische Wissenschaft (Opladen: Leske und Budrich,
1998), 225–48, at 237.
148  Petra Dobner

iii. the democratic blind spot in transnational

constitutionalism
‘Transnational constitutionalism’ is here understood in an encompassing sense as
a common denominator for various attempts to extend the project of global law
beyond the traditional frame of public international law. It therefore extends beyond
the type of law which only concerns relations between sovereign states and intergov-
ernmental organisations.20 This younger debate observes and conceptualises a global
law which addresses or affects citizens directly and which is not restricted to law
between states but between different social, economic, or political entities within
and outside of states. Independent of whether or not the term ‘constitutionalism’ is
used to coin those projects by the authors themselves and irrespective of the general
difficulties in applying the term of constitution to global law,21 these approaches
share the idea that the global arena itself is a legislative sphere in which binding
regulations are produced which overrun the constitutional autarky of every single
state and which therefore can claim constitutional quality themselves.
From the perspective of political science, the main task for global public law in
this newer sense is to regain regulatory control over the exercise of legal or politi-
cal power. From a democratic standpoint this necessarily involves a full democratic
legitimacy for the production process of this law, its application, and its control.
The problem is that this demand can no longer be fulfilled by means of a legitimacy
chain (in which the people as members of sovereign states are viewed as authors
and addressees of the law), when either the coverage of global law leaves the paths
of interstate conventions or when the production of global law is a task for expert
conventions or private committees which are not representatives of the affected
civil societies. In either case the legitimacy chain is disrupted, thus leaving open the
question of consent. None of these conditions is denied to be empirically correct:
there is a widespread agreement that the emerging global law is a conglomerate of
rules and regulations which exceed the sphere of human rights, which can overrun
national constitutions (and not only within the EU), that compliance is enforced by
means of either juridical or economic sanctions, and that the production of these
rules has become a matter for hybrid actors, including not only states or intergovern-
mental organisations, but also private, economic, and civil actors of all kinds. The
new global law therefore is confronted with a structural lack of democratic legiti-
macy which can be stated in two respects: by general substantiation and by empirical
observations of new concepts of transnational law.
The democratic foundation of constitutional law and vice versa its ability to
found democratic governance within the state is closely linked to the different
aspects which have been outlined in the first section: first, that the rule of consti-
tutional law must be limited to a distinct territorial-personal unit and cannot claim

20
The term therefore covers concepts such as international constitutional law, global
constitutionalism, societal constitutionalism, and global administrative law.
21
Cf Grimm, Preuss, Loughlin, and Wahl in this volume.
 More Law, Less Democracy?  149
validity beyond this unit; and, secondly, that it must address a specific political
entity within this unit which is responsible for the exercise of public authority, ie
government. Transnationalisation and privatisation of public authority challenge
these basic preconditions of the state’s constitution: a clear distinction between
inside and outside as well as a distinct separation of public and private.22 Following
Grimm in this basic argument about the inapplicability of constitutional thinking
beyond the state, the argument can be extended to liberal democracy in general:
not only constitutional thinking, but liberal democracy itself is dependent on a
constricted political entity. In political theory this condition is conceptualised as a
social compact between a given people. The limitation of this people is crucial for
the idea of a social compact, for only the seclusion of a political entity allows for
those who are ruled to consent to the ones who rule them. Practically the compli-
ance with this compact depends on the development of a specific organisation
which exercises governmental power, because the separation between a social and
a political sphere is a precondition for the constitutional subjection of the exercise
of political authority. All in all, the diff usion between governmental and private
actors, the dissolution of clearly demarcated political entities into the transnational
sphere, and the blending of private and public actors in the exercise of political
authority, which altogether characterise the transnational constellation, diminish
the options for democratic control over the exercise of political authority, and
neither can these open questions be answered, nor are they answered in the concep-
tions of transnational constitutionalism. Those which so far are available fall short
of explaining how exactly global regulations can be legitimised by the consent of
the people who are affected.
How then is this problem addressed in conceptions of global law? The range
of answers is wide. Many scholars simply leave the question of legitimacy aside,
while those who do address the problem either (1) consider it to be a transitional
phenomenon, (2) continue to rely on the legitimacy chain, or (3) deny that there is
any problem at all. These stances are sketched in turn.
Representative of the first response is Christian Tomuschat, who maintains that
no group of countries is opposed in principle to the recognition of human
rights as an important element of the international legal order, almost no
group rejects democracy as a guiding principle for the internal systems of
governance of States. Given this rapprochement towards the emergence of
a true international community, objections to general principles of law are
progressively losing the weight which they carried 25 years ago.23

22
D. Grimm, ‘Die Verfassung im Prozess der Entstaatlichung’, in M. Brenner, P. M. Huber,
and M. Möstl (eds), Der Staat des Grundgesetzes—Kontinuität und Wandel: Festschrift für Peter
Badura (Tübingen: Mohr Siebeck, 2004), 145–67. See also Grimm in this volume.
23
C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New
Century, General Course on Public International Law, 281 Recueil des Cours (The Hague et al:
Nijhoff, 1999), at 339.
150  Petra Dobner
While it may be true that the international community shares a set of normative
values, including human rights and democracy, it remains questionable whether a
basic agreement can count as a substitute for direct involvement, co-determination,
and control of general principles of law. Critically viewed, Tomuschat’s argument
is paradoxical: if we all agree to be democrats, we do not have to be democratic
anymore. The basis of his argument is a substitution of practices with beliefs.
Instead of acting democratically we agree upon the principle. While a shared belief
in democracy (if it were true) should not be underestimated, it still cannot serve as a
substitute for a practical democratic legitimation of global principles.
Armin von Bogdandy and colleagues clearly see the problem. They state that
we are in the ‘difficult situation whereby international institutions exercise public
authority which might be perceived as illegitimate, but nevertheless as legal—for
lack of appropriate legal standards. Consequently, the discourse on legality is out of
sync with the discourse on legitimacy’.24 For them, and I agree, the newer attempts
to make up for the legitimacy deficit by looking at ‘accountability’ and ‘participa-
tion’ do not suffice, since ‘there is hardly any shared understanding about their
material content. Presently, these concepts do not provide accepted standards to
determine legality, but are not much more than partes pro toto for the concept of
legitimacy.’25
Representing the second approach, Bogdandy et al address the question of
legitimacy of global law through their own ‘public law approach’. They start by
approving some findings of the global governance concept. They note that
the global governance concept recognizes the importance of international
institutions, but highlights the relevance of actors and instruments which
are of a private or hybrid nature, as well as of individuals—governance is
not only an affair of public actors. Second, global governance marks the
emergence of an increased recourse to informality: many institutions,
procedures and instruments escape the grasp of established legal concepts.
Third, thinking in terms of global governance means shifting weight from
actors to structures and procedures. Last but not least, as is obvious from
the use of the term ‘global’ rather than ‘international,’ global governance
emphasizes the multi-level character of governance activities: it tends to
overcome the division between international, supranational and national
phenomena.26
They criticise, however, the fact that the concept of global governance ‘is mainly
understood as an essentially technocratic process following a little questioned dogma

24
A. von Bogdandy, P. Dann, and M. Goldmann, ‘Developing the Publicness of Public
International Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9
German Law Journal 1375–400, at 1389.
25
Ibid.
26
Ibid 1378.
 More Law, Less Democracy?  151
of efficiency’27 and seek in their own approach for a ‘response … to such claims of
illegitimacy from a public law perspective’.28
The public law perspective is defined by the dual function of public law: in the
liberal and democratic tradition public authority may only be exercised if it is based
on public law (constitutive function) and is controlled and limited by it (limiting
function).29 On this basis the answer to the legitimacy of public authority is provided
in three steps. First, the authors want to look at those activities only which ‘amount
to an exercise of unilateral, i.e. public authority’.30 They argue, that the global
governance perspective is insufficient in singling out these unilateral acts, since
‘global governance flattens the difference between public and private, as well as
between formal and informal ones’ and, moreover, rather concentrates on processes
than on single acts.31 Second, a workable concept of public authority is therefore
needed. The authors define ‘authority as the legal capacity to determine others and
to reduce their freedom, i.e. to unilaterally shape their legal or factual situation’ and
differentiate between binding and conditioning acts of this authority.32 The third and
final step defines the ‘publicness’ and internationality of public authority. This is
understood as follows:
We consider as international public authority any authority exercised on
the basis of a competence instituted by a common international act of
public authorities, mostly states, to further a goal which they define, and
are authorised to define, as a public interest. The ‘publicness’ of an exer-
cise of authority, as well as its international character, therefore depends
on its legal basis. The institutions under consideration in this project hence
exercise authority attributed to them by political collectives on the basis of
binding or non-binding international acts.33
Although the authors concede that these institutions only have limited resources of
democratic legitimacy, since those are ‘largely state-mediated’,34 nevertheless the gap
between the exercise of public authority and its democratic founding may be closed
via their connection to the legitimacy chains rooted in their ‘constituent polities’.35
But is the problem really solved? I have my doubts. The global governance perspec-
tive clearly informs us about the fact that public authority defined as the ‘legal
capacity to determine others and to reduce their freedom’ is indeed exercised by a

27
Ibid 1379.
28
Ibid 1380.
29
Ibid.
30
Ibid.
31
Ibid 1381.
32
Ibid 1381–2
33
Ibid 1382.
34
Ibid 1400.
35
Ibid.
152  Petra Dobner
multitude of actors, private and public, formally and informally. Starting from the
empirically informed observation that the exercise of public authority is no longer
limited to those who are public by means of their formation, but by the effects they
have on the global public, the authors return to an idea of publicness in the first sense
only. The broad global governance perspective is narrowed by the normative deci-
sion to count only those acts as an exercise of public authority which are exercised
by states or intergovernmental organisations and which have a ‘legal basis’ for their
operations. For those actors the legitimacy is quite unquestionable, since they are
representatives of given polities. The severe problem of legitimising the exercise of
public authorities by other actors, which are active in the production of global law—a
fact which is by no means denied by the authors themselves—remains unaddressed.
Illustrative of the third response is the work of Erika de Wet. De Wet states that
‘many critics regard the value system developing under the infl uence of international
institutions and tribunals as an illegitimate, super-imposed normative system that
takes place beyond any form of democratic control or accountability’.36 In addition
to the arguments which have been accentuated here, the general criticism addresses
the lack of democratic accountability for the elite groups of national officials,
the questionable legitimacy of non-governmental organisations of the emerging
Global Public Policy Networks. De Wet reports that ‘the impact of this illegiti-
macy becomes even more palpable when the law of the international organization
is enforced directly in the domestic legal order without the national parliament’s
imprimatur, especially where a Member State is outvoted in the international organ-
ization that produced the directly applicable decision’.37 Correct though her account
of the criticism is, her conclusion is questionable: ‘It is submitted that the flaw in
these arguments lies in their mythologizing of national democratic governance as a
model for international governance.’38 It would be more correct to state that the flaw
of the arguments lies not in the mythology of national democratic governance but
in the fact that the democratic legitimacy of governance is an inalienable right and
therefore must be transferred to the global arena—and that otherwise, if this is not
possible, the globalisation of law must be criticised. But at this point de Wet turns the
argument round by questioning whether democracy really equates with legitimacy.
Her first argument is based on the diversity of democracies. Surely, democracy
can ‘mean many different things, including popular democracy, representative
democracy, or pluralist democracy, to name but a few’.39 But the fact that there
are different organisational forms of democracies does not challenge the basic
fact that all of them must base their governmental system on the consent of the
people.

36
E. de Wet, ‘The International Constitutional Order’ (2006) 55 International and Comparative
Law Quarterly 51–76, at 71.
37
Ibid 72.
38
Ibid.
39
Ibid.
 More Law, Less Democracy?  153
In her second argument de Wet challenges the nature of democratic theory. She
states:
[I]t has not yet been convincingly explained why the concept of democracy
would in and of itself be determinative for the legitimacy of any form of
governance. Even in well established democracies, the legitimacy of the
decision-making process has been undermined by the fact that national
democracies tend to exclude many who are affected by their policies,
simply because they are not part of the demos as understood in a particular
ethno-cultural sense. However, it is questionable whether such ethno-
cultural definitions of demos are compatible with the founding principles
of constitutional democracies which aim at full representation and partici-
pation of all affected by the decision-making process. It thus becomes
questionable whether the substance of the national democratic legislative
decision-making process would necessarily reflect the actual wishes of the
majority of those affected by it.40
What is this referring to? Modern concepts of citizenship have gone far beyond the
inclusion of an ‘ethno-cultural demos’, and overcome the ius sanguinis principle of
citizenship (which itself was never the dominant modern principle of citizenship).
The argument that the ‘substance’ of the decision-making process does not reflect
the wishes of the majority of the affected refers back to a long tradition of anti-
democratic rhetoric, but a tradition that also has been widely rejected. Direct democ-
racies do tend to represent the empirical will better than representative democracies
but they tend to do so on the basis of the subjection of the minority; representative
democracies, by contrast, possess a greater propensity to forge compromises.41 By
definition a compromise is something that nobody would have voted for if there had
not been others with diverging ideas. Moreover, governments and parliaments also
have the function of articulating and translating the popular will into viable policies.
The argument that democracies produce decisions that do not reflect the ‘actual
will’ is a merely populist one.
De Wet continues, thirdly, that
even in instances where groups are officially represented in the governmen-
tal decision-making process, the legitimacy of the process suffers from the
lack of the de facto access of many of these groups to the public debate
leading up to the governmental decision-making process; as well as the lack
of transparency of the decision-making process itself; and the (perceived)
lack of independence and expertise of the decision-makers in question.42

40
Ibid 73.
41
E. Fraenkel, ‘Die repräsentative und plebiszitäre Komponente im demokratischen
Verfassungsstaat’, in his Deutschland und die westlichen Demokratien (Frankfurt am Main:
Suhrkamp, 1991), 153–203.
42
De Wet, above n 36, at 73.
154  Petra Dobner
This argument also must be rejected: modern democracies contain an abundance of
experts and expert-commissions,43 interest groups, and non-governmental participa-
tors of all kinds which offer a wide array of formal and informal modes of participa-
tion, including membership of political parties, the right to elect and to be elected,
and thus be part of the political decision-making process. Also the idea that parlia-
mentarians and members of governments lack ‘independence and expertise’ repeats
long-standing prejudices against parliamentarian democracies which have been
rebutted in practically every serious scientific piece which has been produced on this
subject.44
The main aim of de Wet’s argument is to call into question the legitimacy of
domestic democracy in order to evade the issue of democratic legitimacy of global
politics and law: if domestic democracy cannot provide for legitimacy, why then
should international policy- and law-making ever strive for it? In her own words:
However, if one accepts that democracy does not necessarily result in
legitimate decision-making either, it becomes plausible to ask whether the
international legitimacy deficit can be overcome through other measures
than democratic decision-making. These would include but not be limited
to measures aimed at a more accessible and transparent decision-making
process. Viewed in this light, it is inappropriate to dismiss the possibility of
legitimate post-national decision-making out of hand.45
But what if one does not agree that democracy does not result in legitimacy? Or
rather: what if one is convinced that democracy is the only means to reach full
legitimacy?

iv. kant and his successors: democratising

transnational constitutionalism?
The normative argument for a democratic legitimation of law is most clearly
expressed in the Kantian project of outlining the necessary preconditions for eternal
peace. According to these, constitutional law is crucial for putting into reality the
principles of moral philosophy. Following Hobbes’s idea that men are by nature in a
state of war, Kant sees the only remedy in establishing a rule of law to which every-
body consents. Since a state of peace will not simply evolve, it must be established
by means of law.

43
S. Sief ken, Expertenkommissionen im Politischen Prozess: Eine Bilanz zur Rot-Grünen
Bundesregierung 1998–2005 (Wiesbaden: VS Verlag für Sozialwissenschaften, 2007).
44
S. S. Schuettemeyer, Fraktionen im Deutschen Bundestag 1949–1997: Empirische Befunde
und Theoretische Folgerungen (Opladen: Westdeutscher Verlag, 1998). W. Patzelt,
‘Politikverdrossenheit, populäres Parlamentsverständnis und die Aufgaben der politischen
Bildung’, in Aus Politik und Zeitgeschichte (APuZ), B7/8-1999, 31–8.
45
De Wet, above n 36, at 73–4.
 More Law, Less Democracy?  155
Starting from a confl ict theory, Kant sees the need to establish three elements of
a global legal order aimed at solving possible clashes. Confl ict can occur between
people of one state, between states, and in the relation between individuals and
states. In symmetry with the possible sources of confl ict three different elements of
a global legal order have to be established in order to make peace possible:
All men, who have a mutual infl uence over one another, ought to have a
civil constitution. Now every legitimate constitution, considered in respect
of the persons who are the object of it, is I. either conformable to the civil
right, and is limited to the people ( jus civitatis). II. Or to the rights of nations,
and regulates the relations of nations among each other (jus gentium). III. Or
to the cosmopolitical right, as far as men, or states, are considered as infl u-
encing one another, in quality of constituent parts of the great state of the
human race (jus cosmopoliticum). This division is not arbitrary; but necessary
in respect of the idea of a perpetual peace.46
According to these considerations ‘the civil constitution of every state ought to be
republican’.47 A republican constitution results from the idea of a social compact,
‘without which one cannot conceive of a right over a people’,48 and is defined as a
constitutional order which respects the liberty of men, enables the equal subjection
of all to the law, and is based on equality of all members of a state. Legal and exterior
liberty therefore, is not ‘the faculty of doing whatever one wishes to do, provided it
injures not another. It consists in rendering obedience to those laws alone to which I
have been able to give my assent’.49 Earlier in this essay Kant had already argued that
a state is not ‘like the soil upon which it is situate, a patrimony. It consists of a society
of men, over whom the state alone has a right to command and dispose’.50 Although
Kant goes beyond Rousseau in stating that representatives can exercise the task of
finding the right decisions, he does not leave any doubt that the state is society, and
that therefore the state’s right ‘to command and dispose’ must ultimately be rested
on self-government. Normatively, there is no doubt that the right to self-government
is closely linked to the right to legislate, which can be traced back to the people’s

46
Immanuel Kant, Project for a Perpetual Peace: A Philosophical Essay. Translated from the
German (London: Vernor & Hood, 1796), at 13.
47
Ibid 13.
48
Ibid 4.
49
Ibid 14.
50
Ibid 3. The thought that it is society alone which can make the rules to which it shall obey
is expressed even more clearly in the German version, where Kant clearly states the identity
of state and society: ‘Der Staat ist nämlich nicht (wie etwa der Boden, auf dem er seinen
Sitz hat, eine Habe (patrimonium). Er ist eine Gesellschaft von Menschen, über die niemand
anders als er selbst, zu gebieten und zu disponieren hat’ (Immanuel Kant, ‘Zum Ewigen
Frieden: Ein Philosophischer Entwurf ’, in W. Weischedel (ed), Immanuel Kant: Schriften zur
Anthropologie, Geschichtsphilosophie, Politik und Pädagogik I, Werkausgabe Band XI (Frankfurt am
Main: Suhrkamp, 1795/1993), 191–251, at 197).
156  Petra Dobner
own consent, and that both rights are indispensable for the establishment of, if not
perpetual, at least temporary peace.
Kant’s vision for eternal peace based on the consent of the people can be
summarised as a multi-level system, in which a domestic republican constitution is
complemented by an international public law, which regulates the relation between
states, and a global layer of universal human rights. His insistence on the right of
legal self-determination and his attempt to connect this thought with the vision of
peaceful international order has inspired a discussion about the modernity and appli-
cability of his thoughts for the post-national constellation. Two different readings
of Kant prevail: one reading is recommendatory, in the sense that it seeks to adopt
Kant’s proposal as a guideline for the establishment of the international order. The
second reading is more factual, claiming that Kant’s ideas are already materialising
in the existing order. I will argue, however, that Kant’s premisses prohibit thinking
about the democratic legitimacy of law in continuity with his scheme.
Representative of the recommendatory line is Ernst-Ulrich Petersmann. For
Petersmann, ‘Kant was the first political thinker who developed a comprehensive
theory of national and international constitutionalism based on the insight that the
problem of establishing a perfect civil constitution is subordinate to the problem of
a law-governed external relationship with other states and cannot be solved unless
the latter is solved’.51 Petersmann therefore asks if ‘modern international law and
the UN Charter offer such a constitutional framework for cosmopolitan cooperation
and perpetual peace among legally free and equal citizens’.52 While his account on
the constitutional quality of the UN remains sceptical, since ‘lasting peace cannot
be effectively secured by power-oriented organizations like the UN’,53 Petersmann
is more optimistic about the WTO and European constitutional law. With the
latter being an ‘interlocking layered system of national and international guaran-
tees of human rights, democracy, and rule of law which can be directly invoked
and enforced by European citizens’,54 it shows, according to Petersmann, that ‘this
constitutional insight—that cosmopolitan international guarantees of freedom, non-
discrimination, and rule of law can strengthen and extend corresponding national
legal guarantees of citizens also within their own countries vis-à-vis their own
government—goes far beyond Kant’s draft treaty for perpetual peace’.55 European
constitutional law and its underlying Kantian theory therefore could—or, rather,
should—inspire a reform process of the UN. For Petersmann the Kantian project
has not yet become reality, but it nevertheless instructs us on how to proceed. In his
view, the UN Charter ‘needs to be supplemented by a new UN constitution focusing

51
E.-U. Petersmann, ‘How to Constitutionalize International Law and Foreign Policy for the
Benefit of Civil Society?’ (1998) 20 Michigan Journal of International Law 1–30, at 7.
52
Ibid 12.
53
Ibid 14.
54
Ibid 16–17.
55
Ibid 17.
 More Law, Less Democracy?  157
on effective protection of fundamental rights and constitutional democracies as
preconditions for lasting peace’.56
Jürgen Habermas is the most prominent author of those who comply with the
second line of approach to the Kantian outline of an international constitutional
order. In his essay ‘Does the Constitutionalization of International Law Still Have a
Chance?’, he argues that Kant’s proposal should be read as a model for a multi-level
system, and not be misunderstood as a model for a Weltrepublik.57 Therefore national
constitutions and a constitutionalised world order do not have to be of the same kind:
while national constitutions must be republican in the sense of adopting democratic
self-government, it suffices for the international order to lay down the cosmopolitan
principles of universal human rights. But ‘liberal constitutions beyond the state, if
they are to be anything more than a hegemonic legal façade, must remain tied at least
indirectly to the processes of legitimacy within constitutional states’.58 While Haber-
mas sees that the realisation of the Kantian vision is challenged by other projects,
especially the neoliberal design of a denationalised Weltgesellschaft, the post-Marxist
scenario of a decentred empire, and the anti-Kantian project of Großraumordnungen
in the tradition of Carl Schmitt’s thinking,59 he nevertheless finds some evidence
that the Kantian project is emerging. He finds the basis for this optimism mainly in
the UN Charter and several newer features of the UN: in contrast to the League of
Nations, which basically concentrated on the prevention of war, the UN Charter lays
down and enforces human rights. This is underlined by the right of the UN Commis-
sion on Human Rights (UNCHR) to infl uence national governments as well as by
the right of everyone for petition to the UNCHR. Although this right has so far not
been used extensively, it nevertheless documents the recognition of individual citi-
zens as direct subjects of global public law (Völkerrecht).60 Secondly, the renunciation
of force is now supported by Articles 42 and 43 of the UN Charter which enlarge the
possibilities for the engagement of the Security Council in general, by for example
extending its rights to intervene in intrastate confl icts. Thirdly, the UN is an inclu-
sive organisation and not, as with the League of Nations, an avant-garde of liberal
democracies.61 All in all, Habermas concludes, the International Community sees
itself committed to the enforcement of those constitutional principles, which so far
have only been realised by nation states only, on a global scale.62
Two hundred years ago, the world was different. This is more than a banal state-
ment when it comes to the question of the applicability of philosophical ideas which
have been produced against the background of a completely different world. For

56
Ibid 30.
57
J. Habermas, ‘Does the Constitutionalization of International Law Still Have a Chance?’,
in his The Divided West (Cambridge: Polity, 2006), 115–93.
58
Ibid 140.
59
Ibid 185–6.
60
Ibid 162.
61
Ibid 163.
62
Ibid 160.
158  Petra Dobner
Habermas it is evident that there are some prejudices in Kant’s thinking which derive
from his contemporary biases: Kant is neither fully aware of the implications of
cultural differences nor of the force of nationalism, and he shares the ‘humanist’ idea
of the superiority of the European civilisation.63 Habermas is nevertheless convinced
that the ‘provinciality of our historical consciousness vis-à-vis the future is not an
objection to the universalistic program of Kantian moral and legal philosophy’.64
I dare to doubt that.
Kant’s argument for a republican constitution as the legal foundation of every
state lies at the heart of his whole project of eternal peace. It is based on two prem-
isses: first, that since men are all equal they have the right to obey those laws only
which they themselves have agreed to; and secondly that since men are potentially
hostile to each other in the state of nature they have the duty to subject themselves
to common laws. The right of self-determination is thus coupled with the necessity
of self-protection, which in cases of doubt can turn against others’ right of self-
determination. Since a man or a nation in the state of nature ‘deprives me of that
security, and attacks me, without being an aggressor, by the mere circumstance of
living contiguous to me, in a state of anarchy and without laws; menaced perpetu-
ally by him with hostilities, against which I have no protection, I have a right to
compel him, either, to associate with me under the dominion of common laws, or
to quit my neighbourhood’.65 The right of self-determination is obviously unevenly
distributed around the globe. What does that mean under the circumstances of a
‘global neighbourhood’? It cannot be interpreted other than the right of those who
have united under republican constitutions to compel those who have a different
idea about which laws they want to obey or to ‘disappear’. This, of course, leads
off the track from ‘eternal peace’ and has little to do with a universalistic right to
self-governance.
To put it differently, Kant’s belief in the republican constitution is not a universalistic
truth beyond all cultural differences; it is the expression of the belief in the superiority
of the European civilisation and the fruits of the enlightenment as the only remedy
for hostility among people. Notwithstanding the fact that there is a certain tension
between the ‘right to one’s own right’ and the duty to interpret this right in the
canalised way of republicanism, let us assume that this is a correct assumption.
What does that imply for the conception of the multi-level system of the interna-
tional order? One conclusion is that the second and third layer, the ius gentium and
the ius cosmopoliticum, must include provisions for cases in which states which have
not—by self-determination—agreed upon a republican constitution must have these
imposed upon them by the world community. This is not far from reality, especially
not far from the rule of law promotion, be it merely politically suggested or mili-
tarily imposed. But is it compatible with Kant’s plea for a legal autonomy at home,
peaceful cooperation among states, and the cosmopolitan duty of hospitability? It

63
Ibid 145–6.
64
Ibid 146.
65
Kant, above n 46, 13.
 More Law, Less Democracy?  159
certainly contradicts Kant’s fifth preliminary article: ‘No state shall by force interfere
with either the constitution or government of another state.’66 A second conclusion is
that Kant’s reasoning does not provide answers for all the moral problems which are
posed by a globalised, multi-centric, multi-ethnic, and multi-religious world.
Kant may not have been aware of the idea of nationalism, but he certainly
perceived the world as ultimately constituted by states: the autonomous state, an
independent polity, is the backbone of his whole account. But common wisdom
and empirical evidence show that states have been relativised in their capacity to
be the only and autonomous political actors on the global scene; in many cases,
they may not even be the most important ones any longer with respect to the
formation of the international order. What consequences does this have for the
applicability of Kantian thought on today’s problems? Habermas repeats the claim
that the legitimacy for any transnational constitution must be derived from demo-
cratic nation states; but what if nation states are simply not the central actors in
this construction? The idea of a legitimacy chain cannot then be applied, and the
problem of how the evolution of globalised law can be democratically legitimised
remains unsolved.
Kant not only believed in ‘democratic peace’ but also in the evolution of peace on
the basis of free trade:
It is the spirit of commerce that sooner or later takes hold of every nation
and it is incompatible with law: the power of money being that which of
all others gives the greatest spring to states, they find themselves obliged
to labour at the noble work of peace, though without any moral view; and
instantly seek to stifle, by mediations, war, in whatever part it may break
out, as if for this purpose they had contracted a perpetual alliance; great
associations in a war are naturally rare, and less frequently still successful.67
This peaceful picture of the merits of commerce will hardly be subscribed to by
those nations which since the 1980s have been forced into the ‘free’ trade system by
the structural adjustment programmes of the World Bank. It may be the ‘power of
money’ which is here at work, but not only since the privatisation of world politics
and the involvement of economic actors has it become possible that the ‘power of
the law’ becomes subservient to the ‘power of money’.68 The idea that economic
commerce is an independent sphere, which encourages states to ‘labour at the noble
work of peace’, is so far away from the hard competition on and for markets that not
only Karl Marx but also free-traders like Adam Smith would shake their heads about
such naivety. Moreover, Kant’s belief that free trade evolves outside of law prevents
us from relating his position to the attempt to understand the promotion of legal
arrangements for the benefit of commercial interests. But regulations for the ‘free’

66
Ibid 2.
67
Ibid 42.
68
K. Polanyi, The Great Transformation: Politische und ökonomische Ursprünge von Gesellschaften
und Wirtschaftssystemen (Frankfurt am Main: Suhrkamp, 1976).
160  Petra Dobner
market are among the most prominent examples for the evolution of global law,
whether they be praised like the ‘lex mercatoria’ or disliked by many, such as aspects
of patent law.
Finally, Kant and his successors seem to agree that the global arena is sufficiently
legally organised if it guarantees human rights. Without denying the importance of
human rights, one cannot ignore the fact that global law extends far beyond human
rights: the debate on global law is concerned with trade law, social law, global private
law, patent law, financial law, and administrative law to name but a few. These all
have an impact on domestic and international, as well as global, subjects and polities,
determine their policies, and challenge their ‘legal autonomy’. Limiting the quest for
global law to human rights, and finding that those have already been laid down more
or less satisfactorily and that therefore the project of global democracy is within
grasp fails to account for the fact that there is a darker side of global regulations
which affect the political, economic, social, and personal lives on earth—indepen-
dent of and beyond our consent. This is the hard case for the search for means of
legitimation, and every failure to find these means (or stop the production of this
law) will ultimately deepen the gap between democracy and law. If philosophy still
seeks to keep abreast of contemporary developments, it cannot ignore real world
developments, which are far removed from the well-organised ideal world of citizens
living peaceably and hospitably in independent (republican) states.

v. outlook
The account of our achievements in legitimising law—and the exercise of public
authority on the global scheme—must remain pessimistic. On the domestic scene,
changes of statehood induce a process of deconstitutionalisation which also includes
a loss of our ‘right to our own right’. On the global level, the production of law is
undertaken in many fields, and those who observe and promote this production
either do not care about its democratic control or they are unable to provide satis-
factory answers to how it could be legitimised. This pessimistic outlook may easily
arouse the question whether I am exaggerating in one of two (or both) directions.
Do I take the quest for democratic legitimacy too seriously? And am I too critical
about the prospects for the democratic legitimacy of global law?
The normative argument that human equality must be interpreted as the right
to decide upon one’s own government is hard to refute. Article 21 of the Universal
Declaration of Human Rights recognises that
[e]veryone has the right to take part in the government of his country,
directly or through freely chosen representatives. The will of the people
shall be the basis of the authority of government; this shall be expressed in
periodic and genuine elections which shall be by universal and equal suffrage
and shall be held by secret vote or by equivalent free voting procedures.69

69
Universal Declaration of Human Rights, 10 December 1948, A/RES/217A(III).
 More Law, Less Democracy?  161
Who, but the citizens themselves, should—in a secular world—have the right to tell
them where to go, what to approve of, what to spend their money on, and what kind
of government they want to have? If this is a universalistic moral imperative, then
there is no exception, neither for Western Europe, nor for Papua New Guinea. The
right of self-determination cannot be abandoned or bent without giving up on the
essential basis of modernity: the equality of mankind as the normative starting point
for all our reasoning about social, political, and individual life.
Further, can it really be denied that we are moving away from the realisation of
this ideal rather than drawing nearer? Is the ‘world system’ bringing us closer to
self-determination, or does it present itself as an inevitable force which we have to
accept and subject ourselves to? The latter seems closer to the truth of the matter.
But it is not the ‘world system’ as such—after all, this is still a man-made world, with
interests and biases, and with the general propensity to present those interests as
common ones. Whom does the disregarding of democratic legitimacy serve? Who
profits when democracy is abandoned? And how can we go on promoting democ-
racy as the basis of ‘eternal peace’ when we are about to forget about its merits and
indispensability in the heart of its invention? This neglect of democracy does not
come as a natural force; it is a consequence of a shift in attention and valuation from
legitimacy to efficiency, from political to legal constitutionalism,70 from democracy
to legal technocracy. So, at what point have we arrived? Back at the very beginning
of thinking about the legitimate production of global law.

70
See Loughlin in this volume.
  8 
On Constitutional Membership
Marcus Llanque

i. introduction
The allegiance that moderns feel towards the democratic nation state is now being
placed in question by the claims of postnationalism, supranationalism, and cosmo-
politanism. But what does affiliation to the democratic nation state actually mean?
Although the term used to mark this affiliation is commonly that of ‘citizen’,
modern constitutions tend to neglect the concept: they often employ the term to
point out a distinction between people and citizens, but rarely define what citizen-
ship entails. Constitutions only hint at the role of the citizen, and the entire picture
is revealed only through a mosaic consisting of legislative acts and executive orders
as well as constitutional laws. The task must be to draw a more complete picture of
what constitutional democracies have in mind when they refer to individual actors
as ‘citizens’. The underlying idea of this chapter is that the model of citizenship
applied by modern constitutions has emerged from the republican tradition of
political thinking, and this can best be described as the constitutional membership
model.

ii. the people, citizens, nationality

One role of modern constitutions is to identify the actors who are entitled to play a
part in the political process. Modern constitutions lay down different types of politi-
cal actors. First, there are institutional actors, whether individuals, such as the head
of state, or collective entities, like the government or the judiciary. Establishing these
institutional actors is usually the major concern of constitutions. Such types of actor
possess artificial personality. Without the constitution they would not make much
sense: they are defined by the constitution and integrated into the political system
created by the constitution. In reality, political systems may have actor types of their
own, such as political parties which often are not mentioned in constitutions, even
though they are invariably recognised by constitutional law and practice.
Besides institutional actors, modern constitutions also refer to non-institutional
individual actors. These form collective bodies, commonly called the ‘people’ or the
‘nation’. ‘The people’ is a concept which extends from the entire population of a given
 On Constitutional Membership  163
territory to the idea of a collective body that consists of certain characteristic features
different to other comparable groups. Because constitutions refer both to the people
as well as citizens, the two terms would appear to be connected. This is not strictly
accurate, however, since the people includes children and other parts of the popula-
tion who are not accorded specific rights and duties and it also includes individuals
who have lost some of their civil rights and duties due to their mental condition (being
declared legally incapable) or to their behaviour (such as criminals disenfranchised due
to the severity of their deeds). The citizenry or demos, then, consists only of a section
of the people.1 Furthermore, the people may even include individuals who are not
present, such as those who are already dead or who are expected to live in the future.
Use of the term ‘the people’ therefore carries with it certain ambiguities of
meaning, and similar semantic difficulties have arisen as a result of confusion between
the terms nationality and citizenship.2 In order to avoid these problems, I propose
to use the term ‘constitutional membership’ to denote the citizen as the individual
actor in modern democratic constitutional states.3 The term has previously been
deployed by Aleinikoff to describe all persons who are under the jurisdiction of the
US Constitution, including aliens as well as citizens.4 But here the term is used to
emphasise the membership aspect of citizenship. This membership aspect needs to
be borne in mind in all discussions about the connection between constitutionalism
and democracy, not least because constitutionalism tends to incorporate a member-
ship approach to citizenship, whereas democracy often regards all individuals as
belonging to the demos or nation.
The term ‘constitutional membership’, then, is intended here to refer to the
provisions a constitutional state makes for the purpose of defining what is expected
of citizens in terms of behaviour and actions, rights and duties. This citizen is a
member of the citizenry, the principal political group within a population. To speak
of membership stresses the functional aspect of those individual actors who are
expected to operate the constitution’s idea of the political system. The term under-
lines the difference to any approach which defines the citizen in a more substantive

1
D. Colas, Citoyennetè et nationalité (Paris: Gallimard, 2004), 11: ‘The demos is just “une
fraction de population”.’
2
On the different meanings of citizenship contrasting it with subjecthood and national-
ity, see D. Gosewinkel, ‘Citizenship, Subjecthood, and Nationality: Concepts of Belonging
in the Age of Modern Nation States’, in K. Eder and B. Giesen (eds), European Citizenship:
Between National Legacies and Postnational Projects (Oxford: Oxford University Press, 2001),
17–35. On different paths that lead to the idea citizenship, see M. R. Somers, Genealogies
of Citizenship: Markets, Statelessness, and the Right to Have Rights (Cambridge: Cambridge
University Press, 2008).
3
For a similar perspective on citizenship, see M. Koessler, ‘ “Subject”, “citizenship”,
“national”, and “permanent allegiance” ’ (1946) 56 Yale Law Journal 58–76, at 61: ‘the
possession … of the highest or at least of a certain higher category of political rights and
(or) duties, established by the nation’s or state’s constitution.’
4
T. A. Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American
Citizenship (Cambridge, Mass.: Harvard University Press, 2002), 172.
164  Marcus Llanque
way, in which individuals are believed to be citizens because of their characteristics
as forming part of a collective body like a nation or of the people defined in terms
of history, collective experience, language, ethnicity, or even race. In this substantive
definition, the individual belongs to something, rather than simply being a member
of something. And this leads to a debate on aspects of identity building or identity
politics, which focuses on how individuals acquire a specific identity that provides
them with the competence to be a citizen of a political system and to show allegiance
to that system.5
A similar discourse has also arisen with respect to immigration policy, in which
some authors assume that nationality and citizenship are interchangeable terms.6
Nationality makes sense only as a term designating the belonging of an individual
to a state, which belonging must be recognised by all other states. Citizenship, by
contrast, designates the relationship of an individual to that state and to their status
within the citizenry. That is, nationality deals with belonging to collective bodies
such as the nation or the people. It treats the individual as a part of that collec-
tive body, a body which is identifiable by attributes and characteristics that are not
changeable by constitutional provisions. Nationality generally refers to cultural,
territorial, historical, linguistic, and often ethnic attributes.
The belonging aspect of citizenship is not meaningless. The community one
belongs to is no fictitious trick of ideology. It may be the result of an intergenerational
effort to develop and maintain a political system, including its cultural, historical,
linguistic, and ideological heritage.7 In one sense, even constitutional membership is
the result of a specific political culture. The cultural aspect of membership consists
of the intentional disregard of attributes of belonging for the sake of the institu-
tional approach to citizenship understood not in terms of belonging to communities
but as membership of associations.

5
V. Broch-Due (ed), Violence and Belonging: The Quest for Identity in Post-Colonial Africa
(London: Routledge, 2005); J. DeBernardi, Rites of Belonging: Memory, Modernity, and Identity
in a Malaysian Chinese Community (Stanford, Calif.: Stanford University Press, 2004);
A. Harneit-Sievers, Constructions of Belonging: Igbo Communities and the Nigerian State in the
20th Century (Rochester: University of Rochester Press, 2006); N. Yuval-Davis (ed), The
Situated Politics of Belonging (London: Sage, 2007). Cf T. A. Aleinikoff and D. Klusmeyer
(eds), From Migrants to Citizens: Membership in a Changing World (Washington, DC: Carnegie
Endowment, 2000).
6
U. K. Preuß, ‘Probleme eines Konzepts europäischer Staatsbürgerschaft’, in H. Kleger
(ed), Transnationale Staatsbürgerschaft (Frankfurt am Main: Campus, 1997), 249–70, at
251; R. Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion
in Germany and the US (Cambridge: Cambridge University Press, 2000), 19. The terms
nationality and citizenship are perhaps so often confused precisely because they are so
closely connected (A. M. Boll, Multiple Nationality and International Law (Leiden: Nijhoff,
2007), 57–8). On separating the terms nationality and citizenship from each other, see
Koessler, above n 3.
7
K. L. Karst, Belonging to America: Equal Citizenship and the Constitution (New Haven, Conn.:
Yale University Press, 1989); Aleinikoff, above n 4, 178.
 On Constitutional Membership  165
A great deal of confusion that characterises these debates on citizenship and
nationality concerns the status of the concept of the citizen: is it a relationship in
which individuals are members of something in which they act, or does it refer
to individuals as parts of something? If we talk about members of nation states
or members of specific democracies, we should refer to them as associations and
consider citizenship along the lines of membership. The constitution provides the
framework of the association and it defines how and when a person becomes a
citizen acting in the name of and as part of the citizenry. If we talk of individuals
as belonging to the people or to a nation characterised by specific attributes and if
we think of these individuals as part of the people or the nation by sharing these
attributes acquired through socialisation or identification, then we should refer to
them not as citizens but as nationals.

iii. theories of citizenship without

the constitution
If constitutions refer to their individual actors as citizens it seems appropriate also
to apply the general discourse on citizenship in law, philosophy, and social sciences
to the constitutional setting. Most of the debate on citizenship does not discuss the
meaning of the citizen in terms of a constitution.8 The constitution is considered as
something citizens should have faith in,9 or as something they should feel patriotic
about.10 But what constitutions actually say about the role of citizens is largely
neglected. In such debates, the constitution is taken to be a synonym for liberalism.
But without having a theory of citizenship and without identifying the institutional
context of citizenship, such conceptions of citizenship may well come close to
wishful thinking. There is a variety of answers to the question of what a citizen
should be, starting with the citizen who calculates his interests in a most rational
way and ending with the one who, because he identifies himself with the political
community, is dedicated to the common good without considering his immediate
personal benefit. One might even write lists of attributes of a good citizen, which
may include showing solidarity, obeying the laws, not evading taxes, forming one’s
own opinions, and being self-critical.11
In any case, the concept of citizenship is linked to the framework in which the
citizen is placed. This framework can be philosophical in a sense that higher norms like

8
Cf the typology given by Thomas in which constitutional provisions as such have no part
(E. Thomas, ‘Who Belongs? Competing Conceptions of Political Membership’ (2002) 5
European Journal of Social Theory 323–49).
9
S. Levinson, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988).
10
On the concept of ‘constitutional patriotism’ as an alternative to national patriotism, see
J.-W. Müller, Constitutional Patriotism (Princeton, NJ: Princeton University Press, 2009).
11
B. Denters, O. Gabriel, and M. Toscal, ‘Norms of Good Citizenship’, in J. W. van Deth,
J. R. Montero, and A. Westholm (eds), Citizenship and Involvement in European Democracies:
A Comparative Analysis (London: Routledge, 2007), 88–108, at 95.
166  Marcus Llanque
justice or the philosophical concept of human rights give the concept of citizenship
its significance. Some prominent theorists like Michael Walzer discuss citizenship
in terms of membership understood as a public good that can be distributed.12 This
brings the concept of distributive justice into the picture. But more often theorists
who look at citizenship through the lens of justice do this in a universalistic way.
Globally orientated thinkers in particular regard the idea of universal justice as a
complementary concept to a universalistic world, each being justified in the same
way. Being universalistic they are of more importance than particular or cultural
approaches to justice.
Since the cosmopolitan approach does not take into account membership aspects
of citizenship, it can easily argue for an all-inclusive citizenship. Insofar as cosmopol-
itanism is mainly a normative approach, any unequal treatment of human beings is
seen as normatively unacceptable and unjust.13 In addition, cosmopolitans consider
it unacceptable to refuse human beings the share of recognition connected with
their citizenship as a relationship between equal individuals.14 For many authors
the treatment of foreigners, especially immigrants as residents, denizens, or citizens
is the test case for future concepts of citizenship in terms of transnational democ-
racy.15 The cosmopolitan approach separates citizenship from the nation state and
identifies universal mankind as the relevant community to which all individuals
belong.
Authors who seek to justify restrictions on granting citizenship to permanent
residents often invoke the language of faith and allegiance.16 These are expecta-
tions based on an intense relationship of the citizen to the state and this intensity
of relationship exists only with respect to citizens who dedicate themselves to the
political community, such as office holders, whether holding a permanent position
or elected for a specific period of time. Such office holders must show dedication so
long as they perform activities on behalf of the citizenry. New citizens are supposed

12
M. Walzer, ‘The Distribution of Membership’, in P. Brown and H. Shue (eds), Boundaries:
National Autonomy and its Limits (New York: Rowman & Littlefield, 1981), 1–36. Cf R. van der
Veen, ‘The Adjudicating Citizen: Equal Membership in Walzer’s Theory of Justice’ (1999) 29
British Journal of Sociology 225–58.
13
S. Benhabib, ‘Citizens, Residents and Aliens in a Changing World: Political Membership
in the Global Era’, in U. Hedetoft and M. Hjort (eds), The Postnational Self: Belonging and
Identity (Minneapolis: University of Minnesota Press, 2002), 85–119; R. Rubio-Marin,
above n 6.
14
L. Bosniak, ‘Denationalizing Citizenship’, in T. A. Aleinikoff and D. Klusmeyer (eds),
Citizenship Today: Global Perspectives and Practices (Washington, DC: Carnegie Endowment,
2001), 237–52; L. Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership
(Princeton, NJ: Princeton University Press, 2006).
15
B. Honig, Democracy and Foreigner (Princeton, NJ: Princeton University Press, 2001).
16
N. J. Pickus, True Faith and Allegiance: Immigration and American Civic Nationalism
(Princeton, NJ: Princeton University Press, 2005).
 On Constitutional Membership  167
to take an oath of allegiance to the constitution,17 which would appear to invoke
the constitution as the institutional background to citizenship. But in this case the
constitution is referred to more as a symbol than a system of laws which frames a
model of citizens. If faith and allegiance are supposed to be the major attributes of
citizens, should not naturally born citizens who inherit their citizen status from their
parents be deprived of it once they prove to lack the degree of loyalty and allegiance
expected of new citizens? That is, if a complete picture is to be drawn, not only
the ways of acquiring citizenship but also the ways of being deprived of it should be
discussed. This rarely happens.18
There exist a number of more complex models which divide citizenship into
active and passive parts.19 The active part of citizenship includes the right to act
‘behind the law’, which means having one’s share in all powers, legislative as well as
judicative and executive. In this model, citizenship is not only a bundle of rights but
incorporates an entire programme including rights, civic consciousness, allegiance
to the state and to one’s fellow citizens, and to the capacity and right to participate
as a full and equal member within the polity.20

iv. membership and belonging

Another way of looking at citizenship as categorically distinct from the normative
approach is to understand constitutional citizenship in terms of membership. The
membership approach regards citizenship as a special relationship between individ-
uals which are treated as members of the political system seen as an association.
Social as well as political associations have statutes making the structure of their
organisations explicit. The roles individuals play in those associations are defined by
their statutes.
Membership is not exclusively a constitutional concept. Collective bodies such
as churches, political parties, voluntary associations, and states all have statutes,
some of them called constitutions, which not only define their purposes and
their organisational features, but also provide a concept of membership in terms
of rights and duties, expectations and entitlements. There is no ‘natural’ or
abstract concept of citizenship which can determine the grounds and limits of
a citizen’s role without having regard to its place in the institutional setting of

17
S. Levinson, ‘Constituting Communities through Words that Bind: Reflections on Loyality
Oaths’ (1986) 84 Michigan Law Review 1440–70.
18
T. A. Aleinikoff, ‘Theories of Loss of Citizenship’ (1986) 84 Michigan Law Review
1471–503.
19
B. Turner, ‘A Theory of Citizenship’ (1990) 24 Sociologia 189–217; P. Riesenberg,
Citizenship in the Western Tradition: From Plato to Rousseau (Chapel Hill, NC: University of
North Carolina Press, 1992).
20
R. Bellamy, ‘The Making of Modern Citizenship’, in R. Bellamy, D. Castiglione, and
E. Santoro (eds), Lineages of European Citizenship: Rights, Belonging and Participation in Eleven
Nation-States (Houndmills: Palgrave, 2004), 1–21, at 6–7.
168  Marcus Llanque
a constitution. In a way, political reality shows that all citizenship is ‘tailored’.21
That is, it is modelled after the necessities of a given political system and it
changes in accordance with these necessities. The association defines what
individuals are expected to do to be citizens. Membership is a relationship of
individuals who form associations,22 whereas belonging is related to individuals
who live in communities.
Individuals act not only on behalf of themselves but also in groups. The individu-
als’ relation to groups may be the major motivation for their activities. The contents
as well as the limits of individual rights may be defined or at least infl uenced by the
interpretation which is common in the group to which the individual is related. So
the relationship individuals have to each other in the framework of a certain group
and in the light of the values individuals share becomes a vital factor in the reality
of individuals.
Individuals can belong to many different communities, of which the nation is just
one among others. Individuals belong to mankind as well as to religious communi-
ties, neighbourhoods, voluntary associations formed as parts of greater populations,
and such like. Belonging to many different groups may cause some problems for
individual identity. In a way communities compete with each other for the commit-
ment of individuals. No society is neatly divided between groups. The plurality
of groups causes confl icts of divided and overlapping loyalties among individuals.
Political communities owe their emergence to the effort to create a certain level of
cooperation to solve confl icts arising from group plurality and the different demands
on their loyalty.
To live in a world of divided and overlapping loyalties is not an entirely modern
phenomenon; it was a common feature of political communities in ancient times,
which competed with familial, gentile, and all sorts of client communities. Republics
and states also competed with churches and other social powers. The genuinely
political solution has always been to make it clear that, in the case of confl ict-
ing loyalties, citizens owe their prior loyalty to the political system. The question
is whether political systems should be treated as communities and therefore
individuals as belonging to them or whether they should be organised as member-
ship associations treating individuals as members.
Dual citizenship offers a clue to the general problem of understanding citizenship
in terms of membership.23 For many authors dual citizenship is no longer seen as a

21
C. R. Miller, Taylored Citizenship: State Institutions and Subjectivity (Westport, Conn.:
Praeger, 2002).
22
On membership as an associational feature among very different social and political
organisations and communities, see N. L. Rosenblum, Membership and Morals: The Personal
Uses of Pluralism in America (Princeton, NJ: Princeton University Press, 1998).
23
P. H. Schuck, ‘Plural Citizenships’, in R. Hansen and P. Weil (eds), Dual Nationality, Social
Rights, and Federal Citizenship in the U.S. and Europe: The Reinvention of Citizenship (New York:
Berghahn Books, 2002), 61–99.
 On Constitutional Membership  169
major challenge for the concept of citizenship.24 But many authors who conceptualise
the nation state as a political community instead of an association have difficulties
with dual citizenship. They want to restrict multiple citizenship and raise doubts
whether dual citizenship—seen as the first step to a postnational citizenship—may
be able to tie human beings to a political order the same way it did in the era of
national citizenship.25 If we think of citizenship as a matter of belonging and self-
identification, and if we think that active citizenship concerns value systems and
loyalties supported by feelings and beliefs, we are approaching a highly problematic
terrain. States may then manipulate the self-images of their citizens by means of
propaganda and mass communication.
If individuals are not expected to identify themselves with the political system
any longer, it does not follow that the state to which they are attached becomes
meaningless. In associations, all members have certain expectations of one other,
they owe each other specific attention and consideration. How should a member
of an association regard the fact that another member wants to also be a member
of the competing association? Is it tolerable to be a member of all political parties
competing for votes in the political process? Does it matter what kind of member-
ship is at stake? Are there differences between ordinary members and office holders
on the representative level of that association? It may be possible to vote in two or
three countries without getting involved in confl icts of loyalty. The task of balanc-
ing these different demands is mainly up to the individual himself; it is mainly a
problem of ethics and practicability. But if one becomes a member of parliament
of one country it would be a major concern for the citizenry if it was not evident
to which country the individual is committed. The more a citizen is obliged to act
in the name of the people, the more he can be expected to focus on the association
in question, being faithful to the constitution and respecting his allegiance not only
passively but actively.
The clearer the duties are defined, the more transparent the process of defini-
tion is, and the more it is open to the citizens themselves to adjust the rights and
duties of citizenship, then the easier it becomes to appeal to these duties not only
to call themselves citizens but also to act as citizens regardless of their individual
motivation. So citizenship in political associations is a model in which individual
rights and duties are balanced. Constitutional membership makes these rights and
duties explicit.

24
K. Rubinstein and D. Adler, ‘International Citizenship: The Future of Nationality in a
Globalized World’ (2000) 7 Indiana Journal of Global Legal Studies 519–48; T. Faist (ed), Dual
Citizenship in Europe: From Nationhood to Societal Integration (Aldershot: Palgrave Macmillan,
2007); A. M. Boll, Multiple Nationality and International Law (Leiden: Nijhoff, 2007).
25
D. Miller, ‘Bounded Citizenship’ in K. Hutchings and R. Dannreuther (eds), Cosmopolitan
Citizenship (Basingstoke: Macmillan, 1999), 61-80; D. Miller, Citizenship and National Identity
(Cambridge: Polity Press, 2000); N. J. Pickus, True Faith and Allegiance: Immigration and
American Civic Nationalism (Princeton, NJ: Princeton University Press, 2005).
170  Marcus Llanque

v. the duties and rights of citizenship

The liberal approach to citizenship tends to overlook the aspect of duties.26 The
efforts constitutions make to bring citizenship into a balance between rights and
duties are somewhat obscured by liberalism. The liberal political language is a
language of rights, not of duties. One of the reasons for this can be traced back
to the seminal approach of T. H. Marshall, which even today gives the citizenship
debate its structure. In his essay of 1950, ‘Citizenship and Social Classes’, he focused
on the rights aspect of citizenship, or rather on the evolution of rights.27 Marshall’s
infl uence on the sociological debate cannot be overestimated. But, unnoticed by
many of his commentators,28 Marshall was also convinced of the importance of
the duties of citizenship, declaring that ‘if citizenship is invoked in the defence
of rights, the corresponding duties of citizenship cannot be ignored’.29 Marshall
insisted on the importance of loyalty to the state and went so far as to suggest that
the role of propaganda in achieving that goal should not be ignored. But he was not
overly optimistic that this aim could be realised. In his view, the role of duty in the
practice of citizenship in general is limited by the fact that ‘the national community
is too large and remote to command this kind of loyalty and to make it a continual
driving force’.30 This statement shows that Marshall thought of citizenship in its
relation to communities rather than to associations and that he looked at duties as
something corresponding to right.
Modernity is often attributed to the language of rights. But the language of duties
is still present in modern constitutions.31 Many constitutions mention duties of citi-
zens to defend their country, to undertake jury duty, or define the right to vote as
a duty (compulsory voting). Some duties are so basic that many constitutions fail
even to mention them. But this does not mean they do not exist as a matter of
constitutional law. The most basic duty, for example, is the duty to obey the law
including those laws an individual may personally not know or think of as unconsti-
tutional. Another general duty is to pay taxes. The interesting aspect of both these
duties is that they are binding not only on nominal citizens but non-citizens as well.
The active duties are reserved for citizens only.

26
For a modern discussion of duties in terms of a rights philosophy, see J. Waldron,
‘Special Ties and Natural Duties’ (1993) 22 Philosophy and Public Affairs 3–30. For a natural
rights approach see K. Greenawalt, ‘The Duty to Obey the Law’ (1985–6) 84 Michigan Law
Review 2–62.
27
T. H. Marshall, Citizenship and Social Classes: Alfred-Marshall-Lecture 1949 (Cambridge:
Cambridge University Press, 1950).
28
J. M. Barbalet, Citizenship: Rights, Struggle and Class Inequality (Minneapolis: University of
Minnesota Press, 1988), 82.
29
Marshall, above n 27, 112.
30
Ibid 119.
31
For a comparison of constitutions with regard to the concept of duty, see H. van
Maarseveen and G. van der Tang, Written Constitutions: A Computerized Comparative Study
(Dobbs Ferry, NY: Oceana Publications, 1978), 121–4.
 On Constitutional Membership  171
Liberal authors seem to have both in mind when they speak of the ‘rights and
duties’ of citizens. The leading metaphor here is the coin of which rights and duties
form its two sides. The metaphor suggests a complementary relation between
rights and duties which justifies the focus on the rights side alone. In fact liberalism
tends to ignore the categorial difference that exists between both concepts.
It is a short but nevertheless wrong step to leap from universal rights to universal
duties. Rights are politically senseless without individuals possessing duties corre-
sponding to these rights. Duties are burdensome and oblige individuals to do some-
thing that may not be in their personal interest.32 Duties exist between citizens and
they are designed in a reciprocal fashion.33 These aspects of the concept of duty are
best grasped by republican political theory; here citizenship is seen as a set of obliga-
tions more than of rights, as an office more than a status.34
By understanding citizenship as some kind of actorship which is required for
running a political system we shift the focus on citizenship from the bundle of
rights that individuals can claim against the state to a role of citizenship defined by a
number of rights and duties including behaviour and actions. Some of these duties
are implicit while others are explicitly mentioned in constitutions and are required
by law to the extent that the state may force the individual to fulfil his duties as a
citizen. To understand this shift it is essential that not only the liberal tradition with
its language of rights, but also the republican tradition with its language of duties,
maintains an adequate description of citizenship.

vi. republican constitutionalism

Citizenship has a long history.35 A major part of it had been discussed in a discourse
we today call republican. It is in republican discourse that the duty aspect of citizen-
ship is most clearly developed. It is no coincidence that constitutionalism emerged
from the republican city states in early modern times, and that within republican

32
H. Shue, ‘Mediating Duties’ (1988) 98 Ethics 687–704, at 689: ‘We have no reason to
believe … that everyone has burdensome duties toward everyone else even if everyone else
has meaningful rights.’
33
R. E. Goodin, ‘What is so Special about our Fellow Countrymen?’ (1988) 98 Ethics 663–86,
at 674: ‘When we say that compatriots may have their income taxed, their trucks comman-
deered, or their liberties curtailed by conscription, that is surely to say little more than that
people may be required to do what is required in order to meet their special duties toward
their fellow citizens—duties born of their fellow citizens’ similar sacrifices to benefit them.’
34
R. Bauböck, ‘Changing the Boundaries of Citizenship: The Inclusion of Immigrants
in Democratic Polities’, in R. Bauböck (ed), From Aliens to Citizens: Redefining the Status of
Immigrants in Europe (Aldershot: Avebury, 1994), 199–232, at 213–14; A. Oldfield, Citizenship
and Community: Civic Republicanism and the Modern World (London: Routledge, 1990); H. van
Gunsteren, A Theory of Citizenship: Organizing Plurality in Contemporary Democracies (Boulder,
Col.: Westview Press, 1998).
35
J. G. A. Pocock, ‘The Ideal of Citizenship since Classical Times’, in R. Beiner (ed),
Theorizing Citizenship (Albany: State University of New York Press, 1995), 29–52; D. Heater,
172  Marcus Llanque
discourse the concept of the citizen was discussed primarily in terms of duties owed
to the republic. While the genealogy of constitutionalism is complex, its republican
roots are well known,36 though not everybody is aware of it.37 Republicanism aims
at founding a ‘constitutional authority’,38 a legitimate power to regulate and control
the affairs of its citizens according to the constitution.
The idea of the constitution had always been at the centre of the republican
discourse. The constitution was used to describe analytically the structure of a politi-
cal system. To speak of the constitution of the Roman Republic or the constitution
of Venice or the constitution of England thus meant the whole political system, no
matter whether this system was defined by law or by custom, whether by the hierar-
chy of offices or the religion of the people, as long as it had the most decisive impact
on the political reality.
The founders of what we now call the constitutional state referred to the consti-
tution of Venice and England without arguing that the written constitution marked
the major difference between the older and the newly established political systems.
To them written constitutions simply made explicit what was often implicitly found
in the older political systems, and which at the end of the eighteenth century were
still used as examples of the constitutional state. Since then the narrower meaning
of the constitution, understood as the singular document which codifies the consti-
tutional law, started its career.
Republicanism did not promote the concept of the constitution for its own sake,
but with respect to the individuals and their capability to bear the burden of free self-
government. Is man created for being a citizen, or does this attribute belong only to a
small elite? The classical republican concept that addressed this point was the concept
of virtue.39 Two major approaches within the republican discourse that connect indi-
vidual virtue and the political constitution can be discerned. The first assumes that
in order to establish and maintain a proper constitution, individuals must already be
virtuous. Consequently, only exceptional personalities are able to realise this action,
and Machiavelli and Rousseau discussed this type of personality in relation to such
historical personalities as Lycurgus or Moses. The second approach considers virtue

Citizenship: The Civic ideal in World History, Politics, and Education (Manchester: Manchester
University Press, 3rd edn, 2004).
36
J.-E. Lane, Constitutions and Political Theory (Manchester: Manchester University Press,
1996), 31–2; M. van Gelderen and Q. Skinner, Republicanism and Constitutionalism in Early
Modern Europe, Vol. 1: Republicanism: A Shared European Heritage (Cambridge: Cambridge
University Press, 2002); N. Buttle, ‘Republican Constitutionalism: A Roman Ideal’ (2001) 9
Journal of Political Philosophy 331–49.
37
S. Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Cambridge,
Mass.: Harvard University Press, 1999).
38
P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University
Press, 1997), 67.
39
For the theory and history of republicanism see I. Honohan, Civic Republicanism (London:
Routledge, 2002); I. Honohan and J. Jennings (eds), Republicanism in Theory and Practice
(London: Routledge, 2006).
 On Constitutional Membership  173
to be a consequence of the effect that institutions have on individuals: moral excel-
lence was promoted by institutional arrangements.40 Here the concept of virtue is
embedded within the institutional setting and not beyond it.41 Individuals become
virtuous by following the procedures and respecting the contents of the constitu-
tion. Respect for the constitution is a necessary habit, a political culture secured
by such auxiliary aspects of political life as education and ceremonies. What each
approach shares in common, however, is the underlying idea that men need to go
through a process of transformation to become a citizen. Citizenship is the expres-
sion of the full meaning of being a person, the individual who lives the model of vita
activa, achieved by living under a jurisdiction of self-government.42
The concept of duty forms a major component of the vita activa model. The
concept of duty derives from the Roman officium, which is not identical with the
modern, more institutional idea of office. The catalytic work was Cicero’s De officiis,
one of the most studied books up to the founding of the constitutional state at the
end of the eighteenth century.43 Office means the whole complex of duties a person
owes to others, starting with friends and relatives and reaching to the entire citizenry
and the obligations laid down by law. Republican thinking does not treat citizenship
as a relationship between individuals and the state but between citizens among each
other. In a strict sense, all entitlements of individuals to participate in the running
of a republic relate more to duties than rights. Even the right to vote can be under-
stood as a duty everyone owes his fellow citizens to start the political process of
the republic by electing individuals into offices. This does not mean necessarily that
voting rights should be made compulsory, as is the case in countries such as Belgium
and Greece today. But it does mean that political participation cannot entirely be
discussed only in terms of personal rights.
The notion of actors fulfilling their duties is part of the broader concept of the
republican ‘rule of law’ principle, classically defined by James Harrington.44 In the

40
J. T. Kloppenberg, The Virtues of Liberalism (Oxford: Oxford University Press, 1998), 8–9.
41
Especially D. Höchli, ‘Zur politischen Sprache Giannottis’, in Donato Giannotti, Die
Republik Florenz [1534], trans A. Riklin (Munich: Fink, 1997), 76–116, at 91–6.
42
W. Vogl, Aktion und Kontemplation in der Antike: Die geschichtliche Entwicklung der
praktischen und theoretischen Lebensauffassung bis Origines (Frankfurt am Main: Lang, 2002);
J. Kraye, ‘Moral Philosophy’, in C. B. Schmitt and Q. Skinner (eds), The Cambridge History of
Renaissance Philosophy (Cambridge: Cambridge University Press, 1988), 303–86, at 334–8.
43
M. Llanque, ‘Die politische Rezeptionsgeschichte von Cicero’, in E. Richter and R. Voigt
(eds), Res Publica und Demokratie: Die Bedeutung von Cicero für das heutige Staatsverständnis
(Baden-Baden: Nomos, 2007), 223–42.
44
James Harrington, Oceana, ed J. G. A. Pocock (Cambridge: Cambridge University
Press, 1992), 8–9: ‘government (to define it de jure, or according to ancient prudence) is
an art whereby a civil society of men is instituted and preserved upon the
foundation of common right or interest; or, to follow Aristotle and Livy, it is the empire
of laws, and not of men.’ Harrington refers to Aristotle (Politics, iii. chs 6 and 11), Livy
(Histories, ii. ch 1, pt 1) as well as Machiavelli (Discorsi, preliminary of ii.). See further,
L. Baccelli, ‘Machiavelli, the Republican Tradition, and the Rule of Law’, in P. Costa and
174  Marcus Llanque
republican discourse this principle differs from the liberal one. In full it reads ‘rule of
laws and not of men’ and aims at avoiding arbitrary power. It is the law which should
define the individual’s role in running the republic and not their personal wish, or
their belonging to a community. Harrington had a major infl uence on the develop-
ment of republican discourse, especially in shaping the language which was used
by the authors of the Federalist Papers and other framers of the US Constitution.45
As Article 30 of the constitution of Massachusetts in 1780 shows, the constitutions
of the American colonies also imitated that language,46 and modern constitutional
adjudication also began by referring to the same principle.47
The weakness of republican discourse was that it tended to oscillate between
these two concepts of virtue: virtue as a certain constitution of the character, and
virtue understood as the product of the institutional setting (or what we nowadays
call the modern constitution). By focusing only on virtue as the character of the
individual, some parts of republicanism supported the emergence of a more totali-
tarian approach which integrated individuals into the political system whether they
liked it or not. Because most individuals are not virtuous in themselves before the
political transformation, their personal will is without significance. Individuals are
only able to judge their real interests and preferences once they have become inte-
grated into the republic as citizens. And then they will have no other will than that
of the republic. This is Rousseau’s paradox of republicanism. Thus, the republican
idea could turn into the kind of educational dictatorship Robespierre promoted and
many socialists had in mind when they thought that emancipation could be seen as
the logical result of a sometimes violent process of transformation of men into the
citizens of the socialist society.
As a result, liberalism emerged as a kind of counter-ideology to the republican
concept of virtue and to some extent absorbed the institutional branch of repub-
licanism. This institutional branch of the republican discourse takes individuals as
they are: with all their faults and limits in their energy to behave like full citizens,
in need of support by a proper institutional setting to pass many temptations to
act corruptly and not virtuously, especially those who hold offices and have special

D. Zolo (eds), The Rule of Law: History, Theory, and Criticism (Dordrecht: Springer, 2007),
387–420.
45
J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic
Republican Tradition (Princeton, NJ: Princeton University Press, 1975). The ‘definition of
republic is an empire of laws and not of men’ (( John Adams) Novanglus, Boston Gazette,
6 March 1775 in: The Papers of John Adams, ii. 314, John Adams, ‘Thoughts on Government’,
January 1776 in Works of John Adams, vi. 415).
46
‘In the government of this commonwealth, the legislative department shall never exercise
the executive and judicial powers, or either of them: the executive shall never exercise the
legislative and judicial powers, or either of them: the judicial shall never exercise the legisla-
tive and executive powers, or either of them: to the end it may be a government of laws and
not of men’ (Massachusetts Constitution Art 30).
47
Marbury v Madison (1803) 1 Cranch, at 137: ‘The government of the United States has
been emphatically termed a government of laws and not of men.’
 On Constitutional Membership  175
powers which help to promote their particular interest at the cost of the common
good of the citizenry. The common good is expressed in constitutionalism by
adding general norms and values like basic rights to the organisational part of the
constitution.
This institutional branch of republicanism provides the background for consti-
tutionalism and aims at the regulation and moderation of political power by
organising it, mostly in terms of balance: balancing political and social powers,
interests of the entire population and individual interests, balancing the collective
and the individual will, responsibility for actions and discretion, all branches of
political power, and last but not least balancing rights and duties. Thus understood,
constitutionalism rose not as a consequence of democracy but with republican
political systems. This fact has important consequences for the understanding of
the concept of the citizen.
In terms of the genealogy of the modern democracy,48 the ideas of constitutional-
ism and democracy are believed to be symbiotically connected. Modern democra-
cies started as constitutional states at the end of the eighteenth century. The people
on both sides of the Atlantic took power and immediately framed their newly gained
power through constitutional texts. But a closer look reveals that republics rather
than democracies had initiated the modern life of the constitutional state. Republics
are not the same as democracies: not every naturally born individual living under
the legislation of the republic’s laws was considered to be a citizen of the republic.
The tension between the constitution and democracy is mirrored in the competition
between different political actors in a constitutional democracy: on the one side we
have representatives who act in the name of, and on behalf of, the people and, on
the other, guardians of the constitution who act in the name of, and on behalf of,
the constitution.49
The modern constitutional state started as a republic and then turned into a
democracy, gradually and sometimes convulsively forced by wars and civil wars,
in this way including more and more parts of the regular population into the
people. Constitutionalism and democracy differ not only in their genealogy, but
also with respect to their purposes. The autonomy as well as the freedom of deci-
sion making of a collective body is bound by the constitution, a binding which is
legitimate because it is intended autonomously. Democracy is the dynamic element
in constitutional democracies, whereas the constitution is the static element. Some

48
For the genealogy of the term, see M. Llanque, Politische Ideengeschichte: Ein Gewebe
politischer Diskurse (Munich: Oldenbourg-Verlag, 2008); id, ‘Das genealogische Verhältnis der
konstitutionellen Demokratie zur kosmopolitischen Menschenrechtsidee’, in
A. Brodocz, M. Llanque, and G. Schaal (eds), Bedrohungen der Demokratie (Wiesbaden:
Verlag für Sozialwissenschaft, 2008), 311–33.
49
M. Tushnet, Taking the Constitution away from the Courts (Princeton, NJ: Princeton
University Press, 1999); R. Hirschl, Towards Juristocracy: The Origins and Consequences of the
New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004); R. Bellamy, Political
Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge:
Cambridge University Press, 2007).
176  Marcus Llanque
actors act on behalf and in the name of the people, others in the name and on behalf
of the constitution. The constitution may be the result of the people’s will and
often needs the approval of the people to come into force. But once established, the
constitution stands above the will of the people unless it is changed by the people or
swept away in a revolutionary process. So constitutionalism and democracy are not
identical, and they sometimes operate against each other.
As already mentioned, the republican roots of constitutionalism differ from those
of liberalism. The language of liberalism is the language of rights whereas repub-
licanism prefers the languages of duties. Rights focus on an individual’s protection
from interferences by others. Duties are closely linked to the cooperation evoked
by the aims and necessities of the association formed by citizens. Constitutional
membership means that the grounds, reasons, and limits of membership of the
political association are defined by law and can therefore be adapted to changing
historical circumstances and different institutional demands.
In most constitutional systems not every citizen is entitled to all roles of constitu-
tional membership. Voting is the most fundamental activity of citizens and has the
lowest level of preconditions, such as age and mental capacity. But others, such as
jury duty, demand additional years of experience, and sometimes an oath is required.
These are formal requirements to grant the knowledge necessary to fulfil the citi-
zen’s duties as a citizen on the jury bench. Exams and taking an oath are required
for civil service. And office holding, the most prestigious role a citizen can play,
encounters further restrictions, especially through the need to find the support of
fellow citizens who elect the candidate into office. There is, in short, no unitarian
model of citizenship; rather, there are different levels and grades of citizenship with
which a citizen de nomine is confronted while striving for full citizenship.
Some duties apply to all residents, such as obeying the law and paying taxes, so
they may be regarded as constitutional members without being nationals. Member-
ship in the citizenry can start long before individuals acquire full citizen status.
Often naturalisation laws require a certain time period of residency as the major
prerequisite for applying for naturalisation. This is not only necessary for getting
acquainted with the particularities of a people, its political culture, and political
communication, but is also a test for readiness to obey the law, one fundamen-
tal duty of all citizens. If we expect citizens to act as members of the political
association instead of individuals belonging to a community we may consider all
permanent residents to be potential candidates for citizenship; it would not be
contrary to the idea of constitutional membership to make that clear and combine
it with certain rights and duties. The right to vote on the communal level for all
European Union members in any state of their residence is such a kind of member-
ship right without having full citizenship at all. Even naturally born descendants
from citizens are supposed to grow into the role of a citizen. Some countries make
it possible to deprive citizens of their political participation rights in cases of severe
violation of the laws. Others make residence a prerequisite even for born citizens
to exercise their voting rights.
Republicanism as the greater intellectual background for the emergence of
constitutionalism and the concept of the citizen enables us to get a more complete
 On Constitutional Membership  177
picture of what citizenship means in terms of modern constitutional democracies.
The republican perspective provides a sense of the conditions and opportunities of
constitutional membership seen as a flexible balance of rights and duties.

vii. the future of constitutional membership

The major advantage of the constitutional membership approach to citizenship is
that it is open to more complex political systems than the classical unitarian nation
state with its sovereignty claims.
A more globalised world makes cosmopolitan prospects more plausible. The
question is whether belonging to the world can be balanced with the requirements
of membership in the world political association once it comes to confl icts with
other political entities like nations, regions, transnational communities of regional
composition, and so on. It is not ‘belonging to the world’50 that matters, but how
we construct membership in a world association. A future constitution of the
world must take membership into account. It cannot simply focus on the belonging
scheme in which every human being is considered to be a citizen of one world. That
approach is not complex enough to deal with the political problems at stake.
There is a theory of federal citizenship which leans on membership rather than
belonging, and therefore offers more possibilities of devising a complex citizenship
with different levels of activities.51 If identity is considered to be necessary for federal
citizenship, then federal systems would appear to be unable to establish a full sense
of citizenship; the mostly artificial character of federal systems would prevent any
attitude of belonging to it. But if we shift the focus to membership, we are able to
concentrate on matters of functionality and levels of citizenship, including more or
less intensity required for individual actors.
Constitutional membership can thus serve as a means for clarifying the ongoing
struggle to understand citizenship in times of transcending the nation-state para-
digm. It is one thing to try to overcome the traditional nation state to clear the path
for a more cosmopolitan approach. But in the course of doing so cosmopolitan and
democratic discussions should not forget that citizenship is a relationship between
individuals and the political system as well as between individuals among each other.
Even if the nation state vanishes the problem of citizenship will not.
The task is to define constitutional membership of a future polity which is able to
balance national as well as transnational, supranational, postnational, or cosmopoli-
tan claims of allegiance and loyalty. The potential confl icts involved here cannot be

50
S. L. Croucher, Globalization and Belonging: The Politics of Identity in a Changing World
(Lanham, Md.: Rowman & Littlefield, 2004), 185–96.
51
P. H. Schuck, ‘Citizenship in Federal Systems’ (2000) 48 The American Journal of
Comparative Law 195–228. Regarding the special case of the European Union see A. Follesdal,
‘Union Citizenship: Unpacking the Beast of Burden’ (2001) 20 Law and Philosophy 313–43
and C. Schönberger, Unionsbürger: Europas föderales Bürgerrecht in vergleichender Perspektive
(Tübingen: Mohr, 2005).
178  Marcus Llanque
solved by mere declarations of which identity individuals should consider to take on
as world citizens. There must be a way of determining how to solve such confl icts
as members of a world association. Across their diverse and plural belonging to
different communities a world constitutional membership should give all individuals
the scheme to react as citizens to confl icts which arise from difficulties of maintain-
ing loyalty to different communities at the same time. The model of constitutional
democracy on the level of nation states is not an obstacle to that development. It can
be an example for it, but only if we define constitutional democracy not in terms
of national belonging but in terms of constitutional membership, an artificial
institutional setting in which citizens are enabled to act independently from their
belonging to communities including the nation.
If we acknowledge that in genealogy as well as in principle, the idea of constitu-
tionalism is not identical with the idea of democracy and the nation state, and that
constitutional membership is always rooted in the republican discourse in which the
citizen is defined by a system of duties, then we can find in constitutional member-
ship a model for a more complex and advanced political system, which in the end
may be of world scale. This world constitution will not replace the constitutional
democracy: it adds another level of citizenship to the already existing ones, start-
ing with the communal association and perhaps ending with the stratum which
acknowledges the fact that all men are residents of the world, wherever they live.
  9 
Constitutionalism and Democracy
in the World Society
Hauke Brunkhorst

i. constitutional revolution
The democratic revolutions of the eighteenth century demonstrate an impressive
process of social and institutional learning, which has regularly led to the inclu-
sion of formerly excluded persons, groups, classes, sexes, races, countries, and
regions. In the words of Rawls: ‘The same equality of the Declaration of Inde-
pendence which Lincoln invoked to condemn slavery can be invoked to condemn
the inequality and oppression of women.’1 The experience of a successful learning
process of social inclusion can be, and has been, extended to incorporate formerly
silenced voices of Western societies as well as the oppressed voices of non-Western
cultures. But normative learning does not tell the whole story. In many cases (and,
in some perspectives, in all cases) the expansion of social inclusion was acquired
at the price of new exclusion, or of new forms of latent or manifest oppression.
The history of Western civilisation and Western democracy is not only a Rawlsian
success story of expansion through the inclusion of the other. It is at the same time
a Foucaultian or Anghien story of expansion through imperialism, a story from the
‘heart of darkness’.2 Since the first European division of the world in the Treaty of
Tordesillas of 1494 between Spain and Portugal, imperialism vanished and reap-
peared in constantly changing fashion, and with constantly changing labels—some
of which in fact were even anti-imperialist.3 Even the present state of inclusion
of the other within an emerging cosmopolitan civil society sometimes appears to
be nothing more than the expression of a highly exclusive ‘class consciousness of
frequent travellers’.4

1
J. Rawls, Political Liberalism (New York: Columbia, 1993), xxix.
2
Joseph Conrad, Heart of Darkness (New York: Norton, 2005).
3
A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, Mass.:
Harvard University Press, 2004).
4
C. Calhoun, ‘The Class Consciousness of Frequent Travelers’ (2002) South Atlantic
Quarterly 869–97.
180  Hauke Brunkhorst
But the reproduction of social structures of class rule and relations of domination,
exclusion, and silencing does not change the normative facticity that resides in the
fact that all modern democratic constitutions since the eighteenth century rely on
the universal legal principles of the inclusion of all human beings and the exclusion
of inequality.5 The normative meaning of these two principles becomes manifest
when communicative power appears as the (albeit deeply ambivalent) ‘power of
revenge’, which was awakened in Seattle and in Genoa with the cry: ‘You are G8,
we are 6,000,000,000.’6 Constitutional law textbooks are not only talk: they are what
Hegel called ‘objective spirit’, and they ‘can strike back’.7
If there is anything specifically characteristic of what Berman calls the ‘Western legal
tradition’, it is the dialectical dual structure of law. It is, on the one hand, the immunity
system of society, a medium of repression and a means to stabilise expectations. But,
on the other hand, law is able to change the world and seek to establish the civitas Dei
on earth. Expressed in more secular terms, law is a medium of emancipation, which
is why Kant and Hegel even identified law with egalitarian freedom and defined law as
the ‘existence of freedom’ (Dasein der Freiheit).8 The Declaration of Independence is a
medium of emancipation which declares that ‘all men are created equal’ and claims,
against the King of Great Britain, open access for all emigrants. But the Declaration
is also a document of bloody oppression that legalises the genocide of the aboriginal
population of America—not only the king, but also his supposed allies, ‘the merciless
Indian Savages’, were declared to be public enemies of ‘civilized nations’.
Specifically characteristic of Western constitutional law is its ability to reconcile
these deep tensions between the two faces of repression and emancipation by
legal institutions which coordinate confl icting powers and enable the always risky
and fragile ‘productivity of the antinomy’.9 Harold Berman terms this a ‘dialecti-
cal reconciliation of opposites’,10 but we could also add that it is a dialectical (and
procedural) reconciliation of lasting opposites, of lasting confl icts, differences,

5
T. H. Marshall, Citizenship and Social Class (London: Pluto Press, 1992); R. Stichweh, Die
Weltgesellschaft (Frankfurt am Main: Suhrkamp, 2000), at 52.
6
M. Byers, ‘Woken up in Seattle’, London Review of Books, 6 January 2000, 16–17.
7
Friedrich Müller, Wer ist das Volk? Eine Grundfrage der Demokratie: Elemente einer
Verfassungstheorie VI (Berlin: Duncker & Humblot, 1997), 54.
8
Immanuel Kant, Metaphysik der Sitten, Rechtslehre, Werke VII (Frankfurt am Main:
Suhrkamp, 1974), at 345, 434, 464; Georg Wilhelm Friedrich Hegel, Grundlinien der
Philosophie des Rechts § 4, Werke 7 (Frankfurt am Main: Suhrkamp, 1970), at 46; id,
Philosophie des Rechts Vorlesung 1819/20 (Frankfurt am Main: Suhrkamp, 1983), at 52;
Karl Marx, ‘Verhandlungen des 6. Rheinischen Landtags: Debatten über das
Holzdiebstahlsgesetz (Oktober 1842)’ in Marx-Engels Werke 1 (Berlin: Dietz, 1972),
109–47, at 58.
9
T. Kesselring, Die Produktivität der Antinomie (Frankfurt am Main: Suhrkamp, 1984).
10
H. J. Berman, Law and Revolution II: The Impact of the Protestant Reformation on the Western
Legal Tradition (Cambridge, Mass.: Harvard University Press, 2006), 5–6.
 Constitutionalism and Democracy  181
and contradictions.11 The point is that the Western legal tradition emerged from
the terror and fanaticism of a series of great and successful legal revolutions since
the papal revolution of the eleventh and twelfth centuries.12 But the constitutional
regimes which were the final outcome of all great and successful European Revolu-
tions established legal conditions for a much less violent struggle for equal rights
within the claim of right.
The constitutional spirit of the revolutions of the eighteenth century became
objective for the first time within the borders of the modern nation state. This state
always had many faces: the Arendtian face of violence, the Habermasian face of
administrative power, the Foucaultian face of surveillance and punishment, the faces of
imperialism, colonialism, war-on-terror, and so on.13 However, the nation state, once
it became democratised, possessed not only the administrative power of oppression and
control, but at the same time the administrative power to exclude inequality with respect
to individual rights, political participation, and equal access to social welfare and
opportunities.14 Only the modern nation state has not only the normative idea, but
also the administrative power to achieve that. From the very beginning this formed
the core of the Enlightenment ideal. Up to the present all advances in the reluctant
inclusion of the other, and so also all advances of cosmopolitanism, are to a greater
or lesser degree advances that have been accomplished by the modern nation state.
National constitutional regimes have solved the three basic confl icts of the modern
capitalist and functionally differentiated society. Stated in general historical terms,
which leave a number of empirical questions open, we can say that the formation
and democratic development of the nation state has provided a series of solutions
that are constitutive of modern societies.

11
Law of collision or ‘Kollisionsrecht’ is deeply rooted in Western constitutional law: see
A. Fischer-Lescano and G. Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in
the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999–1045.
Chantal Mouffe refers to this as a transformation from antagonism to agonism, but ignores the
constitutive role of constitutional law in this process (C. Mouffe, On the Political (London:
Routledge, 2005)).
12
Berman, above n 11.
13
This is a complex argument and needs some explanation. So, Arendt opposes power and
violence (in German: Gewalt) and argues that law is concerned with power not violence or
force. But this makes no sense because there is no power which is not backed by force as its
‘symbiotic mechanism’. Therefore Habermas, who has taken up Arendt’s concept of power,
likened it not to force or violence but to administrative power, now calling Arendt’s concept
of power communicative power. Communicative power in particular is backed by revolution-
ary violence which Habermas calls the power (violence) of revenge (in German: rächende
Gewalt). Arendt seeks explicitly to separate power from force and violence but implicitly
refers to a power which is backed by revolutionary violence simply because her paradigm
case of power is revolution, and she never argues for something like resistance without
violence. See H. Arendt, On Revolution (Harmondsworth: Penguin, 1973); J. Habermas,
The Theory of Communicative Action, i. (London: Heinemann, 1984).
14
Marshall, above n 5; Stichweh, above n 5.
182  Hauke Brunkhorst
First, the nation state has solved the motivational crisis of religious civil war sparked
by the Protestant Revolutions of the sixteenth and seventeenth centuries; this has
been achieved through the constitutional reconciliation of lasting confl icts between
religious, agnostic, and anti-religious belief systems.15 This was the result of a
two-step development, accomplished in a manner that was both functionally and
normatively universal. On the one hand, the functional effect of the formation of
a territorial system of states transformed the uncontrolled explosion of religious
freedom into a controlled chain reaction that kept the productive forces of religious
fundamentalism alive and its destructive forces (to some degree) under control.16
This was initially the repressive effect of the confessionalisation of the territorial
state.17 On the other hand, the long and reluctant process of democratisation of
the nation state replaced repressive confessionalisation by emancipatory legislation
which ultimately led to the implementation of the equal freedom of religion and the
equal freedom from religious and other belief systems.18
Second, the emerging nation state also solved the legitimacy and constitutional
crisis of the public sphere, of public law, and public power, which marked the old
European Ancien Regime and culminated in the constitutional revolutions of the
eighteenth and nineteenth centuries. Constitutions have transformed antagonistic
class struggles into agonistic political struggles between political parties, unions, and
entrepreneurs, civic associations, etc.19 In the more successful processes of Western
history, bloody constitutional revolutions turned into permanent and legal revolu-
tions.20 Once again, the effect was twofold. It led, on the one hand, to a functional
transformation of the destructive and oppressive potential of a highly specialised poli-
tics of power accumulation for its own sake into a more or less controlled explosion

15
On the distinction of different types of crises (motivational, legitimisation, etc), see
J. Habermas, Legitimation Crisis (Boston, Mass.: Beacon Press, 1975).
16
Max Weber, Die protestantische Ethik und der Geist des Kapitalismus [1905], in his Gesammelte
Aufsätze zur Religionssoziologie, i. (Tübingen: Mohr, 1920), 1–206.
17
W. Reinhard, Geschichte der Staatsgewalt (Munich: Beck, 1999); H. Schilling, Die neue
Zeit (Berlin: Siedler, 1999); H. Dreier, ‘Kanonistik und Konfessionalisierung: Marksteine
auf dem Weg zum Staat’, in G. Siebeck (ed), Artibus ingenius: Beiträge zu Theologie,
Philosophie, Jurisprudenz und Ökonomik (Tübingen: Mohr Siebeck, 2001), 133–69; M. Stolleis,
‘ “Konfessionalisierung” oder “Säkularisierung” bei der Entstehung des frühmodernen
Staates’ (1993) 20 Ius Commune XX 1–23, at 7; W. Reinhard and H. Schilling (eds), Die
katholische Konfessionalisierung: Wissenschaftliches Symposion der Gesellschaft zur Herausgabe des
Corpus Catholicorum und des Vereins für Reformationsgeschichte (Münster: Aschendorff, 1995);
H. Schilling, Die Neue Zeit: Vom Christenheitseuropa zum Europa der Staaten. 1250 bis 1750
(Berlin: Siedler, 1999).
18
T. Parsons, The System of Modern Societies (Englewood Cliffs, NJ: Prentice Hall, 1972).
19
For the distinction between antagonism and agonism, see Mouffe, above n 11.
20
See J. Habermas, ‘Ist der Herzschlag der Revolution zum Stillstand gekommen?
Volkssouveränität als Verfahren; ein normativer Begriff der Öffentlichkeit?’ in his Die Ideen
von 1789 in der deutschen Rezeption (Frankfurt am Main: Suhrkamp, 1989), 7–36.
 Constitutionalism and Democracy  183
of all the productive forces of administrative power.21 This, in turn, was accompanied
by democratic emancipatory legislation, which finally brought about the implemen-
tation of the freedom of public power together with the freedom from public power.
Third, the nation state also solved the social class confl icts in the social revolutions
of the nineteenth and twentieth centuries. It accomplished this through the emer-
gence of a regulatory social welfare state, which transformed the elitist bourgeois
parliamentarianism of the nineteenth century into egalitarian mass democracy. The
social class struggle was institutionalised,22 and the violent social revolution became
a legally organised ‘educational revolution’.23 In this respect, it was the great func-
tional advance of social democracy to keep most of the productive forces and to get
rid to some degree of the destructive forces of the exploding free markets of money,
real estate, and labour.24 It achieved this by overcoming the fundamentalist bourgeois
dualism of private and public law.25 In the first decades of social welfare regimes, this
was more or less the merit of administrative law and bureaucratic rule in a regime
of low-intensity democracy.26 The ongoing democratic rights revolution which was
directed against low-intensity democracy finally led to the implementation of the
freedom of markets together with the freedom from markets. This transformed
the system of individual rights based on the freedom of property into a comprehen-
sive system of welfare and anti-discrimination norms.27
Despite this, however, the impressive normative and functional advances of the
Western democratic nation state were obtained at the price of the cosmopolitan
claims of the French Revolution. These claims were integral to the Enlightenment, the
intellectual basis and the source of the directing ideas of the law of the constitutional
revolutions in the late eighteenth and early nineteenth centuries. For a long time, they
were at best soft law but expressed in important legal documents (even if without legal
force) like the American Declaration of Independence and the French Declaration

21
In this respect three very different approaches (one historical, one power-theoretical,
and the third from system theory) are in agreement. See A. Lüdtke, ‘Genesis und
Durchsetzung des modernen Staates’ (1980) 20 Archiv für Sozialgeschichte 470–91;
M. Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth: Penguin, 1979);
N. Luhmann, ‘Verfassung als evolutionäre Errungenschaft’ (1990) 9 Rechtshistorisches Journal
176–220.
22
D. Hoss, Der institutionalisierte Klassenkampf (Frankfurt: EVA, 1972).
23
Parsons, above n 18.
24
K. Polanyi, The Great Transformation: Politische und ökonomische Ursprünge von Gesellschaften
und Wirtschaftssystemen (Frankfurt: Suhrkamp, 1997).
25
H. Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts [1920] (Aalen:
Scientia, 1981); id, Reine Rechtslehre [1934] (Vienna: Verlag Österreich, 1967); id, Demokratie
und Sozialismus: Ausgewählte Aufsätze (Darmstadt: Wissenschaftliche Buchgesellschaft,
1967).
26
S. Marks, The Riddle of all Constitutions (Oxford: Oxford University Press, 2000).
27
Cf Berman, above n 10, 16 et seq; id, Justice in the USSR (Cambridge, Mass.:
Harvard University Press, 1963); Alexander Somek, Das europäische Sozialmodell: Die
Kompatibilitätsthese (Berlin: e-man, 2008).
184  Hauke Brunkhorst
of Rights. Once it came to concretise them in ordinary legislation, the universality
inherent in the spirit of the equal rights of citizens vanished and was combined with
an unequal status of the others—women, workers, non-Europeans. Yet this did not
mean that they were forgotten; on the contrary, as Kant had rightly observed, they
stayed alive and their communicative power grew in the course of history until they
were implemented by binding decisions at least partially, but step by step.

ii. the emergence of world society

Until 1945, the modern nation state was the state of the regional societies of Europe,
America, and Japan. The rest of the world was either under the imperial control
of these states or kept outside the system of nation states. Until the mid-twentieth
century, the ‘exclusion of inequality’ meant equality for the citizens of the state and
inequality for those who did not belong to the regional system of states. There was
not even any serious demand for a global exclusion of inequality.
When Kant proposed the ‘cosmopolitan condition’ of linking nations together
on the grounds that in modern times ‘a violation of rights in one part of the world
is felt everywhere’,28 his notion of world (concerning the political world in contrast
to the globe, which for Kant was only a transcendental scheme) was more or less
reduced to Europe and the European system of states. Also Hegel’s claim of the
‘infinite importance’ that ‘a human being counts as such because he is a human
being, not because he is a Jew, Catholic, Protestant, German, Italian, etc.’29 is
relativised by his reductionist understanding of the legal meaning of human rights
as applicable to male citizens, biblical religions, and European nations only. He also
explicitly limits human rights to national civil law (of the bürgerliche Gesellschaft and
its lex mercatoria), and this law loses its validity when confronted with the essential
concerns of the executive administration of the state and its particular relations
of power (besondere Gewaltverhältnisse, justizfreie Hoheitsakte). Hegel therefore
condemns any ‘cosmopolitanism’ that is opposed to the concrete ethical practices
(Sittlichkeit) of the state.
Some decades later, when Johann Caspar Bluntschli declared the implementation of
a ‘humane world order’ (menschliche Weltordnung) to be the main end of international
law, he neither saw any contradiction between this noble aim and his (and his
colleagues’) identification of the modern state with a male dominated civilisation30 nor
with his at least latently racist thesis that all law is Aryan.31 The liberal cosmopolitanism
of the ‘men of 1873’ who founded the Institut de Droit International and invented

28
Immanuel Kant, ‘Toward Perpetual Peace’, in his Practical Philosophy, ed M. Gregor
(Cambridge: Cambridge University Press, 1996).
29
Georg Wilhelm Friedrich Hegel, Grundlinien, above n 8.
30
Johann Caspar Bluntschli: ‘Der Staat ist der Mann’: cited in M. Koskenniemi, The Gentle
Civilizer of Nations: The Rise and Fall of Internataionl Law 1870–1960 (Cambridge: Cambridge
University Press, 2001), at 80.
31
Ibid 77.
 Constitutionalism and Democracy  185
a cosmopolitan international law was completely Eurocentric, relying on the basic
distinction between (Christian) civilised nations and barbarian people.32 The generous
tolerance of the men of 1873 was paternalistic and repressive from its very beginning.
Hence, it is no surprise that the liberal cosmopolitan humanists who wanted to found a
humane world order soon became apologists of imperialism, defending King Leopold’s
private-measures state (Maßnahmestaat) in the ‘heart of darkness’ by drawing a distinc-
tion between club members on the one side and outlaws on the other.33 Following this line
of argument, Article 35 of the Berlin Conference on the future of Africa (1884–5) offers
‘jurisdiction’ for the civilised nations of Europe and ‘authority’ for those in the heart of
darkness.34 The global world order during the nineteenth and early twentieth centuries
was a universal Doppelstaat (dual state).35 Guantanamo has a long history.
Since 1945, however, colonialism and classical imperialism have vanished,36 and
Euro-centrism has become decentred.37 Western rationalism, functional differen-
tiation, legal formalism, and moral universalism are no longer specifically Western
phenomena. The deep structural and conceptual change that this decentring of
Euro-centrism has brought about is not yet sufficiently understood. For good or ill,
everybody today must conduct his or her life under the more or less brutal condi-
tions of the selective and disciplinary machinery of markets, schools, kindergar-
tens, universities, lifelong learning, traffic rules, and ‘total institutions’ such as jails,
hospitals, or military barracks.
At the same time, state sovereignty was equalised as the state went global. The
last square metre of the globe became state territory (at least legally38), and even the
moon became an object of international treaties between states.39 Together with

32
N. Bermann, ‘Bosnien, Spanien und das Völkerrecht: Zwischen “Allianz” und
“Lokalisierung” ’ in H. Brunkhorst (ed), Einmischung erwünscht? Menschenrechte und
bewaffnete Intervention (Frankfurt: Fischer, 1998), 117–40; Anghie, above n 3.
33
Koskenniemi, above n 30, at 80, 168–9.
34
Ibid 126.
35
E. Fraenkel, Der Doppelstaat [1941], in his Gesammelte Schriften, ii. ed A. von Brünneck
(Baden-Baden: Nomos, 1999).
36
M. Hardt and A. Negri, Empire (Cambridge, Mass.: Harvard University Press, 2001);
A. Fischer-Lescano and G. Teubner, Regime-Kollisionen (Frankfurt: Suhrkamp, 2005);
S. Buckel, Subjektivierung und Kohäsion: Zur Rekonstruktion einer materialistischen Theorie des
Rechts (Weilerswist: Velbrück Wissenschaft, 2007); B. S. Chimni, ‘International Institutions
Today: An Imperial Global State in the Making’ (2004) 15 European Journal of International
Law, 1–37.
37
H. Brunkhorst, Solidarity: From Civic Friendship to a Global Legal Community (Cambridge,
Mass.: MIT Press, 2005).
38
S. Oeter, ‘Prekäre Staatlichkeit und die Grenzen internationaler Verrechtlichung’ in
R. Kreide and A. Niederberger (eds), Verrechtlichung transnationaler Politik:
Nationale Demokratien im Kontext globaler Politik (Frankfurt am Main: Campus, 2008),
90–114.
39
P. Dobner, Konstitutionalismus als Politikform: Zu den Effekten Staatlicher Transformation auf
die Verfassung als Institution (Baden-Baden: Nomos, 2002).
186  Hauke Brunkhorst
the globalisation of the modern constitutional nation state, therefore, all functional
subsystems, which from the sixteenth century until 1945 were bound to state power
and to the international order of the regional societies of Europe, America, and
Japan, became global systems.
Sociologists rightly and successfully have criticised the ‘methodological nationalism’
of their own discipline,40 and have started to replace the pluralism of national societies
by the singular concept of a ‘global social system’ or a ‘world society’ which includes
all communications,41 which is normatively integrated,42 and which has transformed all
political, legal, economic, cultural, functional, and geopolitical differences into internal
differences of the one and only world society. These differences now depend entirely on
the fundamental societal structure of the world society and its cultural constituents.43
Whereas the function of the basic structure primarily is selective and constrain-
ing, the function of the superstructure of the global secular culture (or the back-
ground of global knowledge, the global Lebenswelt) is shaping and constituting for
the behaviour and the subjectivity of everybody everywhere on the globe. Every-
body, whether they want it or not, is shaped by the individualism and rationality of
a single global culture which includes human rights culture as well as the culture of
individualised suicide bombing.44 All cultural differences are now of the same society
and of individualised persons who have to organise and reorganise, construct and
reconstruct their ego and their personal and collective identity lifelong, and in order
to do that they rely only on the (weak or strong) means of their own autonomy.
Sartre was right: everybody now is condemned to be free. Yet as ‘free men’ we are not
looking with Sartre into the abyss of nothingness, but are acting against a dense and
common background of relatively abstract, highly general and formal, thoroughly
secular, nevertheless substantial global knowledge that is implicit in the global social
life-world. This is so simply because traditional identity formations no longer and
nowhere are available without a permanently growing and changing variety of

40
U. Beck, Macht und Gegenmacht im globalen Zeitalter (Frankfurt am Main: Suhrkamp,
2002).
41
N. Luhmann, ‘Die Weltgesellschaft’ (1971) 57 Archiv für Rechts- und Sozialphilosophie
1–34; id, Die Gesellschaft der Gesellschaft (Frankfurt am Main: Suhrkamp, 1997), at 145 et
seq.
42
T. Parsons, ‘Order and Community in the International Social System’, in J. N. Rosenau
(ed), International Politics and Foreign Policy (Glencoe, Ill.: The Free Press, 1961), 120–9;
R. Stichweh, ‘Der Zusammenhalt der Weltgesellschaft: Nicht-normative
Integrationstheorien in der Soziologie’, in J. Becker et al (eds), Transnationale Solidarität:
Chancen und Grenzen (Frankfurt am Main: Campus, 2004), 236–45.
43
J. W. Meyer, ‘World Society and the Nation-State’ (1997) 103 American Journal of Sociology
144–81; id, Weltkultur: Wie die Westlichen Prinzipien die Welt Durchdringen (Frankfurt:
Suhrkamp, 2005).
44
R. Rorty, ‘Human Rights, Rationality, and Sentimentality’ in S. Shute and S. L. Hurley
(eds), On Human Rights, Oxford Amnesty Lectures (New York: Basic Books, 1993), 111–20;
O. Roy, Der islamistische Weg nach Westen: Globalisierung, Entwurzelung und Radikalisierung
(Munich: Pantheon, 2006).
 Constitutionalism and Democracy  187
alternative offers, in Teheran as well as in New York, in the Alps of Switzerland as
well as in the mountain regions of Afghanistan, Pakistan, or Tibet.45
These developments are now reflected more and more by the scientific superstruc-
ture, not only in social sciences but also in history and philosophy. For over twenty
years we have been observing a strong turn in history from national to European
and world history; in philosophy Kant’s essay on perpetual peace is suddenly no
longer a marginal subject. Even jurists have now started to develop Hans Kelsen’s
insight from the 1920s that there is no dualist gap between national and international
law, but only a continuum.46 In the last decade, there has been a mushrooming of
national–international hybrids and new branches of legal disciplines such as transna-
tional administrative law.

iii. the age of extremes?

The twentieth century strikingly has been called an ‘age of extremes’,47 and every
attempt to bridge the abyss that separates these extremes would be an ‘extorted
reconciliation’.48 This century was the catastrophe that has incurably ‘damaged life’.49
But it was also the century of a great legal revolution which transformed not only
law but society as a whole: a revolution that triggered experimental-communicative
productivity in new social and cultural practices, political and legal institutions, and
scientific and philosophical discourse.
If we call the twentieth century the totalitarian century, then this is at the same
time right and wrong. After disastrous revolutionary and counterrevolutionary
worldwide wars, after battles for material and battles of attrition, bombing wars
and civil wars, pogroms, genocides, concentration and death camps, national upris-
ings, racist excesses, terrorism and counter-terrorism, the destruction and founding
of states and fascist, socialist and—not to forget—democratic grand experiments—
totalitarianism was not the winner, but the loser. In particular, the World Wars were
fought by their winners not only for national interest alone, but also for democracy,
global peace, and human rights.

45
Parsons, above n 18; Parsons and G. M. Platt, Die amerikanische Universität (Frankfurt am
Main: Suhrkamp, 1990); R. Döbert, J. Habermas, and G. Nunner-Winkler (eds), Entwicklung
des Ichs (Königstein: Anton Hain, 1980).
46
H. Brunkhorst, ‘Kritik am Dualismus des internationalen Recht—Hans Kelsen und die
Völkerrechtsrevolution des 20. Jahrhunderts’ in Kreide and Niederberger (eds), above n 38,
30–63.
47
E. Hobsbawm, The Age of Extremes: The Short Twentieth Century, 1914–1991 (London:
Michael Joseph, 1994).
48
T. W. Adorno, ‘Erpreßte Versöhnung’, in his Noten zur Literatur (Frankfurt am Main:
Suhrkamp, 1974), 251–80.
49
T. W. Adorno, Minima Moralia: Reflexionen aus dem beschädigten Leben (Frankfurt am Main:
Suhrkamp, 1951).
188  Hauke Brunkhorst
The twentieth century was not only the century of state-organised mass terror
(which could not, on this scale, have been organised any other way than by state).50
It was also the century of ground-shaking normative progress, through which
democracy was universalised and constitutional law transformed into global
constitutionalism, national human rights into global civil rights, constitutional
state sovereignty into democratic sovereignty, and the bourgeois state into a social
welfare state. Between Europeans and non-Europeans there has existed for hundreds
of years the formal and legal unequal distribution of rights: jurisdiction for us,
authority for the others.51 Now, for the first time in history, rights are formally equal.
Admittedly, the massive human-rights violations, social exclusion and outrageous,
unequal treatment of entire world regions have not disappeared. But human-rights
violations, lawlessness, and political and social disparity are now for the first time
considered to be our common problem—a problem that concerns every single actor
in this global society. Only now are there serious and legally binding claims to the
global (and not any longer just national) exclusion of inequality.
The global law and the human rights culture of the late twentieth century was not
only the result of the negative insight from 1945 that Auschwitz and war should never
again happen. It was also the positive result of a great and successful legal revolution,
which began at the end of the First World War with the American intervention in the
war in 1917, and was fought for progressive, new, and supposedly more inclusive rights,
and more and expanded individual and political freedom.52 In 1917 President Wilson
forced the reluctant Western allies to claim revolutionary war objectives, and from
this moment the war (and later the Second World War, again as a result of American
intervention) was fought, not only for self-preservation and national interest, but also
for global democracy and peace: ‘To make the world safe for democracy.’ The leader
of the Russian Revolution and the religious Marxist (Lenin) and the Calvinist–Kantian
American President who believed in the social gospel and God’s personal mandate
(Wilson), both recognised the First World War—from very different perspectives—as
the beginning of a global revolution and as a revolutionary war against war.
Lenin and Wilson were both fierce opponents of the then still powerful monarchies
and the existing pluralism of monarchist and democratic, imperialistic, federate,
and nationalistic constitutional regimes. This negative objective was achieved first:
constitutional monarchy—reinvented in every new, great revolution since the pontif-
ical revolution of the twelfth century—was so thoroughly abolished that hardly
anyone remembers it today.53

50
Reinhard, above n 17.
51
Concluding protocol of the Berlin Conference on West Africa in 1884–5, Art 35.
52
H. Brunkhorst, ‘Die Globale Rechtsrevolution: Von der Evolution der
Verfassungsrevolution zur Revolution der Verfassungsevolution?’, in R. Christensen and
B. Pieroth (eds), Rechtstheorie in rechtspraktischer Absicht: Freundesgabe zum 70. Geburtstag von
Friedrich Müller (Berlin: Dunker & Humblot, 2008), 9–34.
53
‘Der alte Offizier konnte es bis zum letzten Augenblick … nicht für möglich halten, dass
ein vielhundertjähriges Reich einfach vom Schauplatz der Geschichte verschwinden könne’
 Constitutionalism and Democracy  189
While Wilson wanted to transform international law according to Kant’s plan
and unite the nations in a great federation of democratic nations,54 Lenin was trying
to revolutionise social conditions and build up a socialist and Soviet world empire.
According to Kelsen, the Treaty of Versailles and the concomitant founding of the
League of Nations were events as revolutionary as the Russian Revolution.55 While
the success of the October Revolution made the drastic reform of property law in an
entire world region possible and subsumed the legal system under socio-political and
socio-pedagogical goals, the Treaty of Versailles and the ‘Covenant of the League of
Nations [supplanted] the ius publicum europaeum’.56
Russia and America—the two sides of this revolutionary pincer movement that laid
siege to Europe and put pressure on its centre—were brothers hostile to each other from
the beginning, but who had to respond to each other in a mutually beneficial manner.
The West felt compelled to turn the attack on property law and the powerful, global,
and social-revolutionary impulse of the Russian Revolution into a ‘peaceful revolution’,
and thus opened a way towards socialism that conformed to constitutionality.
At the end of the Second World War, the Soviet Union had to get on board with
international politics, found the United Nations together with the United States, their
European allies and some representatives of the then emerging later so-called Third
World. From this time on, the Soviet Union was in the web of international law and
human rights. Up until the Conference on Security and Cooperation (CSCE) they had
to sign human rights declarations that helped to make it implode in the end.57 The
radical changes in the twentieth century led to variants of the same legal reforms—
pre-constitutional and pseudo-democratic in the East, democratic–constitutional in the
West.58 These radical changes repealed the bourgeois centring of equality rights around
property and turned these rights into a comprehensive system of anti-discrimination
norms.59 Franklin D. Roosevelt’s famous ‘Second Bill of Rights’ from January 1944 was

(H. Kelsen, Veröffentlichte Schriften 1905-1910 und Selbstzeugnisse, ed M. Jestaedt (Tübingen:

Mohr Siebeck, 2006), at 51).
54
G. Beestermöller, Die Völkerbundidee: Leistungsfähigkeit und Grenzen der Kriegsächtung
durch Staatensolidarität (Stuttgart: Kohlhammer, 1995); O. Eberl, Demokratie und Frieden:
Kants Friedensschrift in den Kontroversen über die Gestaltung globaler Ordnung (Baden-Baden:
Nomos, 2008).
55
H. Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts [1920] (Aalen:
Scientia, 1981); A. Verdross, Die Verfassung der Völkerrechtsgemeinschaft (Vienna: Springer,
1926).
56
O. Eberl, Demokratie und Frieden: Kants Friedensschrift in den Kontroversen der Gegenwart
(Baden-Baden: Nomos 2008).
57
This, of course, was accompanied by other developments, in particular the much better
working functional differentiation in Western democracies and their higher reflexive capac-
ity to observe themselves together with the particular blindness of the socialist countries to
produce adequate knowledge of their own society.
58
Cf Berman, above n 10, 16–17.
59
C. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, Mass.:
Harvard University Press, 1993).
190  Hauke Brunkhorst
the beginning of a ‘rights revolution’ whose waves of anti-discrimination legislation
continued into the 1970s and 1980s, extending rights of equality to other spheres. In
his address to Congress, Roosevelt declared the existing ‘inalienable political rights’ of
the constitution to be valid but insufficient for dealing with a complex society. Rather,
he stated, we need to ensure ‘equality in the pursuit of happiness’ within this society
through social rights. Although mentioning ‘free speech’, ‘free press’, ‘free worship’,
‘trial by jury’, and ‘freedom from unreasonable searches and seizure’, he did not refer
at all to property rights, an absence that is the most significant aspect of the text.
The revolutionary reforms further changed the legislation from conditional to
final programming,60 developed a comprehensive administrative planning law (tried
and tested in the World Wars),61 and introduced a new system of regulative family,
socialisation, and conduct law. To adopt Luhmann’s phrase, one could call it ‘alter-
ation of persons’ law’ (Personenänderungsrecht); Berman, by contrast, speaks of
‘parental law’ and of a ‘nurturing’ or ‘educational role of law’; and with Foucault
one could speak of the law of discourse police and bio-power.62
The legal revolution ended in 1945 with the constitution of the United Nations
in San Francisco. A new system of basic human rights norms, coupled with a
completely new system of inter, trans, and supranational institutions was created
during the short period from 1941 to 1951. This system in fact included international
welfarism, which was invented before the great triumph of national welfare states.63
International law has changed deeply since the revolutionary founding of the
United Nations. It has witnessed a turn from a law of coexisting states to a law of
cooperation,64 the founding of the European Union, the Human Rights Treaties
from the 1960s, the Vienna Convention on the Law of the Treaties, and the emer-
gence of international ius cogens, etc. The old rule of equal sovereignty of states
became ‘sovereign equality’ under international law (Article 2, para 1 UN Charter);

60
D. Grimm (ed), Wachsende Staatsaufgaben: Sinkende Steuerungsfähigkeit des Rechts
(Baden-Baden: Nomos, 1990); D. Grimm, ‘Der Wandel der Staatsaufgaben und die Krise des
Rechtsstaats’, in his Die Zukunft der Verfassung (Frankfurt am Main: Suhrkamp, 1991), 159–75;
N. Luhmann, Politische Theorie im Wohlfahrtsstaat (Munich: Olzog, 1981); F. Neumann, ‘Der
Funktionswandel des Gesetzes im Recht der bürgerlichen Gesellschaft’ (1937) 6 Zeitschrift für
Sozialforschung 542–96.
61
W. Seagle, Weltgeschichte des Rechts: Eine Einführung in die Probleme und Erscheinungsformen
des Rechts (Munich: Beck, 1951); H. Maurer, Allgemeines Verwaltungsrecht (Munich: Beck,
17th edn, 2009).
62
Luhmann, above n 60; Berman, Justice in the U.S.S.R., above n 27, especially 277–8.
Concerning the beginning in the 1930s see C. Joerges and N. Singh Ghaleigh (eds), Darker
Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal
Traditions (Oxford: Hart, 2003).
63
L. Leisering, ‘Gibt es einen Weltwohlfahrtsstaat?’, in M. Albert and R. Stichweh (eds),
Weltstaat und Weltstaatlichkeit (Wiesbaden: VS-Verlag, 2007), 185–205.
64
J. Bast, ‘Das Demokratiedefizit fragmentierter Internationalisierung’, in H. Brunkhorst
(ed), Demokratie in der Weltgesellschaft, Soziale Welt Sonderband 18 (Baden-Baden: Nomos
2009), 185–93.
 Constitutionalism and Democracy  191
individual human beings (in the good and in the bad) became subject to International
Law; democracy became an emerging right or a legal principle that can also be
enforced against sovereign states; and the right to have rights, whose absence Arendt
lamented in the 1940s, is now a legal norm that binds the international community.65
All these legal rules are regularly broken. However, this is not a specific feature of
international law; and it happens with national law as well, which to a considerable
degree is also soft, symbolic, or dead law. What is new today is that international and
cosmopolitan equal rights have become binding legal norms, and as such they have
to be taken seriously. There is no longer any space for any action outside the law or
outside the legal system.66 Every single action of every kind of actor, individuals,
states, and organisations is either legal or illegal—tertium non datur. In consequence,
the difference in principle between national and international law has vanished, a
point that Hans Kelsen, Alfred Verdross, Georges Scelle, and other cosmopolitan
international lawyers were already claiming during the First World War.

iv. global law?

As with other things in a highly accelerated and complex modern society,67 this
international (and national) legal and revolutionary progress is deeply ambivalent
and fragile. The basic legal principles of the global inclusion of the other and the
exclusion of inequality coexists with global functional systems, global actors, and
global values which are emerging with great rapidity, and which tear themselves
from the constitutional bonds of the nation state. This is a double-edged process
that has caused a new dialectic of Enlightenment. The most dramatic effect of this
formation of the global society is the decline of the nation state’s ability effectively to
abolish inequalities, even within the highly privileged world of the Organisation for
Economic Co-operation and Development. This has three significant consequences.
First, we can observe in the economic system the complete transformation of the
‘state-embedded markets of regional late capitalism’ into the ‘market-embedded states
of global turbo-capitalism’.68 The negative effect of economic globalisation on rights
is that the freedom of markets explodes globally, and again at the cost of the freedom
from the negative externalities of disembedded markets, and it is combined with heavy,

65
For a more comprehensive overview see Brunkhorst, above n 52.
66
M. Byers, ‘Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’
(2003) 2 The Journal of Political Philosophy 171–90, at 189.
67
Hartmut Rosa, ‘The Universal Underneath the Multiple: Social Acceleration as the
Key to Understanding Modernity’, in S. Costa et al (eds), The Plurality of Modernity:
Decentering Sociology (Munich: Hampp, 2006), 22–42.
68
W. Streeck, ‘Sectoral Specialization: Politics and the Nation State in a Global
Economy’, paper presented to the 37th World Congress of the International Institute of
Sociology, Stockholm 2005. As we now can see, the talk about late capitalism was not wrong
but should be restricted to state embedded capitalism, and state embedded capitalism indeed
is over. But what then came was not socialism but global disembedded capitalism which
seems to be as far from the state embedded capitalism of the old days as from socialism.
192  Hauke Brunkhorst
sometimes warlike competition, in particular about the oil and energy resources of
the earth, and now even combined with a global economic crisis: there will be blood.69
Surprisingly, in questions regarding the religious sphere of values we can make a
similar observation and identify similar consequences. Global society makes the
proposition that what is true for the capitalist economy is equally true for the auton-
omous development of the religious sphere of values. In consequence, we are now
confronted with the transformation of the state embedded religions of Western
regional society into the religion embedded states of the global society.70 Since the
1970s, religious communities have crossed borders and have been able to escape
from state control. Again, the negative effect of this on our rights is that the freedom
of religions explodes whereas the freedom from religion comes under pressure. At the
same time the fragmented legal and administrational means of states, inter, trans,
and supranational organisations seems not to be sufficient to get the unleashed
destructive potential of religious fundamentalism under control: there will be blood.
Last but not least, the internally fragmented executive branches of the state have
decoupled themselves from the state-based separation, coordination, and unification
of powers under the democratic rule of law, and they too have gone global.71 The
more they are decoupled from national control and judicial review, the more they
are coordinated and associated on regional and global levels, where they constitute a
group of loosely connected transnational executive bodies. Postnational governance
without (democratic) government is performed at one and the same time through
a partly formal and egalitarian rule of law, through an elitist rule through law, and
through an informal bypassing of (constitutional) law and the demos by means of a

69
One-sided but in this point striking is the neo-Pashukanian analysis of international
law by C. Mieville, Between Equal Rights: A Marxist Theory of International Law (London:
Haymarket, 2005).
70
H. Brunkhorst, ‘Democratic Solidarity under Pressure of Global Forces: Religion,
Capitalism and Public Power’ (2008) 17 distinktion: Scandinavian Journal of Social Theory
167–88.
71
On transnational administrative law, during the last few years a whole industry of
research emerged: see C. Tietje, ‘Die Staatsrechtslehre und die Veränderung ihres
Gegenstandes’ (2003) 17 Deutsches Verwaltungsblatt 1081–164; C. Möllers, ‘Transnationale
Behördenkooperation’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
(ZaöRV) 351–89; Krisch and Somek in this volume; C. Möllers, A. Voßkuhle, and C. Walter
(eds), Internationalisierung des Verwaltungsrecht: Eine Analyse anhand von Referenzgebieten
(Tübingen: Mohr Siebeck, 2007); A. Fischer-Lescano, ‘Transnationales Verwaltungsecht’
(2008) 8 Juristen-Zeitung 373–83. On the globalisation of executive power: K.-D. Wolf, Die
neue Staatsräson: Zwischenstaatliche Kooperation als Demokratieproblem der Weltgesellschaft
(Baden-Baden: Nomos, 2000); P. Dobner, ‘Did the State Fail? Zur Transnationalisierung
und Privatisierung der öffentlichen Daseinsvorsorge: Die Reform der globalen
Trinkwasserpolitik’, in K.-D. Wolf (ed), Staat und Gesellschaft: Fähig zur Reform? Der 23.
wissenschaftliche Kongress der Deutschen Vereinigung für Politikwissenschaft (Baden-Baden:
Nomos, 2007), 247–61; G. Lübbe-Wolf, ‘Die Internationalisierung der Politik und der
Machtverlust der Parlamente’, in H. Brunkhorst (ed), Demokratie in der Weltgesellschaft,
above n 64, 127–42.
 Constitutionalism and Democracy  193
new regime of soft law. This law has so far no normatively binding force. Empirically,
however, it has a strong compulsory effect.72 It therefore resembles the old Roman
senatus consultum, which had no legally binding force, but which every official was
well advised to follow.73 As a result, the new globalised executive power seems to be
undergoing the same transformation as markets and religious belief systems, and it
is thus transformed from state embedded power to power embedded states. This leads to
a new privileging of the globally more flexible second branch of power vis-à-vis the
first and third one, which jeopardises the achievements of the modern constitutional
state.74 The effect of this is an accelerating process of an original accumulation of
global power beyond national and representative government.
The three great transformations of the world society have turned the democrati-
cally elected and legally organised political power within the nation state into the
power of a transnational politico-economic–professional ruling class—including
high ranked journalists and media stars who function as a bypass system, which are
implemented to remove the core of political decision making from any spontan-
eous formation of communicative power through an untamed and anarchic public
sphere. It seems now as if, in a new transformation of the public sphere, the Haber-
masian and Petersian filters, supposed to transform public opinion into political deci-
sion making,75 are working the other way round, and are closing the doors on public
opinion. White-Paper-Democracy is the outcome.76 The new transnational ruling
class hardly relies any longer on egalitarian will formation. This class is (like the
national bourgeoisie of the nineteenth century) highly heterogeneous and character-
ised by multiple confl icts of interest. Yet it has a certain number of common class
interests: for instance, it seeks to increase its room for manoeuvre by withdrawing
itself from democratic control and, as a comfortable side-effect of this, it aims to
preserve and increase its enormously enlarged, individual, and collective opportu-
nities for private profit generation.77 This is the new cosmopolitism of the few.78
Instead of global democratic government we are now approaching some kind of
directorial global Bonapartist governance: that is, soft Bonapartist governance for us
of the North-West, and hard Bonapartist governance for them of the South-East, the
failed and outlaw states and regions of the globe:79 there will be blood.

72
J. von Bernstorf, ‘Procedures of Decision-Making and the Role of Law in International
Organizations’ (draft paper MPI, Heidelberg, 2008), 22; Möllers, ‘Transnationale
Behördenkooperation’, above n 71.
73
U. Wesel, Geschichte des Rechts (Munich: Beck, 1997), 163.
74
Wolf, Die neue Staatsräson, above n 71.
75
B. Peters, Öffentlichkeit (Frankurt: Suhrkamp, 2008).
76
European Commission, ‘European Governance: A White Paper’, COM(2001) 428 final of
25 July 2001, OJ C287/2001, <http://ec.europa.eu/governance/white_paper/
index_en.htm>.
77
Wolf, Die neue Staatsräson, above n 71.
78
Calhoun, above n 4.
79
Anghie, above n 3.
194  Hauke Brunkhorst
The deep division of the contemporary world into two classes of people—those
with good passports and those with bad ones80—is mirrored by the constitutional
structure of the world society. Today, there already exists a certain kind of global
constitutionalism, which is one of the lasting results of the revolutionary change
that began in the 1940s, and observed already by Talcott Parsons in 1960, a sociolo-
gist who was never under suspicion of being an idealist.81 However, existing global
constitutions are far from being democratic.82 All postnational constitutional regimes
are characterised by a disproportion between legal declarations of egalitarian rights
and democracy and its legal implementation by the international constitutional law
of checks and balances.83 Hence, the legal revolution of the twentieth century was
successful, but it was unfinished. The one or many global constitutions are in bad
shape, based on a constitutional compromise that mirrors the hegemonic power
structure and the new relations of domination in the world society.84
Scientific and technical expertise has again become an ideology85 which obscures
the social fact that ‘most regulatory decisions involve normative assumptions and

80
Calhoun, above n 4.
81
Parsons, above n 42, at 126.
82
For the thesis that the UN Charter is the one and only constitution of the global
legal and political order, see B. Fassbender, ‘The United Nations Charter as Constitution
of the International Community’ (1998) Columbia Journal of Transnational Law 529–619;
A. von Bogdandy, Europäisches Verfassungsrecht: Theoretische und dogmatische Grundzüge
(Berlin: Springer, 2003); id, ‘Constitutionalism in International Law’ (2006) 47 Harvard
International Law Journal 223–42; M. Albert and R. Stichweh, Weltstaat und Weltstaatlichkeit
(Wiesbaden: VS, 2007); H. Brunkhorst, ‘Globalising Democracy without a State: Weak
Public, Strong Public, Global Constitutionalism’ (2002) 31 Millennium: Journal
of International Studies 675–90; id, ‘Demokratie in der globalen Rechtsgenossenschaft’
(2005) Zeitschrift für Soziologie: Sonderheft Weltgesellschaft, 330–48. For the thesis of
constitutional pluralism, see G. Teubner, ‘Globale Zivilverfassungen’ (2003) 63
ZaöRV 1–28.
83
For the original version of this thesis see Brunkhorst, above n 82.
84
‘The treaties and the law-making are increasingly comprehensive, and the courts and
dispute-settlement bodies are increasingly judicially organized and operatively effective.
They are however still different than the similar forms of nation-state organized institutions
in a number of ways. The treaties and the law-making are comprehensive, but fragmented
and asymmetrical. Each treaty dealing with one set of problems or purposes—without the
abilities of seeing the different types of problems in relation to each other. The organizations
are not democratic in relation to citizens. They are generally based on states as members
and many of them are dominated by internal secretariats and experts. They are set up as
top-down tools for dealing with separate issues and areas of problems. They are dominated
by different elites’ (I. J. Sand, ‘A Sociological Critique of the Possibilities of Applying
Legitimacy in Global and International Law’, paper presented at Onati School for Sociology
of Law, Onati, Spain, 2008).
85
H. Marcuse, ‘On Science and Phenomenology’, in Boston Studies in Philosophy of
Science, ii. (New York: Proceedings of the Boston Colloquium for the Philosophy of Science,
1965), 279–91; J. Habermas, Technik und Wissenschaft als ‘Ideologie’ (Frankfurt am Main:
Suhrkamp, 1968).
 Constitutionalism and Democracy  195
trigger redistributive outcomes that cannot be reduced to seemingly objective
scientific inquiries; each time someone wins and someone loses’.86 Hence, what
seems to be necessary and out of reach in the present situation of pre-democratic
global constitutionalism is a Kantian Reform nach Prinzipien (Kant),87 or ‘radical
reformism’ (Habermas), or a new ‘democratic experimentalism’ (Dewey) that oper-
ates on the same level as the power of the emerging transnational ruling class: that
is, beyond representative government and national government.88

v. reform nach prinzipien

What could radical reformism or Reform nach Prinzipien mean today? I don’t know.
But before posing the hard questions of constitutional change and institutional design
which often fail because conceptually they fail to recognise the level of complex-
ity of modern society, we should start again with concepts and principles, and that
means with a critique of dualism and representation in legal and political theory.
Dualistic and representational thinking has already been deconstructed completely
by the revolutionary philosophy (and scientific praxis) of the twentieth century, in
particular by philosophers like John Dewey, Ernst Cassirer (after his symbolic turn),
early Heidegger, late Wittgenstein, or W. V. O. Quine.89 Yet, representational thinking
that is deeply based on dualism still prevails in political and legal theory. In particular,
in international law and international relations dualism covers a broad mainstream
of opposing paradigms. From international relations realism to critical legal studies,
from German Staatsrecht to critical theory, from liberalism to neo-conservatism, the
state-centred dualism is tacitly accepted—that is, the dualism between Staatenbund
and Bundesstaat, international law and national law, constitution and treaty, public law
and private contract, state and society, politics (or ‘the political’) and law, law-making
and law-application, sovereign and subject, people and representatives, (action-free)
legislative will formation and (weak-willed) executive action, legitimacy and legality,
heterogeneous population and (relatively) homogeneous people, pouvoir constituant
and pouvoir constitué, etc. All these dualisms prevent us from constructing European
and global democracy adequately and, finally, to join the civitas maxima.
Yet, what Dewey and the pragmatists did with classical idealistic and metaphysical
dualisms in philosophy, Kelsen and his students did with the dualisms in political,
legal, and constitutional theory. They have replaced each of them by a continuum.

86
Bernstorf, above n 72, at 8.
87
C. Langer, Reform nach Prinzipien: Untersuchung zur politischen Theorie Immanuel Kants
(Stuttgart: Klett-Cotta, 1986).
88
Marks, above n 26, at 2–3.
89
A paradigmatic account is: R. Rorty, Philosophy and the Mirror of Nature (Princeton,
NJ: Princeton University Press, 1980). For recent developments see R. Brandom, Making
It Explicit: Reasoning, Representing & Discursive Commitment (Cambridge, Mass.: Harvard
University Press, 1994); J. Habermas, Wahrheit und Rechtfertigung (Frankfurt am Main:
Suhrkamp, 1997).
196  Hauke Brunkhorst
Kelsen’s and Merkl’s paradigm case was the legal hierarchy of steps (Stufenbau des
Rechts).90 The doctrine of Stufenbau transforms the dualisms of legislative will and
executive performance, of political generation and professional application of legal
norms, of general law and specific judgment, and last but not least of international
and national law into a continuum of concretisation.91 Hence, if all levels on the
continuum of legal norm concretisation are politically created, then the principle
of democracy is fulfilled only if those who are affected by these norms are included
fairly and equally on all levels of their creation.
Moreover, if we follow Jochen von Bernstorff one step further than Kelsen and drop
the transcendental foundation of a legal hierarchy and the Grundnorm,92 then we are
left with an enlarging or contracting circle of legal and political communication which
has no beginning and no end outside positive law and democratic will formation.93
Only then could democracy replace the last (highly transcendentalised and formalised)
remains of the old-European legal hierarchy and natural law that is higher than demo-
cratic legitimisation, and that means getting rid of the last inherited burden of dualism
which ‘weighs heavily like a nightmare on our brains’ (Marx). We should no longer
read Kelsen’s theory primarily as a scientific theory of pure legal doctrine, but as a
practically orientated theory which anticipates the global legal revolution of the twen-
tieth century. It should also be read as a hopeful message—an attempt to change our
worldview and vocabulary to fits a praxis that emancipates us from ideological blind-
ness and helps us to get rid of the old international law of ‘sorry comforters’ (Kant).
Post-representation, democratic institutions should be designed to enable the
expression of political and individual self-determination in a great variety of different
governmental bodies at all levels, and through a variety of procedures of egalitar-
ian will formation: participatory, deliberative, representative, or direct. Although
Kelsen is sometimes read as a strong defender of representational democracy and
parliamentary supremacy, this reading is wrong because Kelsen, like Dewey, made
a powerful criticism of representation and replaced it with the idea of a continuum
of different practical methods to express political opinions and make egalitarian

90
A. Merkl, Allgemeines Verwaltungsrecht (Vienna: Springer, 1927), 160, 169; id, ‘Prolegomena
zu einer Theorie des rechtlichen Stufenbaus’, in H. Klecatsky, R. Marcic, and H. Schambeck
(eds), Adolf Merkl und die Wiener rechtstheoretische Schule (Vienna: Europa Verlag, 1968),
252–94.
91
J. von Bernstorff, ‘Kelsen und das Völkerrecht’, in H. Brunkhorst and R. Voigt (eds),
Rechts-Staat: Staat, internationale Gemeinschaft und Völkerrecht bei Hans Kelsen (Baden-Baden:
Nomos, 2008), 167–90, at 181.
92
J. von Bernstorff, Der Glaube an das universale Recht: zur Völkerrechtstheorie Hans Kelsens und
seiner Schüler (Baden-Baden: Nomos, 2001).
93
This comes close to Habermas’s normatively strong or Luhmann’s normatively
neutralised idea of circulations of communication without a subject (subjektlose
Kommunikationskreiläufe). J. Habermas, Faktizität und Geltung (Frankfurt am Main: Suhrkamp,
1992); N. Luhmann, Legitimation durch Verfahren (Frankfurt am Main: Suhrkamp, 1983);
in conjunction with M. Neves, Zwischen Themis und Leviathan (Baden-Baden: Nomos,
2000).
 Constitutionalism and Democracy  197
decisions.94 Radical criticism of representational democracy is not directed at parlia-
mentary democracy. It leads, first, to a reinterpretation of parliamentary democracy
as one (possible95) part of a comprehensive procedural method of egalitarian will
formation, deliberation, and decision making,96 and, second, to a relativisation of
parliamentary legislation. Parliaments can no longer be interpreted as the highest
organs of the state, or as the one and only true representative of the general will of
the people, or as the expression of the essential, higher, or refined will of the better
self of the people (the one that fits better to the ideas of intellectuals), or as the
representation of the Gemeinwohl or commonwealth (whatever that is). Although
parliaments may be the best method of achieving democratic will formation in a
given historical situation, this is contingent.
To conclude: the double criticism of dualism and representation has far-reaching
implications for theories of democracy and constitutional design which are Kelse-
nian but go far beyond Kelsen’s advocacy of parliamentary democracy:
1. If all levels of the continuum of legal norm concretisation are politically
created, then the principle of democracy is only fulfilled if those who are
affected by these norms are included fairly and equally on all levels of their
creation (local, national, regional, and global) and in all institutions (political,
economic, social, and cultural levels; hence, the whole Parsonian AGIL-schema
is open for democratisation97 as far as it does not destroy either private or
public autonomy98).
2. The different institutions (public and private) and procedures of legislation,
administration, and jurisdiction are all in equal distance to the people, and no
institution or procedure is taken to represent the people as a whole: ‘No branch
of power is closer to the people than the other. All are in equal distance. It is
meaningless to take one organ of democratic order and confront it as the repre-
sentative organ to all others. There exists no democratic priority (or supremacy)
of the legislative branch.’99 Instead of one substantial sovereign democracy,
the regime must express itself in ‘subjektlosen Kommunikationskreisläufen’
(circulations of communication without a subject).100

94
H. Kelsen, Vom Wert der Demokratie [1920] (Aalen: Scientia, 1981); id, Allgemeine Staatslehre
[1925] (Vienna: Österreichische Staatsdruckerei, 1993); id, Reine Rechtslehre [1934] (Vienna:
Österreichische Staatsdruckerei, 1967).
95
Nothing is necessary in a democratic legal regime except the normative idea of equal
freedom: Kant, above n 8, 345; I. Maus, Zur Auf klärung der Demokratietheorie (Frankfurt am
Main: Suhrkamp, 1992); Brunkhorst, Solidarity, above n 37, 67–77; C. Möllers, Demokratie:
Zumutungen und Versprechen (Berlin: Wagenbach, 2008), 13–14, 16.
96
Kelsen, Demokratie, above n 94.
97
C. Möllers, Staat als Argument (Munich: Beck, 2001), 423.
98
Maus, above n. 95; Habermas, Faktizität und Geltung, above n 93.
99
C. Möllers, ‘Expressive vs. repräsentative Demokratie’, in R. Kreide and
A. Niederberger (eds), above n 38, 160–82.
100
Habermas, Faktizität und Geltung, above n 93, at 170, 492–3.
198  Hauke Brunkhorst
3. Whereas the concept of the higher legitimacy of a ruling subject (the king,
or the state as Staatswillenssubjekt) is as fundamental for power limiting
constitutionalism as it was for medieval regimes of ‘the king’s two bodies’,101
democratic and power founding constitutionalism replaces legitimacy
completely by a legally organised procedure of egalitarian and inclusive
legitimisation.102 The procedures of legitimisation become nothing other than
the products of democratic legislation; legitimisation is therefore circular in the
sense of an open, socially inclusive hermeneutic circle or loop of legitimisation
without legitimacy.103
4. Democracy is not, as the young Marx once wrote, the ‘solved riddle of all consti-
tutions’ but, as Susan Marks has objected, the ‘unsolved riddle of all constitu-
tions’.104 Hence, a constitution that is democratic has to keep the riddle open.
It belongs to the necessary modern meaning of democracy that the ‘meaning’
of ‘democratic self-rule and equity’ never can be ‘reduced to any particular set
of institutions and practices’.105 Without the normative surplus of democratic
meaning which always already transcends any set of legal procedures of demo-
cratic legitimisation, the people as the ‘subject’ of democracy would no longer
be a self-determined group of citizens, or a self-determined group of ‘all men’106
who are affected by a given set of binding decisions.

101
E. H. Kantorowicz, The King’s Two Bodies (Princeton, NJ: Princeton University Press,
1957).
102
Habermas, Faktizität und Geltung, above n 93; C. Möllers, Gewaltengliederung: Legitimation
und Dogmatik im internationalen Rechtsvergleich (Tübingen: Mohr, 2005).
103
Democratic legitimisation is inclusive because it is governed by the one and only consti-
tutional principle of democracy, and that is the principle of self-legislation or autonomy.
This principle is socially inclusive because it presupposes that a procedure of legitimisation
that is democratic has to include everybody who is concerned by legislation and jurisdiction.
Consequently, all exceptions (eg babies) have to be justified publicly and need compensation
through human rights: cf Müller, above n 7; Brunkhorst, Solidarity, above n 37, ch 3; Marks,
above n 26.
104
Marks, above n 26.
105
Ibid 103, 149.
106
‘All men’ can mean many different things, eg all men in a bus, all men on German terri-
tory, all men with US passports (which is far less than all US citizens), all men on the globe,
all men in the universe, all men who are French citizens, all men who are addressed by a
certain legal norm. Democracy and democratic legitimisation is only concerned with the
last two meanings, and the possible tension between them.
  10 
The Best of Times and the Worst of Times
Between Constitutional Triumphalism and Nostalgia

Mattias Kumm

i. constitutionalism between triumphalism

and nostalgia
The idea of a ‘postnational constellation’ conjures up a world in which globalisation,
privatisation, and individualisation have changed the basic configuration of the legal
and political world. The state has become disaggregated as regulatory authority has
shifted towards transnational governance structures and devolved to subnational
public authorities or private actors. There are a number of questions one might ask
about these changes. Have they strengthened human rights and have they furthered
peace, justice, and prosperity within and across societies? Or have they created new
inequities and new dangers? The literature on these questions, either generally,
or addressing specific policy issues, is endless. This chapter will leave all of them
aside. The focus here is the more limited question of how these changes can best be
described and assessed in constitutional terms. Specifically the question is: How are
these changes affecting the tradition of modern constitutionalism?
The constitutional literature addressing this issue can be roughly divided into
two camps. According to the first—call them constitutional triumphalists—we are
witnessing the triumph and radical expansion of constitutionalism. Not only has
liberal democracy spread considerably after the end of the Cold War, but interna-
tional legal practices have also gone through a process of constitutionalisation.1 More
generally, during the last decade the idea of constitutionalism beyond the state has
gained considerable ground, and it is no longer unconventional to refer to the EU or
the UN in constitutional terms. According to the second camp—call them constitu-
tionally concerned—we are witnessing a threat to and perhaps even the demise of

1
See, eg J. Dunoff and J. Trachtman (eds), Ruling the World: Constitutionalism, International
Law and Global Governance (Cambridge: Cambridge University Press, 2009); N. Tsagourias
(ed), Transnational Constitutionalism (Cambridge: Cambridge University Press, 2007);
J. H. H. Weiler and M. Wind (eds), European Constitutionalism beyond the State (Cambridge:
Cambridge University Press, 2003).
202  Mattias Kumm
constitutionalism. Since the end of the Cold War the capacity of national constitutions
to serve as a framework for the self-governing practices of a national community has
been significantly eroded. Constitutionalism is either in its twilight years: part of an
era that has gone by (the nostalgic key, characteristic of European scholars)2 or some-
thing that needs to be regained and protected (the more assertive tone associated with
‘revisionist’ scholars writing on the law of foreign affairs in the US).
An obvious way to resolve this dispute in favour of the first position is to suggest
that constitutionalism is alive and well, and has simply transformed itself to address
new challenges.3 Some degree of national constitutional self-government might have
been lost, but that loss is only the result of the emergence of, at least in principle,
desirable constitutionalised forms of transnational governance that compensate for
the deficiencies of domestic constitutionalism.4 In the end, a position along these
lines is, in my view, correct. But, as will become clear, that position is not as obvious
or easy to adopt as many of those embracing the idea of constitutionalism beyond
the state might believe. There are deep commitments, connected to ways of imagin-
ing the legal and political world and tied to conceptual structures that have played
a central role in the tradition of modern constitutionalism, with which the idea of
constitutionalism beyond the state is in tension. If it is plausible to talk of constitu-
tionalism beyond the state, it can only be because some of these basic conceptual
structures and the legal and political world that is imagined through them turn out
to have been inappropriate and misguided. The stakes in this debate, then, are high.
And the attempt to come to a facile resolution should be avoided. The point of
this chapter is not primarily to resolve the issue, but to develop a deeper under-
standing of what is at stake. To the constitutional triumphalists it sounds a note of

2
2 See A. Somek, Individualism: A Theory of Constitutional Authority (Oxford: Oxford
University Press, 2008), ch 8 and D. Grimm, ‘The Constitution in the Process of
Denationalization’ (2005) 12 Constellations 447–65.
3
On the domestic level the most visible sign of this transformation in terms of constitu-
tional provisions and doctrine concerns the shifts that have taken place in the field of the
constitutional law of foreign relations. Here the big picture questions are broken down into
more specific issues. Is it constitutionally permissible for a state to sign and ratify treaties
that establish institutions that have some degree of regulatory authority? If so, are there any
limits to the kind of regulatory authority these institutions may have related to sovereignty
or national self-government? What is the constitutionally required procedure for such trea-
ties to be ratified? What status do the regulation and decisions of such institutions have as a
matter of domestic law and to what extent are they directly effective or self-executing? Many
of the old constitutional settlements with regard to these questions have come under pres-
sure as a result of new exigencies, making the constitutional law of foreign affairs one of the
most dynamic areas of contemporary constitutional law in many jurisdictions.
4
A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of International
Norms and Structures’ (2006) 19 Leiden Journal of International Law 579–610; E. de Wet,
‘The International Constitutional Order’ (2006) 55 International & Comparative Law
Quarterly 51–76. See also M. Kumm, ‘The Cosmopolitain Turn in Constitutionalism: On the
Relationship between Constitutionalism in and beyond the State’, in Dunoff and Trachtman
(eds), above n 1, 258–324.
 The Best of Times and the Worst of Times  203
caution: be aware of the historical depth and conceptual structure of the world that
is left behind and the radical rethinking of the constitutional tradition—a genuine
paradigm shift—that will have to come with it. That kind of constitutional transfor-
mation is only plausible in conjunction with a genuine revolution in the way law and
politics are understood, a revolution no less deep conceptually than that brought
about by the emergence of the Westphalian order. To the constitutional nostalgists
it offers a challenge: it is not enough to simply repeat the old certainties with a sense
of superiority, imagining constitutional triumphalists as Settembrinièsque, whiggish
fools who rush in where wise men fear to tread. Those old certainties are themselves
open to serious questioning and critical analysis and need to be assessed in light of an
alternative constitutional paradigm that might just turn out to be persuasive.
Ultimately this chapter not only serves the function of providing a deeper under-
standing of the nature of the dispute between triumphalists and nostalgists, even
though that is its primary purpose. It also takes a position and develops an argu-
ment defending that position, even if here that argument can only be provided in a
rudimentary form.
My argument is that the nostalgist’s position is connected to a particular and ulti-
mately unconvincing paradigm of constitutionalism that might be called democratic
statism. Democratic statism conceptually connects the core commitments of the
modern constitutional revolutions with the tradition of statehood and sovereignty.
It exhibits a positivist and nationalist deep structure that emphasises some of the
core ideas underlying the French and American revolutions, but underplays others.
The triumphalist position, on the other hand, is compatible with a conception of
constitutionalism—call it the practice conception of constitutionalism—that attempts
to liberate constitutionalism from the statist paradigm and the biases to which it is
connected. States become one institutional context for constitutionalism—certainly
a very important one—along with others. Ultimate constitutional authority is not
located in a particular institution (eg a constitutional court), a particular text (the
Constitution), or a source (‘We the People’ as pouvoir constituant). Instead, claims to
constitutional authority are made whenever a law makes a claim to authority that is
not derived from a legal source. To put this another way: constitutional authority is
claimed whenever law makes a claim to authority that is not plausibly legitimated
by reference to the procedure that was used to enact it. It is possible to conceive of
a world in which only national constitutions fulfil this requirement. But as a matter
of contemporary practice not only national constitutions, but also the UN Charter,
the EU’s Constitutional Charter, and the European Convention on Human Rights
(ECHR) make such claims to authority.
There is, accordingly, a plurality of constitutional sources, potentially giving
rise to constitutional confl ict. When different constitutional claims collide, they
must be assessed in light of the constitutional principles that support them, by
whatever institution is called upon to address constitutional confl icts. There is
no one institution that is the final arbiter of constitutional claims. Constitutional
confl icts get resolved by reference to underlying constitutional principles that
determine which claims to constitutional authority have more weight under which
circumstances. It follows that both with regard to constitutional sources and to
204  Mattias Kumm
institutional actors constitutionalism has a pluralist structure.5 The coherence and
unity of constitutional practice is neither guaranteed by the cohesion of a pouvoir
constituant, a written text, or a final arbiter as the guardian of the constitution, but
by a mutually deferential and engaging constitutional practice held together by
common principles.
The following argument is divided into two main parts: the first provides
an analysis and critique of democratic statism (II), the second describes the core
structural features of the practice conception of constitutionalism (III), and
is followed by a brief conclusion that suggests that democratic statists are today
what scholars of the German Reichspublizistik were in the late eighteenth and early
nineteenth centuries (IV).

ii. the structure of constitutional nostalgia:

democratic statism
The core structural features of democratic statism can be reduced to three basic
propositions: constitutional law, paradigmatically codifed in the form of a written
constitution, establishes the supreme law of a sovereign state; the authority of the
Constitution is based on the idea that it can be fairly attributed to ‘We the People’ as
the constituent power; and this constituent power is tied to the existence of a genuine
political community that is the prerequisite for meaningful democratic politics.

On the proper domain of constitutionalism

Those who think of constitutionalism in terms of democratic statism have reasons
to be sceptical about ‘constitutionalism beyond the state’. Too many of the core
features of constitutionalism are absent in settings beyond the state; it is generally
not sociologically plausible to posit the existence of a constituent power beyond
the state. Beyond the state there is only law based on treaties signed and ratified by
states. And to the extent that these treaties establish institutions, these are not insti-
tutions that establish democratic processes that are embedded in a genuine political
community.
True, there are some structural features of international law that bear some
resemblance to features associated with domestic constitutional law. In part these
are formal: there are elements of a hierarchy of norms in international law. They
range from jus cogens norms to Article 103 of the UN Charter, establishing the

5
Among the authors first developing the idea of constitutional pluralism along these
lines are N. Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review
317–59; M. Maduro, ‘Contrapunctual Law: European Constitutional Pluralism in Action’, in
N. Walker (ed), Sovereignty in Transition (Oxford: Hart, 2003), 502–37; and M. Kumm, ‘Who
is the Final Arbiter of Constitutionality in Europe?’ (1999) 36 Common Market Law Review
261–386. For a more recent discussion, see M. Avbelj and J. Komarek (eds), Four Visions of
Constitutional Pluralism, EUI Working Paper 2008/21.
 The Best of Times and the Worst of Times  205
priority of the UN Charter over other norms of international law. In part they are
functional: there are multilateral treaties that serve as regime-specific constitutional
charters for institutionally complex transnational governance practices. And in
part they are substantive: human rights obligations have long pierced the veil of
sovereignty that kept the relationship between the state and its citizens from the
purview of international law. The individual has long emerged as a subject of
rights and obligations under international law. There are international human
rights courts established by treaties that authorise individuals to vindicate
their rights before international courts. International law even criminalises certain
types of particularly serious human rights violations.
True also, is that these features are more characteristic of modern constitutional
systems than of international law conceived as the law among states. But without
the core features of democratic statism—a constituent power establishing an ulti-
mate authority that enables democratic politics—constitutionalism beyond the state
is at best a pale analogy to constitutionalism properly so called. If it is to be referred
to as constitutionalism at all, it is constitutionalism with a small c, wheras consti-
tutionalism within the context of the state is constitutionalism with a big C. Only
constitutionalism with a big C is concerned with the establishment of an ultimate
authority linked to a genuine constituent power and genuine democratic politics. To
the extent that transnational legal and political practices are increasingly delinked
from requirements of specific state consent, and to the extent such international
legal obligations increasingly limit and constrain the meaningful exercise of consti-
tutional self-government within the context of the state, that is not an expansion of
constitutionalism, but a symptom of its demise. The language of constitutionalism
beyond the state should not be used to cover up that fact. Small c constitutionalism
is in tension with big C constitutionalism.
This, as far as I see, is the core structure of the argument that underlies the idea
of the ‘twilight of constitutionalism’ and scepticism about constitutionalism beyond
the state. Even though the claim that small c constitutionalism is at odds with big
C constitutionalism is correct, that is not a reason to abstain from the language of
constitutionalism to describe and assess legal and political practices beyond the state.
Instead the premisses are problematic. The very distinction between small c and big C
constitutionalism, I will argue, is based on a mistake. The idea of an ultimate consti-
tutional authority linked to one constituent power is misguided. And as important
as electoral processes organised on the national level are, they are only one type of
procedure among others to create legitimate law, necessary and appropriate in many
contexts but less appropriate in others, particularly when the legitimate interests of
outsiders are affected in relevant ways.
Before I engage in the argument in greater depth a caveat is in order: nothing I
say in the following suggests that the transformations of international law and the
restrictions on national self-government are without costs. The core argument is
not even that, notwithstanding these costs, the overall evolution of these practices is
desirable because of greater benefits. This is not an exercise of apologetics. It is an
exercise of legal criticism; legal criticism, furthermore, with a conceptual focus. It
criticises those who make claims about the limits of constitutionalism in a way that
206  Mattias Kumm
tends to delegitimise transnational legal practices by suggesting that these are reflec-
tive of a ‘demise of constitutionalism’. It is not the case that international lawyers
have inappropriately co-opted constitutional language to legitimise a dubious
project of transnational integration. If the argument here is correct, it is national
lawyers who inappropriately delegitimise transnational legal and political practices
by failing to acknowledge their constitutional status and the claims to legitimate
authority that come with it. Once the jeremiad of ‘constitutionalism lost’ is dropped,
there might well be good reasons on political grounds to criticise specific features of
transnationalisation. Furthermore, specific features of those practices might raise
important concerns that constitutional analysis might help clarify and assess. What
is not constitutionally plausible is to delegitimise wholesale transnational practices,
not plausibly linked to state consent, that restrict national constitutional practice by
suggesting that it undermines constitutionalism. In that sense the argument here
rehearses a classical argument against a conceptually focused jurisprudence: that it
hides moral and political choices behind implausible conceptual arguments.

The voluntarist and positivist structure of democratic statism

The conceptual structure of democratic statism reflects a particular interpretation
of constitutionalism. Constitutional law, ideally codified in the form of a written
constitution, is conceived as posited law. That posited constitutional law is then
imagined as establishing the supreme law of the land. It constitutes, authorises, and
constrains all public authority. Where does the authority of the Constitution come
from? On what grounds does it assume the status of supreme law of the land?
There appears to be a deceptively simple answer to the question of the Constitu-
tion’s legal authority. A lawyer might simply point to the convention in his jurisdic-
tion, that the Constitution is, as a matter of fact, accepted as the supreme law of the
land. To the extent that is the case, a court trying to establish what the law is might
in many contexts not need to know anything more. But even though it is clearly true
that conventions matter for establishing what the law is, there are all kinds of ways
in which that answer is insufficient.6 All of these ways have something to do with the
fact that law, unlike the claims made by a highway robber demanding that money be
handed over at the point of a gun, makes a claim to legitimate authority.7
An appeal to convention is first of all insufficient from the point of view of citizens
subject to the constitution. One of the core features of the modern constitutional
tradition is that law’s claim to legitimate authority has to be justifiable to those to
whom it is addressed. Addressees of the law are imagined not as dominated by their
superiors or paternalistically taken charge of by well-meaning elites, or socialised

6
For a sophisticated defence of legal conventionalism that acknowledges its limits, see
A. Marmor, ‘Legal Conventionalism’, in J. Coleman (ed), Hart’s Postscript (Oxford: Oxford
University Press, 2001), 192–217.
7
See J. Raz, ‘The Claims of Law’, in his The Authority of Law (Oxford: Clarendon Press
1979), ch 2 and J. Raz, ‘Authority, Law and Morality’, in his Ethics in the Public Domain
(Oxford: Clarendon Press 1994), ch 10.
 The Best of Times and the Worst of Times  207
into a tradition of sacred origin that has existed since time immemorial. They are
imagined as subjects who participate in the law-generation process as free and equal
citizens, to whom any laws have to be justifiable. Simply pointing to convention
would not be sufficient from the perspective of educating citizens, especially when
those citizens raise the all-important question why they should accept the constitu-
tion as supreme law of the land.
But pointing to conventions would not be sufficient from a more narrow legal
perspective either. On the one hand, a convention might come under pressure, so
that it becomes insufficient simply to point to well-established facts to resolve ques-
tions of authority. The authority of the Constitution as the supreme law of the land
might become subject to dispute, as it has, for example, in Europe, where the Euro-
pean Court of Justice (ECJ) has made the claim that courts of member states should
set aside domestic constitutional law when it confl icts with the EU Law. Whether
or not the claim to primacy of this kind is warranted and should be accepted by
national courts needs to be engaged. It cannot simply be ignored by constitutional
courts. Once conventions become unsettled and subject to dispute, there is nothing
to do but to point to the best justifications underlying them to see whether they
are convincing in light of competing claims. But the grounds for the Constitution’s
claim to legitimate authority are not only relevant for resolving competing claims
of primacy; those grounds are also relevant for the interpretation of the Constitu-
tion. Many of the constitutional provisions—for example those relating to the status
of international law—are open to interpretation. When faced with difficult inter-
pretative questions the court would do well to interpret the Constitution in such
a way that would be compatible with its claim to legitimate authority. A purposive
interpretation of constitutional provisions would therefore have to be informed by
the underlying account of what makes the Constitution’s claim to legitimate author-
ity plausible. Certainly no conception of constitutional scholarship worth its mettle
would exclude from its ambit the grounds for a constitution’s claim to legitimate
authority.
For the most part, constitutional scholarship—not surprisingly—does provide
such an answer, as do some national courts. Indeed, democratic statist courts and
scholars point to the idea of ‘We the People’ as a validating source for the Constitu-
tion as positive law. Clearly, there is something plausible about that answer. ‘We the
People willed it’ is a more plausible answer to the question where the Constitution
derives its authority from than, for example, ‘because the king, by the grace of God,
willed it so’ or ‘because time immemorial has sanctioned it’. But the idea of We the
People as the source of law willing into existence a constitution nonetheless remains
obscure and implausible.8

8
For a series of essays on the role that the idea of constituent power plays in differ-
ent constitutional traditions, see M. Loughlin and N. Walker (eds), The Paradox of
Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press,
2007). The purported paradox of constitutionalism lies in the paradoxical fact that ‘the
People’ who are imagined as willing into existence the constitution come into existence only
by virtue of the constitution.
208  Mattias Kumm
To the extent the act of willing is imagined to take place at the time the
Constitution enters into force, it is not plausible for one of two reasons. In some
constitutional jurisdictions there was simply no procedure underlying its coming
into force that could plausibly be interpreted as the will of We the People. Think,
for example, of the German Constitution, both when it was first enacted and in the
context of reunification. After the Second World War, German public authorities
in the western parts of a divided country were pressurised by the Western allied
occupying forces to work out a Basic Law in order to consolidate western Germany’s
position in the emerging Western alliance and to pre-empt Soviet manoeuvring
ultimately aimed at anchoring a unified Germany in the Soviet sphere of infl uence.
The document eventually produced by the Constitutional Convention was subject
to approval by the allied powers and was ultimately ratified by state parliaments.
And after the Cold War, when reunification occurred, it took the form of a Treaty, by
which East Germany acceded to West Germany. It would appear highly contrived to
locate the authority of the German constitution in an original constitutive act either
1949 or 1990. The most prominent context in which We the People made an appear-
ance in the jurisprudence of the Federal Constitutional Court was in the context of
the nationally recalcitrant Maastricht and Lisbon decisions.9
Even when the Constitution has been established following a procedure that could
more plausibly be interpreted as articulating a popular will, as was the case in the US
Constitution,10 it is still puzzling why that procedure, used more than 220 years ago,
should have any significant legitimating force for establishing authority over those
it seeks to bind today.11 How can the dead hand of the past legitimately exercise
control over the living? Jefferson himself suggested that only the new adoption of a
constitution every generation could solve the ‘dead hand of the past’ problem.
What follows from this is not that there is anything illegitimate about either the
German or US Constitution. What follows is that, if the German and US Consti-
tutions are to be rightly regarded as legitimately establishing the highest national
law, it must be in virtue of features that are largely disconnected from the original
circumstances of its ratification. There is no procedure that in and of itself is either
necessary or sufficient to establish the legitimate authority of a constitution.12

9
See C. Möllers, ‘We are (afraid of ) the People: Constitutent Power in German
Constitutionalism’, in Loughlin and Walker (eds), above n 8, ch 5.
10
The issue is further complicated, of course, by the original exclusion of blacks, women,
and unpropertied males as well as native Americans.
11
For an attempt to deal with this problem head on, see J. Rubenfeld, Freedom and Time: A
Theory of Constitutional Self-Government (New Haven, Conn.: Yale University Press, 2001).
12
The view that legitimate constitutional authority does not depend in any strong sense
on the procedure originally used to enact it, is not new for legal theorists. For an overview,
see L. Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge: Cambridge
University Press, 1998), 1. See further, J. Raz, ‘On the Authority and Interpretation of the
Constitution: Some Preliminaries’, ibid, at 152–93. That does not mean that the procedure
is irrelevant. A Europe-wide referendum would, if successful, no doubt provide the EU with
 The Best of Times and the Worst of Times  209
That alone is an important insight. It suggests, for example, that it is a mistake to
presume that the constitutional status of the EU’s primary law or the UN Charter
can be resolved by simply focusing on how they came about. The fact that EU Law
and UN Law is written into treaties that require ratification by states following
national constitutional requirements does not resolve the question of their status as
constitutions or define the scope and limits of their authority. The idea of a Consti-
tutional Treaty is not a contradiction in terms. After all, few would claim that the
fact that East Germany acceded to the West German Constitution by way of a treaty
undermines the authority of the German Constitution for people who were citizens
of East Germany.
But if the legitimate authority of a constitution is not linked to the procedure that
was used to enact it in a strong way, what is it that grounds constitutional authority?
Even if the constitutive act of volition by We the People cannot be located in the orig-
inal constitution-giving act, perhaps it might be located in some other way. It might
be imagined at work in particular moments in constitutional history,13 or as a perma-
nent force in the background, pace Renan, upholding the Constitution’s legitmate
authority in an imagined plébiscite de tous les jours.14,15 What holds all these theories
together is their voluntarist structure and the fact that an entity that qualifies as We
the People does the willing. Ultimately the will of the people, however its manifesta-
tion might be imagined, is constitutive of legitimate constitutional authority.
As a voluntarist conception of constitutionalism, democratic statism does plausibly
reflect some central ideas of constitutionalism. The idea that ultimate authority is
grounded in a collective will reflects the idea that all positive law, even the highest
law, is made by human beings and is susceptible to critique and total revision. It
also suggests that those who are to be bound by the Constitution participate in
its enactment in some way and should be able to recognise it as theirs. The very
idea of We the People as the constituent power suggests that citizens collectively

additional constitutional legitimacy. But its success or failure as legitimate constitutional

authority ultimately depends on other criteria.
13
Bruce Ackerman, for example, insists that in the US We the People as a constituent power
has been active not only in the eigthteenth century at the time of the founding, but also in
the nineteenth century in the context of the civil war and its aftermath and in the twentieth
century surrounding the debates and constitutional battles concerning the New Deal: see B.
Ackerman, We the People: Foundations (New Haven, Conn.: Yale University Press, 1991).
14
Note how the structure of the theories about the relationship between the Constitution’s
legitimate authority and the pouvoir constituant mirrors theological positions relating to
God’s relationship to the world. God can be imagined as present only at the time of creation
(God as the watchmaker), he can be imagined as intervening every once in a while (through
miracles), or he can be imagined as an ever-present force (occasionalism).
15
The idea that the Constitution is upheld by We the People in the daily recognition of the
laws that it generates comes close to a straighforwardly conventionalist understanding of
constitutions in Hartian terms: the Constitution is the supreme law of the land if and to the
extent it is recognised as such by public authorities and those subject to the laws generally
recognise and obey the laws that are generated under the Constitution.
210  Mattias Kumm
remain empowered to abolish and substitute the Constitution with one they deem
more fitting. The empowering effect of this idea could be seen in the demonstra-
tion in East Germany leading up to the fall of the Berlin Wall: the demonstrators
encountering the armed forces of the established authorities of the East German
Communist regime held up placards and chanted ‘We are the People’. This was a
menacing reminder to the public authorities that all legally established power derives
from them and that the people acting collectively can claim the authority to abolish
established authorities if and when they deem fit.
But there are central elements of constitutionalism that democratic statism as a
voluntarist conception de-emphasises and assigns only a contingent role. Neither
the idea of democracy, nor the idea of respect for human rights is conceptually hard-
wired into democratic statism’s conception of constitutional authority. If We the
People willed into being a constitution that declares that the Sharia, as interpreted
by learned theologians sitting on the highest court,16 is part of the supreme law of
the land, then nothing in democratic statist’s conception of constitutional authority
would suggest they could not do that. The label of constitutional law would still
be applied to the result and its authority, from a legal point of view, would remain
untouched, even if that result was deeply at odds with the core commitments of
the modern tradition of constitutionalism. Democratic statists might, of course,
insist on the importance of democracy and human rights as a political matter,
they might even endorse constitutional provisions that immunise commitments to
human rights and democracy against ordinary constitutional amendment. But that
does not change the fact that primacy is given to the idea that We the People as
the constituent power can establish just about anything as the supreme law of the
land. The voluntarist and positivist elements are the necessary ingredients for the
construction of constitutional authority. Democratic institutions and human rights
are comparatively contingent, even when they are regarded as desirable. Democratic
statists would not hesitate to describe any constitutions plausibly willed into being
by a pouvoir constituant as constitutions properly so called, even as they deny such a
status to institutions established by treaties beyond the state. As we shall see later, the
practice conception of constitutionalism does the inverse.

The nationalist deep structure of democratic statism

Perhaps the most obvious and disturbing feature of democratic statism is its
relationship to international law. It simply assumes that the Constitution of the
sovereign state establishes the supreme law of the land. How can it do so plausibly,
when the national constitution imposes constraints on the enforcement, say, of EU
Law or of UN Law?
One answer is, of course, that the authority of the national constitution can para-
digmatically be traced back to an act of We the People. But that is not much of a

16
See Art 2 Iraqi Constitution: ‘Islam … is a fundamental source of legislation. … No law
that contradicts established provisions of Islam may be established.’ Art 79 determines that
judges on the Federal Supreme Court include experts in Islamic Jurisprudence.
 The Best of Times and the Worst of Times  211
convincing answer. Why should We the People on the national level have the author-
ity to trump what ‘We the United Nations’ have determind to be legally required?
Another answer is that UN Law ultimately derives its authority from the consent of
states. It is based, after all, on a treaty signed and ratified by all states. But that too is
not convincing. Why should the treaty-making and ratification process not be a way
for the political community of the ‘United Nations’ to act as a constituent power
by way of state representatives? After all, some national constitutions come about
by ratification of state parliaments of state ratification conventions. As was estab-
lished above, there is no prescribed procedure by which a constituent power can
be identified. So the argument shifts again, this time to sociology: the claim is that
there is no genuine political community on the global or European level, whereas
there is one on the national level. A genuine political community, a nation properly
so called, the kind of community that makes genuine democratic self-government
involving majoritarian decision making possible, exists on the level of the state, but
not on the level of the European community and certainly not on the level of the
global community. Democratic statism, then, has a nationalist deep structure that
the language of democratic self-government only barely covers up: supreme legal
authority is derived from the nation.
Of course the nationalist structure of democratic statism does serve one impor-
tant constitutional value, even if it undermines others. Democracy properly so called,
involving at least some meaningful form of electoral accountability, does depend on
presuppositions that are not easily replicated in settings beyond the state. What exactly
those presuppositions are and whether they plausibly exist on the level of the Euro-
pean Union (EU) might be an open question,17 but there can be little doubt that on the
level of the UN meaningful electoral politics cannot be institutionalised. Clearly the
existence or non-existence of genuine electoral accountability needs to be a central
element in any account of constitutional authority that is plausible, even though I will
argue below that questions of constitutional authority cannot be reduced to democ-
racy. But note that within democratic statism the function of the idea of a genuine
political community is to establish where the ultimate source of authority in the form
of We the People is located. The voluntarist conception of We the People, however,
does not require that a people decides to constitutionalise genuine democracy. The
content of constitutional norms is contingent. Democratic statism, then, does not
insist on a strong and unqualified connection between genuine democracy and consti-
tutional authority. The mere sociological possibility of genuine democracy, assumed
to exist within the right kind of political community, is sufficient for the purpose of
establishing contitutional authority. The deep structural commitment is to the genu-
inely political community, not democracy.
That does not mean that democratic statists are nationalists. Whether a particular
constitution is nationalist or cosmopolitan depends on the specific content of the
Constitution. Democratic statism is an account of constitutional authority that does

17
D. Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282–302;
J. Habermas, ‘A Response to Dieter Grimm’ (1995) 1 European Law Journal 303–12.
212  Mattias Kumm
not say anything about the content of constitutional norms that define the terms
of engagement with the international community. Democratic statism is perfectly
compatible with the idea of an open constitution that authorises deep participation
in and engagement with transnational institutional practices. But nothing in its concep-
tion of constitutional authority requires it. Whether and to what extent the constitution
is open or closed to transnational engagement is reconstructed as a political choice
reflected in concrete constitutional provisions or interpretations of these provisions.
Like the decision on the form of government and the respect for human rights,
the nature of the relationship to the larger international community is a contin-
gent choice left for the constitutional legislator to decide. The only thing that is
not contingent is the fact that the national constitution decides how that relationship
is to be conceived.18 On the level of deep structure democratic statism is not only
voluntarist/positivist, but nationalist.

iii. the practice conception of constitutionalism

What might constitutionalism be, once it is not imagined within a democratic statist
framework but nonetheless remains committed to the French and American revolu-
tionary tradition?

What is constitutionalism?
The following is an attempt to spell out—not to argue for, but simply to state clearly
and thus make explicit—some assumptions about the core elements of modern
constitutionalism. These assumptions define the common ground between democratic
statism and the practice conception of constitutionalism. It is that common ground
which makes it possible to recognise both democratic statism and the practice
conception as paradigms of constitutionalism properly so called. Conversely,
conceptions of constitutionalism that do not share these assumptions do not qualify
as constitutional in the modern tradition. Both the democratic statist and the practice
conception of constitutionalism can be understood as constitutional paradigms that
try to develop a coherent conceptual framework that integrates and interprets these
elements and their relationship to one another in different ways.
At the heart of modern constitutionalism—the tradition of constitutionalism
associated with the American and French Revolutions19—is the idea that the exercise
of legitimate public authority is not unlimited and requires a certain kind of

18
Even when a nation decides that its Constitution should never ever be used as a ground
not to enforce international law, the ground for the authority of international law as a
matter of domestic law would still be the result of a choice by the national constitutional
legislator.
19
I am not interested, for the purpose of this argument, either in the tradition of
comparative constitutionalism as a study of different forms of political organisation that
goes back to Aristotle’s Politics, or in accounts of Roman Republicanism that reach their late
high point with Cicero’s writing in De respublica, De legibus, and De officiis.
 The Best of Times and the Worst of Times  213
justification. Legitimate public authority is circumscribed and has to justify itself
before a higher law. In order to be legitimate, all exercise of public authority has to be
derived from and shown to be compatible with that higher law.
That higher law is not simply a version of ancient or medieval natural law. With the
advent of modern constitutionalism the foundations of law and politcs have shifted.
The higher law of constitutionalism is not imagined to be inscribed into the structure
of the cosmos and accessible to those who reason rightly about God, nature, and the
salvation of the soul. The higher law of constitutionalism insists on the emancipation
of law and politics from theology and comprehensive world-views. That new higher
law insists that all posited law must be conceiveable by those whom it addresses as the
result of a deliberate collective choice of free and equal individuals.
There are three connected ideas. First, law is conceived to be the result of a delib-
erate choice.20 It is a human artefact, not the result of an authoritative imposition by
a higher being or the legal imprint of a blind historical process that simply has to
be accepted as given. That law is conceived as the result of a deliberate choice also
means that it is susceptible to reasoned criticism and change. Second, the deliberate
choice embodied in the law must be reasonably attributable to those whom it addresses.
To be plausible, such attribution requires appropriate procedural mechanisms for
participation as well as outcomes that reflect equal respect and concern for all those
addressed. Third, the subject matter of that choice concerns the legal and political
relationships between persons conceived as free and equal. It is not directly concerned
with the salvation of the soul of those sharing a faith, nor is it imagined as partaking
in a world-historic struggle addressed to members of a particular class, and nor is it
directly concerned with the flourishing of members of a particular group, defined by
ethnicity. Of course the idea of freedom and equality itself presents a perspective from
which questions of respect for someone’s faith, the unequal social and economic
status of individuals, or their sense of belonging to a particular ethnic group can be
addressed as a political or legal—even constitutional—issue. But that perspective is
defined by the idea that individuals are free and equal as addressees and constructive
authors of the laws. The domain of law and politics is irreducible and distinctive, as
is the kind of justification appropriate for acts of public authorities. 21
When these basic ideas are translated into constitutional requirements, they give
rise to three types of constitutional norms. Constitutional norms address questions
relating to: basic institutions and their respective powers; procedures that allow
for the appropriate forms of participation and deliberation; and norms—which

20
See James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788],
ed I. Kramnick (London: Penguin, 1987), No 1 (Hamilton): ‘It seems to have been reserved
to the people of this country, whether societies of men are capable or not, of establishing
good government by reflection and choice, or whether they are forever destined to, for their
political constitutions on accident and force.’
21
The core elements of constitutionalist thought can be found in the second paragraph
of the 1776 Declaration of Independence and the first six articles of the French Declaration
of the Rights of Man and Citizen of 1789.
214  Mattias Kumm
generally take the form of rights—for assessing whether outcomes are justifiable to
those burdened by them as free and equal.
These general features of constitutionalism are elaborated and given a particular
shape by different conceptions of constitutionalism. The structural features of
democratic statism have already been examined; the structural features of the
practice conception will now be described.

What is a constitution?
In order to get a handle on the basic structural features of the practice conception
of constitutionalism it is helpful to ask basic questions anew. What is a constitution?
Is EU primary law constitutional law properly so called? Is the ECHR? Is the UN
Charter? If so, in virtue of what are they constitutional norms properly so called?
Clearly these laws fulfil some formal and functional criteria of constitutions. They
establish higher law that organises an institutional practice, and it is not enough
to deny these laws constitutional status simply by pointing to the procedure
that was used to establish them. As the discussion above illustrates, there are no
necessary or sufficient procedural conditions for the establishment of constitutional
authority. The idea of a treaty with constitutional authority is not a contradiction in
terms, because constitutions can be established by just about any legal or political
procedure. True, if a state enters into such a treaty, then the domestic constitution
generally provides the resources to determine the status of treaties as a matter of
domestic law. But the claim relating to these treaties is that the rules that usually apply
to treaties as a source of law do not apply to EU law. The authority of these laws, so
the claim goes, is not derivable from the procedure used to enact it. This, in a negative
form, is the defining characteristic of a constitutional law: that the law makes a claim to
authority that is not exclusively source based; derivative, but original. But if constitutional
authority is not derived from another legal source and not derived from We the
People as a constituant power, what is it derived from?
Constitutional authority is in part directly derived from the constitutional principles it
claims to instantiate and give concrete shape to. Without states signing and ratifying the
treaty it would obviously have not come about. But now that it has come into existence,
its authority is not derived simply by the fact that it came about by way of a treaty-
making process. The practice conception of constitutionalism connects the underly-
ing ideas of constitutionalism more directly and deeply with constitutional practice,
without mediation by the voluntarist/positivist, nationalist/statist conceptual
framework that is central to democratic statism. The normative presuppositions
of constitutionalism are translated directly into a set of basic formal, jurisdictional,
procedural, and substantive legal principles that are conceived as underlying existing
legal and political practices and in light of which that practice can be reconstructed
and assessed.22 A treaty can claim original constitutional authority if it directly

22
These principles were first described in M. Kumm, ‘The Legitimacy of International
Law: A Constitutionalist Framework of Analysis’ (2004) 15 European Journal of International
Law 907–31.
 The Best of Times and the Worst of Times  215
instantiates in the institutions, procedures, and substantive norms it establishes the
principles of constitutionalism.
In Article 6 TEU the EU claims to be based on the principles of the rule of law,
human rights, and democracy, as well as respect for national identities. Even though
the EU is not a state and even if there is no such thing as a European people that
governs itself within the framework established by the European constitution, the
EU still has a constitution. Constitutional law properly so called extends beyond the
nation and beyond the state. The EU’s constitution and the constitutions of member
states are all constitutions in that they claim authority derived at least in part directly
from the constitutional principles they embody and help realise. A constitution speaks
directly in the name of those over whom it claims authority. National constitutions speak in
the name of We the People, and the EU constitution speaks in the name of European citizens
and member states. And the latter does so with a promise to respect, protect, and
promote the realisation of the constitutional principles of human rights, democracy,
and the rule of law, while respecting national identities.

The structure of constitutional pluralism

The fact that a treaty is a constitution does not mean that it establishes the supreme
law of the land. It means merely that its authority cannot be determined with refer-
ence to the procedure used to enact it. Instead the scope of its authority depends on
the extent to which a constitution actually fulfils its promise to instantiate and help
realise constitutional principles. In case of confl ict with other constitutional claims a
comparative assessment needs to establish which of the competing claims to author-
ity is more plausible under the circumstances. To illustrate what that means it might
be useful to offer a simplified sketch of the German Constitutional Court’s response
to the ECJ’s claim that EU law requires national constitutional law to be set aside.
The German Constitution, until the early 1990s,23 contained no specific
provisions addressing European integration, though the Preamble mentioned
Germany’s commitment to strive for peace in a united Europe. The Constitution
did authorise Germany to enter into treaties establishing international institutions.24
And it contained general provisions giving international treaties the same status as
domestic statutes.25 Yet the ECJ had claimed that EU law was to be regarded as the
supreme law of the land and required member states’ courts to set aside any national
law, even national constitutional law, if it confl icted with requirements of EU law.26
How was the Federal Constitutional Court (FCC) to respond? Was the ECJ’s claim
really plausible? Had member states established a new supreme law of the land by

23
In the context of the ratification of the Maastricht Treaty Art 23 the Basic Law was
amended to address questions of European integration.
24
See Art 24 Basic Law.
25
This is the dominant interpretation of Art 59 II Basic Law.
26
See ECJ Case 6/64 Costa v ENEL [1964] ECR 585; ECJ Case 106/77 Simmenthal SpA [1978]
ECR 629.
216  Mattias Kumm
signing and ratifying a set of treaties the core objective of which was to establish
a common market? On the other hand, was it plausible to claim that the EU Trea-
ties, which established institutions that had been endowed with significant legislative
authority, and played a significant role to secure peace and prosperity in war ravaged
Europe, should be treated like any other treaty? Was it really adequate to apply the
general rule applicable to treaties according to which an ordinary statute enacted
after the Treaty was ratified would trump it? If the FCC accepted the basic ideas
underlying democratic statism and its idea of constitutional self-government, that
is probably the conclusion the Court would have reached. If, on the other hand,
the FCC accepted EU Law as legitimate constitutional authority on the grounds
that it was necessary to secure the rule of law to enable the effective and uniform
enforcement of EU Law, it would follow the ECJ. But the FCC chose neither of
these options. It embraced an intermediate solution. That intermediate solution
illustrates the connection between the practice conception of constitutionalism and
the complex set of doctrines that national courts have in fact developed for assessing
the ECJ’s claims concerning the supremacy of EU Law.
First the FCC accepted without much ado that EU law trumps ordinary statutes,
even statutes enacted later in time, because of the importance of securing an effec-
tive and uniformly enforced European legal order.27 The principle of ensuring the
effective and uniform enforcement of EU law—expanding the rule of law beyond
the nation state—was a central reason for the Court to recognise the authority of
EU law over national statutes.
Yet, contrary to the position of the ECJ, the Court recognised that that principle
was insufficient to justify the supremacy of EU law over all national law. The princi-
ple of legality matters, but it is not all that matters. The second issue before the Court
was whether it should subject EU Law to national constitutional rights scrutiny.
Could a resident in Germany rely on German constitutional rights against EU law?
Could the protection of national residents against rights violations guaranteed in the
national constitution be sacrificed on the altar of European integration? Like other
questions concerning the relationship between EU law and national law, the German
Constitution provided no specific guidance on that question. In Solange I28 the FCC
balanced the need to secure the fundamental rights of residents against the needs of
effective and uniform enforcement of EU law and established a flexible approach: for
so long as the EU did not provide for a protection of fundamental rights that is the
equivalent to the protection provided on the national level, the Court would subject
EU Law to national constitutional scrutiny. At a later point, the Court determined
that the ECJ had significantly developed its review of EU legislation and held that the
standard applied by the ECJ was essentially equivalent to the protection provided by
the FCC’s interpretation of the German Constitution.29 For so long as that remained
the case, the FCC would not exercise its jurisdiction to review EU law on national

27
BVerfGE 22, 293 (1967) and BVerfGE 31, 145 (1971).
28
BVerfGE 37, 271 (1974).
29
BVerfGE 73, 339 (1986).
 The Best of Times and the Worst of Times  217
constitutional grounds. Because the ECJ through its own jurisprudence provided the
structural guarantees that fundamental rights violations by EU institutions would
generally be prevented, it conditionally accepted the authority of EU law. To put
it another way: structural deficits in the protection of fundamental rights on the
European level provided the reason for the FCC to originally insist that it should not
accept the authority of EU law, insofar as constitutional rights claims were in play.
When those specific concerns were effectively addressed by the ECJ, the authority
of EU law extended also over national constitutional rights guarantees and the FCC
as their interpreter. The authority of EU law, then, was in part a function of the
substantive and procedural fundamental rights protections available to citizens as a
matter of EU law against acts of the EU.
But this is not yet the whole story. There are two residual lines of resistance drawn
by national courts to the wholesale acceptance of the authority of EU law. The
drawing of these lines is justified by reference to the principle of democracy and the
absence of meaningful democratic politics and a meaningful European identity on
the European level.
In its Maastricht decision,30 the FCC determined that it had jurisdiction to review
whether or not legislative acts by the EU were enacted ultra vires. If such legislation
were enacted ultra vires,31 it would not be applicable in Germany. As a matter of EU law
it is, of course, up to the ECJ to determine as the ultimate arbiter of EU Law whether
or not acts of the EU are within the competencies established by Treaties.32 But the ECJ
had adopted an extremely expansive approach to the interpretation of the EU’s compe-
tencies, raising the charge that it allowed for Treaty amendments under the auspices of
Treaty interpretation. Under these circumstances the FCC believed it appropriate for it
to play a subsidiary role as the enforcer of limitations on EU competencies of last resort.
In this decision, arguments from democracy played a central role. Democracy in Europe
remains underdeveloped, with electoral politics playing a marginal role. The national
domain remained the primary locus of democratic politics. Under those circumstances,
ensuring that EU institutions would remain within the competencies established in the
Treaties is of paramount importance. Whatever EU institutions decide can no longer be
decided by directly electorally accountable national actors.
This points to a final line of resistance, not as yet explicitly endorsed by the
FCC, but visible in the jurisprudence of other courts. When a national constitution
contains a specific rule containing a concrete national commitment—say a commit-
ment to free secondary education,33 or a restriction to national citizens of the right
to vote in municipal elections,34 or a categorical prohibition of extradition of citizens

30
BVerfGE 89, 155 (1993).
31
This position was restated in the FCC’s more recent decision on the Treaty of Lisbon,
BVerfG, 2BvE 2/08, 30 June 2009.
32
See Art 230 ECT.
33
Belgian Constitutional Court, European Schools, Arbitragehof, Arrest No 12/94, BS 1994,
6137–46.
34
Spanish Constitutional Court, Municipal Electoral Rights, (1994) 3 CLR 101.
218  Mattias Kumm
to another country35—these commitments will not generally be set aside by national
courts. Instead, national courts will insist that the constitution is amended to ensure
compliance with EU law. This line of cases also reflects an understanding that the
realm of the national remains the primary locus of democratic politics. For so long as
that remains the case, a commitment to democracy is interpreted by some member
states courts to preclude setting aside national constitutional commitments as they
are reflected in these concrete and specific rules. It is then up to the constitutional
legislature to initiate the necessary constitutional amendments.
This stylised and schematic account illustrates the operation of a conception of legiti-
mate constitutional authority: one that puts the principles of constitutionalism them-
selves front and centre.36 The principle of legality and its extension beyond the nation
state has an important role to play to support the authority of EU law, but concerns
relating to democracy and human rights may provide countervailing reasons for limiting
the authority of EU law in certain circumstances. Furthermore the constitutional princi-
ples that govern the relationship between national and EU law do not themselves derive
their authority from either the national constitution or EU law. The relative authority of
EU and national constitutions is a question to be determined by striking the appropriate
balance between the competing principles of constitutionalism in a concrete context.
The Treaties establishing the European Union are the EU’s constitution, the
ECHR is part of the body of European constitutional law and the UN Charter is
the constitution of a global community. They derive their authority not exclusively
from the treaty-making procedure that was necessary to enact them, but the consti-
tutional principles they embody, even if that does not mean that they effectively
establish the supreme law of the land. Furthermore, even if EU law does not,
without further qualifications, establish the supreme law of the land, this does not
imply that the constitutions of member states establish an ultimate legal author-
ity. European integration has transformed the nature of national constitutional
authority, and not just the substance of national constitutional commitments.
The authority of competing constitutional norms in any particular context is
assessed in light of constitutional principles. Straightforward hierarchical rules—
national constitutional supremacy or European constitutional supremacy—have
been replaced by a complex form of principled interface-management. Common
principles of constitutionalism, and not an ultimate rule either of national or
European or UN constitutional supremacy, provide the ultimate norms for guiding
European constitutional practices.

35
Polish Constitutional Court, Judgment of 27 April 2005, P 1/05, English Summary
available at <http://www.trybunal.gov.pl>.
36
For a more fully developed account, see M. Kumm, ‘The Jurisprudence of Constitutional
Confl ict: Constitutional Supremacy before and after the Constitutional Treaty’ (2005) 11
European Law Journal 262–307.
 The Best of Times and the Worst of Times  219

iv. conclusion: democratic statism as REICHSPUBLIZISTIK

This chapter offers an account of the basic structural features of two competing
paradigms of constitutionalism: democratic statism and the practice conception of
constitutionalism. Its core purpose is to provide a deeper understanding of two very
different perspectives on constitutionalism at the beginning of the twenty-first century,
one inclined to mourn the twilight of constitutionalism, the other to celebrate its new
dawn. It suggests that those proclaiming its new dawn might have the better case on
their side, but if they have, it means that the way law and politics is imagined has to go
through the kind of basic, tectonic shift that the emergence of statist thinking brought
about in the sixteenth and seventeenth centuries. These different paradigms do not
reflect fleeting fashions. They relate to basic conceptual structures that provide differ-
ent interpretations of the constitutional heritage of the eighteenth century.
In the long run, something like the practice conception of constitutionalism
might well have history on its side, as constitutional practice evolves in a way that
increasingly makes apparent the lack of explanatory or normative plausibility of
democratic statism. But it is unlikely that democratic statism will either in this
generation or even the next lose its credibility as a serious paradigm for the study
of constitutional law. In 1667, only a few years after Hobbes published Leviathan,
Pufendorf declared the Reich—the Holy Roman Empire of German Nations—to
be like a monster (monstrum simile).37 After the Thirty Years War and the Peace of
Westphalia, it no longer seemed possible, as Carl Schmitt was later to comment,38
for legal thinkers to think about law and politics in any conceptual framework but
that of the state. But of course that is not true. Radical and deep changes relat-
ing to the imagination of the legal and political world do not generally replace
traditional ways of thinking that quickly. In Germany the learned legal literature
on the moribund Reich—the Reichspublizistik—continued to flourish until the turn
of the nineteenth century, when the Reich was finally formally dissolved.39 The
future of democratic statism in the twenty-first century might well be like the
eigthteenth century past of the Reichspublizistik. Learned scholars of subtlety and
sophistication will continue to describe and assess a world of public law using
a legal framework whose hold on the world is increasingly tenuous and whose
normative justification is dubious. Given the fact that states are unlikely to collec-
tively dissolve themselves, and given that grand political projects for a world made
new are nowhere on the horizon, constitutional nostalgia in Europe and consti-
tutional revisionism in the US might well turn out to be with us for some time.

37
Samuel von Pufendorf, De imperii romani: de statu imperii germanici liber unus (Geneva,
1667).
38
C. Schmitt, ‘Corollarien’, in his Der Begriff des Politischen (Berlin: Dunckler Humblot,
1933).
39
M. Stolleis, Geschichte des Öffentlichen Rechts in Deutschland (Munich: Beck, 1992), ii. 48–57.
  11 
In Defence of ‘Constitution’
Rainer Wahl*

i. introduction
For over 200 years, ‘constitution’ has been a key concept of political–juridical
thinking. Its widespread transposition to the European and international level today
might therefore be assumed to trigger fundamental thinking about the justification
of this terminological and conceptual analogy. A successful transplantation could
provide both levels—European and international—with a reinvigorated experience
of how the concept of the constitution became so successful in nation states. But an
inflationary and substantively inaccurate transfer from the level of the state to levels
beyond the state might only offer an illusory solution, one that acts as a barrier against
devising more adequate conceptual solutions. The title of this chapter anticipates its
hypothesis: that the concept of the constitution is not strengthened but weakened
when the terms ‘constitution’, ‘constitutionalism’, and ‘constitutionalisation’ are
transferred without thought to the international level.
The term ‘constitution’ is placed in quotation marks in the title for a reason. What
needs to be defended is not existing constitutions, but the linguistic and conceptual
use of the term. The core of the controversy does not concern conceptual issues.
Terms such as ‘constitution’ are linguistic usages which can be altered. But when
a term is well established, it may prove inexpedient or even misleading to adopt a
substantially different use of it. In the context of usage of the term ‘constitution’,
the claim being made by those extending it beyond the state level is that the essence
of the existing term applies with equal effect to the new usage, and this extension of
scope is conceptually justified. The objective of this chapter is to examine this claim.

ii. constitution in and beyond the state

My subject is the extending usage of the term ‘constitution’, initially with respect
to the European Union (EU) and then in the international arena, both as a guiding
formulation for the sphere beyond the nation state and, more generally, as providing

*
I am indebted to Mitch Cohen, Wissenschaftskolleg zu Berlin, for the translation and Anna
Katharina Mangold for helpful comments.
 In Defence of ‘Constitution’  221
the foundation for a new form of international law. The basic claim being made
by advocates of constitution beyond the state is that above the traditional norms
of international law, in particular beyond treaties under international law, there lies
another layer of norms and principles, and that—this being the decisive point—these
norms should bind states. States should be subject to duties that arise independent of,
or against, their will.1 The claim to be examined here goes further and suggests that
these higher duties and norms add up to a whole, to a constitution (or at least add
up to larger orders). This notion of the constitution beyond the state is propounded
in two main variants. In the strong hypothesis, one speaks of international constitu-
tionalism; in the weaker variant, of a (mere) constitutionalisation. The latter, weaker
hypothesis avoids the apparent problem of the first: that there is no presentable and
perceptible formal constitution on the international level, either as a whole or in
relevant partial arrangements.
The traditional understanding of the constitution on the state level is unavoidably the
starting point for further considerations. Those who want to apply the term to political
units beyond the states must have a clear idea of this concept. Consider two representa-
tive analyses. In his systematic elucidation of the German Basic Law, Peter Badura begins
with an abstract legal definition of ‘constitution’ that constitutionalists might use as their
starting point: by constitution, Badura writes, ‘one understands basic legal prescriptions
summarized in a constitutional law (‘a constitutional document’) on the organization
and exercise of state power, state tasks, and basic rights.’ He then elaborates:
The constitution is an order-creating and programmatic act of foundation and
shaping that seeks to give the community a legal foundation in a concrete
historical situation. The constitution traces back to a political decision by the
political forces that determine the instituting of the constitution. … The constitu-
tion has legal, but also political effects, because it is a symbol of state unity and
commonality that infl uences legal consciousness and political life.2
Similarly complex is the definition by Dieter Grimm:
The constitution in the modern sense is characterized by five components:
(1) It is the epitome of legal norms, not a summary of philosophical foundations
and not a description of actual power relations in a community.
(2) The object of these legal norms is the institution and exercise of political
rule or public power.
(3) The constitution tolerates neither extra-constitutional powers nor extra-
constitutional ways and means of rule.
(4) Because rule is legitimate only when constituted and limited by
constitutional law, constitutional law takes primacy over all other acts of

1
See C. Tomuschat, ‘Obligation arising for States without or against their Will’ (1993-IV)
241 RdC (Recueil des cours de l’Académie de Droit Internationale de la Haye) 195–374.
2
P. Badura, Staatsrecht: Systematische Erläuterung des Grundgesetzes (Munich: Beck, 3rd edn,
2003), 7 (emphasis in original).
222  Rainer Wahl
rule. The latter are valid only when they remain within the framework of
constitutional law.
(5) The norms of constitutional law are based in the people, because
every other principle of legitimization of rule unhinges the remaining
components and, in case of confl ict, would prevail over the constitution.3
Such descriptions of the concept make it clear that ‘constitution’ is a complex
phenomenon belonging to the spheres of both law and politics. The constitution
certainly has normative content and makes normative claims. But also important is
whether, and the degree to which, it is accepted among the people. And ultimately this
recognition by the individual and the people gives the constitution its normative force.
The concept of the constitution is very attractive for the European and, to a degree
also, for the international level mainly because this constitutional approach draws on the
success story of constitutions. The success of national constitutions, especially after 1945,
has been so great that hardly any state wants to eschew the honour of having a constitu-
tion, even if it is not a genuine constitution. Here we are speaking mainly of the smaller
number of genuine, so-called Western constitutional states. For these states, it is true
that there was and still is a success story of constitutions and in particular of constitu-
tional jurisdiction. Constitutional jurisdiction is what first gave these constitutional texts
the normative effectiveness they were striving for. Law enforced by this jurisdiction is
law with a quality different from law without such jurisdiction; it is, so to speak, law in
a different aggregate state. All constitutional states that have instituted a constitutional
jurisdiction have made a leap to a higher level of normativity and legitimacy.
This high esteem for such constitutions is the starting point for the many proposals
that are seeking to transport the idea of the constitution to the supranational and
international levels. The hope is that of achieving similar successes to that obtained in
the case in states. Here, a role is played by the expectation that the use of the proven
‘honorary title’ of constitution will ensure that a significant part of the achievements
of national constitutions can be transferred to the newer political units. It is also
hoped that, as a result of this transfer, a unified and binding concept of constitution
can be adopted as the foundation of all three levels: national, European, international.
There is another quality of constitutions, emphasised mostly by jurists. With the
establishment of constitutions, an internal hierarchy within the legal order is created.
There now exist an easily identified group of fundamental legal norms; they are
norms about norms, norms of a second and higher order. As fundamental norms,
they stand above all others, above the vast number of norms contained in ‘ordinary’
law.4 They take precedence over all other acts and legal norms. All of this is more

3
D. Grimm, ‘Gesellschaftlicher Konstitutionalismus: Eine Kompensation für den
Bedeutungsschwund der Staatsverfassung?’, in M. Herdegen (ed), Festschrift für Roman
Herzog (Munich: Beck, 2009), 69–82. See also D. Grimm, ‘Die Verfassung im Prozess der
Entstaatlichung’, in M. Brenner (ed), Festschrift für Peter Badura (Tübingen: Mohr Siebeck,
2004), 145–68, and Grimm in this volume.
4
The term ‘ordinary’ law in this extreme form exists only in German law. The term may
and must initially surprise, because it designates rather relativisingly precisely the laws
 In Defence of ‘Constitution’  223
precisely described as the concept of the primacy of the constitution.5 Once again,
the establishment of constitutional jurisdiction is the immanent, logical conclusion
of this concept or of this institutional formation of higher rank.
This concept of the hierarchical order of precedence is so attractive that, not
surprisingly, it is employed also outside public law, and outside law in general. The theory
of societal constitutionalism exhibits the attraction of this construction of primacy: of
rules about rules.6 This is also true of the economic theory of constitutional economics,
which focuses on rules about rules: of meta-rules that govern the other rules.7
But it might be noted that although the traditional understanding is the starting
point, it is not necessarily the authoritative standard for evaluating a broader
understanding of the concept. This raises the basic methodological problem.
It is assumed that the European and international level are units with special
characteristics: units sui generis in relation to the state, so to speak. But actually there
is little that can constructively be said about what is special about units sui generis and
initially one can only measure these units with respect to their degree of distance
from the characteristics of states. That is, the comparison must be with what the
new units precisely are not: states. And as long as one does not have any convincing
positive understanding of these special qualities, this is unavoidable.

iii. constitutional law beyond the state

Nothing in the broad inventory undertaken in 2007 under the title Zur Zukunft der Völk-
errechtswissenschaft in Deutschland (The Future of International Law Jurisprudence in
Germany) in the Max Planck Society’s Zeitschrift für ausländisches und öffentliches Recht

passed by parliament. This relativisation of laws has internal consistency, however, namely
because of the primacy and the comprehensive meaning of constitutional law in the
German legal order. This formation of terminology once again reflects the earlier obser-
vation: the primacy of the constitution at the same time means the lower ranking of the
laws. See R. Wahl, ‘Der Vorrang der Verfassung’ (1981) 20 Der Staat 485–516. See also id,
Verfassungsstaat, Europäisierung, Internationalisierung (Frankfurt: Suhrkamp, 2003), 121–60.
5
Wahl, ‘Vorrang’, above n 4; id, Verfassungsstaat, above n 4, 161–87; id, ‘Der Vorrang der
Verfassung und die Selbständigkeit des Gesetzesrechts’ (1984) NVwZ 401–9.
6
D. Sciulli, Theory of Societal Constitutionalism (Cambridge: Cambridge University
Press, 1992); G. Teubner, ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten
Verfassungstheorie’ (2003) 63 ZaöRV 1–28; A. Fischer-Lescano and G. Teubner,
Regimekollisionen (Frankfurt am Main: Suhrkamp, 2006), 43, 57.
7
J. M. Buchanan, Constitutional Economics (Oxford: Blackwell, 1991); id, The Economics and the
Ethics of Constitutional Order (Ann Arbor: University of Michigan Press, 4th edn, 1994); I. Pies
(ed), James Buchanans konstitutionelle Ökonomik (Tübingen: Mohr, 1996); G. Grözinger and
S. Panther (eds), Konstitutionelle politische Ökonomie: sind unsere gesellschaftlichen Regelsysteme
in Form und guter Verfassung? (Marburg: Metropolis-Verlag, 1998); V. Vanberg and J. M.
Buchanan, ‘Constitutional Choice, Rational Ignorance and the Limits of Reason’ (1991) 10
Jahrbuch für Neue Politische Ökonomie 61–78; V. Vanberg, ‘Market and State: The Perspective of
Constitutional Political Economy’ (2005) 1 Journal of Institutional Economics 23–49. See also
(since 1990) the journal Constitutional Political Economy.
224  Rainer Wahl
und Völkerrecht is so often cited as the constitutionalisation of international law, albeit
with numerous variants in wording.8 In hardly any relevant pan-European or inter-
national context has the (primarily, if not exclusively German) literature felt drawn
towards adopting the time-honoured concept of the constitution. The aforementioned
intention to live from the high degree of esteem for this term in the context of the
state is conspicuous—even if states are otherwise conceived as being in a process of
erosion. At least with the ‘demise’ of the state, in the currently predicted phase of
de-statification (Entstaatlichung), one wants to profit from one of its greatest achieve-
ments: the idea of the constitution.9 Thus, in various contexts, terms like world
constitutionalism,10 international constitutionalism,11 global constitutionalism,12 inter-
national democratic constitutionalism,13 multi-level constitutionalism,14 European
constitutionalism beyond the state,15 and postnational constitutionalism16 appear in the
literature. An interesting variant is that of ‘compensatory constitutionalism’, express-
ing the hope that the promotion of constitutionalism on the European or international
level will compensate for deficits and losses of constitutionalism on the state level.17

8
ZaöRV 67 (2007) with articles by Benvenisti, Kadelbach, Keller, Marauhn, Nolte,
Oeter, Paulus, Peters, de Wet, and Zimmermann, all with titles varying the given main
theme. Recently, there have been three inaugural lectures regarding this topic: O. Dörr,
‘ “Privatisierung” des Völkerrechts’ (2005) Juristenzeitung ( JZ), 905–16; M. Nettesheim,
‘Das kommunitäre Völkerrecht’ (2002) JZ 569–78; R. Uerpmann, ‘Internationales
Verfassungsrecht’ (2001) JZ 565–73.
9
Cf trademark law, where the behaviour of someone who seeks to exploit the fame of a
trademark for himself is called ‘acting parasitically on the major trademark’.
10
R. St John Macdonald and D. M. Johnston (eds), Towards World Constitutionalism: Issues in the
Legal Ordering of the World Community (Leiden: Martinus Nijhoff, 2005).
11
J. Klabbers, A. Peters, and G. Ulfstein, Constitutionalization of International Law (Oxford:
Oxford University Press, 2009).
12
A. Peters, ‘Global Constitutionalism in a Nutshell’, in K. Dicke (ed), Weltinnenrecht: Liber
amicorum Jost Delbrück (Berlin: Duncker & Humblot, 2005), 535–50.
13
B.-O. Bryde, ‘International Democratic Constitutionalism’, in Macdonald and Johnston
(eds), above n 10, 103–25.
14
I. Pernice, ‘The Global Dimension of Multilevel Constitutionalism: A Legal Response to
the Challenges of Globalisation’, in P.-M. Dupuy (ed), Völkerrecht als Wertordnung: Festschrift
für Christian Tomuschat (Kehl: Engel, 2006), 973–1006.
15
J. Weiler and M. Wind (eds), European Constitutionalism beyond the State (Cambridge:
Cambridge University Press, 2003).
16
N. Walker, ‘Post-national Constitutionalism and the Problem of Translation’, in Weiler
and Wind, above n 15, 53.
17
A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental
International Norms and Structures’ (2006) 19 Leiden Journal of International Law 579–610; E. de
Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the
Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law
611–32. See also R. Wahl, ‘Verfassungsdenken jenseits des Staates’, in I. Appel and G. Hermes
(eds), Mensch—Staat—Umwelt (Berlin: Duncker & Humblot, 2008), 135–54.
 In Defence of ‘Constitution’  225
Constitutional thinking addressed here is often directed specifically at the UN
Charter as the constitution of the international community; in this variant, the
focus is on the constitutionalisation of the entire order of international law.18 But the
WTO also receives constitutional recognition as a partial order.19 In addition, there
is the evolutionary concept of constitutionalisation, in which a great deal of what is
constitutional is expected from further development in the future, but which already
places a label on the development.
The constitutionalist interpretation finds similar diversity and an even more
frequent use in the German literature, which is generally considered the original
source and primary habitat of this approach.20 The German formulations speak of
überstaatliches Verfassungsrecht (constitutional law beyond the state),21 internationales
Verfassungsrecht (international constitutional law),22 kommunitäres Völkerrecht
(communitarian international law),23 constitutionalisation,24 and Der Staat der
Staatengemeinschaft (the state of the community of states).25 The infl uence of the
private-law-based, or system-theoretical, concept of the civil constitution has already
been referred to.

18
Recently M. Knauff, ‘Konstitutionalisierung im inner- und überstaatlichen Recht:
Konvergenz oder Divergenz?’ (2008) 68 ZaöRV 453–90, with a systematisation of the forms
of appearence.
19
J. Trachtman, ‘The Constitutions of the WTO’ (2006) 17 European Journal of International
Law 623–46. Otherwise J. L. Dunoff, ‘Constitutional Conceits: The WTO’s “Constitution”
and the Discipline of International Law’ (2006) 17 European Journal of International Law
647–75. Cf M. Hilf, ‘Die Konstitutionalisierung der Welthandelsordnung: Struktur,
Institutionen und Verfahren’, in W. H. von Heinegg (ed), Entschädigung nach bewaffneten
Konfl ikten: Die Konstitutionalisierung der Welthandelsordnung (Heidelberg: Müller, 2003),
257–82.
20
The constitutionalist interpretation is considered to be a German concept, eg A. Paulus,
‘Zur Zukunft der Völkerrechtswissenschaft in Deutschland: Zwischen Konstitutionalisierung
und Fragmentierung des Völkerrechts’ (2007) 67 ZaöRV 695–720, at 697, 699, 703, 718. Too
few problems take British authors into consideration using the terms constitution and consti-
tutionalism, probably because those terms and concepts are not part of the British law and
its tradition.
21
See S. Kadelbach and T. Kleinlein, ‘Überstaatliches Verfassungsrecht: Zur Konstitutionalisierung
im Völkerrecht’ (2006) 44 Archiv des Völkerrechts (AVR) 235–66.
22
Uerpmann, above n 8; critically, U. Haltern, ‘Internationales Verfassungsrecht:
Anmerkungen zu einer kopernikanischen Wende’ (2003) 128 Archiv des Öffentlichen Rechts
(AöR) 511–57.
23
Nettesheim, above n 8.
24
C. Walter, ‘Die EMRK als Konstitutionalisierungsprozess’ (1999) 59 ZaöRV 961–83; id,
‘Constitutionalizing (Inter)national Governance’ (2001) 44 German Yearbook of International
Law 170–201; critically R. Wahl, ‘Konstitutionalisierung: Leitbegriff oder Allerweltsbegriff ?’
in C.-E. Eberle (ed), Der Wandel des Staates vor den Herausforderungen der Gegenwart: Festschrift
für Winfried Brohm zum 70. Geburtstag (Munich: Beck, 2002), 191–207.
25
W. G. Vitzthum, Der Staat der Staatengemeinschaft: Zur internationalen Verflechtung als
Wirkungsbedingung moderner Staatlichkeit (Paderborn: Schöningh, 2006).
226  Rainer Wahl
Evidence of the use of constitutional concepts in the international arena can be
found in the positive law of various international courts, in the architecture of the
WTO, and in several, much-noted, spectacular problem constellations and cases.26
Eight illustrations of these usages can be listed as follows.
1. At the top of the frequently mentioned examples stands the limitation of states’
immunity in cases of severe violations of human rights. The leading case is that of the
former Chilean President, Pinochet.27 In this case, the English House of Lords eventually
removed Pinochet’s immunity, in proceedings that were not, overall, convincing. But
policy considerations—the health issues that were pleaded—prevented the implemen-
tation of the penalty, and ultimately the process contained a mixture of rigorous deci-
sions and political considerations. In contrast, the Cour de Cassation did not permit a
suit against the Libyan head of state, Gaddafi, over the attack on a passenger plane.28
2. Limitation of states’ immunity in the case of states’ foreign ministers. The most
conspicuous case is that of the Foreign Minister of the self-styled Democratic
Republic of Congo, who is alleged to have been involved in severe violations of
human rights. In accordance with the principle of international law operat-
ing in Belgium at the time, a Belgian investigating judge issued an arrest warrant
against the Foreign Minister. In proceedings filed by the Democratic Republic of
Congo, the International Court of Justice (ICJ) maintained the traditional immu-
nity of Foreign Ministers. But this was a majority decision and a notable minority
dissented.29 In the literature, this immunity problem has rightly been interpreted as

26
The major cases each time initiated a very extensive discussion whose references cannot be
given here in total—D. Thürer, ‘Modernes Völkerrecht: Ein System in Wandel und Wachstum:
Gerechtigkeitsgedanke als Kraft der Veränderung?’ (2000) 60 ZaöRV 557–604, at 560, considers
‘eight scenarios’ that he regards as a ‘thematic thread’ and as approaches to a paradigm for a
newly emerging system of international legal order. For a more detailed survey of the cases
and their problems, see Knauff, above n 18, and Dörr, above n 8.
27
For an account of the complicated circumstances of the different decisions see Thürer,
ibid, at 568 et seq. See also C. Maierhöfer, ‘Weltrechtsprinzip und Immunität: Das
Völkerstrafrecht vor Den Haager Richtern—Urteil des IGH Demokratische Republik Kongo
Belgien’ (2003) EuGRZ 545–54, at 545, nn 1–3; M. Ruffert, ‘Pinochet Follow Up: The End
of Sovereign Immunity?’ (2001) 48 Netherlands International Law Review (NILR) 171–95;
K. Ambos, ‘Der Fall Pinochet und das anwendbare Recht’ (1999) JZ 16–24; C. Tangermann,
Die völkerrechtliche Immunität von Staatsoberhäuptern (Berlin: Duncker & Humblot, 2002).
28
Cour de Cassation, decision of 13 March 2001, (2001) Revue géneralé de droit international
public (GDIP) 473.
29
Judgment of the ICJ of 14 January 2002 (Democratic Republic of the Congo v Belgium), excerpts
in (2003) EuGRZ 563; Maierhöfer, above n 27; C. D. Classen, ‘Rechtschutz gegen fremde
Hoheitsgewalt: Zu Immunität und transnationalem Verwaltungshandeln’ (2005) 96 VerwArchiv
464–84; M. Goldmann, ‘Arrest Warrant Case’, in R. Wolfrum (ed), Max Planck Encyclopedia of
Public International Law (Oxford: Oxford University Press, 2nd edn, 2009 et seq); S. Zeichen
and J. Hebestreit, ‘Kongo v. Belgien: Sind Außenminister vor Strafverfolgung wegen völker-
strafrechtlicher Verbrechen immun?’ (2003) 41 Archiv des Völkerrechts (AVR) 182–200; O. Dörr,
‘Staatliche Immunität auf dem Rückzug’ (2003) 41 AVR 201–19.
 In Defence of ‘Constitution’  227
a stage for the confl ict between diverging conceptions of international law.30 At issue
is the understanding of international law either as the coordinating law of sovereign
states or as the constitution of the ‘international community of mankind’. The
disagreement between majority and minority in the court was over differing views
of the process of production of international law and differing views of interna-
tional law as such. It is no surprise that the methodology of majority and minority
were fundamentally different.31
3. A topic widely discussed recently is the immunity of states against civil suits for
damages due to torture or other human rights violations.32 Suits for damages from
Greek citizens against the Federal Republic of Germany over Nazi crimes in the Greek
community of Distomo have drawn much attention; the verdict against Germany
handed down by the highest Greek courts was initially declared inadmissible in the
implementation phase, whereupon the plaintiffs strove for the implementation of their
demands in Italy.33 Currently, the entire dispute is before the ICJ, which—with Italy’s and
Germany’s agreement—will aim to clarify the underlying primary issue of immunity.34
4. A standard case on the reinterpretation of a Convention that previously applied
solely to states in favour of third parties is the case of the German citizen, LaGrand.35

30
Maierhöfer, above n 27, at 548, 549. The immunity of foreign ministers is not
comprehensively regulated in treaties, and is therefore a question of customary law. The ICJ
holds with state practice and explains that, even for the case of war crimes or crimes against
humanity, in state practice there is no exception to the generally recognised immunity of
foreign ministers. The dissenting judges’ opinions took various forms.
31
The fundamental international law decision to protect elementary human rights suffices—
according to this opinion—to deduce new rules from it. For the dissenters, the concept of jus
cogens and its asserted higher priority over immunity took central importance, while it played
no role in the argumentation of the court. In the opinion of the—constitutionally thinking—
minority, a direct connection should be established between the will and interest of single
individuals—who thereby become something like ‘world citizens’—and international law,
bypassing the states, from whose consensus a norm of international law no longer need be
derived. But no practicable process of legal recognition can be seen that could directly register
the wills of all 6 billion people and the basic values they share despite all cultural differences
and from which concrete norms could then be derived.
32
W. Cremer, ‘Entschädigungsklagen wegen schwerer Menschenrechtsverletzungen vor
nationalen Zivilgerichtsbarkeit’ (2003) 41 AVR 137–68; ECtHR in the decision Al-Adsani v UK
( (2000) EuGRZ 403, with comment by Maierhöfer, 391).
33
Case Distomo, Corte suprema di Cassazione ( Judgment of 29 May 2008, No 14199),
German translation: (2008) NVwZ 1100–1. See also IMI-decision (military interned/forced
labourer) of the same Court (Order of 29 May 2008, No 14201) (2008) NVwZ 1101–2;
also E. M. Frenzel and R. Wiedemann, ‘Das Vertrauen in die Staatenimmunität und seine
Herausforderung’ (2008) NVwZ 1088–91.
34
Frenzel and Wiedemann, above n 33; Cremer, above n 32; Dörr, above n 29.
35
Judgment of the ICJ of 27 June 2001 (LaGrand—Germany v United States of America)
(2001) EuGRZ 287, (2002) 91 JZ with comment by C. Hillgruber, 94; K. Oellers-Frahms, ‘Die
Entscheidung des IGH im Fall LaGrand: Eine Stärkung der internationalen Gerichtsbarkeit
und der Rolle des Individuums im Völkerrecht’ (2001) EuGRZ 265–72. For a comprehensive
228  Rainer Wahl
This and several parallel cases concerned violations of Article 36 of the Consular
Convention of 1963. The USA failed in several cases to report to a consulate of the
state of an arrested (and then convicted and executed) foreigner, as stipulated in
the Convention. In the LaGrand case, the Federal Republic of Germany obtained
an interim decision from the ICJ, although this did not postpone the execution. At
the core of the case is the—controversial36—reinterpretation of the Convention
(which, as a consular convention, was originally intended to protect the states’ inter-
ests in orderly diplomatic intercourse) into a treaty applicable to third parties and
containing subjective rights for affected parties.37
5. The Tadic judgment, the first ruling of the International Criminal Tribunal for
the Former Yugoslavia, sets minimum standards of humanity and justice in civil war.38
Since what were addressed were crimes in a civil war, this judgment is one of the first
instances in which at least some aspects of international law was applied in relation
to internal events, and which therefore interfered with the internal affairs of states.39
6. An extreme example is so-called humanitarian intervention.40 At the forefront
of this many-layered topic stands the noble and recognised goal of helping people
whose human rights are in danger of violation. But ultimately the means of pursuit
is military action, which itself necessarily endangers and usually also destroys life.
This specialised topic will not be further examined here. But the dilemma is clear:
the noble values being pursued do not safeguard against very problematic, namely
deadly, interventions and actions resulting from that pursuit.
7. We will mention only in general the innovations and improvements through
the international criminal jurisdiction before and after the Rome Statute. Here we can
note a development with some gradual steps of progress and with great political
reservations.

account of the facts and the controversial arguments, see B. Grzeszick, ‘Rechte des
Einzelnen im Völkerrecht: Chancen und Gefahren völkerrechtlicher Entwicklungstrends am
Beispiel der Individualrechte im allgemeinen Völkerrecht’ (2005) 43 AVR 312–44, especially
316 et seq.
36
See K. Oellers-Frahms, above n 35; B. Simma, ‘Eine endlose Geschichte? Art. 36 der
Wiener Konsularkonvention in Todesstrafenfällen vor dem IGH und amerikanischen
Gerichten’, in P.-M. Dupuy (ed), above n 14, 423–48; Hillgruber, above n 35; Grzeszick
above n 35.
37
Case concerning Avena and Other Mexican Nationals (Mexico v United States of America), ICJ
Reports 2004, 12 et seq (with comments).
38
See <http://www.icty/org>, links: The Cases, Completed Cases, Tadić. Also J. Menzel,
T. Pierling, and J. Hoffmann (eds), Völkerrechtssprechung: Ausgewählte Entscheidungen zum
Völkerrecht in Retrospective (Tübingen: Mohr Siebeck, 2005), 787, with references at 791.
39
Thürer, above n 26.
40
Intervention for humanitarian reasons: Thürer, above n 26; Nettesheim, above n 8; Paulus,
above n 20. On the NATO intervention in Yugoslavia, see Thürer, above n 26, at 574 (facts
and grounds) and 579 et seq, there clearly stating that an intervention for humanitarian
reasons—if at all—can only be justified by means of a new methodological interpretation of
the UN-Charter. For the consideration that great innovations are often preceded by such a
change of methodology, see below section IV. 8.
 In Defence of ‘Constitution’  229
8. The Listing Procedure carried out by the UN or, more precisely, by a committee
of the UN, has brought international law one of its current major cases, namely
the proceedings of the cases Yusuf and Kadi. To combat terrorism, the UN ordered
the freezing of all bank accounts of persons registered on a list. The proceedings
concern the legality of the listing procedure, with the plaintiffs claiming that they
have been wrongly placed on the list. With this instrument of counter-terrorism,
the Security Council has adopted a type of legislation. The key question is whether
there are legal limits to the Security Council’s power to legislate and whether these
limits lie solely in ius cogens or also in other legal prescriptions. At any rate, this
question about the limits placed on the Security Council addresses the constitutional
dimension in, and tests the strength of, international law.41

iv. constitutional thought: an overview

In the following section, the basic ideas of constitutionalist theories will be
synthesised, in ideal-typical form, from the rich and highly differentiated literature.42
At the core of these theories lies the constitutionalisation hypothesis: namely, that
international law should not be solely state-centred or consensus-determined.43 The
wills of individual states should not be the standard; rather, an independent layer of
fundamental norms should exist above the states.

41
Joined cases C-402/05 P and C-415/05 P Kadi and Al Barakaat IF v Council of the EU and
Commission of the EC [2008] ECR I-6351, (2009) Europarecht (EuR) 80; (2008) EuGRZ 480. For
commentary, see S. L.-T. Heun-Rehn, ‘Die europäische Gemeinschaft und das Völkerrecht
nach Kadi und Al Barakaat’ (2008) ELR 327–38; H. Sauer, ‘Rechtsschutz gegen völker-
rechtsdeterminiertes Gemeinschaftsrecht?’ (2008) NJW 3685–8; K. Schmalenbach, ‘Bedingt
kooperationsbereit: Der Kontrollanspruch des EuGH bei gezielten Sanktionen der Vereinten
Nationen’ (2009) JZ 35–43; J. A. Kämmerer, ‘Das Urteil des Europäischen Gerichtshofs
im Fall Kadi: Ein Triumph der Rechtsstaatlichkeit?’ (2009) EuR 114–30; S. Remberg,
‘Recht auf Verteidigung und effektiven Rechtsschutz gegen Vermögensbeschlagnahme
wegen Terrorismusverdacht durch Ratsbeschluss’ (2008) ERL 60–7; C. Ohler,
‘Gemeinschaftsrechtlicher Rechtsschutz gegen personengerichtete Sanktionen des
UN-Sicherheitsrats’ (2008) EuZW 630–3; C. Tomuschat, ‘Die Europäische Union und ihre
völkerrechtliche Bindung’ (2007) EuGRZ 1–12; S. Steinbarth, ‘Individualrechtsschutz gegen
Maßnahmen der EG zur Bekämpfung des internationalen Terrorismus’ (2006) ZEuS 269–85;
S. Hörmann, ‘Völkerrecht bricht Rechtsgemeinschaft? Zu den rechtlichen Folgen einer
Umsetzung von Resolutionen des UN-Sicherheitsrates durch die EG’ (2006) 44 Archiv des
Völkerrechts (AVR) 267–327.
42
For references to the rich German literature, see: Dörr, above n 8; Nettesheim, above
n 8; Kadelbach and Kleinlein, above n 21; Thürer, above n 26; Uerpmann, above n 8; Peters,
above n 17; de Wet, above n 17. Critically taking different perspectives: A. von Bogdandy,
‘Constitutionalism in International Law: Comment on a Proposal from Germany’ (2006) 47
Harvard International Law Journal 223–42; Haltern, above n 22; C. Hillgruber, ‘Dispositives
Verfassungsrecht, zwingendes Völkerrecht: Verkehrte juristische Welt?’ (2006) 54 Jahrbuch des
Öffentlichen Rechts (JöR) 57–94.
43
For a summary of the constitutionalisation hypothesis, see Paulus, above n 20, at 700.
230  Rainer Wahl
From this basic conviction, constitutionalist developments assume the following
internally consistent derivations.
1. If international law is not state-centred, then it requires a new reference point
and a new subject. This new subject is the community of states or, more properly
termed in the frame of the constitutionalists, the international community. The
international community is not simply a new concept;44 it is also the standard-setting
concept, the lynchpin. The concept offers an answer not only to new problem situ-
ations of global reach, but also to the common interests of (most) states to combat
the human rights violations of some states.
2. If the content of international law is no longer to depend on consensus (or be the
result of contractual agreement), then it requires substantive anchoring. That is why
the new international law is building on and evolves from general values and principles.
Recourse to values is of such importance to the writing of constitutionalists that influ-
ential essays invariably adopt the corresponding thesis in their titles. Illustrative are: Der
Schutz der Menschenrechte als zentraler Inhalt des völkerrechtlichen Gemeinwohls (The Protec-
tion of Human Rights as Central Content of General Welfare under International Law)
and ‘The Emergence of International and Regional Value Systems as a Manifestation
of the Emerging International Constitutional Order’.45 It is the highest values that
lend some norms the character of ius cogens, or compelling law,46 ie norms that remain
binding even if individual states reject their validity.47 A similarly important role is played
by the recourse to common goods, ie global goods, as is found in internation law.
3. The concept of ius cogens is a cornerstone of the new thinking and the embodi-
ment of constitutionalisation. Ius cogens has its own attraction as a category, although

44
Nettesheim, above n 8, at 569–70, 571 et seq, with comprehensive references to other
literature; A. Paulus, Die internationale Gemeinschaft im Völkerrecht (Munich: Beck, 2001);
Bryde, above n 13, at 107: ‘The core of a constitutionalised international law is the general
acceptance of a common interest of mankind that transcends the sum of individual
interests.’
45
B. Fassbender, ‘Der Schutz der Menschenrechte als zentraler Inhalt des völkerrechtli-
chen Gemeinwohls’ (2003) EuGRZ 1–16; id, ‘The Meaning of International Constitutional
Law’, in R. St John Macdonald and D. M. Johnston (eds), above n 10, 837–51, at 838;
de Wet, above n 17, at 614; T. Rensmann, ‘The Constitution as a Normative Order of
Value: The Infl uence of International Human Rights Law on the Evolution of Modern
Constitutionalism’, in P.-M. Dupuy (ed), above n 14, 259–78; id, Wertordnung und Verfassung:
Das Grundgesetz im Kontext grenzüberschreitender Konstitutionalisierung (Tübingen: Mohr
Siebeck, 2007); Thürer above n 26.
46
Regarding ius cogens see Stefan Kadelbach, Zwingendes Völkerrecht (Berlin: Duncker und
Humblot, 1993); Kadelbach and Kleinlein, above n 21, at 235, 251 et seq; J. A. Frowein,
‘Die Verpfl ichtungen erga omnes im Völkerrecht und ihre Durchsetzung’, in R. Bernhardt
(ed), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte: Festschrift für
Hermann Mosler (Berlin: Springer, 1983), 241–62; id, ‘Jus cogens’ (1997) 3 Encylopedia of Public
Law 65–9; C. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International
Legal Order: ‘Jus Cogens’ and Obligations ‘Erga Omnes’ (Leiden: Nijhoff, 2006).
47
The central problem of whether the imagined values are really universal or not is hardly
mentioned and even less solved by argumentative means.
 In Defence of ‘Constitution’  231
its area of application is small. It is impossible to overlook the great discrepancy
between the theoretical esteem for ius cogens and its very low relevance in the prac-
tice of international law.48 Nevertheless, conceptualisations of hierarchies of norms
and the deduction from abstract values are very popular among constitutionalists.49
4. If international law is not to remain formal law, then it must become substantive
law. Logically, a materialisation of international law is required.50
5. If international law is not to exhaust itself in legal positivism, then the new
international law relies on ethical foundations. The idea of justice is characterised
as the power of change.51 Accordingly, it is said that international law must orien-
tate itself more towards human values and the value and meaning of justice. In this
sense, international law adopts principles of morals and integrates legal philosophy.52
6. In advanced versions, the state is grasped as a member and the states as members
of the international community. The states are responsible for the realisation of world-
wide general interests. They are declared organs of the international community
and thereby take on a serving role in the realisation of superordinated purposes. The
state is viewed as part of the community of states, and the community has primacy.
7. If the states are not the final purpose of the law and also not of international
law, then it is consistent that, as in every other law, also in international law the
individual person is understood as the final purpose. The world population is the
legitimate reference point of international law and at the same time the rights of
the individual do not form an exception, but become a normal component of inter-
national law. The ‘individual in international law’ becomes a privileged theme and
an essential pillar of a constitutionally orientated international law. It is therefore
stated with much pathos: all law serves the human being. International law, too,
must serve the human being and must not be merely law among states. International

48
For the related concept of obligations erga omnes, see B.-O. Bryde, ‘Verpfl ichtungen Erga
Omnes aus Menschenrechten’, in W. Kälin (ed), Aktuelle Probleme des Menschenrechtsschutzes
(Heidelberg: Müller, 1994), 165–90; Tomuschat and Thouvenin, above n 46; D. Schindler,
‘Die erga-omnes-Wirkung des humanitären Völkerrechts’, in U. Beyerlin (ed), Recht
zwischen Umbruch und Bewahrung: Festschrift für Rudolf Bernhardt (Berlin: Springer, 1995),
199–212.
49
Erika de Wet reports about the VICI-project of the Netherlands Organisation for Science
Research (NWO): ‘The Emerging International Constitutional Order: The Implications of
Hierarchy in International Law for the Coherence and Legitimacy of International Decision-
making’ (2007) 67 ZaöRV 777–98.
50
Explicitly Nettesheim, above n 8, at 571, with several relativisations of this demand.
51
Thürer, above n 26.
52
Ibid 581, regarding the acceptance of intervention for humanitarian reasons: ‘Therefore
one has to consider whether the accent lies on the text of the Charter or the spirit and
meaning of the modern constitutional order. As with national constitutional law, the
question is if and to what extent the constitutional law can be interpreted in an evolution-
ary and goal orientated manner, in the sense of an optimal realization of basic human
values and whether the providers of the constitutional order can acquire implied powers.’
It is questionable whether the Kosovo-case could be the starting point and catalyst of an
advancement of international customary law (581–2).
232  Rainer Wahl
law does not serve the states; the states serve international law. This proclaims an
anthropocentric turn in international law.53 At the same time, a harmony between
national, European, and international law results on the basis of this unified
individualistic orientation.
8. From the standpoint of scholarship, each great change in law begins with
a change in method of interpretation, with the creation and prevalence of a new
preconception. If state-centredness is abandoned, then the will of states can no
longer be the sole standard for interpreting contracts. The objective method of
interpretation necessarily moves into the foreground as something new, whereas
international law was traditionally the domain of the subjective method.54 This is
easily explained. If the subjective method had the specific function of not obligating
states, as masters of contracts, to more than what they agreed to consciously and
explicitly in the contracts, then it suggests itself that a conception that builds a layer
of principles and guidelines superseding the states must make itself independent
of the will of the states by means of objective interpretation. The methodology
is pivotal, and those who are able to make a new method prevail can claim to have
gained decisive legal-political ground.

v. critique
If we move from the ideal-typical description of constitutionalist theories to critique,
then at the outset there is considerable agreement on the nature of the changes
taking place in the international field and its law, changes that are paralleled in the
equally great ‘transformative change’ affecting states.55 There can be no doubt about
the persistent nature of the changes taking place in the international realm and
affecting international law. The crucial question is whether this change is so great
and so uniform that it can be characterised as amounting to a constitutional turn. In
order to answer this, it is necessary to examine normative assumptions and political
content of the constitutional claim.

53
For the relation between international law and the individual, see P. Häberle,
‘Nationales Verfassungsrecht, regionale “Staatenverbünde” und das Völkerrecht als
universales Menschenrecht: Konvergenzen und Divergenzen’, in C. Gaitanides (ed),
Europa und seine Verfassung: Festschrift für Manfred Zuleeg (Baden-Baden: Nomos, 2005),
80–91; P. Kunig, ‘Das Völkerrecht und die Interessen der Bevölkerung’, in P.-M. Dupuy
(ed), above n 14, 377–88.
54
Thürer, above n 26; Nettesheim, above n 8; M. Herdegen, ‘Das “konstruktive Völkerrecht”
und seine Grenzen: Die Dynamik des Völkerrechts als Methodenfrage’, in P.-M. Dupuy (ed),
above n 14, 898–911.
55
The expression ‘transformations of the state’ is the central expression of the project in
Bremen: see S. Leibried and M. Zürn (ed), Transformation des Staates (Frankfurt: Suhrkamp,
2006). It is fitting because it avoids the ‘from—to’. If something undergoes a transformation
the perpetuation of former decisions continues to resonate, and the process cannot be easily
and pithily be put into a ‘from—to’ formula.
 In Defence of ‘Constitution’  233
Normativism
What is immediately—and negatively—conspicuous is the purely normative
approach of the advocates. It is, of course, not inaccurate to understand law as a
demand for what ought to be. But what is disconcerting is that there should be no
non-normative prerequisites or effectiveness prerequisites for this normativity, at
any rate, none is discussed. The theory of international constitutionalism and of
the values and value systems postulated by constitutionalism does not and cannot
name the institutions and processes that could serve as paths to their realisation.
The constitutionalist theories postulate a pure normativity and pure values; they
thereby claim validity in, of all places, the international world, a field characterised
by power relations and confl icts of interest.56 But an overarching fundamental order
of primacy, which is a particular interest of these theories, does not come for free,
but only through the fulfilment of important prerequisites.
It might be noted, by way of comparison, that the primacy of state constitutional
law could not and cannot be taken for granted or be implemented in reality simply
by edict. The material primacy of the constitution develops with and through the
institution of constitutional jurisdiction. The German constitutions since the begin-
ning of the nineteenth century differ from today’s fundamentally in that the former,
without constitutional jurisdiction, were only semi-effective constitutions that were
raised to the level achieved today only after 1949 with the victory of the Federal
Constitutional Court. The values found today in the basic rights of Germany’s consti-
tutional document, the Grundgesetz or Basic Law, and in other constitutions were
already formulated and present in the philosophical and political–theoretical litera-
ture of the eighteenth century. But that was far from giving them legal effectiveness,
even after the promulgation of the first constitutions.
Only when the values postulated in the literature were first adopted in the texts
of the constitutions (and concretised there), and much later gained institutional
anchoring and a venue for realisation with the institution of constitutional jurisdic-
tion, could the development of what today is the standard for a constitutional norm
begin: namely, fundamental content, substantive primacy, and procedures for imple-
mentation. An order of primacy that actually stands the test of reality does not arise
solely within a normative cocoon. More is needed, namely the overall constellation
of a constitutional state and in the history of constitutionalism, the path to this was
(with the exception of the United States) very long.

The politically emptied concept of the constitution

The transposition, within the literature, of the concept of the constitution from
the states to the European and international levels usually suffers from a narrow,
politically emptied, under-complex, and diluted version of the concept of the state

56
Paulus, above n 20, at 703: ‘Eine Völkerrechtswissenschaft, die sich auf die bloße
Normativität zurückzieht, vergisst, dass jedes Sein-Sollen eben doch ein Mindestmaß an
Verwirklichungsmöglichkeit impliziert, um Autorität zu beanspruchen’ (‘A science of public
international law which restricts itself to mere normativity overlooks the fact that, in order
to claim authority, every ought implies at least a minimal chance of its realisation’).
234  Rainer Wahl
constitution.57 This concept says the constitution is the highest norm, it has primacy,
it politically organises fundamentals, and it expresses the relationship between
political rule and the citizens. But the concept does not address the question of why
this highest norm possesses the power to shape political–social life, why the nation
and the individual should recognise it, and why this recognition confers on it the
possibility of being effective.
The question of the transferability of the concept of the constitution ‘beyond
the state’ takes on its necessary depth and its full seriousness only when one begins
with what took shape as a constitution in the history of the state. The challenge is
not that of offering a (new) definition of constitution as the supreme component of
the legal order. In the course of the last two centuries, constitutions were striven for
not only by jurists for legal use; they were also the object of intense and passionate
political strivings. Numerous political movements worked for the enactment of a
constitution: it was struggled for, politically and frequently with revolutions. Every
overcoming of a dictatorship is sealed with the enactment of a constitution: in
Germany in 1949, in Spain, Portugal, and Greece and in all transition states after
1989. Those who fought for a constitution knew why they did so. These movements
were borne by important segments of the nation—in short, constitutions were and
are parts of political–social movements and real political forces stood and stand
behind them.
These forces were effective and important not only during the process of
establishing a constitution. Citizens continue to support the constitution with their
recognition and acceptance; the citizens’ expectations of freedom are orientated
towards the constitution. It is this esteem that gives the constitution its real power, a
power that the norms of the constitution need if they are to have the effect that was
previously improbable, namely to fetter the strongest institutions of political power
and to eliminate unconstitutional action.

The complex constitutional-state constellation

This outline makes it clear that ‘constitution’ in the state is not only the highest norm
but that ‘constitution’ is also an overall constellation of legal effects and qualities, of
political hopes, of acceptance from ‘below’, and of real forces in political life. In
Germany, constitutional court rulings are to a great degree ‘carried’ (getragen) by the
citizens; this is precisely what gives the court its weight. All in all, one can speak of a
complex, multifaceted constitutional-state constellation. It consists of a combination of
• principles;
• the formulation of general values in constitutional-law norms, ie the
transposition of state philosophy into law in general;

57
Ultimately, the same is true for the infl uential opinion of Christian Walter about the
constitutional functions which are bundled at the state and are unbundled beyond the state
(C. Walter, ‘Die Folgen der Globalisierung für die europäische Verfassungsdiskussion’ (2000)
Deutsches Verwaltungsblatt (DVBl) 1–13; id, above n 24).
 In Defence of ‘Constitution’  235
• the formation of institutions, whose importance cannot be overestimated.
This begins with the establishment of representative parliaments that main-
tain an internal connection between democracy and the principle of the
rule of law and it finds its high point during the twentieth century with the
worldwide spread of constitutional jurisdiction;
• a shift in mentality among the rulers from a power orientation to a legal
orientation;
• an equally necessary shift in mentality among subjects to the mentality of
citizens and possessors of basic rights; and
• the anchoring of the idea of the constitution among the players in the political
sphere and also among individuals.
What is termed the constitutional-state constellation here is called ‘law in context’ in
parts of the scholarly literature.58 It expresses the conviction that the constitutional
question does not only concern the legal quality of the norms of constitutional law;
the field is much broader.
In light of these considerations, the general discussion whether the concept of the
constitution can be detached from the state takes on a new accent.59 As is well known,
the constitutionalists vehemently advocate such a detachment. For such advocates,
the basic problem seems solved if this tie is broken and a concept of constitution—in
some ways changed—is applied to the two other levels. But behind this connection
between constitution and state stands not only an understanding of a concept; the
complex concept of ‘constitution’ refers to and is in reality carried by the aforemen-
tioned constitutional-state constellation. More—and something more important—is
required if the concept of constitution is to work on the European and international
level. The objective here is not to register a copyright or trademark for the term
‘constitution’. But the transposition is plausible and adequate for the actual problem
only if something substantively comparable to the aforementioned constitutional-
state constellation is present on the two other levels. This remains a matter of dispute.
The essential point is to avoid a technocratic or diminished concept of the consti-
tution, a rump concept. That is why the complexity of the traditional legal–political
idea of the constitution in the state is underscored. The constitutionalist interpreta-
tion in international law bears the burden of proof that a similar constellation of
legal and political components stands behind its concepts. This new constellation
need not be exactly the constitutional-state constellation, but it does have to be a
constellation that combines the normative and the political, values and institutions,

58
Haltern, above n 22.
59
From the comprehensive discussion shall here be cited only: E. de Wet, ‘The International
Constitutional Order’ (2006) 55 International and Comparative Law Quarterly 51–76.
Traditionally the term ‘constitution’ was reserved for domestic constitutions. Most munici-
pal constitutions today provide a legal framework for the political life of a community for an
indefinite time. They present a complex of fundamental norms governing the organisation
and performance of governmental function in a given state and the relationship between
state authorities and citizens. This is a rather abstract definition.
236  Rainer Wahl
and that is politically supported by some kind of ‘community’. In regard to the latter,
the normative construct of an international community probably does not suffice;
rather, in some way or other, a real, perceptible, and acting connection must exist
between persons.60
With respect to the overall constellation, it is evident that on the international
level there has been
• great progress made in terms of principles, values, and concepts;
• much less progress in terms of political buttressing: the international order
and international law do not reach people nearly as much as state law does;
and
• minimal progress in institutionalisation.
A similar critique is levelled against the neglect of the political processes that finally
buttress the acceptance of the constitution. In a state, the constitution is a layer of
norms within a political unit in which the fundamental adherence to the norms
results from the individual’s relationship of belonging to this state as a citizen. This
resource, too, is not available in this way on the international level. If it is characteristic
of state and constitutional law that the political realm must be addressed, then this is
even more true for international law. It is surprising that the constitutionalist inter-
pretation of the understanding of ‘international law’ is narrowly limited to texts
and values, constructions and theories, and this in a time when the study of history,
for example, is undergoing a thorough cultural turn, in which it grasps rule and the
exercise of rule comprehensively and in which it explicitly regards documents and
texts as insufficient for the purpose of understanding the complex phenomena of
political rule and allegiance. Substantially contributing to this narrowing are system-
theoretical theories with their painful abstractions and avoidance of analysis of
actual processes.
The constitutionalist viewpoint is holistic. Drawing on the concept of the constitu-
tion as the entire basic order of a political unit, it seeks to capture the rapidly developing
international field and its international law in one great formula. This grand endeavour
has failed and cannot currently succeed. An important reason for this is the high degree
of differentiation among the individual sectors, regimes, or contractual orders of inter-
national law. To postulate grand formulas or mere value orders first and only then to
begin a detailed analysis of all these areas, sectors, and partial orders is to take the third
or fourth step before the first. There is good reason why the theme of fragmentation

60
A. von Bogdandy, ‘Konstitutionalisierung des europäischen öffentlichen Rechts in der
europäischen Republik’ (2005) JZ 529–40, n 9: ‘Dass eine Konstitutionalisierung ohne
einen entsprechenden politischen Willen zum Zusammenschluss nicht gelingt, zeigt die
vorerst gescheiterte Konstitution eines globalen Völkerrechts.’ (‘Constitutionalisation
cannot succeed without a corresponding political will for unification; this is demon-
strated by the fact that for the present the constitution of a global public law has
failed.’)
 In Defence of ‘Constitution’  237
has become a major theme.61 It has also become a counter-concept to constitutionalism
and to constitutionalisation, if only because the high degree of differentiation and the
internal complexity of the international level that it reveals and takes as fundamental,
is incompatible with the unified world and the holistic approach of constitutionalism.

vi. the state of the art

The concept of the constitution on the European level
On the European level, which from the beginning seemed predestined to take up the
idea of the constitution, a major learning process has taken place. Even if the Lisbon
Treaty should take effect, neither its wording, nor its substance, nor its symbols fulfil
the hopes that were originally placed in the European constitutional treaty. The
question arises: What did the political movement in favour of a European constitu-
tion originally intend?
The movement initially advanced suggestions from the jurisprudence, including the
characterisations of the European Court of Justice.62 But the aim of the constitutional
treaty was also to accelerate the course of integration, by reforming the machinery
of government on the European level after the accession of so many new states and
generally advancing the political integration that was always also to be pursued along
with the initial path of economic integration. The constitution discussion was an offer
to enhance political integration by using the highly esteemed term of ‘constitution’,
by revising the understated language of the earlier treaties,63 and by equipping the
Union with the symbols of a flag and an anthem. Thus far, the constitution project
began properly. It did not relate solely to the legal sphere; rather, the intent was to
strengthen the political basis, the political infrastructure of the EU, so to speak, and
above all to increase the citizens’ acceptance of, and attachment to, the EU.
The initiators of the European constitution project wanted a constitution for
the individuals and the nations in Europe in the full sense of a combination of the
legal and the political. The individuals were to identify more with the EU, feeling
an attachment to it similar to the attachment they felt and still feel for their (nation)
state. The problem, however, was that one can make offers for more attachment and
identification, but the success of this depends on whether the citizens also want to
take this qualitative step onto a new level of integration. At any rate, two nations,
the French and the Dutch, apparently did not want to accept this offer. And thus the

61
For further references, see A. L. Paulus, ‘Subsidiarity, Fragmentation and Democracy:
Towards the Demise of General International Law?’, in T. Broude and Y. Shany (eds), The
Shifting Allocation of Authority in International Law (Oxford: Oxford University Press, 2008),
193–213.
62
Beginning with the Opinion delivered by Advocate-General Lagrange of 25 June 1964
concerning the ECJ, Case 6/64 Costa v ENEL [1964] ECR 1279, at 1289; Case 294/83 Les
Verts v European Parliament [1986] ECR 1357, at 1365, para 23: ‘charte constitutionelle de base
qu’est le traité’.
63
In the first decades, the Treaty establishing the European Community consciously avoided
the terms ‘constitution’ and ‘laws’.
238  Rainer Wahl
fate of the constitutional treaty illustrates the point that the theoretical concepts of
academicians and the slogans of politicians and EU elites do not suffice. The individ-
uals themselves have to decide whether to accept the offer of increased integration.
Thus, political processes and political movements in favour of European integra-
tion are necessary,64 but texts that academicians claim resemble the character of
constitutions are not enough. In formulating the constitutional package, the politi-
cians rightly assumed that the legal order of primacy and the legal design as a whole
are insufficient and that symbols and words play important roles. But this insight is
also useless so long as the nations of Europe, or some of them that are permitted to
express themselves, have not boarded the train of increased integration.
Consequently, in a long process on a winding path that lasted almost ten years,
the great—even decisive—political question of a European constitution was
answered—in a negative fashion. A European constitution worthy of the name must
also connect the legal and the political. The mere order of primacy, the creation of
fundamental and overriding norms is not enough. A constitution cannot successfully
be instituted while ignoring the people and the nations. An explicit constitution-
formulating convention, which has occasionally been held in the history of the
constitutional state, is not always necessary. But the emergence of a constitution
involves more than the drafting of a mere legal document: there must be a secured
site for the nations and the individuals, where these are recognised to be the bearers
(Träger) of the constitutional process. If this does not exist, then the intrastate
referendums on the treaty become referendums on Europe’s path as a whole.
Whether the concept of the constitution can be detached from the state is ultimately
a secondary and superficial confl ict. Of course it can—provided something is offered
that is comparable to the concept of the constitution.

The constitutional concept at the international level

The constitutional project is even more problematic at the international level.65
Whereas in the EU there is a certain acceptance of some form of European integra-
tion and a corresponding feeling of community and belonging,66 in the international

64
Here, the possibility of developing a stronger feeling of pan-European identity among
the nations is in no way denied or assumed to be unlikely. But such a development must not
be simply postulated, it must actually occur. This is a strategic point where actual events
and normative claim are inseparably tied and mutually dependent, just as empirical and
normative sciences depend on each other in this point.
65
Wahl, above n 17, 135–54.
66
In the text, the wish for integration and the feeling of belonging has been consciously
relativised. Thinking and languages have to do justice to a problem that has been mostly
neglected. In regard to integration or the feeling of belonging to the EU, the issue is not yes
or no, but degrees. Since 1958, the respective members of the EC or EU have had a limited
feeling of belonging (expression taken from Gertrude Lübbe-Wolff ). The point is always the
degree of feeling of belonging; in the prehistory of the constitutional contract, one strives
for a higher degree of feeling of belonging.
 In Defence of ‘Constitution’  239
sphere, all the characteristics associated with community and a political structure are
absent. In a number of circumstances, ‘international community’ is a meaningful
term which expresses the fact that, beyond the consensus of all states, in certain—
albeit very few—problem situations there exists a value relation distinct from that
created by state consent. But there is no international community in the strong sense
of the term as an entity capable of acting or of legitimising action. And the notion of
having democratically elected delegates representing such an international commu-
nity, in some world forum, is entirely utopian.
From the outset, the use of the term ‘constitution’ in this context invokes a legal
concept of constitution, a mere order of primacy of legal norms. The establish-
ment of fundamental values and the hope that courts (initially national courts, then
perhaps international ones) will implement these values directly in positive law
are not unjustified. But all prerequisites for the strong variant of constitutionalism
are lacking. Overwhelmingly, the opinion is voiced that the UN Charter is not the
world’s constitution; it is accepted that its work in its own sphere is important, but its
responsibilities are far from covering all sectors of international politics. The attempt
to extend the UN Charter and to define it as the core of a future substantive world
constitution was problematic from the beginning and, at any rate, has failed.67
But the weak variant, the assertion of a progressing constitutionalisation, also meets
doubts and misgivings. The constitutional idea in general international law, conceived
as the one great peg (Klammer) on which to hang many individual arrangements and
which could function as an order of primacy for treaties and customary law, has—to
summarise almost ten years of discussion—not succeeded. The project failed because
of its sweeping ambition in seeking to transpose itself as the juristic mark (Kennzeichen)
of ius cogens, and promoting the validity of a series of other concepts (common goods,
common interest, and the like68), independently of the current consensus of the states.
The concept of the constitution was to serve as the means of transport, but this
interest hardly extended beyond the constitution’s claim to hierarchical superiority.
In general, what has not progressed during the last ten years is the meshing of
individual components into a coherent concept that, with the name ‘constitution’,
recalls similar syntheses and integration achievements in state constitutions. Instead,
the difficulties of such an idea have clearly emerged. As for German and European
voices in particular, they have often transposed the earlier, positively evaluated
experience with the project of a European constitutional treaty to the international
level. The European discussion was to serve as a door opener for the international
discussion.69 It is therefore not surprising that the constitutionalist interpretation was

67
Paulus, above n 20, at 699; Fassbender, above n 45, 1–16, nn 5, 15.
68
In the same way, the figure of the world order treaties must not only be generally
described, but also formed in detail. In the German tradition, one says it must be doctrinally
or dogmatically elaborated, which means a great deal of work.
69
F. C. Mayer, ‘European Law as a Door Opener for Public International Law’, in
J.-M. Thouvenin and C. Tomuschat (ed), Droit international et diversite des cultures juridiques—
International Law and Diversity of Legal Cultures (Paris: Pedone, 2008), 345–59.
240  Rainer Wahl
even less successful on the international level. As a consequence, we should eschew
for the foreseeable future the comprehensive approach of international constitution-
alism. And, for reasons of scientific clarity, we should also avoid usage of the term
‘constitution’.70 Further steps of progress in international law will take place on a
more concrete level in individual sectors and in patient analyses, as is taking place in
the project on Global Administrative Law. Only a problem-saturated and practically-
oriented international law can once again take the path of abstraction—but in a
much more reflective mode.

The concept of societal constitutionalism

The defence of the term ‘constitution’ is mounted in particular against the thesis of
‘societal constitutionalism’.71 Insightful observations and analyses, including much
that is innovative and worth considering, are presented under this name. But the
use of the word ‘constitution’ is not understandable. As the name suggests, the
lynchpin of this approach is society or segments of society (societal constitutions).
This revives and gives a new content to the old European concept of civil society,
although now the plural, civil constitutions, is used.
The thesis assumes these civil constitutions exist independently of state boundaries
and state politics and that, in accordance with their respective inner character, they
act in a worldwide association. In the context of a systems theory that becomes ever
more abstract, these regimes, being such civil constitutions, are based solely on societal
factors. The character of a constitution should be acknowledged for these regimes
because they have developed fundamental rules into a higher-ranking order. The order
of primacy, the set of rules on rules, is interesting. But the constitution is emptied of
everything political, everything that otherwise characterises constitutions. With great
pathos, the theory addresses the individual person, but what it has in view is individu-
als solely as societal beings; every political connection to and every participation in a
political unit is removed. The individual is conceived as a subjective individual who
is supposed to have rights and duties. But nothing is said about the individual as a
political being, as citoyen. What the American and French Revolutions launched—the
combination of political freedom and the individual’s political participation alongside
the protections of the rule of law—has no place in these concepts.

70
Let us recall once more the fate of the European constitutional treaty. Back then, in their
double role as scientific observers and legal policy shapers, numerous scholars of Europe
used powerful rhetoric to defend the concept and the constitution and saw major progress in
transposing concepts and terms from their narrow nation-state application to the European
level. In their often very powerful will to help shape politics, which always also endangers
scholarship, they used the concept of the constitution to help bring citizens over hurdles
to a deepened union. With the concept of the constitution, citizens were to advance to the
next step of integration. The intentional and also instrumentalised use of the concept of
the constitution was of no avail here, but was rather a component of the failure. It is not
difficult to predict the same for the international level.
71
See above n 6 and, critically, Grimm, ‘Gesellschaftlicher Konstitutionalismus’, above n 3.
 In Defence of ‘Constitution’  241
Societal constitutionalism is the furthest away from the originally rich and
comprehensive constellation of the constitution; of all conceptions it offers the least
in the way of a comparable transposition of this overall constellation into present-
day circumstances. The use of the terms ‘societal constitutions’ and ‘regimes’, in
Sciulli’s and Teubner’s sense, is based on a great number of premisses that cannot
all be discussed here. But it is clear that the theory of societal constitutions has
demanding and strong presuppositions. It presupposes the self-development of
societal systems that apparently function mostly without addressing any form of
public and sovereign tasks.
Beyond that, the theory is characterised by a number of absences: no politics takes
place in it, there is no parliament as legislature, no politically accountable legisla-
tion, no public law, no constitutional law, no sovereign one-sided relationships. It is
difficult to imagine that the pure civil society it imagines can be made a reality. The
theory cannot entirely ignore political steering, but it is hard to judge what type, by
means of laws or treaties under international law, is silently assumed. But this issue
is not explicitly discussed.
The proponents of societal constitutionalism enjoy discovering the new so much
that they have no attention left for already existing achievements. Overall, this litera-
ture lacks a basic acceptance of a figure of simultaneity, namely, that along with all
the newness one sees or hopes to have in the future, much that is old retains great
importance and may even be the indispensable prerequisite for the new. This is a
fundamental objection. The decisive problems of the present and the future not
only concern speculation on which completely new situation the current constella-
tion will develop into; the decisive problems lie in the description of the simultaneity
of different phases, different components, different principles—of the state, the EU,
and international subjects, and of state, European, and international law. The overall
constellation of all levels, all layers of law, and all public tasks that must be managed,
must be kept in focus.

vii. conclusion
The term ‘constitution’ is a demanding concept which can be understood only as an
overall constellation of numerous components. The narrowing in the literature is
based primarily in the narrowing and political emptying of the concept. The objec-
tive of this chapter has not been to place ‘constitution’ under trademark protec-
tion, nor to protect the term as an exclusive characteristic of state constitutions.
To be defended are the comprehensive and complex components of the concept of
the constitution: the diversity of its preconditions, its institutional formations, and
the developed mechanisms of its realisation. ‘Constitution’ is also to be defended
against the many who want to exploit the noble aura of the term without first
achieving the necessary prerequisites. But so much of what is meant by ‘interna-
tional constitution’, ‘international constitutionalism’, and ‘constitutionalisation’ is
mere anticipation, distant hope, contourless ‘emergence’, and the invocation of
evolution.
242  Rainer Wahl
This, however, is not the last word. It may be true that the constitutionalist
approach to international law has reached its zenith, and it might well have failed.
Yet it cannot be ignored that the discussion has offered much insight into the need to
use supranationally founded ideas in international law. To gather in the harvest is a
worthwhile continuation of this discussion. Obligations arising for states without or
against their will exist, be it ius cogens or obligations erga omnes. And the phenomena
which fall under the heading of societal constitutionalism are important enough
to be analysed further and in conjunction with the related sovereign or public law
figures or elements. But important though these elements are, they do not provide
the foundation for a totally new construction of international law. Rather, they
are elements added to the existing and changing building of international law. If
a constitutionalist approach beyond the state needs a new start, then, this has to
be more modest and must engage with other fields of discussion, such as the frag-
mentation of international law, the emergence of global administrative law, and the
emergence of sectoral international law. International law has many manifestations
and a considerable dynamic: it cannot be apprehended or newly conceived solely by
deduction and abstraction.
  12 
Global Administrative Law and
the Constitutional Ambition
Nico Krisch*

i. introduction
As the political and the state have become ever more incongruent and public
power has moved beyond national governments into a plurality of international
and transnational sites, we are struggling to find the analytical and normative
instruments to come to terms with the resulting new order. Countless structuring
proposals compete, leaving us with the sensation of a ‘disorder of orders’;1 in some
ways, we do indeed seem to operate in a ‘twilight’ in which our vision has become
blurred and orientation difficult. This twilight signals the demise of the state-centric,
‘Westphalian’ order that frames modern constitutional and political theory. But it is
less clear which of our substantive political commitments we may be able (or want)
to usher into the new daylight.
Some of the commitments in question are closely associated with key elements of
domestic legal and political orders, and it is on two such elements I will focus: consti-
tutionalism and administrative law. Both have sparked efforts at translation to the
postnational or global levels, and they have increasingly come to be seen as compet-
ing approaches not only to the study, but also the construction, of the postnational
space. I am unsure that ‘competition’ or talk of ‘potential substitutes’ (as the editors
suggest) accurately describe the relationship of global constitutionalism and global
administrative law; too different are the two projects in their scope and aims and too
complementary could they eventually turn out to be. But there may indeed be good
reason for pursuing one project rather than the other at this point: it is especially the
type of project global administrative law represents—of a smaller scale, with a more
modest reach—that might make it more suitable for academic study and political
reform than constitutionalist approaches with their holistic vision.

*
I am grateful to Euan MacDonald and Julia Black for comments on an earlier draft.
1
N. Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of
Normative Orders’ (2008) 6 International Journal of Constitutional Law 373–96.
246  Nico Krisch
The argument in this chapter proceeds in four stages. After sketching the
challenge both global constitutionalism and global administrative law face in
the precarious legitimacy of transnational and global governance (II), I will
examine more closely the scope and aims of both projects. It is in their respective
ambitions that the key difference between the two lies: constitutionalist visions set
out to describe and develop a fully justified global order (III), while global adminis-
trative law approaches are more limited in scope, focusing on particular elements
of global governance and confining themselves to the analysis and realisation of
narrower political ideals, especially accountability (IV). Such a limited approach
does, however, raise serious problems, both on the practical and the normative
level. I focus here only on two sets of issues: the difficulty in separating ‘admin-
istrative’ from ‘constitutional’ issues (V) and the risk of legitimising illegitimate
institutions, in part by elevating them to the level of law (VI). Although the result-
ing challenge for global administrative law is serious and will condition the further
trajectory of the project, it should not distract from the significant advantages its
more limited ambition entails.

ii. the precarious legitimacy of

global governance
Both global constitutionalism and global administrative law are, in their different
ways, attempts at tackling the perceived legitimacy deficit of global governance.
With the relocation of public power to the global level, legitimacy standards for
transnational institutions have come to approximate more closely those we apply
to domestic governments, and seen in this light, most transnational institutions fail
badly—be it the UN Security Council with its unrepresentative membership and
secretive decision making, the World Bank with its unfairly weighted voting, or the
Codex Alimentarius Commission with its skewed procedures for reaching decisions.
None of them seems to satisfy democratic principles even remotely, legality appears
as at most a weak factor in decision making, and rights play only a marginal role.
Yet some argue that the full application of domestic standards of legitimacy is
mistaken, or at best premature, as the problems raised by global institutions are of
a different kind to those we face in domestic politics and that they can largely be
addressed through the channels of domestic constitutional orders, thus obviating
(or at least alleviating) the need to develop new global frameworks.2 Before assessing
the respective potential of global constitutionalism and global administrative law, we
should therefore gain a clearer picture of the extent and form of the challenge global
governance presents.

2
A. Moravcsik, ‘Is there a “Democratic Deficit” in World Politics? A Framework for
Analysis’ (2004) 39 Government & Opposition 336–63.
 Global Administrative Law  247
Domestic constitutionalism and its limits
The classical way of legitimising international institutions is based on the delegatory
relationship with member states: the powers of these institutions derive from
member states through their constitutive treaties; they are accountable to member
states through the central representative body within the institution; and member
states can control the ultimate effect of institutional decisions through domestic
implementation. In this picture, the legitimacy concerns outlined above are of little
weight, since whatever substantive problems international institutions raise will be
dealt with through the channel of member states, and the central site for controlling
transnational governance would be domestic constitutional settings.3
However, constructing the accountability of global governance around delegation
and control—and thus addressing legitimacy issues through the prism of domestic
constitutionalism—bears only limited promise. This is, first, because the initial
delegation of powers is usually very thin: the founding treaties of international
institutions generally contain only vague guidance as regards the scope of powers,
especially informal powers,4 and even this limited determination disappears when
it comes to transnational government networks which typically operate without a
formal basis altogether.5 Moreover, delegation is entirely absent as regards outsiders
(non-members) that may be affected by decisions,6 or in the case of private regu-
lators. The latter do not depend on any form of delegation but, even when they
cooperate with governments, are typically self-appointed.7 Because of the need for
flexibility in those institutions and the difficulty of creating and speedily adapting
treaty mandates, more extensive formal bases and greater specificity will usually be
hard to achieve.

3
In this vein, see, eg E. Schmidt-Aßmann, ‘Die Herausforderung der Ver-wal-tungs-rechts-
wissen-schaft durch die Internationalisierung der Ver-wal-tungs-be-zie-hun-gen’ (2006) 45 Der
Staat 315–38 (English: ‘The Internationalization of Administrative Relations as a Challenge
for Administrative Law Scholarship’ (2008) 9 German Law Journal 2061–80).
4
For example, the Organisation for Economic Co-operation and Development’s (OECD)
founding treaty defines as the organisation’s main goal ‘to promote policies … to achieve
the highest sustainable economic growth and employment and a rising standard of living
in Member countries’; and the OECD’s organs are granted the power ‘to take decisions …
[and] make recommendations’ ‘to achieve its aims’ (see Arts 1 and 5 OECD Convention).
On the additional uncertainties surrounding the interpretation of powers of international
institutions, see J. Klabbers, An Introduction to International Institutional Law (Cambridge:
Cambridge University Press, 2002), 60–81.
5
See A.-M. Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004).
6
The Basel Committee for Banking Supervision, for example, consists of only eleven
members but its decisions are designed to apply far beyond this circle (see M. S. Barr and
G. P. Miller, ‘Global Administrative Law: The View from Basel’ (2006) 17 European Journal of
International Law 15–46, at 39–41).
7
On the example of forestry regulation, see E. Meidinger, ‘The Administrative Law of
Global Private-Public Regulation: The Case of Forestry’ (2006) 17 European Journal of
International Law 47–87.
248  Nico Krisch
Moreover, the level of control each member state can exercise over an international
institution will usually be very low. This is in part because of the problem of multiple,
diverse principals: delegation structures are relatively unproblematic and may allow
for meaningful degrees of control and accountability if there is only one principal
(or few principals), as is typically the case in domestic settings where central govern-
ments or parliaments delegate power to lower levels or independent institutions.
The situation becomes more problematic when the number of principals increases:
each of them can then retain only a smaller fraction of control, and mechanisms
for holding agents to account become more cumbersome.8 Greater control would
only flow from veto rights, but these would risk stalemate in any institution with a
significant number of members.
A more promising avenue for domestic control might then be the implemen-
tation of international decisions. Whether binding or non-binding, most norms
and decisions in global governance depend on domestic implementation for their
actual effectiveness; global regulatory action is typically not followed by its ultimate
addressees (state officials, individuals, companies) unless it becomes part of the
domestic legal and regulatory framework. In the classical vision of international law,
this opens up space for states’ sovereign choices as to their domestic policies—even
if such choices contradict international rules, they remain decisive in the domestic
realm (even though they might entail responsibility on the international level). This
in turn allows domestic constitutionalism to take centre stage, by determining when
and how international norms can enter domestic law, and by defining the substantive
limits and procedural conditions for the engagement with the international sphere.9
For this to be an effective tool of national control, however, it has to operate in a
relatively permissive environment: if non-implementation is to remain a real (rather
than merely formal) option, it must not be overly costly. In classical international
law, this was certainly the case, as non-compliance even with binding rules was
rarely subject to meaningful sanctions. Yet today, enforcement has gained teeth in
many areas of global governance. If refusing compliance with WTO rules exposes
a country to trade sanctions that cost millions, sometimes hundreds of millions,
of dollars, it presents a conceivable option for only very few actors.10 Well beyond
that, where international standards help solve coordination games in global markets,

8
On international institutions, see A. P. Cortell and S. Peterson, ‘Dutiful Agents, Rogue
Actors, or Both? Staffing, Voting, Rules and Slack in the WHO and WTO’, in D. G. Hawkins
et al (eds), Delegation and Agency in International Organizations (Cambridge: Cambridge
University Press, 2006), 255–80; D. A. Lake and M. D. McCubbins, ‘The Logic of Delegation
to International Organizations’, in Hawkins et al, ibid, 341–68, at 361–7.
9
This is certainly the ambition of some constitutional courts: see, eg Bun-des-ver-fas-sungs-
ge-richt, Judgments of 12 October 1993, Maastricht, BVerfGE 89, 155; 14 October 2004,
Görgülü, BVerfGE 111, 307. See also M. Kumm, ‘Constitutional Democracy Encounters
International Law: Terms of Engagement’, in S. Choudhry, The Migration of Constitutional
Ideas (Cambridge: Cambridge University Press, 2007), 256–93.
10
See, eg the EC-Beef Hormones case in the WTO and the ensuing sanctions; M. Böckenförde,
‘Hormone Ban in Dispute Again’ (2008) 12 (25) ASIL Insight 18 December 2008.
 Global Administrative Law  249
opting out is often not a real option as it entails exclusion from those markets, or
at least significant hurdles for access.11 Non-compliance—even with non-binding
instruments—thus often comes at a prohibitive cost, and the prospect of domestic
constitutionalism retaining control through implementation is accordingly limited.
This problem is exacerbated when global decision making involves domestic regula-
tors directly: if they are implicated in the setting of global standards (as they typically
are in government networks), their commitment to compliance will often be too
strong to allow for much flexibility at the implementation stage.12
Thus neither the delegatory relationship nor domestic implementation can guar-
antee significant national control over global governance institutions beyond the
stage of their creation. This significantly conditions the viability of the domestic
constitutional route: except for particularly powerful states, or in contexts in which
the costs of non-compliance are low, the prospect of domestic constitutionalism
shaping global governance or controlling its impact will be limited.

Legitimacy, inclusiveness, effectiveness

If the domestic constitutional route thus offers little help in alleviating the legitimacy
problems of global governance, it might still be asked whether those problems are
really as grave as they at first sight appear. Rather than seeing global governance
as a threat to democracy and self-government, it might be regarded as strengthen-
ing them: strengthening them, that is, by readjusting the boundaries of the polity
in a more inclusive way and by re-establishing some of the effectiveness domestic
democracies have lost in the process of globalisation.
This point is based on the lack of congruence of nation-state boundaries with
the range of those affected by political decisions. In an interdependent world, politi-
cal challenges as well as regulatory responses straddle national boundaries in any
number of areas. Consequently, leaving ultimate responsibility to national polities
effectively disenfranchises outsiders that are significantly affected by decisions.13
Expanding the scope of the polity and moving political decisions up to transnational
and international levels may then be seen as a response to the legitimacy deficits that
stem from the under-inclusiveness of the state-based, ‘Westphalian’ order.
Creating structures of global governance can also be perceived as a gain rather
than as a loss from the perspective of the national constituency. As domestic

11
On the structure of coordination games in international standardisation, see S. D.
Krasner, ‘Global Communications and National Power: Life on the Pareto Frontier’ (1991)
43 World Politics 336–66.
12
See R. B. Stewart, ‘The Global Regulatory Challenge to U.S. Administrative Law’ (2005)
37 NYU Journal of International Law and Politics 695–762, at 699–712, also on steps to neverthe-
less strengthen domestic accountability processes. On the latter, see also A.-M. Slaughter,
‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government
Networks’ (2004) 39 Government & Opposition 159–90, at 171–4.
13
See, eg D. Held, Democracy and the Global Order (Cambridge: Polity Press, 1995), ch 10; I.
M. Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000), ch 7.
250  Nico Krisch
governments have become unable to tackle central challenges—from environmental
problems to tax evasion—alone, transnational regulatory institutions have become
central to re-establishing the problem-solving capacity of public actors. Insofar as
democracy depends on effective institutions, adjusting decision-making structures
to the scope of the problems becomes itself a democratic demand.14
Although this may alleviate the legitimacy problems of global governance, it will
not entirely remove them. For those arguments only carry weight if decision making
beyond the state can indeed be seen as an exercise of democracy—if it can be under-
stood as sufficiently linked to individual and collective self-government. The actual
provision of public or collective goods will hardly ever serve to entirely remove ques-
tions of input legitimacy from view: even if everybody receives benefits from an
institution, some typically gain more and some less; distributional confl ict remains
ubiquitous.15 And even if it is true that decisions of a technical character trigger
weaker demands for input legitimacy than those involving redistributive measures,
domestic political practices still require them to be embedded in a democratically
controlled framework that defines what counts as a public good and is, if neces-
sary, able to adjust that determination.16 Democracy may not be the only source of
legitimacy for public power, but other sources are likely to serve as complements,
not substitutes for it.17
However, even if we accept this point in principle, the degree of input legiti-
macy we require on the global level may still differ from that which we typically
ask for domestically.18 In the national framework, the tension between the provi-
sion of substantive goods and democratic procedures is usually limited, simply
because it operates in the shadow of relatively strong, public, problem-solving
capacity through state institutions.19 On the global level, though, this tension is
more pronounced, and if we demand a high level of procedural integrity, we may
have to sacrifice substantive benefits to a much larger extent. This becomes evident

14
eg Held, above n 13, ch 11.
15
See, eg Krasner, above n 11.
16
See F. Scharpf, ‘Legitimationskonzepte jenseits des Nationalstaats’, MPIfG Working Paper
04/6, ss 2 and 3 <http://www.mpifg.de/pu/workpap/wp04-6/wp04-6.html>;
E. Schmidt-Assmann, Das Allgemeine Verwaltungsrecht als Ordnungsidee (Heidelberg: Springer,
2nd edn, 2004), 259–61.
17
However, in a sociological rather than normative account, one may find those different
sources (which may also be more variegated than the input/output dichotomy suggests)
to compete: see J. Black, ‘Constructing and Contesting Legitimacy and Accountability in
Polycentric Regulatory Regimes’ (2008) Regulation & Governance 137–64, 145–6.
18
This may also hold for the type of input legitimacy: democratic governance may follow
other than the electoral patterns characteristic of the domestic context. I cannot pursue this
here: see T. Macdonald and K. Macdonald, ‘Non-Electoral Accountability in Global Politics:
Strengthening Democratic Control within the Global Garment Industry’ (2006) 17 European
Journal of International Law 89–119; J. Bohman, Democracy across Borders (Cambridge, Mass.:
MIT Press, 2007).
19
See Scharpf, above n 16, s 3.
 Global Administrative Law  251
in Jürgen Habermas’s vision of global politics: because of his insistence on strong
democracy, he generally restricts political integration to the regional level (where
strong democracy may be possible) and conceives of global politics only in classi-
cal international (interregional) terms.20 This may, however, lead to severe costs in
the provision of global public goods and we may ask whether his approach (just
as most modern political theory since the rise of the absolutist state) is not based
too much on a preoccupation with limiting public power to invite translation to the
postnational environment. If we take a more Hobbesian, or possibly also republi-
can, perspective, we may place stronger emphasis on unleashing public power and
will perhaps rebalance the weight of substantive outcomes and procedural integrity
for the global level. Whether this should go as far as Fritz Scharpf ’s suggestion
that Pareto-optimal solutions may be legitimised by output considerations alone21
is doubtful—too contested will be the qualification as Pareto-optimal itself, and too
strong the confl ict over the distribution of gains even if all actors are (absolutely)
better off. But one might still accept that the gains in the provision of public goods
by (input-deficient) international institutions compared to an absence of such insti-
tutions (and the consequent retreat of public power to the national realm) may to
some extent legitimise their operation.

iii. the constitutional ambition

In spite of the caveats above, the general legitimacy problem in global governance
remains: domestic constitutionalism does not usually provide an effective remedy,
and the greater inclusiveness and effectiveness that may come with global decision
making can help legitimise global governance only to a modest extent. Given the
size of the challenge, it must thus appear tempting to undertake a large-scale remak-
ing of the current order of global governance, one that would go beyond the current
institutional structure and refound it in a manner more closely aligned with domes-
tic political ideals. It is thus not surprising that over the last decade calls not only for
a democratisation but also a full-scale ‘constitutionalisation’ of international affairs
(and international law) have gained currency; constitutionalism today appears to
many to be the yardstick against which the current order and proposals for its reform
ought to be measured.

Visions of global constitutionalism

What precisely ‘constitutionalism’ in the global context means remains disputed; the
debate has produced a great number of different ‘constitutionalisms’, ranging from
emphases on human rights and judicial review in international institutions to broader
calls for a legalisation of postnational politics and visions of a global order subject

20
J. Habermas, Die postnationale Konstellation (Frankfurt am Main: Suhrkamp, 1998), ch 4;
Der gespaltene Westen (Frankfurt am Main: Suhrkamp, 2004), ch 8.
21
Scharpf, above n 16, s 4.
252  Nico Krisch
to an identifiable constitutional document.22 Here I will focus on a particular set of
constitutionalist visions, ‘foundational’ ones, that provide the closest link with key
domestic traditions. Other proposals, especially those focusing on legalisation, rights,
and review, evoke the domestic tradition of ‘power-limiting’ constitutionalism that
has been increasingly overshadowed by foundational approaches in the twentieth
century and does not generate a comparable normative appeal either—whether they
are adequately categorised as ‘constitutionalist’ is thus subject to doubt.23
Foundational constitutionalism, on the other hand, connects to the constitutional
tradition spurred by the American and French revolutions, a tradition that places
particular emphasis on the idea of a constitution as ‘founding’ and comprehen-
sively organising the public power existing in a polity. A constitution in that sense—
typically but not necessarily contained in a written document—represents a tool
not only to establish limits to public institutions but also to realise self-government
by defining the extent and procedural rules for the exercise of (delegated) govern-
mental powers. Outside that framework, public power can no longer be legitimately
exercised; all such power has to be traceable to the original pouvoir constituant via the
constitution.24
It is not difficult to see the appeal of this vision and why it would also be attrac-
tive on the postnational level. After all, it is a structure by which a polity can make a
comprehensive claim to agency and wrestle its affairs back from the forces of chance,
history, and power. And it is a structure in which central pillars of modern politi-
cal thought—the rule of law, individual rights, and collective self-government—are
brought together.25 Unsurprisingly then, efforts to draw on it for the postnational
level have become increasingly widespread. The most tangible political result has
been the European draft constitutional treaty, which appeared as an opportunity
to place the European Union on a new foundation and open up new legitimacy
resources. On the global level, the United Nations Charter has been reinterpreted

22
See only N. Walker, ‘Taking Constitutionalism beyond the State’ (2008) 56 Political Studies
519–43; B. Fassbender, ‘ “We the Peoples of the United Nations”: Constituent Power and
Constitutional Form in International Law’, in M. Loughlin and N. Walker (eds), The Paradox
of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University
Press, 2007), 269–90.
23
See also Loughlin in this volume. The argument is developed in greater detail in
N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford: Oxford
University Press, forthcoming 2010), ch 2. It should be noted that in the current debate
there is no watertight distinction between the two strands; many approaches incorporate
elements of both. I focus here on the ideal type of a foundational approach and those contri-
butions to the literature that approximate it most closely. I am grateful to Euan MacDonald
for urging me to clarify this point.
24
See C. Möllers, ‘Verfassunggebende Gewalt—Verfassung—Konstitutionalisierung’, in
A. von Bogdandy (ed), Europäisches Verfassungsrecht (Berlin: Springer, 2003), 1–57, at 3–18.
25
Of course, foundational constitutionalism has never escaped critique, most notably for the
limitations comprehensive constitutions impose on the realisation of the will of the people,
and for the tendencies of juridification they engender. But it has proved attractive enough to
become quasi-universal as a precondition for domestic governmental legitimacy.
 Global Administrative Law  253
as a constitutional document, towering above and framing other regimes of global
governance as well as individual states.26
More broadly, such a tendency is visible in the many approaches that seek to give
the current, largely unstructured, historically accidental, and power-driven order of
global governance a rational, justifiable shape in which the powers of institutions
and their relationships with one another are clearly delimited. A good example is
David Held’s quasi-federal vision of the global order.27 Starting from the principle
of ‘equivalence’ of decision makers and decision takers, Held envisages a political
structure in which all those affected by a particular issue have a right to participate
in decisions on it. Thus striving for inclusiveness while at the same time seeking to
respect subsidiarity—locating decision making as close to the individual as possi-
ble—the institutions he seeks to construct at the different levels of the global polity
are to be assigned powers on issues for which decision making at a lower level would
be insufficient. Some issues, such as education or housing, would thus remain at
the national or subnational level while others, like environmental problems with
transboundary effect, would be dealt with on the regional or global level. To be
sure, he acknowledges that the distribution of powers will—as in many national
contexts—often be contested and complex to resolve, but in his view, a resolution in
a public setting based on an overarching principle is preferable to leaving them ‘to
powerful geopolitical interests (dominant states) or market based organizations to
resolve them alone’.28

The holistic ambition and its problems

In good constitutionalist fashion, such a principled construction of the global
institutional order is thus regarded as reason’s antidote to the mere forces of history.
Connecting in this way to domestic, foundational constitutionalism means adopting
a holistic ambition, an ambition to construct a comprehensive, justified political
order, and therein lies its appeal but also the source of serious problems.
Many of these problems are connected to the fact that such a comprehensive
reconstruction would not only require massive institutional change but also a trans-
formation of the societal basis on which the global order rests.29 To use an example
already mentioned above, Jürgen Habermas—a protagonist of foundational consti-
tutionalism in the European context—refrains from extending such a vision to the

26
B. Fassbender, ‘The United Nations Charter as Constitution of the International
Community’ (1998) 36 Columbia Journal of Transnational Law 529–619.
27
Held, above n 13. For other examples, see, eg Young, above n 13; M. Kumm, ‘The
Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15
European Journal of International Law 907–31.
28
D. Held, ‘Democratic Accountability and Political Effectiveness from a Cosmopolitan
Perspective’ (2004) 39 Government & Opposition 364–91, at 382.
29
See also the discussion in E. MacDonald and E. Shamir-Borer, ‘Meeting the Challenges
of Global Governance: Administrative and Constitutional Approaches’, Discussion Draft
(2008), at <http://www.iilj.org/courses/documents/MacDonald.Shamir-Borer.92508.pdf>.
254  Nico Krisch
global level as it would stand in tension with the social fragmentation of the global
polity: in his view the discursive conditions that ground democracy (ideally) in the
nation state, and might do so in certain areas of strong regional integration, are
largely absent in the global realm.30
Yet the problems of the holistic approach go farther in a polity that is, more than
even the most multicultural domestic settings, characterised by strong—perhaps
radical—social and cultural diversity. Already on the national plane, it has been ques-
tioned whether foundational constitutionalism is a fitting vision for diverse societies
in which consensus is elusive even on the most basic, procedural level. In particular,
the claim to found the political system on impartial rules that guide and circum-
scribe everyday political contestation has been critiqued as concealing the contested
nature of fundamental issues and as legitimising the dominance of particular
social positions (and the groups behind them).31 The more diverse and contested
the social space is, the less attractive seems the idea of freezing the political order
in a seemingly neutral consensus, and the more appealing the recourse to either
punctual, contractual settlements between groups or to institutional provisions that
keep fundamental issues open to continuing contestation and revision.
This problem becomes particularly accentuated in the global context in which
there is no agreement on the scope of the ultimately decisive polity, or on any form
of hierarchy between different levels of the global polity—subnational, national,
regional, or global. All those different levels are beset by legitimacy problems
that hamper claims to supremacy: the global polity cannot institute any form of
thick, democratic procedures of participation to ground its decisions, but regional,
national, or subnational levels also face legitimacy deficits because of their under-
inclusiveness, as on issues that significantly affect outsiders, their claim to decision
making can always only be limited and provisional.32 In such circumstances, the
comprehensive determination of decision-making roles that holistic constitutionalist
proposals invariably entail—typically in a quasi-federal form—will hardly be satisfac-
tory; giving any level the final say on an issue of global reach will always appear as
problematic.33
Finally, the holistic ambition also raises problems of a more pragmatic char-
acter. On the one hand, it will always seem somewhat unrealistic in a global
political context so far removed from ideal models. But while this might not be
problematic in itself—after all, much of modern political theory will have sounded

30
J. Habermas, Der gespaltene Westen (Frankfurt am Main: Suhrkamp, 2004), 133–42.
31
See, eg J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press, 1995); C. Mouffe, The Democratic Paradox (New York:
Verso, 2000); R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004).
32
For a similar account in the European context, see M. Maduro, ‘Europe and the
Constitution: What if This is as Good as it Gets?’ in J. H. H. Weiler and M. Wind (eds), European
Constitutionalism beyond the State (Cambridge: Cambridge University Press, 2003), 74–102.
33
See N. Krisch, ‘The Pluralism of Global Administrative Law’ (2006) 17 European Journal of
International Law 247–78.
 Global Administrative Law  255
unrealistic or, utopian at its beginnings—it might caution us to distance the consti-
tutionalist project from current reform proposals. For if the gap with reality is too
big, attempts at entering discussions about reforms in the here and now will likely
lead to a lowering of demands—to the pursuit of a much more limited ‘consti-
tutionalism’ that, rather than redeeming the promise of the domestic ideal, will
legitimise deficient structures. More problematically yet, the attempt at refounding
global governance on a grand scale in current political circumstances might easily
play into the hands of those actors currently dominating international affairs: in a
setting as inegalitarian as that of global politics, efforts at providing a stable frame-
work of rules and institutions—at ‘constituting’ international society—are bound
to sanction structures that primarily benefit the powerful. The attempt by some to
characterise the UN Charter as a constitution34 can be seen as precisely that: using
constitutional language here is much more likely to legitimise an institution that
reinforces the distribution of power after the Second World War than to provide
inroads for critique sufficient to redeem the promise of political self-government
constitutionalism evokes.

iv. the (limited) ambition of global

administrative law
The holistic ambition of foundational constitutionalism thus sits uneasily with the
societal and political circumstances of contemporary global politics: less compre-
hensive approaches might fare better in this context. Among such approaches are
the more circumscribed versions of constitutionalism mentioned above, aiming
at a greater legalisation of international politics or a stronger enforcement of
human rights against the institutions of global governance, much in the older,
power-limiting tradition of domestic constitutionalism. While these fall short of
the full promise of the constitutionalist tradition,35 they certainly have a number
of substantive virtues. I cannot analyse those in detail here, but will instead focus
on a different project with a limited ambition, that of ‘Global Administrative Law’
(GAL), and explore to what extent that limited ambition is sustainable and attrac-
tive. As I mentioned in the introduction, GAL in this reading is not a direct rival to
constitutionalist visions: with its more limited ambition and different aims, it oper-
ates on a somewhat distinct plane.
GAL starts from the insight that much of global governance can be understood in
administrative terms, as global administration that operates in a ‘global administra-
tive space’ in which the boundaries between the domestic and international spheres
have largely broken down. What it is interested in are the ‘mechanisms, principles,
practices, and supporting social understandings that promote or otherwise affect the

34
Fassbender, above n 26.
35
See above text at n 23.
256  Nico Krisch
accountability of global administrative bodies’,36 and it has led to studies of a whole
range of institutions and their existing or incipient forms of transparency, participa-
tion, and review.37
Just like the constitutionalist projects sketched above, GAL is concerned with
the legitimacy of global governance, but it approaches it from a different angle. It
focuses on questions of accountability and on the extent to which a global adminis-
trative body ‘gives account and another [actor] has the power or authority to impose
consequences as a result’.38 Accountability is a broad concept, and in the understand-
ing just cited includes both circumscribed mechanisms such as judicial review and
broader forms of responsiveness through electoral processes or even peer reputa-
tion.39 Yet because it denotes a particular relationship between actors, and a particu-
lar response to legitimacy claims of particular actors, the concept lends itself to a
relatively specific use in the observation and analysis of institutional practices and
can therefore to some extent avoid the all-encompassing normative connotations of
notions such as ‘legitimacy’.40
GAL seeks to explore and map existing and emerging accountability practices,
and it does so in a framework borrowed from administrative law. Here again, like
constitutionalist models, it draws on domestic concepts for the understanding
and construction of global structures. However, in GAL this move does not imply
the prescriptive assumption that the tools of domestic administrative law ought to
be transferred into the institutions of global governance, eg by establishing judi-
cial review mechanisms wherever individuals are directly affected or by instituting
public participation whenever global administrative bodies are engaged in rule
making. Instead, administrative law serves mainly as an inspiration and contrast:
it serves as a framework for identifying converging and diverging developments in
institutional practice, and it helps us sharpen our sensitivity to the problems and
possibilities of establishing accountability mechanisms on the global level. Through
reflection on the transferability of domestic concepts, the similarities and dissimi-
larities in both institutional structures and environmental conditions come into

36
B. Kingsbury, N. Krisch, and R. B. Stewart, ‘The Emergence of Global Administrative
Law’ (2005) 68 (3) Law & Contemporary Problems 15–61, at 17.
37
See the symposium issues of (2005) 68 (3) Law & Contemporary Problems; (2005) (4) NYU
Journal of International Law and Politics; (2006) 17 (1) European Journal of International Law; the
Viterbo GAL seminar series with papers at <http://www.iilj.org/GAL/GALViterbo.asp>;
and the Working Paper Series and further materials at <http://www.iilj.org/GAL>.
38
Black, above n 17, 150.
39
R. W. Grant and R. O. Keohane, ‘Accountability and Abuses of Power in World Politics’
(2005) 99 American Political Science Review 29–43; J. Ferejohn, ‘Accountability in a Global
Context’, IILJ Working Paper 2007/5, at <http://iilj.org/publications/2007-5Ferejohn.asp>.
But see also the call for greater specificity in R. B. Stewart, ‘Accountability, Participation, and
the Problem of Disregard in Global Regulatory Governance’, Discussion Draft (2008) 5–37,
at <http://iilj.org/courses/documents/2008Colloquium.Session4.Stewart.pdf>.
40
Legitimacy can of course also be used in a sociological sense, but the debates I refer to in
this chapter are typically concerned with its normative scope.
 Global Administrative Law  257
much clearer view.41 B. S. Chimni’s work on the Codex Alimentarius Commission is
a case in point: by studying the costs and benefits of stakeholder participation in its
regulatory functions, we gain a more precise idea of the limits of using certain
administrative law tools and with it a better sense of the conditions under which such
tools may further broader normative goals.42 Using domestic administrative law as a
background rather than as the basis for prescription also reflects the variations in
administrative law structures from country to country. GAL scholarship has largely
used the prism of US administrative law but has also drawn on other sources,43 and the
resulting comparative angle also allows a sharper understanding of the differences
in background assumptions between administrative law systems.44 Thus, turning to
administrative law for inspiration is mainly an attempt to expand the intellectual and
practical resources for thinking about global governance, for bringing out similari-
ties and differences, rather than for particular, transferable prescriptions.45
Yet GAL’s ambition is more limited than that of constitutionalist projects in a
third—and probably even more consequential—way. Apart from its more analytical
and systematising aspects, GAL has a strong normative component, but its norma-
tive ambition operates on a (relatively) small scale. It does not aim at a full account
of the conditions under which global governance, or global administration, would
be legitimate or justified but instead aims at elucidating the respective normative
values and presuppositions of particular institutional alternatives.46 It thus seeks to
bracket some of the more intractable issues such as the question of how to ensure
democracy on a global scale, and to work instead within a given institutional and
social environment, accepting (for the time being) the constraints this environment
imposes. For example, in their work on the Basel Committee on Banking Supervi-
sion Michael Barr and Geoffrey Miller inquire into the benefits of the recent steps
towards stronger participation in the Committee’s regulatory process and how it
has empowered certain domestic actors, thereby moving it closer to domestic repre-
sentative institutions and more generally to domestic ideas of inclusiveness in the
process. Likewise, they highlight the continuing limits of effective participation
for particular types of domestic groups as well as, more generally, for developing

41
See, eg R. B. Stewart, ‘U.S. Administrative Law: A Model for Global Administrative Law?’
(2005) 68 (3) Law & Contemporary Problems 63–108.
42
B. S. Chimni, ‘Co-Option and Resistance: Two Faces of Global Administrative Law’ (2005)
37 NYU Journal of International Law and Politics 799–827.
43
Apart from the symposia, above n 37, see especially the materials on the workshops
in Buenos Aires, New Delhi, and Cape Town as well as the Viterbo seminar series, all at
<http://www.iilj.org/GAL>. See also the symposium in (2008) 9 (11) German Law Journal,
and C. Möllers, A. Vosskuhle, and C. Walter (eds), Internationales Verwaltungsrecht (Tübingen:
Mohr Siebeck, 2007).
44
See, eg the comparison in Stewart, above n 39, 37–56; and the critical analysis in C.
Harlow, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 European
Journal of International Law 187–214.
45
For an example of an approach stressing differences, see Krisch, above n 33.
46
Kingsbury, Krisch, and Stewart, above n 36, 42–51.
258  Nico Krisch
countries.47 They do not situate this analysis in a broader theory of global democracy
or a full account of what would make an institution like the Basel Committee legiti-
mate; instead they can be seen to operate on a narrower normative basis, assuming
that the absence of certain forms of participation would be problematic for a
host of different normative theories if they were to be worked out fully. Richard
Stewart has explicitly adopted such an approach in his recent work, operating on
the assumption of an existing ‘working consensus’—rather than a comprehensive
theory—on the undesirability of disregard for certain actors in decision making.48
A similar approach is characteristic for studies that primarily deal with rights-based
mechanisms: for example, Mark Pallis’s account of UNHCR’s accountability to the
individuals affected by its refugee status determinations is not concerned with the
broader conditions of UNHCR’s legitimacy; it focuses only on the more specific,
rights-based elaboration of a procedural minimum standard the violation of which
would be problematic whatever broader theories of legitimacy require beyond it.49
With this relatively narrow normative focus, the GAL approach resembles the
early steps of continental European administrative law systems in the nineteenth
century, most of which developed in a normatively largely unsatisfactory—usually
monarchical, often authoritarian—environment and limited itself to advances on
specific, circumscribed normative fronts: protecting rights or ensuring legality
in order to ensure at least a minimum degree of predictability and consistency.50
This type of approach does not exclude broader democratic theorising; in fact,
explorations of alternatives to election-centred democracy and their potential for
realisation on the global level form part of the GAL project,51 as do inquiries into the
democratic limitations of the participatory agenda that underlies many institutional
developments in global regulatory rule making.52 But the project of developing a
global administrative law does not depend on the result of those explorations. It is
a project with a partial, not a comprehensive aspiration and seeks an independent
existence both as an analytical project and as a normative one, albeit on narrower
(and potentially less contested) grounds.

47
Barr and Miller, above n 6.
48
Stewart, above n 39, 11–13.
49
M. Pallis, ‘The Operation of UNHCR’s Accountability Mechanisms’ (2005) 37 NYU Journal
of International Law and Politics 869–918.
50
At a later stage, they also served to ensure executive compliance with parliamentary
legislation. See, eg on Germany M. Stolleis, Geschichte des öffentlichen Rechts in Deutschland
(Munich: Beck, 1992), ii. 240–3, 381–4. See also, on the independent value of legality
D. Dyzenhaus, ‘Accountability and the Concept of (Global) Administrative Law’, IILJ
Working Paper 2008/7 13–24, at <http://www.iilj.org/publications/2008-7Dyzenhaus.asp>.
51
eg J. Cohen and C. F. Sabel, ‘Global Democracy?’ (2005) 37 NYU Journal of International
Law and Politics 763–97; Macdonald and Macdonald, above n 18; Ferejohn, above n 39.
52
eg Harlow, above n 44; M. Shapiro, ‘ “Deliberative”, “Independent” Technocracy v.
Democratic Politics: Will the Globe Echo the EU?’ (2005) 68 (3) Law & Contemporary
Problems 341–56.
 Global Administrative Law  259

v. the limitations of the limited ambition

Just how limited the ambition of GAL can and should be must remain open to
question. Bracketing broader normative and institutional (ie ‘constitutional’) ques-
tions creates significant problems: disentangling the two sets of issues will often
prove impossible or undesirable, not least because it might conceal or distract from
the most pressing concerns about practices of global governance.
Disentangling administrative from constitutional issues is usually already difficult
on a practical level. In the early stages of the evolution of administrative law in
Europe, the separate pursuit of administrative law often appeared artificial but it was
largely inevitable: the monarchical, authoritarian constitutional structures in which it
was embedded seemed too resistant to change.53 Today, in domestic settings, admin-
istrative and constitutional law are typically closely connected in both practice and
scholarship, even if the extent of this connection differs from country to country—
in the USA, the two operate at a certain distance, while in Germany, for example,
such distance seems to have largely disappeared.54 In the global context, a separa-
tion appears easiest when it comes to rights-based mechanisms, such as judicial or
quasi-judicial review or due process, as rights may provide a grounding for them
that is independent from broader contextual or consequentialist considerations.55
The problems are more obvious when it comes to questions of transparency and
participation in rule making. For example, how to interpret and assess the participa-
tion of developing countries in the regulatory procedure of the Basel Committee
largely depends on the composition of the Committee and broader issues of its
control; if developing countries had an effective voice within the Committee (and
in its creation and design), they might not need procedural participation in the same
way to make their concerns heard.56 Regulatory procedure and constitutional set-up
are thus, to some extent, interchangeable forms of engagement, and looking at one
without the other is impossible. The challenge of disentanglement becomes ever
greater if one considers the impact of the broader institutional context. To take
again the Basel Committee’s example, the weight of the Committee’s regulatory
efforts largely depends on its linkages with other institutions, such as the Financial
Stability Forum and the International Monetary Fund.57 As Basel standards are rein-
forced and implemented in these other sites, the freedom of states to ignore them
becomes ever more virtual, rendering procedural safeguards ever more important.

53
See Stolleis, above n 50.
54
On Germany, see Schmidt-Assmann, above n 16, 10–12.
55
The discussion of UN sanctions in the European courts can be seen as reflecting such an
approach; see ECJ, Joined cases C-402/05 P and C-415/05 P Kadi and Al-Barakaat IF v Council
of the EU and Commission of the EC [2008] ECR I-6351.
56
Cf Barr and Miller, above n 6.
57
See M. de Bellis, ‘Global Standards for Domestic Financial Regulations: Concourse,
Competition and Mutual Reinforcement between Different Types of Global
Administration’ (2006) 6 (3) Global Jurist Advances, at <http://www.bepress.com/gj/
advances/vol6/iss3/art6>.
260  Nico Krisch
The adequacy of such safeguards, though, cannot be assessed without taking into
account the bigger picture of the overall regime complex, ie the different institutions
involved, their authority, composition, procedures, and control mechanisms, and the
formal and factual links between them. Disentangling the ‘administrative’ from the
‘constitutional’ then looks increasingly difficult.
Such disentanglement also raises significant normative problems. John Ferejohn
has recently emphasised the imbalance between legal and political accountability
mechanisms in global governance when compared with domestic administrative
structures.58 In domestic settings, tools such as judicial review, the requirement of
giving reasons or public participation in rule making are embedded in a broader
structure in which the public can exchange its rulers at will, largely arbitrarily—
in fact, insofar as judicial review is meant to enforce parliamentary statutes, it acts
as a ‘transmission belt’ for democracy’s arbitrary choices.59 In the global context,
such political accountability is largely lacking, and this may not only be a problem
in itself but may also alter our interpretation of the more widespread (and more
easily established) legal accountability mechanisms. A notice-and-comment proce-
dure without an electoral, parliamentary yardstick may more easily be skewed in
favour of particular interests, and a judicial review mechanism that acts as a trans-
mission belt for non-democratically created law also plays a role quite different from
its domestic model, even if it succeeds in furthering legal certainty and ensuring a
degree of consistency in decision making.60 More broadly, the lack of a democratic,
parliamentary ‘anchor’ shifts the load of including the public in decision making
to administrative procedures alone and might thus overburden them.61 And, as
Carol Harlow has observed, the imbalanced growth of legal, judicial accountability
mechanisms may lead to a ‘juridification’ of global governance, narrowing further
the space for democratic political engagement.62 This suggests a potential trade-off
between democracy and the rule of law in the shaping of GAL. It may also indicate
a certain liberal, perhaps even libertarian bias in the attempt at bracketing broader
questions of order in global governance. Focusing on the accountability (and thus
largely on constraints) of existing institutions may overemphasise the threat these
institutions pose at the expense of more positive, liberal, or republican visions that
see them as forms and fora for realising self-government or non-domination.
These difficulties also suggest a particular problem associated with the concept
of accountability at the centre of the GAL project. In a common interpretation,
accountability is understood to include solely ex-post checks to decision making,63

58
Ferejohn, above n 39.
59
On the role and limitations of the ‘transmission belt’ model in the US context, see R. B.
Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harvard Law Review
1667–813.
60
On the independent value of the latter, see Dyzenhaus, above n 50.
61
Kingsbury, Krisch, and Stewart, above n 36, 48–50.
62
Harlow, above n 44, 211–14.
63
Grant and Keohane, above n 39, 30.
 Global Administrative Law  261
but insofar as prior participation and later review fulfil similar functions, focusing
on those ex-post checks may miss a significant part of the picture and may lead
to distorted normative assessments. Yet if one broadens the understanding of the
concept, as much of the GAL literature has done,64 it becomes increasingly difficult
to delineate its boundaries. Such a move does not necessarily affect analytical clarity:
accountability continues to denote the particular relational dimension between a
governance actor and those communities with legitimacy claims on it.65 On a norma-
tive level, though, the situation is more difficult. Mechanisms of accountability,
however defined, are part of a broader interplay of elements of control or infl uence
which may be seen as standing in a zero-sum relationship: if one actor gains greater
infl uence over decision making, another one loses some of hers.66 In this picture,
institutions of global governance do not have an accountability deficit; they may
only be accountable to the wrong accountability holders.67 Yet if we cannot assess
the adequacy of any mechanism of accountability independently of all other forms
of infl uence in an institution and of a broader normative theory of who ought to
control the institution, the prospect of disentangling the ‘administrative’ from the
‘constitutional’ becomes ever dimmer.

vi. legitimising administrative steering?

If fully disentangling the ‘administrative’ from the ‘constitutional’ is thus not an
attractive—or even feasible—option, the limited ambition of GAL can be maintained
only by a deliberate narrowness of focus and provisionality of claims. Both analyti-
cally and normatively, GAL may then focus on global accountability mechanisms
of an administrative-law style but retain awareness of the institutional context in
which those mechanisms are embedded and the broader normative questions they
raise. GAL inquiries might stop short of addressing those latter issues directly, or at
least might not provide answers or prescriptions for them, but keeping them present
will help situate the analysis and assessment of the practices it chooses to concen-
trate on. For example, when analysing rule-making processes within the Organisa-
tion for Economic Co-operation and Development (OECD), a GAL approach will
need to explicate the context in which the institution as a whole is embedded—it
may not develop an answer to what the place of the OECD in the global institutional
architecture should ultimately be (and indeed whether it should have any) as this
would require the form of comprehensive analysis it has chosen to refrain from, but
awareness of the broader context will emphasise the relative nature of whatever claims
it can make about narrower procedural issues. In the absence of a comprehensive

64
See Kingsbury, Krisch, and Stewart, above n 36.
65
See text above at n 17.
66
See Black, above n 17, 153.
67
R. O. Keohane, ‘Global Governance and Democratic Accountability’, in D. Held and
M. Koenig-Archibugi (eds), Taming Globalization: Frontiers of Governance (Oxford: Polity,
2003), 130–59, at 145; Krisch, above n 33, 249–51.
262  Nico Krisch
theory, GAL may not be able to make ultimate claims about how the emergence
of broader participation rights in OECD rule making can be compared to domestic
administrative-law analogues or assessed normatively. But GAL can study the process
leading up to it, the effects of it, and the politics around it, and it may also interpret and
assess it in the light of alternative imaginations of the broader order. Any such effort
will then be relative and provisional—it will depend on assumptions about elements
of a broader theory, and these assumptions need to remain explicit. In this way, we
can reconstruct the assertion that GAL seeks to ‘bracket’ some of the broader issues,
such as a theory of global democracy,68 as an expression of a particular kind of limited
ambition: an ambition to come up with relative, provisional conclusions on the inter-
pretation and assessment of a selected range of phenomena. In this sense, GAL is a
self-consciously ‘modest’ project.
However, even if such a denotation is attractive, the connotations of the project may
be more problematic, for it might suggest a degree of legitimacy of a structure that
in fact is largely illegitimate. Despite all protestations to the contrary, critics might say,
GAL with its use of terms such as law and administration evokes analogies to domestic
institutions that are mostly misplaced, and with its focus on accountability it conceals
and distracts from more fundamental problems—such as those of democracy—in the
global realm.69 This is, of course, a serious challenge. Even if one should take care not
to overdraw the contrast with the domestic sphere where much administrative action
today is also far removed from democratic practices, global governance is particularly
problematic in this respect. Its links with domestic democracy are weak, its decentred
processes of decision making resist the application of the classical instruments that
connect administration with electoral or public deliberative processes, and anything
resembling a public sphere is missing on the global level. In this situation, the pursuit
of the partial, modest agenda of GAL might indeed seem blind to the true challenges,
perhaps actively distracting from them, and a broader approach might seem called for.
Yet such a broader approach would likely be beset by some of the same difficulties we
have identified above in global constitutionalism’s comprehensive ambition; in particu-
lar, the distance between current institutional and social conditions and any meaning-
ful conception of democracy is likely to entail either an apologetic downgrading of
democratic demands or the utopian insistence on high standards devoid of a chance of
realisation. Then, again, a more circumscribed project may be more attractive, as long
as its goals and limitations are kept explicit.
Yet there are other, potentially more consequential objections to GAL’s approach
to global governance. Because it invokes the vocabulary of law, it might—as Alexan-
der Somek points out—create idealisations that ‘distort our perception of administra-
tive realities’ and present as a practice of law what in fact is driven by administrative
rationality.70 In Somek’s view, global governance is characterised by the absence of

68
Kingsbury, Krisch, and Stewart, above n 36, 51.
69
This risk is highlighted in S. Marks, ‘Naming Global Administrative Law’ (2005) 37 NYU
Journal of International Law and Politics 995–1001.
70
Somek in this volume.
 Global Administrative Law  263
legal relationships: actors are not engaged by rules in a merely external fashion but
are made to internalise the project of global regulators and to share the teleology
of the rules rather than just obey them. This observation is probably true, at least in
part, for the public actors (international institutions, states, regulators) that take part
in global governance; for a regulatory regime to work in the absence of enforcement
capacities, it depends on a positive attitude of participants and subjects. This does
not necessarily imply a loss of freedom as compared to the ‘legal’ relationship, as
Somek implies: being engaged by the rules because one co-authors them, as happens
in regulatory networks, may well be a gain in self-government.71 Yet it might indeed
signal the absence of ‘law’ and consequently call into question the appropriateness
of naming ‘global administrative law’ what might perhaps better be called ‘global
administration’.
Such a conclusion would, however, rely on an overdrawn dichotomy between legal
and administrative (or managerial) rationality: rather than merely opposed modes of
action, the two are better seen as poles on a continuum. Domestic administration
is not characterised by a legal relationship alone; administrative law is caught in an
uneasy tension between those different rationalities already in the national context.72
In global administration, the tension plays out somewhat differently, but the differ-
ence is merely gradual: we may situate global governance on a different point on
the continuum, further towards administrative rationality, but this does not mean
law is absent—it may simply be less extensive and consequential. In fact, GAL points
precisely to the inroads into the managerial that law, rules, and normative expecta-
tions have made, mostly in procedural terms, through legality control, participation,
and transparency. Take, for example, the World Bank Inspection Panel, which—
despite all its shortcomings—institutionalises respect for (internal) rules even when
they lead to a clash with expediency in a given case. And not only has the Panel
had an effect on the operation of the World Bank itself, it has also helped create
a broader expectation that development banks be subject to review mechanisms,
leading to emulation in a number of other institutional contexts.73 This does not
displace administrative rationality in any of the banks concerned, but it conditions it
to some extent—just as administrative law does in the domestic context.
However, it may still be asked—as David Dyzenhaus has recently done74—whether
there is any particular role of ‘law’ as such in GAL, given that much of the practices it
is concerned with have an ambiguous or clearly informal status. There is, of course,

71
By contrast, those actors external to the rule-making process, forced to follow the rules
because of the costs of non-compliance, may be said to be in a legal relationship (subject to
rules they are expected merely to comply with) but are hardly any freer. Think only of states
not members of the Basel Committee or the Financial Action Task Force but still subject to
its regulation.
72
See Dyzenhaus, above n 50, 13–16; Somek in this volume.
73
See D. Bradlow, ‘Private Complainants and International Organizations: A Comparative
Study of the Independent Inspection Mechanisms in International Financial Institutions’
(2005) 36 Georgetown Journal of International Law 403–94.
74
Dyzenhaus, above n 50.
264  Nico Krisch
a significant amount of ‘hard’ law in the foundational documents of international
institutions as well as in the domestic or regional law that affects global regulatory
regimes; often we can indeed observe an oversupply of legal rules, with undecided
hierarchies and a need for confl ict resolution among them.75 Moreover, many global
rules turn into formal law once they are implemented by domestic (legislative or
administrative) actors. Still, much of global regulatory governance takes the form
of explicitly non-binding rules, and many of the procedural developments GAL
describes are not the result of binding rules either. Yet they often share many char-
acteristics of law and many of the elements of its particular internal morality.76 For
example, World Bank policies on issues such as resettlement or indigenous peoples
are general, public, and relatively clear rules that are not easily changed and that
the Bank’s administrative action has to be congruent with; moreover, the Inspection
Panel, among other avenues, offers a way to police that congruence. This may not be
conclusive—the Panel’s findings can eventually be set aside by the Bank. But ignor-
ing them comes at a significant cost, and even if the Inspection Panel may initially
have been set up, in part, to further administrative efficiency, the dynamic it has
created means it can certainly no longer be simply reduced to such considerations.
As in other institutions, this supports Dyzenhaus’s observation that rule by law
often (though by no means always) fosters the rule of law.77 This does not imply that
all those rules and practices should be awarded the status of formal law, binding on
its subjects and on a par with norms of international or constitutional law—this
would indeed often contradict the understanding of the participants and may often
not be desirable either.78 But not all law needs to be the same; some rules might
share certain but not all characteristics with others; and different legal orders may
operate in different spheres and be only loosely coupled with one another. And it will
certainly be fruitful, as Dyzenhaus urges us, to investigate further into the extent to
which the rules and practices of GAL do indeed bear the characteristics of law and
are thus set apart from mere administrative, managerial rationalities; this should also
force us to address the question of which concept of law is adequate to conceptu-
alising global normative practices. The tension between ‘law’ and ‘administration’
in global governance will not disappear, but rather than obscuring it, GAL—like its
domestic counterpart—can be seen as making it explicit: as defining it as a challenge,
as a subject of investigation, and thus drawing it out into the open.

75
Krisch, above n 33.
76
See the discussion in Dyzenhaus, above n 50, 21–4. See also B. Kingsbury, ‘The Concept of
Law in Global Administrative Law’ (2009) 20 European Journal of International Law 23–57.
77
Ibid 22.
78
See also Kingsbury, Krisch, and Stewart, above n 36, 29–31; N. Krisch and B. Kingsbury,
‘Introduction: Global Governance and Global Administrative Law in the International
Legal Order’ (2006) 17 European Journal of International Law 1–13, at 12. However, Benedict
Kingsbury is more openly sympathetic to reconceptualising many of the practices as part
of a new ius gentium (B. Kingsbury, ‘Omnilateralism and Partial International Communities:
Contributions of the Emerging Global Administrative Law’ (2005) 104 Journal of International
Law and Diplomacy 98–124, at 110–15).
 Global Administrative Law  265

vii. conclusion
Many certainties have disappeared in the globalised world, among them the long-
established separation between the domestic and international spheres in politics
and law. The gaps left by that disappearance are wide, and the need to fill them
is urgent: too fragile is the legitimacy of the global and transnational governance
institutions that have assumed many of the functions domestic governments used to
perform. As I have suggested in this article, though, the most obvious steps to fill the
gap are highly problematic. Attempts at radically reshaping, indeed refounding, the
global political structure by following a form of ‘global constitutionalism’ may exert
a strong appeal in the current, very unsatisfactory situation, but they are unlikely
to suit the extremely diverse, contested and rapidly changing character of global
society. Moreover, seeking to establish a coherent, well-ordered structure of political
institutions in the global realm today may not only exceed our abilities to understand
the parameters in which it would have to operate, or predict how these parameters
will develop in the future; it might also play into the hands of those actors that domi-
nate current global politics and are thus likely to shape any new institutional order.
Instead of such large-scale, ‘constitutionalist’ endeavours we are thus better advised
to pursue projects of a more limited ambition, and I have focused here on one of
these—global administrative law. GAL has a narrower ambit than constitutionalist
approaches, in that it focuses on accountability mechanisms in global regulatory
governance; it is less prescriptive about the uses of domestic models; and it oper-
ates on a narrower normative basis, bracketing to some extent the question which
fully worked-out, comprehensive theories can ultimately ground global and trans-
national institutions. But this more limited ambition creates serious problems, not
least because questions of overall structure can hardly be disentangled—practically
and normatively—from those of concrete accountability mechanisms. Moreover, by
bracketing the broader questions GAL may be seen to distract from them, or even to
legitimise illegitimate structures by elevating them to the level of ‘law’. This can be
avoided by being explicit about GAL’s limited aims and only provisional claims, but
it is a very fine line to walk.
To the more philosophically minded, limiting one’s ambitions in this way may
appear insufficient; they will insist on theorising on a larger scale, with comprehen-
sive aims. This is intellectually understandable: bracketing central issues may simply
appear as shying away from the most difficult questions. And even as a matter of
institutional design, confining ourselves to partial, limited solutions may make us
lose sight of the overall edifice, leading to an incoherent whole that we might even-
tually have to rebuild altogether—it might create a ‘monstrous’ structure, similar to
the one Pufendorf deplored (and sought to overcome) in the Holy Roman Empire.79
Yet just as remaking the Empire’s institutions in a coherent fashion found its limits
in the political and social conditions of early modernity, thinking about the design
of global governance cannot succeed without consideration of the complex shape

79
Severinus de Monzambano (Samuel von Pufendorf ), De statu imperii Germanici (1667),
ch VI, §9.
266  Nico Krisch
of global politics and society today, of our incomplete understanding of it and our
limited ability to effect change. In the ‘twilight’ in which we find ourselves today
proceeding in small steps, with limited ambition, may be the only sensible option.
In the case of GAL, it may be one that allows us to sharpen our focus and begin
to answer crucial questions of global governance without leaping to grand designs
borrowed from dissimilar contexts and likely at odds with the fl uid and diverse char-
acter of the postnational polity.
  13 
Administration without Sovereignty
Alexander Somek*

i. counterfactual social facts

Legal statements involve sociological commitments. This may not be true of all
cases. It is obvious, nonetheless, that a summons to appear in court, for example,
presupposes the existence of addressees who are capable of understanding what
they have been ordered to do and also interested, potentially, in avoiding sanctions.
The social universe conjured up in a summons is not the world in which power is
diff used in networks or where the rationality of different social systems is bound to
remain incommensurable. The world taken for granted by legal statements exhibits
the ontological features of what is called, heedlessly perhaps, ‘ordinary life’. It is
a world mostly inhabited by individual human beings. The communication in the
relation between the legislature and the legislated is not shrouded in mystery. The
subjects are capable of understanding their obligations. Conversely, those wielding
the powers conferred by the legal system are capable of controlling the behaviour of
norm addressees by threatening them with sanctions. Therefore, legal enactments
appear to be self-referentially concerned with the stipulation of being adhered to.
It is as though they reflected the belief that if it were not for law society would fall
apart—a belief imparted with the notorious truism ubi societas, ibi ius.
The sociological presuppositions of law may strike one as either terribly naïve or
distressingly prosaic. It is almost preposterous to assume that the addressees actu-
ally do understand the law; and, of course, it is more than trite to remind everyone
of the inescapability of enforcement. But both presuppositions merely reveal law’s
very own sociology of law. Distressingly enough, this sociology rests on a perplexing
composite of idealisation and insight. The law needs to be clear. On a factual level,
this sounds ludicrous. But dropping the expectation altogether would be cynical,
for otherwise expecting compliance would be nothing short of preposterous. From

*
The question addressed in this chapter was the subject of a discussion in my seminar
on ‘Rethinking Public International Law’. I would like to thank my students for patiently
following my exposition of the problem. Nico Krisch and John Reitz provided valuable
comments and challenges.
268  Alexander Somek
the perspective of the legal system it needs to be believed that the law is, despite its
complexity, clear enough to quell doubts regarding the reasonableness of compli-
ance. What there is becomes systematically assimilated to what there ought to be. In
other words, the law idealises the social context of its operation and thereby invites
misreading reality as a manifestation of the ideal.
However, law’s sociology also works the other way around. Reality becomes a
by-product of idealisation. The law signals that if it were not for its existence the
social world would collapse.1 When state authority disappears so-called failed states
sink into chaos. No law, no order. It has to be that way, for this conforms to what we
have come normatively to expect. It is a self-fulfilling prophecy. Hobbes’s political
philosophy provides us with a most instructive example of how idealisations infl u-
ence the real. Hobbes believes us to make a cognitive assumption for a normative
reason. That is, in order to be good curators of our own self-interest we had better
believe others to pursue their own self-interest aggressively, at any rate, when push
comes to shove. On a cognitive plane, it may not be the case that people pursue
their self-interest, for it may often be profoundly unclear what this really means.
Nonetheless, our own interest in survival counsels in favour of acting on the basis
of a stereotype that involves the idealisation that people do in fact pursue their self-
interest. To act on the irrefutable presumption that people pursue their self-interest
presupposes that they are capable of doing so. Hence everyone pursues what he
believes to be in his self-interest because of the belief that everyone else is doing so.
Ought implies can. It has this power over us even when it is profoundly unclear if
what you ought to do is also what you can do. The result is, again, the idealisation of
social facts. Social facts are cast in the light of idealisations.
Hence, the context against which we render something intelligible as valid law
is laden with idealisations. The law comes surrounded with a normative aura. The
addressees understand the law (yeah!). They are self-interested and self-directing
(applause).2 None of these idealisations can be legislated or brought about legally.
They are, logically, prior to law. They involve idealisations of our selves and of our
mutual engagements. Their presence should not come as a surprise. Modern law
is addressed to us as specimens of one and the same type of moral agent. This is
a counterfactual presupposition. But it is not merely counterfactual. Everyone had
better be capable of manifesting in some manner the universal conception of agency
in practical life.
These idealisations are, of course, not innocent. The presupposition underlying
private law according to which adult contracting parties are equally capable of procur-
ing their own interests can be sustained only so long as a situation is not marked by
serious inequalities of power and wealth. There is a degree, however, to which ideali-
sations may legitimately conceal, for they may actually help to neutralise differences
that ought not to matter from a legal point of view. Nevertheless, idealisations may

1
This is, in a sense, equivalent to what Hart thought to be the minimal content of natural law
(H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 189–95).
2
They are what Pierre Schlag would describe as ‘legal subjects’ (P. Schlag, ‘The Problem of
the Subject’ (1991) 69 Texas Law Review 1627–743).
 Administration without Sovereignty  269
also reach a point at which their use appears to distort social realities. This is the case,
as is well known, wherever agreements are deemed to be invalid owing to unequal
bargaining power.
Legal statements are sociological. They are sociological in the sense that they
take for granted the existence of conditions that are normatively presupposed by
the law in order to render its own existence feasible and, not least, legitimate. For
the purpose of the exposition that follows I would like to refer to these presupposi-
tions as counterfactual social facts.3 They are manifest in facts such as the intelligibility
of authoritative enactments, the capability of agents to engage in planning their
conduct and to adjust their plans in accordance with changing circumstances, the
rough predictability of the operation of courts, the responsiveness of the system
of government, and the democratic input into the political process. These are
social facts that the legal system takes for granted in order to conceive of itself as
reasonably fair and acceptable.
The few examples have also shown, however, that systematically the law has to be
inclined either to assimilate the ideal to reality or to construe reality as the expres-
sion of an ideal. Owing to the presence of counterfactual social facts, therefore, the
law has a built-in tendency towards ideological self-obfuscation.

ii. competing descriptions

Dieter Grimm’s unwavering scepticism with regard to the premature celebrations of
constitutionalism beyond the nation state4 expresses precisely a concern about the
obstructive infl uence of counterfactual social facts.5 The promise that resides in the
inherited concept of the constitution becomes drained of its normative force, where
major elements of the original context of constitutional law, such as consolidated
state authority, can no longer be taken for granted. What cannot be sustained in a
transnational context, in particular, is the concept of the constitution as a compre-
hensive regulation of state power that facilitates collective self-determination. Using
the attribute ‘constitutional’ in order to describe fragmentary transnational processes
is likely to create serious distortions.

3
I cannot, for the purpose of the discussion that follows elaborate in which respect my view
of counterfactual social facts is both similar to and dissimilar from Lon Fuller’s take on what
constitutes the internal morality of law. There is a similarity for it highlights the fact that
certain idealisations are part of the practice of law; the approach is fundamentally different,
nonetheless, for it abstains from consolidating a number of idealisations into a ‘procedural’
version of natural law. Rather, the presence of counterfactual social facts is itself taken to
be a social fact about raising and defending legal claims. See, by contrast, L. L. Fuller, The
Morality of Law (New Haven, Conn.: Yale University Press, rev edn, 1964), 91–106.
4
For one example among many others (with references to other examples), see A. Peters,
‘Compensatory Constitutionalism: The Function and Potential of Fundamental International
Norms and Structures’ (2006) 19 Leiden Journal of International Law 579–610.
5
See D. Grimm, ‘The Constitution in the Process of Denationalization’ (2005) 12 Constellations
447–63.
270  Alexander Somek
However, constitutionalism is not the only theoretical vocabulary that has been
used in order to account for transnational structures. Indeed, over the last few
years, the number of contenders has grown considerably. Above all, ‘governance’,
in particular ‘governance without government’ and talk of new ‘sites’ of authority
haven taken centre stage.6 Sociological approaches that highlight the systemic
effects underlying the behaviour of international actors, such as constructivism7 and
systems theory, compete for shedding light on a situation for which the long-serving
counterfactual social facts, such as ‘states’ and the ‘national interest’ no longer appear
to be of any avail. Whereas the social ontology of ‘realistic’ approaches to inter-
national affairs appears to enjoy considerable support by American legal scholars,8
a highly tentative and fl uid discourse on soft-law, ‘hybridity’, and governance has
come around in Europe.9
What the use of these various vocabularies indicates is keen awareness that the
inherited categories of public international law are no longer capable of capturing
a new reality. In fact, owing to the idealising moment inherent in tacit references to
counterfactual social facts the traditional legal sociology of international law tends
to ascribe to state governments more power then they actually possess.10
None of these contending vocabularies, however, has as of yet attained the stature
of a lingua franca. Yet, the attempt to account for global structures of governing in
terms of ‘global administrative law’ is nonetheless remarkable.11 It stands out, for it is
based on the realisation that most of the more recent developments in transnational
law have indeed enhanced its administrative dimension.12 What is to be observed
today, from the preparation of side agreements to the GATT all the way down to the
regulation of foodstuffs in the European Union (EU), is an increase of transnational

6
See, most prominently, J. N. Rosenau, Along the Domestic-Foreign Frontier: Exploring
Governance in a Turbulent World (Cambridge: Cambridge University Press, 1997).
‘Governance’, generally, refers to processes of regulating and ordering issues of the public
interest.
7
See D. Bederman, ‘Constructivism, Positivism, and Empiricism in International Law’
(2001) 89 Georgetown Law Journal 469–97, at 477; P. A. Karber, ‘ “Constructivism” as a Method
of International Law’ (2000) 94 Proceedings of the American Society of International Law
189–92; J. Brunée and S. J. Toope, ‘International Law and Constructivism: Elements of an
Interactional Theory of International Law’ (2000) 39 Columbia Journal of Transnational Law
19–73.
8
J. L. Goldsmith and E. A. Posner, The Limits of International Law (New York: Oxford
University Press, 2005).
9
See G. de Burca and J. Scott (eds), Law and New Governance in the EU and the US (Oxford:
Hart, 2006).
10
This observation has been made, very aptly, by A.-M. Slaughter, A New World Order
(Princeton, NJ: Princeton University Press, 2003).
11
For a manifesto, see B. Kingsbury, N. Krisch, and R. B. Stewart, ‘The Emergence of Global
Administrative Law’ (2005) 68 Law and Contemporary Problems 15–61.
12
See J. H. H. Weiler, ‘The Geology of International Law: Governance, Democracy and
Legitimacy’ (2004) 64 Heidelberg Journal of International Law (ZaöRV) 547–62.
 Administration without Sovereignty  271
regulatory cooperation and of joint efforts at implementation. The new world of
international law is the world of loosely coupled but often highly interactive and
effective national and international bureaucracies.

iii. a remarkable paradigm shift

It should not go unnoticed that as the project unfolds the concept of administrative
law is given a more American twist.13 The focus lies, hence, not so much on indi-
vidual administrative acts14 but on the establishment of new regulatory authority.15
The rights dimension hence receives less attention than the governance dimension,
for the guarantees of transparency and participation are the regulators’ modality of
respecting the interests of stakeholders and affected groups.16 Nevertheless, a whole
range of phenomena enters the purview of global administrative law, ranging from
administration by formal organisations, such as the World Health Organization,
over collective action by more or less formalised transnational networks of national
regulatory officials all the way down to private institutions with regulatory func-
tions, such as the International Organization for Standardization.17
Intriguingly, the range of phenomena studied reveals a departure from a basic
analogy. In the exemplary case, a legislature delegates regulatory authority to an
agency, which, after giving notice, scheduling hearings, and providing reasons,
adopts an implementing regulation. By analogy, in the paradigmatic international
context a treaty typically takes the place of legislation and a general act adopted
by an international organisation the place of the regulation. Hence, acts by the
United Nations Security Council, which have increasingly come to exhibit a general
nature,18 would derive their authority from the delegation effected by all acceding
signatory states of the UN Charter. If I understand the project correctly, it is the very
point of global administrative law to emphasise that what used to be the paradig-
matic make-up of the modern ‘regulatory state’ is merely a limiting case of how the
administrative process becomes re-enacted on a global scale. Remarkably enough,
the paradigm shift amounts to precisely this ‘decentring’ of the image of delegation

13
For similar observations, see C. Harlow, ‘Global Administrative Law: The Quest for
Principles and Values’ (2006) 17 European Journal of International Law 187–214, at 209.
14
This is not always the case: the declaration of refugee status by the UNHCR is an
individual administrative act.
15
See Kingsbury et al, above n 11, at 16.
16
On the pedigree of ‘governance’ from the pluralistic transformation of American
administrative law into an instrument of participation and agreed upon rule making,
see the highly perceptive comments by M. Shapiro, ‘Administrative Law Unbounded:
Reflections on Government and Governance’ (2001) 8 Indiana Journal of Global Legal Studies
369–77, at 376.
17
See Kingsbury et al, above n 11, at 20–3.
18
See J. E. Alvarez, ‘Hegemonic International Law Revisited’ (2003) 97 American Journal of
International Law 873–88.
272  Alexander Somek
of authority to rule-making and rule-applying bodies. Not only can regulation on
the basis of delegation no longer be considered the paradigmatic core of administra-
tive law, no other relation can claim to have taken its place. Individual acts by the
Security Council are just as paradigmatic an instance of global administrative law as
standard setting by the Codex Alimentarius Commission.
On a descriptive level, hence, global administrative law sweeps so broadly that
one is inclined to take it to be a re-description of modern international law.19 It actu-
ally provides a picture of the international law under the dominating infl uence of
administrative rationality. The absence of a paradigm reveals the ‘rhizomatic’ quality
of this situation.20 There is neither system nor centre, merely family resemblances
among different processes.
Against this background, it is all the more surprising that the normative thrust
of global administrative law is relatively straightforward. Indeed, the purveyors of
the idea are confident that from the mush of the decentred paradigm will emerge
‘the mechanisms, principles, practices, and supporting social understandings that
promote or otherwise affect the accountability of global administrative bodies, in
particular by ensuring they meet adequate standards of transparency, participa-
tion, reasoned decision, and legality, by providing effective review of the rules and
decisions they make’.21
Global administrative law links the description of variegated phenomena with the
pursuit of a limited normative agenda, which is committed to core principles of the
rule of law and values associated with ‘good governance’.22 Hence, global adminis-
trative law has set for itself quite pragmatic objectives, which are, incidentally, far
more modest than the claims made by those advancing in one way or another the
cause of constitutionalisation.23
The only problem that is posed by this project is whether or not even in this case
the use of legal vocabulary involves a mismatch in the relation between counterfac-
tual social facts and the conditions under which operates what is supposed to be law.

19
See N. Krisch and B. Kingsburg, ‘Introduction: Global Governance and Global
Administrative Law in the International Legal Order’ (2006) 17 European Journal of
International Law 1–13.
20
© Deleuze and Guattari (see G. Deleuze and F. Guattari, A Thousand Plateaus, trans
B. Massumi (London: Continuum, 2004)).
21
Kingsbury et al, above n 11, at 17. See also ibid at 28.
22
For apt remarks as regards this more limited agenda, see S. Marks, ‘Naming Global
Administrative Law’ (2005) 37 International Law and Politics 995–1001. Harlow, above n 13, at
198–203, goes to great pains to distinguish rule of law principles, such as legality and limited
powers, from good governance values, such as transparency and participation. She sees the
latter originating from World Bank and International Monetary Fund policies and denies
them the stature of genuine administrative law principles. I can imagine that American
scholars would have a different take on this.
23
For self-conscious modesty, see N. Krisch, ‘Postnational Constitutionalism?’ (manuscript,
2008).
 Administration without Sovereignty  273
In other words, the project may, in spite of its forward-looking orientation, give rise
to idealisations whose use is likely to be unwarranted in the face of existing realities.

iv. globalisation’s GUTE POLIZEY

Lest I be misunderstood, I add that the problem is not whether administrative
processes are by their very nature not susceptible to legal control. The rise of admin-
istrative law in the context of nineteenth-century European monarchies serves as a
reminder that the task is not too arduous to be achieved. The question is whether in
certain instances a description of social processes in traditional legal terms may not
render them obscure owing to the law’s intrinsic tendency to idealise the context
of its operation. This danger is all the more virulent in settings that are marked by
the prevalence of administrative rationality. In other words, when speaking of law
we ought to take heed of the mutations that legal relationships undergo when they
become absorbed by processes of administration.
Since its inception, administrative action has been teleological in its orientation
and both comprehensive and particularising with regard to its scope.24 Administra-
tive rationality is comprehensive, for with the rise of the modern state administrative
processes are self-reflexively concerned with strengthening the vitality and enhanc-
ing the presence of the state. The expenditure of energy in discrete processes of
administration is therefore ultimately fine-tuned and calibrated in light of these final
objectives. Every act of administration is always part of a larger ambition. At the
same time, administrative rationality is also particularising. Foucault may well have
been right in assuming that, from earlier Christian doctrines of good governing, it
inherits an individualising ‘pastoral’ orientation.25 The administrators are expected
to manage the lives of citizens and to see to the flourishing of the population.26
Whatever seems to be conducive to the life of the population or, as one would have
put it in the nineteenth century, the nation or, nowadays, the health and safety of
the global consumer, is in and of itself within the purview of the administration.27
It is in this connection that, owing to the subject at hand, the professed concern
with the vitality of social life confers comprehensive competence.28 Maybe one
does not go wrong in assuming, again with an eye to Foucault, that administrative

24
The following remarks are taking their cue from, without thereby slavishly following,
M. Foucault, ‘ “Omnes et Singulatim”: Toward a Critique of Political Reason’, in Power,
ed J. D. Faubion, trans R. Hurley (New York: New Press, 1994), 298–325.
25
See ibid at 309.
26
See ibid at 323.
27
On the early cosmopolitan connotation of Polizey, which suggests administrative action
that is geared toward creating polite citizenry that is conversant in wordly affairs, see H. Maier,
Die ältere deutsche Staats- und Verwaltungslehre (Polizeiwissenschaft): Ein Beitrag zur Geschichte der
politischen Wissenschaft in Deutschland (Neuwied: Hermann Luchterhand Verlag, 1966), 128–9.
28
For the Christian origin of the idea of the sanctity of life (pace Agamben), see H. Arendt,
The Human Condition (Chicago, Ill.: Chicago University Press, 1957), 313–14.
274  Alexander Somek
rationality is ‘bio-political’ in its orientation, for it is concerned with the preservation,
the moral quality, the conveniences, and the pleasures of life.29 Any particular
measures that are taken by the administration nonetheless serve the comprehensive
ultimate objective of reinforcing state power. Administrative rationality is a means
‘to develop those elements constitutive of individuals’ lives in such a way that their
development also fosters the strength of the state’.30
The calibration of action with regard to attaining both the comprehensive
and the particularising objectives would be severely hampered if it had to play by
pre-established rules of law. The management of life-enhancing processes—be it the
provision of wholesome food, the stipulation of sanitary public baths, or the correc-
tion of damaging customs, such as smoking, drinking, gluttony, or unprotected
sex—needs to be, thus understood, indeed an activity that defies the discipline of
law.31 In other words, the administrators need to be in a position to adjust the invest-
ment of resources from one situation to the next in accordance with felt necessities
at the time of action. No general rule can determine in advance the type of response
that would be adequate to a particular situation. In fact, from within the perspec-
tive of managing the life of the population (or global prosperity) rules can merely
establish some provisional standard. Denying existing rules their authority does in
no manner undermine the rationality of administration; it does not, at any rate so
long as the activity remains geared to both the comprehensive and the particularising
objectives.32
What is more, it is not by accident that administration—the gute Polizey—is
associated with sovereign power in the sense of a power that is essentially legibus
solutus. In the administrative context this power works, though, not through the
spectacular demonstrations of omnipotentia terranea, which puts itself on display
in gruesome public executions, but through the omnipresence of measures of
correction, learning, nurturing, fostering, facilitating, promoting, educating, train-
ing, optimisation, and advice. The macro- and micro-management of life can best
flourish when it enjoys the backing of sovereign power. Under this condition, it is
not hampered by jurisdictional constraints or held back by the demand to respect a
rule or a right. The coupling with sovereignty explains why administrative power
is so menacing. Administrations regulate, to be sure. But they resort to regulation
only as an expedient in order to get things done. Even deregulation is a method
of administrative goal attainment.33 When there is promise that things might get

29
See Foucault, above n 24, at 321. See also M. Foucault, Society Must Be Defended: Lectures at
the Collège de France 1975–1976, trans D. Macey (New York: Picador 2003), 243.
30
Foucault, above n 24, at 322 (a view that Foucault attributes to Justi).
31
See Harlow, above n 13, at 191.
32
See M. Oakeshott, On Human Conduct (Oxford: Oxford University Press, 1975), 116–17,
who may in turn have drawn on Fuller’s account of the contrast between adjudication
and managing. See Fuller, above n 3, at 207–8; L. L. Fuller, The Principles of Social Order,
ed K. Winston (Durham, NC: Duke University Press, 1981), 195.
33
For an overview, see C. Crouch, Post-Democracy (London: Polity Press, 2004).
 Administration without Sovereignty  275
done more effectively through direct action, administrative rationality is the first to
override its own pre-established constraint.
The eudemonism of life-enhancing administrative action encounters different
conditions in the age of globalisation. This change does not affect its comprehensive
and particularising momentum: what has altered is the entity whose life is the object
of comprehensive concern. No longer does the state occupy this position, but rather,
in Marxian parlance, the life process of society,34 which has come to adopt as its
final cause the want-generation and want-satisfaction of the global consumer. What
one encounters in this context is administrative rationality that has been stripped of
its backing by sovereignty. It therefore needs to negotiate and calibrate its relative
authority in each case with an eye to the overall stabilisation of global economic
processes. Such deferential fine-tuning with regard to other agents wielding admin-
istrative authority would not be necessary, constitutional constraints aside, under
territorial rule. Territoriality is the consequence of the absence of substantive
jurisdictional limitations. Occupying supreme authority over a territory is what
distinguishes sovereignty from the functionally differentiated claims to supremacy
that purportedly inhere in self-contained regimes.35 The WTO may well have built
into its operation the claim to have the final say over how to resolve ‘trade and …’
questions, but it would have to expect resistance if it decided to ride roughshod
over the findings of a human rights regime. It is the mark of sovereign power that
it does not have to accommodate other powers. Sovereign power is capable of over-
coming obstacles wherever they might arise, lest it is not what it purports to be.
I do not claim that my brief characterisation of administrative rationality is either
original or complete.36 I merely point out that where administrative rationality
dominates it appears doubtful whether belief can be sustained in the presence of
the law’s counterfactual social facts. I would like to argue, instead, that the new
situation for which there exists already a fair number of competing descriptors is
best understood—in particular, from a historical point of view—when conceived
of as administration without sovereignty. Neither talk about ‘law beyond state’, to
which global administrative law in any case formulates a contribution,37 nor some
lofty-softy ‘constitutionalism’ is adequate to capture the essence of transnational
governance processes. They are not, for they miss the most important point, that
is, the demise of the traditional legal relationship.

34
For an apt observation, see Arendt, above n 28, at 255.
35
See A. Fischer-Lescano and G. Teubner, ‘Regime-collisions: The Vain Search for Legal
Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law
999–1046.
36
For a similar description, see M. Loughlin, The Idea of Public Law (Oxford: Oxford
University Press, 2003), 17–18.
37
See S. Cassese, ‘Administrative Law without the State? The Challenge of Global
Regulation’ (2005) 37 New York University Journal of International Law and Politics 663–94,
at 673: ‘The centrality of the state to the notion of public powers has become an optical
illusion.’
276  Alexander Somek

v. the legal relationship

It is only with reluctance that I take up a topic that smacks of a stale debate. But it
is unavoidable to come close to addressing the concept of law, even though this is
precisely what I would still like to avoid.38 I express uneasiness about having to do so
for the simple reason that the topic has suffered enormous intellectual setbacks in
recent debates over legal positivism. One debate is (still) concerned with examples of
‘wicked law’ whose encounter supposedly renders untenable the distinction between
law as it is and law as it ought to be.39 The other debate, if the existing scholarship
even amounts to one, affects the purportedly conventional nature of standards used
to identify valid law. The first debate is useless because it does not address the under-
lying problem of political resistance. The second debate is wrongheaded because
it overlooks that, even though there are undeniably conventions for raising and
contesting legal claims, these claims do not merely self-referentially point to conven-
tions.40 This is also the case for the concept of law. We refer to some matters as law
conventionally while what we thereby intend aspires to more than mere conformity
with more or less settled practice. Even if we may find, in some cases, an appeal to
conventions sufficient, we do not rest content on conventional grounds.
The concept of law presupposes the concept of legality. From Enlightenment
legal philosophy we inherited an understanding of legality according to which the
relationship between the commander and an addressee is legal if the latter is not
required to share the point of view of the former.41 The addressee is free to obey
with complete indifference towards the lawgiver’s plans and objectives.42 That the
relationship between lawgivers and addressees and, indeed, any person entering into
a legal relationship with another is characterised by legality is part of the law’s coun-
terfactual social facts. Legal subjects are expected to have such a detached attitude.
A legal relationship presupposes the mutual ascription of counterfactual social facts
with regard to how control is exercised by someone over another and what it takes to

38
Scholars of global administrative law usually also avoid addressing this question, for
this would get in the way of promoting the pragmatic objectives of increasing transpar-
ency, accountability, and possibly also democracy. For this observation, see D. Dyzenhaus,
‘Accountability and the Concept of (Global) Administrative Law’ <http://iilj.org/courses/
documents/Dyzenhaus.TheConceptofGlobalAdministrativeLawFinal.pdf>. I would like to
thank Nico Krisch for drawing my attention to this paper.
39
For the latest outgrowth of this debate, see R. Alexy, The Argument from Injustice: A Reply
to Legal Positivism, trans B. Litschweski Paulson and S. Paulson (Oxford: Oxford University
Press, 2002).
40
For a forceful critique, see R. Dworkin, Justice in Robes (Cambridge, Mass.: Harvard
University Press, 2006), 140–86.
41
Enlightenment legal philosophy was concerned with freedom from interference by
others: see, eg J. G. Fichte, Grundlage des Naturrechts nach Prinzipien der Wissenschaftslehre,
ed M. Zahn (Hamburg: Meiner, 1979), 118–19.
42
See Fuller, above n 3, at 209.
 Administration without Sovereignty  277
be controlled by someone else. The use of coercion as a means of last resort signifies
the existence of such a mutually detached, ‘external’ relationship.43
Traditional international law involves a legal relationship. The norm giver and the
norm addressee are not, owing to their relationship, members of a common project
or joint enterprise.44 They may remain foreign to one another in the sense that the
addressee is always free to point to limits of obligation without having to explain
why what he has or has not done does not amount to disloyal, inconsiderate, or
unproductive behaviour. The relationship is external, for it merely requires conduct
to be norm oriented. Governing by law is not directed at some goal of optimisation,
nor does it involve a learning process. It is about laying down, and doing, what is
right and avoiding what is wrong. It is a separate matter whether determining what
is right or wrong involves a reference to rules or a classification of the weight of
different arguments,45 but there would be no legal relationship if without further
qualification all kinds of arguments were admitted to some process of optimisation.
Owing to its external character, the legal relationship, traditionally understood,46
is also marked by distance. One party does not assist, counsel, train, support, or
educate the other party into what it takes to secure compliance. Unless parties have
decided to establish a common administration, working towards the retraining or
transformation of partners would transcend a legal relationship. But even when
parties agree to endure counselling or training, the terms of the agreement define
the limit from which the distance can be perceived that governs the relation between
partners. What matters, in the final event, is that the addressees undertake to engage
in conduct that they have agreed to, or were ordered to, espouse. In other words, the
addressee, even though liable to comply with a rule, neither becomes the rule giver’s
servant nor, worse still, his or her slave.47
The legal relationship, even when it creates a position of subordination does not
give rise to comprehensive or unconditional subjection. This is the case because any
power that is given to anyone is limited. The defenders of republican liberty—the
liberty Skinner refers to as liberty before liberalism—understood perfectly well
that domination can only be avoided when the jurisdiction of the superordinate
power is limited.48 The legal relationship cannot tolerate sovereignty. It involves

43
See Immanuel Kant, Metaphysik der Sitten, Werke in zwölf Bänden, ed W. Weischedel
(Frankfurt am Main: Suhrkamp Verlag, 1969), viii. 338–9.
44
Evidently, this is a point I borrow from Oakeshott, above n 32, 128.
45
The latter was integral to Dworkin’s original project: see his Taking Rights Seriously
(Cambridge, Mass.: Harvard University Press, 2nd edn, 1978).
46
I add this historical marker, for I would like to leave open the question whether legality
cannot be seen in a process of historical transformation. But see A. Somek, ‘Legalität heute:
Variationen über ein Thema von Max Weber’ (2008) 47 Der Staat 428–65.
47
On the following, see Q. Skinner, Liberty before Liberalism (Cambridge: Cambridge
University Press, 1998).
48
See also R. Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality
of Democracy (Cambridge: Cambridge University Press, 2007), 159.
278  Alexander Somek
jurisdictional limits. This is not to say that the absence of sovereignty in and of itself
corroborates the presence of a legal relationship. On the contrary, the void becomes
all too easily filled with administration without sovereignty.
The significance of such jurisdictional limits can be seen by spinning even
further the analogy between compliance with legal norms, on the one hand, and
the execution of tasks, on the other. Since the addressee is not subjugated to the
unconditional command of the lawgiver he or she remains in a position similar
to that of a craftsperson or a contractor. They determine themselves how they go
about fulfilling their promises and doing their work. They are not under permanent
guidance or direction. The analogy appears to be particularly apt for the classical
international legal relationship where the labour of compliance is entirely left to the
obligated subject. In the case of non-self-executing treaties the obligated states are
free to adopt the norms that accommodate their international obligation to their
internal situation. But even being commanded to do something—Austin style—is
different from suffering the type of subordination that is characteristic of service or
apprenticeship (apprenticeship, in fact, describes accurately the situation of those
who are being assisted into being capable of compliance).
Conceiving the negative of a legal relationship in terms of servitude and appren-
ticeship captures merely a segment. The non-legal relationship is not necessarily hier-
archical. Tongue in cheek, I add that it may well be heterarchical. Teams of technicians
committed to their expertise can become slaves of their ambition, in particular, when
they mutually push their standards to new heights. More generally, competitive situ-
ations create subordination not merely under the shifting predilections of consumers
but also to the conditions of actions that are the contingent result of uncoordinated
efforts. It would be worth exploring in what respect market situations create domina-
tion that is the opposite of legality; it is, however, beyond the purview of this chapter.
Bluntly speaking, the legal relationship is a negation of administrative rationality,
and administrative law the resulting unstable synthesis. Legalisation introduces a break
into the overall teleological compass of administrative action and creates obstacles for
particularistic interference. The synthesis is unstable, for administrative rationality is
always inclined to make legal form subservient to its own ends. The legal constraints
on administrative action can either consist of norms that it needs to comply with—
these norms may be as nebulous as the notorious reason-giving requirements—or of
the obligation to secure the consent or to avoid the veto of others. I concede that this
is, if anything, an almost obscenely trivial characterisation of what may strike one as
‘legal’ about administrative law;49 nevertheless, simply because of its very meagreness
it is all the more apt for presenting the contrast that I would like to defend.

49
I should like to emphasise that the tendency prevalent among students of the common
law to see the rule of law triumph as soon as there is judicial review of administrative
action (and the ensuing judicial elaboration of standards) strikes me also as not particularly
ingenious. See Harlow, above n 13, at 191–2. Similarly, Dyzenhaus, above n 38, at 28, appears
to be convinced that, indeed, a legal relationship obtains so long as the decision-making
body offers a ‘reasoned opinion’ for its decisions. This must strike one as clearly insufficient,
for any legal decision needs to explain the weight of reasons with an eye to the existence
 Administration without Sovereignty  279

vi. the global administrative relationship:

internship to partnership
Why the world envisaged by global administrative law does not involve a legal
relationship in the sense reconstructed above becomes clear, remarkably enough,
already in the opening pages of Slaughter’s The New World Order.50 Even though
the author presents in this work her own account of what transnational governing
processes are all about, she describes quite perceptively what the various relation-
ships between and among the actors engaged in administrative networks involve.
First, the infl uence exercised in those networks is based on the imparting and
sharing of information. This means, by contrast to the legal relation, that norm-
oriented behaviour is not part of the picture.51 Rather, the point appears to be that the
participants in networks are expected to rise from their present level of knowledge
and skills to the next. Broadly understood, this involves some process of teaching,
learning, and growth. What really matters are processes and not acts. As has been
observed by Shapiro this means that ‘dialogue itself evolved into governance’.52
Second, the basic image of the relationship is not that of distanced agreement and
compliance but one of either unidirectional or multidirectional ‘capacity-building’.
Of course, building the capacity to comply is a better means of securing compliance
than trust in the fidelity of the partner or the effectiveness of sanctions.
Third, it is understood, mutually and generally, that all action taken within
networks contributes to a process of problem solving. This explains why an osten-
sible oxymoron such as ‘regulation by information’53 can pass muster. It explains also
why the usual ersatz material for norms, such as ‘best practice’, ‘benchmarking’, or
mutual learning and adjustment, have become the sweethearts of the advocates of
transnational governing. Where ‘problem solving’ serves as the preferred descriptor
of an activity, ideological confl ict does not enter the picture. Problem solving is the
antithesis of political struggle. It is the activity in which those engage who already
share a certain view of the world and share a mutual understanding of the values
that they adhere to.
Multi-level regulatory problem solving, such as the determination of permissible
food ingredients, has as one of its points of reference WTO side agreements and the
default standards set by the Codex Alimentarius Commission. But the WTO dispute

of a legal relationship (hence, for example, by drawing a line between principle and policy
arguments).
50
See A.-M. Slaughter, The New World Order (Princeton, NJ: Princeton University Press,
2004), at 4.
51
It has been pointed out by Luhmann already that with the rise of world society cognitive
expectations will play a more important role than the normative expectations characteristic
of law (see N. Luhmann, ‘Die Weltgesellschaft’, in his Soziologische Auf klärung: Aufsätze zur
Theorie der Gesellschaft (Opladen: Westdeutscher Verlag, 2nd edn, 1975), ii. 51–71, at 55).
52
Shapiro, above n 16, at 372.
53
Slaughter, above n 50, at 24.
280  Alexander Somek
settlement process is merely one of the relevant locales. National and regional
institutions are also involved. In the context of such multi-level systems, decisions are
increasingly understood to be provisional formulations of standpoints in a context
where convergence is the hoped-for result. The counterfactual social facts charac-
teristic of the legal system cannot be taken for granted here. The substantive stan-
dards applied suffer from a high degree of de-formalisation, which has been rightly
decried by Koskenniemi.54 One finds neither prescriptions nor proscriptions, merely
certain factors that pull in different directions but nonetheless need to be taken into
account for decision making in individual cases. There is no relation of indifference.
It is understood that regulators positioned at different levels, such as the WTO and
the EU, are part of a common enterprise and may well entertain different ideas for
what it may take to arrive at the best result. Decisions in individual cases are treated
as though they were contributions to an ongoing learning process which is to result
in the final catholic consensus that Peirce believed to be the epiphany of truth.55 The
normative is no longer normative. It is transformed into something cognitive.
The emerging view of the social universe perceives the life process to depend
on the capacity on the part of various actors to participate in problem-solving
processes, which in turn involve expertise and widespread communication. It is
a world of partnerships and apprenticeships. In fact, it is the world that one first
personally encounters in ‘internships’. It is also a world that requires a high degree
of mutual accommodation and comity among units operating in different jurisdic-
tional spheres. The mutual accommodation among cooperating units is concomi-
tant with the lack of sovereignty. From it emerges the most remarkable feature of
the modern governing relationships, namely that they are ultimately grounded in
reflexive administrative processes. These processes take place in a setting that is
marked by the absence of sovereignty,56 which is manifested in two indetermina-
cies: the indeterminacy of jurisdiction, on the one hand, and the indeterminacy of
sources on the other. Both give rise to a remarkable development. A style of reason-
ing that has its roots in the common law tradition comes to play havoc with reason
and to enchant members of the discipline. Regardless of whether one considers the
legality thereby abandoned or transformed, it is clear that the counterfactual social
facts underpinning a traditional legal relationship can no longer be sustained.

54
See M. Koskenniemi, ‘The Fate of Public International Law: Between Technique and
Politics’ (2007) 70 Modern Law Review 1–30.
55
See C. S. Peirce, ‘Some Consequences of Four Incapacities’, in The Essential Peirce,
ed N. Houser and C. Kloesel (Bloomington: Indiana University Press, 1992), i. 28–55, at 54.
56
The absence of traditional legality’s counterfactual social facts—such as norm-oriented
behaviour, a mutually detached relationship, or respect for jurisdictional limits—is indirectly
confirmed by this absence of sovereignty. I do not want to claim that the existence of a legal
relationship presupposes the existence of sovereign power; what I would like to suggest,
however, is that it is easier to establish legal relationships within a homogeneous sphere of
power.
 Administration without Sovereignty  281

vii. indeterminate jurisdiction

Global administrative law conceives of global problem solving as taking place in a
pluralist universe where institutions located at different levels contend to resolve
certain issues. The relevant institutions, such as a WTO dispute settlement panel or
the United Nations Security Council, can be tied to constituencies whom they argu-
ably represent or are, at any rate, answerable to.57 According to Krisch’s intriguing
reconstruction, no potential constituency is disqualified from deciding on certain
issues.58 The national constituency lends a voice to the concerns of local communi-
ties. The international constituency represents the interests of states across borders.
The cosmopolitan constituency, finally, stands for the perspective of ‘a truly global
public’.59 But no constituency is qualified to exercise exclusive jurisdiction.60 The
national is not, for it is not sufficiently capable of taking into account the effect that
its acts have on its neighbours. The international constituency suffers from a severe
democratic legitimacy deficit, and the cosmopolitan is not associated with any
community at all. A consociational solution does not seem to be of any avail either,
for it would allow for too much veto power to obstruct the process.61 The solution
that Krisch recommends would apparently embrace concurrent jurisdiction without
pre-emption. Decisions should be taken anywhere; however, any other constituency
would retain a right to contestation before the decision-making institution or
anywhere else:
The resulting picture of global governance would then be one of a constant
potential for mutual challenge: of decisions with limited authority that may be
contested through diverse channels until some (perhaps provisional) closure
might be achieved.62
This is a world that does not recognise the final legal word.63 Krisch perceives
correctly that the absence of a final legal solution is likely to have a moderating
effect in a situation where all representatives of constituencies believe the long-term
benefits of cooperation to exceed the short-term gains of ostensible defection.
Sweet harmony of agreement is likely to pervade a world of ‘smooth cooperation,

57
Global administrative law is basically understood to address accountability problems. See
Krisch and Kingsbury, above n 19, at 1, 4.
58
On the following, see N. Krisch, ‘The Pluralism of Global Administrative Law’ (2006) 17
European Journal of International Law 247–78, at 253–5.
59
See ibid at 255.
60
See ibid at 269–70.
61
See ibid at 264–6.
62
Ibid at 266–7.
63
In a similar vein, see G. Teubner, ‘Altera Pars Audiatur: Law in the Collision of
Discourses’, in R. Rawlings (ed), Law, Society, and Economy (Oxford: Oxford University Press,
1997), 150–76.
282  Alexander Somek
compromise and mutual accommodation’.64 But this is only a positive way of saying
that what is to be encountered here is the pragmatic logic of administrative problem
solving and not reasons that invoke a legal constraint. Instead of being put to work
on substantive issues, administrative rationality is applied to dealing with the pres-
ence of others. The mutual infl uencing of different jurisdictions, the fl uid and provi-
sional pragmatic approximation,65 and the mindful processing of disagreement are
nothing short of administrative rationality in action.
The reason why the outcome of such processes of mutual self-observation is not
a product of legality can be seen all the more clearly by examining the attempt that
has been made to present such processes of mutual accommodation, adaptation,
learning, and creative problem solving as emerging from the ‘auto-constitutionali-
sation’ of regimes. In the course of their highly original analysis of the fragmented
nature of the world’s legal system, Fischer-Lescano and Teubner see processes of
autonomous societal constitutionalisation at work whenever and wherever reflex-
ive processes of various social spheres become combined (‘coupled’) with reflexive
processes of the legal system. The idea is intriguing. According to social systems
theory, reflexive processes occur in social systems whenever the system’s internal
logic and operation becomes applied to itself.66 This is the case, for example, when
the scientific system, which is the wellspring of theories about the world, begins to
develop theories about theories. The legal system switches into a reflexive mode
when secondary rules come to address the creation and application of primary rules
of obligation. Hence, science would avail itself of a constitution if theories about
theories—ie philosophy of science—were to inform the adoption of legal standards
for the admission of standards of truth. Arguably, science already has a constitution,
thus understood, but it is an entirely negative constitution, for it prohibits the adop-
tion of such secondary rules out of concern for the freedom to conduct research.
Alternatively, the market economy can be said to apply its most elementary prin-
ciple, the principle of allocative efficiency, to itself when it identifies failures in the
actual operation of the market to attain efficient results. When this reflexive process
is combined with secondary rules for the intervention into the economy, competi-
tion law ostensibly comes to play the role of the ‘constitution of the economy’.
The self-reflection of politics, that is, the application of partisan struggle to partisan
struggle, becomes constitutionalised when it is used to define the rules of the politi-
cal game. The procedural core of the constitution, and only the procedural core,
is the political constitution of society. Higher law may be ubiquitous, but only to a
limited extent does it affect the constitution of politics.
Even though such a use of the concept of the constitution may strike one as
fundamentally at odds with Grimm’s historical sensibilities,67 it has certain purchase,

64
Krisch, above n 58, at 267.
65
See ibid at 263.
66
See N. Luhmann, ‘Reflexive Mechanismen’, in Soziologische Auf klärung (Opladen:
Westdeutscher Verlag, 4th edn, 1974), i. 92–112.
67
See above n 5.
 Administration without Sovereignty  283
nonetheless, for it invites re-conceiving of all legal systems—domestic as well as
transnational—in terms of patchworks of overlapping and potentially colliding
constitutions of social sectors. However, in the cases that are of interest here, and
these are the cases affecting global administrative law, these purportedly ‘auto-consti-
tutionalised’ regimes experience the necessity ‘to take into account’, ‘to learn from’,
and ‘to defer by default’ how their respective peer regimes have dealt with certain
issues. The pragmatic ingenuity that comes into play in such processes confirms
that no secondary rules are being followed. It is the administrative process with its
dual orientation towards the whole and towards the particular that accounts for the
decision making. Primary rules, that is, are not brought to life, put to work, and
eliminated on the basis of secondary rule of procedure, but rather on the basis of
intuitively arrived at provisional adjustments.

viii. the exaltation of the common law

I would like to anticipate, at this point, two potential objections. According to the
first objection, I am guilty of bringing to bear on the subject matter a narrowly
formalistic and positivistic concept of the legal relationship, which has long turned
out to be indefensible even for legal systems of a municipal kind. By contrast, it is not
at all implausible to assume that background moral and political principles, rather
than neatly stated secondary rules, inform all legal problem solving.68 Denying
such principles a legal status is tantamount to committing a classical fallacy of legal
positivism.
The second objection has it that even if the pedigree of processes of mutual
adjustment might be in doubt, there would be no point in denying the product the
quality of law.
I would reply to the first objection in two related ways. First, I readily concede
that the concept of legality is not immune to historical transformation. I believe,
indeed, that the legal relationship has been amended not only by the ‘super-legal’
dimension hinted at by the objection, but has also been tentatively transformed into
a more experimental and provisional relation of mutual engagement.69 It should not
escape our attention, however, that in this latter and more ‘creative’ format, the legal
relation becomes easily prey to administrative rationality.70 The application of norms
and coordination of conduct pursuant to norms is then rendered indistinguishable
from management and flexible adjustment.71 Secondly, how co-optation works can

68
This objection would have its backing in Dworkin’s keen analysis of legal reasoning (see
Dworkin, above n 45).
69
See W. H. Simon, ‘Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes’, in
G. de Búrca and J. Scott (eds), Law and New Governance in the EU and the US (Oxford: Hart,
2006), 37–64.
70
See Somek, above n 46.
71
It remains to be explored in the future whether this development needs to be viewed as a
process that is as irreversible as was the ‘emancipation of dissonance’ in music.
284  Alexander Somek
be seen from a different angle. It is a truism that every act of law application also
contains a law-creating element. A preferred strategy for explaining how it is that
the creative element becomes part of application is pointing to the power of the
law-applying official to do so. Accordingly, valid law is created on the basis of power-
conferring norms. But this is not the only possible account of how a synthesis of
existing law and some creative element is brought about in the adoption of legal
acts. It can be argued that the synthesis in the relation of application and its creative
element is made possible by ‘good arguments’, ‘sound judgment’, the (right) ‘moral
attitude’, or convincing reasons. However, good arguments, sound judgment, and
convincing reasons are person-relative entities. Someone needs to have the power
to declare that he or she has been persuaded by them. Otherwise one would not
arrive at law, but merely at some intermediate result of a discussion. Legal systems
presuppose the systematic mediation of norms by other norms. The work cannot
be done by moral intuition. If the work is done by moral intuition one does not get a
full-fledged legal system, but some extension of community morality into the realm
of the justification of coercion. What is called ‘common law’ may well have to be
described in such terms. In any event, if the adoption of legal acts is not mediated
by legally circumscribed powers but by considerations of administrative expediency
then legality is turned into an appendix of the latter.
This is of relevance to the second objection. It is not possible to create law from a
system of argumentation. One can make statements, arrive at conjectures and provi-
sional outlooks, and arrange for some modus vivendi. This, in fact, appears to be the
state that the international system has come to embrace.72 But it is not unimportant to
note that the rampant intuitionism gives rise to an exalted version of the common law,
which is, strangely enough, celebrated under different headings, such as ‘international
constitutional law’ or ‘networks’ of adjudicative expertise. An exalted common law
has lost its moorings in positive law. In fact, it is common law in the state of its own
negation, that is, in a state before the rule of stare decisis has made it into what was to
become of it.73 There are no limits to authority. Legal materials from various jurisdic-
tions provide occasion for wide-ranging reflections from case to case. Nothing is fixed,
everything is in flux. Common law in such an exalted state does not offer any resistance
to administrative rationality. Therefore, it is particularly vulnerable to co-optation.
I conclude that the supposed management of ‘regime collisions’ or the juris-
dictional open-endedness of global administrative law cannot reflect guidance by
secondary rules. They are plainly and simply second-order administrative processes.
This diagnosis is reconfirmed by looking at what these processes deem relevant
to their success: concern for the stability of the overall project on the one hand
(and therefore, ‘default reference’ to related regimes) and particularisation on the
other. Particularisation, above all, underlies the praise of fl uidity and experimenta-
tion that Krisch has for the global administrative process. As long as settlements are

72
It is all the more remarkable that this is then called ‘constitutionalisation’.
73
The idea that the beginning of something presupposes its negation is a common theme of
Jewish and German Romantic mysticism.
 Administration without Sovereignty  285
of no general relevance and do not establish a precedent, they do not prejudice a
continuing process of mutual accommodation.

ix. indeterminate sources

The exalted state in which common law is thrown back onto its origin is a manifesta-
tion of the absence of sovereignty. The latter is an ultimate power-conferring norm
that permits allocation of jurisdiction. A sovereign is one who decides over the limits
of his or her own jurisdiction and, hence, indirectly the jurisdiction of others. When
sovereignty disappears, all that one is left with is unauthorised administrative action.
There are no jurisdictional bounds.
But the absence of sovereignty is also reflected in the manner in which propo-
nents of global administrative law conceive of sources of law.74 At the outset it is
claimed that customary law, treaties, and general principles of law are to be consid-
ered sources of global administrative law. The proponents of this claim need to
concede, however, that ‘it is unlikely that these sources are sufficient to account for
the origins and authority of the normative practice already existing in the field’.
They would have us look, rather, at spontaneous law-making practices and express
confidence that the norms governing global administrative practice might emerge
from a ius gentium, that is, basically, the understandings of those who are familiar
with basic administrative law principles from their home jurisdiction. Remarkably,
the authors have no qualms about their submission that it is practice that ought to
matter, whereas, at the same time, they confirm that ‘uncertainty remains about
the basis for determining such norms and their legal status’.75 They candidly admit
that disagreement about the sources is part of the law-making process:
Moreover, under a ius gentium approach, disagreement is inevitable about
whose practices to count and whose not to count for the emergence of a rule,
and as to how much consistent practice might be necessary to generate a
strong pull for cohesion.76
The authors express confidence that future research might be able to do the work.
There is little reason to be confident, however, for the study of the emergence of
customary international law has shown that the emergence of custom itself is a
matter of confl icting principles.77 Customary law is, if anything, a deficient form of
law from a formal point of view. This deficiency, however, benefits those claiming to
be masters of the artificial reason of the law.78

74
See Kingsbury et al, above n 11, at 29.
75
Ibid at 30.
76
Ibid at 31.
77
See M. Byers, Custom, Power and the Power of Rules: International Relations and Customary
International Law (Cambridge: Cambridge University Press, 1999).
78
See Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of
England, ed J. Cropsey (Chicago, Ill.: University of Chicago Press, 1971).
286  Alexander Somek

x. conclusion
There was a time when even the most steadfast defenders of the international legal
system readily conceded that this system was still in a primitive state and actually
aspired to see it transformed before it was to form the basis of a world order that
rests on principles of legality.79 The situation has changed. Since nobody appears to
believe any longer in a change of the world order by political means, scholarship
is increasingly taking comfort from the academic equivalent of practical change,
namely the re-description of social realities. If the world cannot be changed you
imagine it changed and pretend the work of your imagination to amount to the
real.80 It should not surprise us that this is happening in a cultural context where
confidence boosting or communication strategies are believed to be key to altering
one’s life.
Re-descriptions often involve the use of idealisations. This is, in and of itself, not
problematic, for idealisations are part of how the law itself perceives social realities
in its own context of operation. Idealisations turn out to be problematic, however,
when they purport to see a legal relationship where in fact such a relation is absent.
The law’s most elementary idealisation does not apply then.
The most ludicrous form of re-description is the application of constitutional
vocabulary to international law. In this chapter, I have not addressed this phenom-
enon at all. Owing to its lower degree of exuberance, global administrative law
promises to offer a more plausible account of existing international processes. I have
tried to explain why the idealisations of global administrative law might actually
distort our perception of administrative realities.
Beyond critically examining the claims of global administrative law, the analysis
yields an important result. If it is true that domestic political and legal processes
are increasingly under the substantive infl uence of global coordination processes
then it seems that ultimately second-order administrative processes are increasingly
taking the place of norms. Hence, it would not amount to a valid defence of the
purported legality of global administrative ‘law’ if one were to say that formality
and flexibility affect merely the relations among administrators in the multi-level
system, whereas for private persons compliance with international standards is
mediated through national administrative law. If it is true, as claimed by proponents
of global administrative law, that the latter is increasingly under the sway of the
former then informality also seeps into national systems. Moreover, with an exalted
common law providing the overall ‘legal’ background mentality, the disintegration
of legality transcends the boundaries of the administrative branch, narrowly under-
stood, and spills over into the judiciary. Administrative processes seep into legal
processes, altering their shape from the inside.

79
See H. Kelsen, Peace through Law (Chapel Hill: University of North Carolina Press, 1944).
80
Did I say Judith Butler? On the ideological distortion of public international law by its
proponents, see S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the
Critique of Ideology (Oxford: Oxford University Press, 1999).
 Administration without Sovereignty  287
If this, in turn, is true, what we encounter, then, is a far cry from the demise of the
state under conditions of globalisation. On the contrary, it is the eventual triumph
of the state over law. What we perceive, however, is the face of the state that is
often ignored, for it is not as spectacular as sovereignty. It is the state, understood as
the agency busying itself with governing, that is, the state qua administration. The
state, thus understood, is not identical with law, for it does not partake of the law’s
normativity.
Finally, the triumph of run-of-the-mill governing also marks ascendancy of the
state over politics. The de-politicised state introduces the omnipresence of adminis-
trative problem solving. I conclude, that instead of ushering in law beyond the state,
globalisation may well reinstitute the lawless state. Who would have expected that?
  14 
Beyond the Holistic Constitution?
Neil Walker

i. the politics of constitutional definition

The modern state, understood as the key unit within the global framework of
authority, was for long the undisputed domicile of constitutionalism and the guar-
antor of its relevance. So what is to become of constitutionalism in the contempo-
rary world, when the configuration of economic, political, and cultural forces that
produced the state-centred global framework of authority is no longer so securely in
place, and where other key sites of authority are emerging? This is an issue both for
the old state setting and for the new non-state settings. On what terms, if at all, can
constitutionalism remain viable in the old state setting, and on what terms, if at all,
can constitutionalism be adapted to new settings?
The direct focus of the present chapter is on the latter set of questions, but in
order to address these some conceptual ground clearing is required. In undertaking
this initial survey, we encounter an exaggerated version of a familiar problem. As
is common when dealing with social and political concepts that register both at
the ‘object’ level of everyday use and at the ‘observer’ level of theoretical inquiry,
the answers that many analysts seek or expect when addressing the prospects of
constitutionalism seem often to be anticipated in their stipulation of the definitional
preliminaries. However, just because so much uncertainty surrounds a conceptual
leap of such audacious proportions as is contemplated in taking constitutional-
ism beyond the state, the absence of agreement over definitional preliminaries is
uncommonly pronounced and conspicuous in the instant case. This fractured
beginning, in turn, leads to an unusually high level of mutual disengagement and a
general polarisation of theoretical positions. We are faced, in fact, with an irony of
overproduction. On the one hand, in academic circles at least, the unsettling of old
taken-for-granted certainties about the place of constitutionalism within the global
scheme means that never has discussion of law and politics so frequently, so explic-
itly, and so self-consciously occurred within a constitutional register, and never has
the constitutional idea been so insistently reasserted in its old state setting or so
vigorously sponsored in new non-state settings. On the other hand, because the
stakes are so high and the value of the currency so volatile, never has discussion
292  Neil Walker

of constitutionalism cultivated such little common ground.1 There is scant cross-

fertilisation from the different points of departure, and what exchange does take
place often appears to be the dialogue of the deaf.
This is not intended as a partisan point. Those who want or expect constitution-
alism to travel beyond its state domicile are as likely to load the conceptual dice in
favour of their preferred conclusion as those who start from the prejudice that no
such mobility is possible or desirable. What is more, each side tends to encourage
the other in its conceptual myopia.
On the part of the advocates of post-state constitutionalism we encounter a series
of conceptual starting points that are in danger of treating constitutionalism in super-
ficial terms, as too easily detached from its statist moorings. This is most evident in
the case of what are best described as nominal definitions of constitutionalism. Here,
constitutionalism is deployed merely as an affirmative label for whatever concept,
institution, or attitude of governance, wherever situated, that its sponsor endorses
or considers pivotal to the regulatory regime in question, whether we are talking
about human rights protection, anti-discrimination measures, or even just a commit-
ment to ‘the Rule of Law’. The purpose here is ideological: to give the feature(s) of
governance to which one is committed or to which one attributes central significance
the additional gravitas of affirmation in a powerful and familiar symbolic register,
or to deny such affirmation to other approaches that lack the favoured feature(s) or
even oppose the priority given to them. Implicit in this ideological agenda stands
the conviction, or at least the unexamined premiss, that there is simply nothing that
privileges the relationship between the state and constitutionalism, and so nothing
of special value to be lost in the move beyond that relationship. The point of the
nominalist position, in sum, is precisely not to argue the case for the mobility of the
constitutional idea beyond the state but, by treating constitutionalism as a floating
signifier, to elevate the case to the exalted position of the unarguably correct.2
A second deracinated version of constitutionalism concentrates on formal
features. Unlike nominalism, here the state, as the undisputed source of the modern
constitutional idea, retains some infl uence over the destination meaning, if much

1
See, eg N. Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Rev
317–59.
2
We must be careful not to be too critical of nominalist positions. First, often good
arguments are made for this or that aspect of governance from within a nominalist position;
it is just that these arguments are not enhanced by the use of constitutional language.
Second, often nominalism shades into formalism or materialism (see text below), and
indeed formal or material borrowing from the state tradition may be the inarticulate
premiss underlying the nominalist position. Third, nominalism may connect to the vital
‘placeholding’ function of constitutionalism, discussed in section V below, in that through
its insistence on a constitutional register it speaks not only to a desire to obtain ideological
advantage for one’s position, but also to an awareness of how much continues to be at stake
in the very idea of a political framing of our social arrangements. For just one example of a
writer who uses the language of transnational constitutionalism in this loose but provocative
way, see C. Joerges, ‘ “Good Governance” in the European Internal Market: An Essay in
Honour of Claus-Dieter Ehlermann’, EUI Working Papers, RSC 2001/29.
 Beyond the Holistic Constitution?  293
attenuated. The formalist approach suggests that the very manner in which—the
form through which—the political world may be understood and organised from
a juridical perspective may borrow from or be inspired by the state constitutional
template. This is most obviously the case with regard to the idea of a constitutive
juridical instrument, whether or not specifically so-called ‘Constitutional’ (as in
the case of the abortive EU constitutional text of 2004),3 that is so familiar from
state public law. In the context of non-state legal and institutional orders we may find
instruments that are similarly formally constitutive in one or more of various senses,
whether with reference to their norm-generative or foundational quality, their asser-
tion of entrenched status, their precedence over other system norms, or their claim
to provide an encompassing framework for and measure of the limits of the ‘body
politic’ that they create or recognise.4 And even where such generative, entrenched,
trumping, embracing, and delimiting features of a legal and institutional order are
independent of a self-styled documentary Constitution, or indeed of a single and
unrivalled constitutive instrument of any sort, as we have seen in the case of the
advocates of WTO constitutionalism,5 or of the constitutionalisation of the inter-
national order,6 or of the various ‘civic’ or ‘societal’ constitutions such as the lex
mercatoria of the international economy or the lex digitalis of the Internet,7 the mere
emergence of some combination of these formal features may still be enough for
the juridical initiative in question to be deemed constitutional in kind.
A third form of constitutionalism beyond the state concentrates not on formal
matters but on the manifestation of a family resemblance between certain material
features of state constitutionalism and the new transnational legal outgrowth.
Aspects of transnational law are deemed to be constitutional not, or not only, because
they appear on the commentator’s approved list, as with nominalism, but because
the mechanisms or concepts in question—from general structural formulae such as
separation of powers and institutional balance to more specific principles such as

3
Treaty Establishing a Constitution for Europe [2004] OJ C310.
4
For a concise statement of the formalist position, see A. Stone Sweet, ‘Constitutionalism,
Legal Pluralism and International Regimes’ (2009) 16/2 Indiana Journal of Global Legal Studies
621–45.
5
See, eg D. Cass, The Constitutionalization of the World Trade Organization (Oxford: Oxford
University Press, 2005); E.-U. Petermann, ‘The WTO Constitution and Human Rights’
(2000) 3 Journal of International Economic Law 19–25.
6
See, eg E. de Wet, ‘The International Constitutional Order’ (2006) International and
Comparative Law Quarterly 55–76; for an approach which, unusually, seeks to locate the
constitutionalisation of the international order in documentary terms—in the form of
the UN Charter, see B. Fassbender, ‘The United Nations Charter as the Constitution of the
International Community’ (1998) 36 Columbia Journal of International Law 529–619.
7
See, eg G. Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred
Constitutional Theory?’, in C. Joerges, I.-J. Sand, and G. Teubner (eds), Transnational
Governance and Constitutionalism (Oxford: Hart, 2004), 3–28; G. Teubner and A. Fischer-
Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of
Global Law’ (2004) 25 Michigan Journal of International Law 999–1045.
294  Neil Walker
subsidiarity or proportionality—were long ago nurtured in the state constitutional
context and, indeed, have often been self-consciously received into transnational law
from these state sources.8 As is the case with formalism, however, the connection
between the non-state version and the state original from the materialist perspec-
tive is tenuous. It is dependent upon analogy, and in some cases conscious imitation.
How deep the analogy runs and what is lost—or gained—in translation from one
context to another is rarely the subject of sustained analysis.9
If we now turn to those who would oppose the movement of constitutionalism
beyond the state, again they range from the primitive to the more sophisticated. Most
basically, and more common within everyday ‘object’ discourse than in academic
‘observer’ discourse, there is a position that holds that the category of constitution
is necessarily restricted to the state. That position is the negative image of nominal-
ism, and just as impervious to counter-suggestion. Whereas nominalism holds to
or simply assumes the solipsistic idea that all meaning is constructed without extra-
linguistic check or constraint, essentialism holds or more often simply assumes the
opposite. It maintains that meaning is fixed and invariable in its correspondence with
some extra-linguistic reality, and so it follows that it is simply meaningless to conceive
of constitutionalism beyond the fixed and invariable limits of the state.
Beyond essentialism, there are at least two positions—or rather a continuum
of possibilities framed by two positions—that treat the idea of the constitution as
deeply embedded in the state. One position is culturalist in nature. It holds the idea of
a constitution to be hollow, or at least deficient, in the absence of certain attributes,
including the idea of a democratically self-constituting and self-constituted ‘people’
possessing comprehensive powers of self-determination and self-legislation. These
attributes, it is claimed, are ultimately contingent upon certain prior or emergent
socio-cultural facts concerning identity, solidarity, and allegiance, absent which any
self-styled constitutional project is fated to be either a dead letter or a much more
modest affair. Since only the modern state has known such a socio-cultural forma-
tion, and since even if the modern state is no longer so robust in these terms it still
constitutes a standing impediment to the development of similar cultural forma-
tions at non-state sites, there can be no real prospect of a full constitutionalism
beyond the state.10
A second position runs even deeper than the culturalist argument without
succumbing to the semantic sting of state-centred essentialism. This approach we
may call epistemic in that it focuses on the very idea of the modern state and of

8
On the migration of particular constitutional concepts from national to transnational
level, see N. Walker, ‘The Migration of Constitutional Ideas and the Migration of the
Constitutional Idea’, in S. Choudhry (ed), The Migration of Constitutional Ideas (Cambridge:
Cambridge University Press, 2006), 316–44.
9
For one attempt, see N. Walker, ‘Postnational Constitutionalism and the Problem of
Translation’, in J. Weiler and M. Wind (eds), European Constitutionalism beyond the State
(Cambridge: Cambridge University Press, 2003), 27–54.
10
See, eg D. Grimm, ‘The Constitution in the Process of Denationalization’ (2005) 12
Constellations 447–65.
 Beyond the Holistic Constitution?  295
the political imaginary associated with the idea of the modern state as embracing
‘a scheme of intelligibility … a comprehensive way of seeing, understanding and
acting in the world’11 that is prior to and prerequisite to a full, modern articulation
of the idea of constitution. The key insight here, and what distinguishes it from the
culturalist position, is that the concept of the modern state, understood as a particu-
lar type of relationship between territory, ruling authority, and people, is not merely
the expression and fruit of a prior cultural achievement—an accomplishment of
national solidarity that supplies the ‘battery of power’12 necessary to run the consti-
tutional machine effectively. More than that, it is a political way of knowing and way
of being in the absence of whose emergence the very idea of a constitutional polity
is simply unimaginable. In both cases—culturalist and epistemic—the message is
strongly conveyed that the modern idea and practice of constitutionalism could not
have developed except in the context and through the container of the state, and
while this does not, as a matter of logical necessity, rule out the possibility of a
similar constitutionalism emerging in a context and through a container other than
the state, it certainly stacks the odds against such a development and places a heavy
burden on the defenders of post-state constitutionalism to explain just how this is
possible.

ii. constitutionalism and meta-politics

This brief examination of nominalist, formalist, and materialist positions on the
one side of the issue and of essentialist, culturalist, and epistemic approaches on
the other side of the issue underlines the difficulty in finding common cause in the
debate about constitutionalism beyond the state. How, if at all, do we move beyond
this divide? Such a possibility would seem to depend upon trying to ascertain what is
most basically at stake—more basically than is revealed in the various debate-closing
applications of constitutional language—in the various positions, and upon locating
some overlapping ground at this more basic level. Clearly, the extreme positions of
nominalism and essentialism are distinguished on the one hand by blindness to any
argument that would give any special title to the state and on the other by blindness
to any trace of constitutionalism beyond the state. The assumptions and arguments
behind this opposition only begin to be made articulate in the other, more moderate
positions. On the one hand, the formalists and the materialists suggest that some-
thing of value may be retained and adapted from the state tradition when we relo-
cate to post-state contexts. In the case of formalism, the key to translation, so to
speak, is abstraction, whereas in the case of substantivism, the key is disaggregation.
In the former case, the very idea of a cohesive legal and institutional order is seen as
the basis of certain constitutional virtues in new contexts as much as in old, whereas
in the latter, it is implied that one can pick some features out of the state constitu-
tional mix, such as a Charter of Rights or a system of inter-institutional checks and

11
See M. Loughlin, ‘In Defence of Staatslehre’ (2009) 48 Der Staat 1–28.
12
M. Canovan, Nationhood and Political Theory (Cheltenham: Edward Elgar, 1996), 80.
296  Neil Walker
balances, and these features will remain of significant value despite being deprived
of either the fuller legal framework or the deeper socio-cultural context of the state.
The culturalist and epistemic arguments, on the other hand, see the same glass as
half-empty rather than half-full. For them, the new is an inadequate pastiche of the
old rather than a contextually appropriate adaptation. The post-state constitution is
a machine that, in the culturalist critique, is deprived of the crude social energy to
power itself sufficiently or, in the epistemic critique, lacks the intelligent background
software necessary to understand and activate its own operating procedures.
In the final analysis, if we are to overcome this opposition we must look beyond
the reductive commitments and self-vindicating judgments of even the more
thoughtful of the state-centred and post-state positions. We must ask whether there
is something more general at issue that is capable of being acknowledged within
both mindsets, and which can therefore serve as a common point from which to
investigate their differences. What we need in methodological terms, therefore, is a
way of treating constitutionalism that is alert to this possibility: a split perspective
capable of identifying common ground at one level while at another level continuing
to acknowledge difference in terms of that common ground. Such a split perspec-
tive can be supplied by recasting the debate in functional terms: no longer as a
one-dimensional contest over diverse and rival conceptions of the ends of constitu-
tionalism understood as ends that either are or are not exclusively associated with
the state, but as a debate over diverse and rival conceptions of the constitutional
means necessary to ends that would themselves be capable of commanding general
agreement across state-centred and post-state positions.
In order to be genuinely inclusive and not simply to impose an artificial consensus,
any such definition of ends must proceed at a very high level of abstraction. At this
rarified level, what implicitly unites the two mindsets is a sense, corroborated both by
the etymology of the constitutional idea and by its range of applications prior to the
age of the modern state, that constitutionalism serves a deep and abiding function
in human affairs, namely the meta-political function of shaping the domain of poli-
tics broadly conceived—of literally ‘constituting’ the body politic.13 More expansively,
constitutionalism in this deepest meta-political sense may be understood as referring
to that species of practical reasoning which, in the name of some defensible locus of common
interest, concerns itself with the organisation and regulation of those spheres of collective
decision-making deemed relevant to the common interest in a manner that is adequately
informed by the common interest. Furthermore, if we are to avoid simply repeating the
familiar definitional impasse at this more general level, our meta-political sense of
the ‘common interest’ underpinning our collective decision-making capacities as
understood in each of its three key registers—authoritative (in whose name?), juris-
dictional (covering which collective decision-making capacities?), and purposive (to
what end, and how?)—must, in addition, be acknowledged as possessing an open

13
See, eg G. Maddox, ‘A Note on the Meaning of “Constitution” ’ (1982) 76 American Political
Science Review 805–9. See also N. Walker, ‘Taking Constitutionalism beyond the State’ (2008)
56 Political Studies 519–43.
 Beyond the Holistic Constitution?  297
and indeed a reflexive quality. We cannot, therefore, either stipulate in advance or
treat as permanently resolved what are the appropriate sites for the pursuit of the
common interest, or what are the appropriate terms of engagement between these
sites, or what kinds of things fall within the remit of the common interest, or what
is the proper relationship between individual and collective goods or preferences
in the identification and pursuit of the common interest. All of these are matters
themselves apt for decision in accordance with the common interest, understood
as located at the very deepest level of political self-understanding and self-inquiry, and
so as necessarily possessing a self-challenging and self-amending quality. Accordingly,
if, as I suggest, we equate constitutionalism with the deepest sense of meta-political
inquiry, we cannot simply decide a priori to equate the common interest with the
national or state interest, and so corroborate an initial theoretical preference for state
constitutionalism. Equally, we cannot simply assume that post-state sites are as appro-
priate as are states as authoritative sources of the common interest, as jurisdictional
containers of the common interest, or as forums and institutional mechanisms for
the specification of the common interest, and thus simply wish away the state legacy.
Instead, in order to advance the inquiry and find a point of contentious engage-
ment between the two mindsets, we must turn to the second level of inquiry—to
the question of adequacy of means. If the common interest conceived of as the
ultimate end of the constitutional project sounds at a level of abstraction—and of
perpetual contestability—that does not necessarily or even presumptively discrimi-
nate between state and post-state sites, is there something about the appropriateness
of the means that nevertheless pulls in one direction rather than another? Is there
something about the constitutional method available in and supported by the state
context that is more adequate to the pursuit of the common interest than is any
constitutional method available in and supported by post-state contexts?14 To answer
that question we must first ask what, if anything, is distinctive to the constitutional
method that has been available in and supported by the state. Then we must inquire
whether that method, or any constitutional method or combination of methods
that is the instrumental equivalent of the state constitutional method, may also be
available or be made available in the post-state context.

iii. holistic constitutionalism

There is indeed a constitutional method distinctive to the modern state, and it is
best understood as possessing a holistic quality. The holistic method is a method of
constitutional articulation and engagement in which the authority and meaning of

14
Note that this challenge, as well as querying the force of the formalist and materialist
arguments in favour of post-state constitutionalism, also brings back in many of the
concerns of the culturalist and epistemic critics of post-state constitutionalism. However,
it does so in terms that, by more clearly specifying the distinction between (state) means
and (constitutional) ends, are less at risk of reducing the connection between state and
constitution to a tautology.
298  Neil Walker
the various parts are understood and treated as dependent on the integrity of the
whole.15 This holistic feature is no isolated thread, but something that gives texture
to the various different aspects of state constitutionalism.
To appreciate this, however, we must first say something more about the constitu-
tional concept itself. In so doing, we are no longer concerned, as in the previous section,
with constitutionalism in the abstract—as a theoretical concept for making sense of
and evaluating the social world—but with constitutionalism in the concrete—as an
‘object’ already at use ‘in’ the social world and in the social world of the state in particu-
lar. Considered as such an object concept, state constitutionalism can be viewed both
diachronically and synchronically. Diachronically, state constitutionalism in the modern
age describes a particular high point of accumulation of various distinct layers of situ-
ated ‘constitutional’ practice that have operated separately or in different combina-
tions in the past. These layers are juridical, politico-institutional, popular, and societal.16
Synchronically, state constitutionalism operates in terms of its own particular formula-
tion of these layers and of their relationship with one another. Constitutionalism in
(state) practice behaves, in other words, as a ‘cluster concept’,17 associated simultane-
ously with a number of different but themselves interrelated definitive criteria.
It is in each of its four layers—or, if you like, in different parts of the cluster—
that we can observe constitutionalism operating holistically, offering a frame for the
‘constitutive’ representation18 and regulation of each of the particular dimensions
of social ‘reality’ with which it is concerned. What is more, in the constellation of
connections made under the sign of modern state constitutionalism between each
of these layers we can also discern a further ‘frame of frames’, or ‘holism of holisms’.
Let us look more closely at each of the holistic frames of state constitutionalism, and
then in combination.
To begin with, the juridical frame refers to an idea of self-contained legal order, complete
with rules of self-production, self-organisation, self-extension, self-interpretation, self-
amendment, and self-discipline, all of which combine to affirm the autonomous exist-
ence and comprehensive authority of the legal order against other internal and external

15
See more generally, N. Walker, ‘Out of Time and Out of Place: Law’s Fading
Co-ordinates’ (2010) 14 Edinburgh Law Review (forthcoming). For an insightful but rather
different treatment of holism, treated not as the basic organising method of modern politi-
cal life, as in the present case, but as a descriptor of the key ontological unit in the ordering
of political society (and so considered as equivalent to a fundamentally pre-modern idea of
indivisible community, and contrasted with modern individualism), see A. von Bogdandy
and S. Dellavalle ‘Universalism Renewed: Habermas’ Theory of International Order in Light
of Competing Paradigms’ (2009) 10(1) German Law Journal 5–30.
16
See Walker, above n 13; and with specific reference to the EU, N. Walker ‘European
Constitutionalism in the State Constitutional Tradition’ (2006) 59 Current Legal Problems
51–89.
17
W. E. Connolly, The Terms of Political Discourse (Oxford: Blackwell, 3rd edn, 1993), 14.
18
On the ways in which acts of representation of a legal object are routinely (re)constitutive
of that legal object, see, eg H. Lindahl, ‘Sovereignty and Representation in the European
Union’, in N. Walker (ed), Sovereignty in Transition (Oxford: Hart, 2003), 87–114.
 Beyond the Holistic Constitution?  299
normative forces. The politico-institutional frame refers to a system of institutional
specification and differentiation of the sphere of the public and the political. Whereas
the idea of autonomous legal order long pre-dates modernity and the modern state, the
idea of a secular, specialised, and institutionally defined and delimited political realm,
free from deference to particular interests or to any idea of transcendental order, is a key
emergent feature of modernity. It is marked by a double move away from pre-modern
forms of authority, involving both the drawing of a general distinction between public
and private spheres of influence domains and the integration of the public into a single
and comprehensive political domain. What is more, the creation and sustenance of this
singular political domain, and indeed the consolidation of the autonomous legal order, is
dependent upon ‘the structural coupling’19 and mutual support of the two self-contained
spheres of the legal and the political.
For its part, the popular frame refers to the dimension of ‘we the people’, and so to
the idea of the specialised and integrated public institutional realm being underpinned
not just by the autonomy of the political but also by its democratic self-constitution
and self-authorship. The societal frame, finally, refers to the idea that the constitu-
tion pertains to a particular ‘society’ self-understood and self-identified as such. Here
the framing work of the constitution is mostly symbolic rather than normative. The
Constitution depends for its normative effectiveness as a design for a reasonably
cooperative and commonly committed form of common living on the plausibility of
the very idea of an integrated society—whether the emphasis is on the thin ‘politi-
cal society’ of the state or the thicker ‘cultural society’ of the nation—that its very
production and perseverance as a Constitution seeks to announce and promote.
If we look more closely at the points of interconnection between the various
frames we can begin to appreciate how a broader ‘holism of constitutional holisms’
emerges under the template of the modern state. At the juridical and politico-
institutional levels, the constitutional order (sometimes in conjunction with self-
styled ‘organic laws’) typically place a mix of structural (politico-institutional level)
and substantive (juridical level) requirements on public actors, which may be either
specific functional institutions (eg industry-specific regulators) or generic govern-
ment organs—Parliament, Executive, and Judiciary. The structural requirements are
both internal and external. They are concerned with the internal governance system
of the institution in question—decision-making procedures, representational rules,
internal review and accountability rules, etc, as well as with the situation of the
institution in question within a wider institutional complex—including the checks
we associate with ideas of horizontal separation of powers, of federated vertical
division of authorities, and of institutional balance more generally. The substantive
requirements include, in positive and constitutive vein, jurisdiction or mandate rules
which specify the public purposes of the institutions in question and the boundaries
of these purposes, as well as, in negative vein, certain conduct-constraining rules
that may take the form of general individual rights catalogues or other more detailed

19
N. Luhmann, Das Recht der Gesellschaft (Frankfurt am Main: Suhrkamp, 1993); Eng. trans
Law as a Social System, trans K. A. Ziegert (Oxford: Oxford University Press, 2008).
300  Neil Walker
rules which are likewise concerned with trans-sectoral standards (eg freedom of
information rules, anti-corruption rules).
A number of points may be made about the co-articulation of these differ-
ent types of rules. First, there is the dependence of the substantive rules on the
structural rules. The structural rules provide a general framework of orientation,
coordination, and sanction that undergird the norm-specific guidelines contained in
the substantive rules. Second, given their various boundary-setting and transversal
qualities, the substantive rules associated with a particular constitutionally recog-
nised function presuppose and are themselves supported and rendered more effec-
tive by their situation in a legal order that ranges more broadly than the particular
functional specialism in question. That broader framework constrains and informs
both by locating issues of the vires of particular institutions in a wider context of
empowered institutions and by bringing general standards of the ‘right’ to bear in
qualifying the pursuit of the particular ‘good’. Third, the content of both the substan-
tive and the structural rules is inscribed in a basic constitutional code that is relatively
insulated from the particular institutions that are subject to these very substantive
and structural rules. In particular, the combination of the autonomous rules of
production of constitutional norms and their settled quality (perhaps entrenched in
‘eternity’ clauses or protected against simple majoritarian amendment rules, or at
least subject to amendment provisions not within the gift of the affected institution
itself ), provides a form of protection against narrow forms of self-norming. Fourth,
the constitutional code is not only insulated from particular interests but, more posi-
tively, it is receptive at points of origin, amendment, and continuing interpretation
to notions of common interest informed, on the one hand, by the idea of the consti-
tution as a form of popular self-authorisation over the totality of public affairs for
a territory and, on the other, by the necessary discipline of ensuring widespread
cooperation and compliance within the ambient society.
In summary, this combination of structural primacy, institution-transcending
substantive rules, insulation of rules of constitutional norm production and main-
tenance from control by the institutions affected by these norms, and the openness
of the same rules to broader forms of public infl uence and discipline provide the
key ingredients of a holistic method of constitutionalism. The parts are supported
by the whole both within and across the various different frames. Particular sector-
specific rules and institutions alike depend for their meaning and authority on their
location within broader regulatory and institutional orders, which broader orders
are informed by a similarly wide-reaching and holistic conception of the singular
public as both the source and the receptive environment of constitutional authority.

iv. constitutionalism beyond the state

If we look beyond the state, what scope is there for the application of the holistic
constitutional method? And where it is not available, how else, if at all, might consti-
tutionalism’s deep meta-political concern with the source, extent, and manner of
pursuit of matters of common interest be met?
 Beyond the Holistic Constitution?  301
Clearly, some forms of post-state regimes or polities seem to fit quite well on the
‘scale’ of constitutionalism considered as a layered set of holistic frames. The recent
debate about the adoption of a documentary Constitution for the European Union
(EU), to take the best-known example, eventually crystallised as one about how an
entity whose ‘thin’ credentials as a self-standing juridical and politico-institutional
order are unarguable20 might also be re-imagined and reconstructed in ‘thick’ terms
as a popular and indeed ‘political-societal’ constitution—one with its own demo-
cratically sensitive self-constituting authority and its ‘own’ transnational society as
an object of reference.21 The EU, in other words, clearly already possessed holistic
constitutional qualities in certain layers, and the outstanding question concerned
whether this could be extended across all the layers of modern constitutional prac-
tice. Once the supporters of the project were no longer satisfied with the documen-
tary constitutional process as an exercise in self-congratulatory consolidation of its
thin (juridical and politico-institutional) credentials, or at least once they were no
longer permitted by their opponents to treat the question so complacently, the thin
versus thick question came more clearly into focus in the constitutional debate. That
this ultimately led to the idea of a European Constitutional Treaty being voted down
in the key French and Dutch referenda in 2005 neither undermines the relevance of
the wide discussion nor, indeed, precludes its being revisited at some future point.22
In other cases such as the WTO or the UN, the debate over the nature and limits
of constitutional holism is very much more confined to the thin legal and politico-
institutional registers, with no pretence of and little ambition towards a popular
constituent power or dedicated ‘society’ at the relevant sites.23 Even here, there is no
doubt about the applicability of a holistic method, even if to a truncated conception
of constitutionalism. Indeed, it is precisely the well-established quality of a modest
constitutional holism in these more limited regimes as much as in the hybrid regime
of the EU that feeds much of the argument for post-state constitutionalism, with
both formalist and materialist approaches trading in their different ways on the holis-
tic qualities of the juridical and institutional layers.
Another type of case, however, stands more clearly detached from the tradition of
state constitutionalism. Here we refer to the various other autonomy-assertive tran-
snational societal actors exhibiting normative authority and institutional identity
who increasingly claim or are deemed to possess constitutional standing,24 whether
in the field of internet (eg Internet Corporation for Assigned Names and Numbers)
or transnational commercial regulation (eg lex mercatoria) or the regulation of sports
(eg International Olympic Committee, World Anti-Doping Agency). In this context,

20
See, eg J. H. H. Weiler, The Constitution of Europe (Cambridge: Cambridge University
Press, 1999), ch 1.
21
See, eg Walker, above n 16.
22
See, eg N. Walker, ‘Not the European Constitution’ (2008) 15 Maastricht Journal of
European and Comparative Law 115–21.
23
See references at nn 5 and 6 above.
24
See, eg Teubner, above n 7, and in this volume.
302  Neil Walker
we find a much more comprehensive move away from the holistic method, and so
an even starker confrontation of the question of whether and how the broader meta-
political end of regulating our common affairs in accordance with considerations of
the common interest can survive the erosion of the state-originated holistic consti-
tutional method.
If we look first to the juridical and political-institutional layers, the idea of holistic
self-containment fits ill with the combination of site-specific self-regulation and diverse
external regulation we tend to find in these sectors. While there is typically a dense
network of structural and substantive rules, we will not find the same holistic frame-
work for their co-articulation. Internally, structural rules may be found in autono-
mous enterprise or organisational laws. Externally, different legislative, executive, and
judicial bodies at national, international, and supranational level will stand in various
structural relationships with the actors. Substantively, again we will find the same
complex mixture of self-regulation and uncoordinated external regulation, through
for example, horizontal application of human rights rules and the general regimes
of international standards bodies (eg Codex Alimentarius, International Organization
for Standardization). What is lacking in either case is any idea of an integrated and
comprehensive legal and institutional design external to the sector in question.
Equally, the idea of the holistic self-constitution of a popular ‘subject’ or of a
societal ‘object’ does not translate easily to the domain of the new transnational
societal actors. In either case—popular and societal—the wider and deeper embed-
dedness associated with state constitutionalism is lost insofar as there is no sense of
an integrated and generic ‘public’ context which stands beyond the special institu-
tion in question but within which the special institution is fully incorporated. So
there may be a significant degree of domain-specific self-authorship, but it neither
is identical to nor delegated from any more integrated and generic public. Equally,
there may be constituted a ‘society’ in the sense of a particular epistemic community
and/or community of practice associated with the domain in question, but that too
is neither identical to nor a subset of any integrated and generic ‘public society’.25
It follows from this that none of the connecting elements—the ‘holism of holisms’—
of state constitutionalism can be guaranteed. In the first place, given the diversity of
their pedigree (both as separate sets, and, even more so, when considered together),
the relationship between the set of structural rules and the set of substantive rules
lacks the coherence of the state model. So the structural rules cannot provide the func-
tions of orientation, coordination, and constraint vis-à-vis the substantive rules in the

25
We should, of course, bear in mind Teubner’s qualification that the ‘society’ of the state
constitutional imaginary was always in an important sense a partial vision (n 7 above). It was
first and foremost a ‘political society’—it was about the mutual self-constitution of law and
politics and not necessarily concerned with other social sectors or subsystems (economics,
culture, etc). But even if we allow this important point of social epistemology, we still have
to take seriously the distinctively ‘totalising’ ambition contained in the claim of modern
political society to constitute a generic and integrated public sphere, and also recognise
the powerful historical synergy between this ambition and the development of a deeper
‘cultural’ nationalism.
 Beyond the Holistic Constitution?  303
‘close fit’ manner that characterises their relationship within the holistic state constitu-
tion. Secondly, there is no commonly bound general constitutional context to provide
the transversal controls upon and wider jurisdictional context for sector-specific
substantive rules. Because the transnational societal actor is not located within a wider
complex of international societal actors, each subject to the same transversal rules
and the same broader jurisdictional frame, the kinds of constraint and direction that a
state constitution can provide by ensuring common negative standards and providing
for the mutual coordination of different jurisdictional horizons cannot apply in the
same way. Finally, the absence of any broader, singular, and autonomously-conceived
transnational constitutional frame as an appropriate point of common reference both
reflects and highlights the absence of any integrated and generic sense of the transna-
tional public as the subject and object of any such regulatory field.26

v. beyond constitutional holism?

So the new transnational societal constitutionalism, such as it is, is clearly not simply
a more thinly layered version of state constitutionalism, with the thicker popular
and societal frame absent—as in the EU and in other less well-developed cases—but
a constitutionalism that is reconfigured in each of its framing aspects. The idea of a
holistic constitution is lacking in each of the four registers. What we have instead is
a complex mix of discrete self-constitution and diff use external constitution across
all four registers—legal, politico-institutional, popular, and societal. 27
To what extent, if at all, can we nevertheless conceive of this new non-holistic
constitutional method as concerned with, and as effectively engaged in, the same

26
On the effect of the decline of holistic constitutionalism on the overall global regulatory
field, rather than on the pattern of regulation within particular sectors, see N. Walker
‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative
Orders’ (2008) 6 International Journal of Constitutional Law 373–96.
27
We should also distinguish non-holistic societal constitutionalism from the kind of
postnational constitutionalism favoured by writers like Jim Tully. For him and others, the
main focus of criticism remains the state form, not from the perspective of a functional
differentiation which makes the holistic state constitution inadequate to the range and
distribution of collective practices but rather from the perspective of a cultural differentiation
(first nations, gendered identities, etc) which makes the holistic state constitution
inadequate to the range and distribution of collective identities. His version of non-state
constitutionalism, accordingly, is about the re-articulation of a much greater diversity of
holistic identities than the state form allows rather than the transcendence of the very idea
of holistic constitutionalism. However, as explained in the text below, and as Tully would
endorse, any such generously and diversely populated constitutional landscape implies,
distinct from the classic (inter)state version, the non-comprehensiveness of each holistic
structure and the much greater zone of overlap between each holistic structure, and so the
greater scope and need for (non-holistic) legal relations between these holistic structures.
See, eg J. Tully, ‘The Imperialism of Modern Constitutional Democracy’, in M. Loughlin
and N. Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form
(Oxford: Oxford University Press, 2007), 315–38.
304  Neil Walker
meta-political function as holistic state constitutionalism; namely, the reflexive
consideration of the proper locus, jurisdiction, and content of the common interest
in matters concerning the organisation and regulation of collective decision-making?
On the face of it, absent the anchorage for a working conception of the common
interest provided by the coincidence of at least some if not all of the four holistic
frames under the same territorial coordinates, any prospect of a meaningful invest-
ment in these meta-political questions of the common interest would seem distinctly
unpromising. Yet, for at least three reasons, we should remain slow to dismiss the
possibility of a non-holistic constitutionalism.
In the first place, there is the question of the viability of other possible constitutional
worlds. What are the alternatives, and so what can and what should we compare the
new non-holistic candidates for constitutional status with? The most telling compara-
tor for current trends towards decisively non-holistic forms of constitutionalism is
not, as often seems to be assumed by the advocates of state constitutionalism, the
past of state constitutionalism, but the form and circumstances of its present incar-
nation. The high-point of the holistic state constitutional method is long gone. In
acknowledging this, we must also appreciate that much of what is new in transna-
tional regulatory development, whether in the form of hybrid structures such as the
EU or WTO or through the more radical forms of societal constitutionalism, is the
result not of inadvertent drift or of so many grabs for power devoid of any public
justification, but instead is in some part at least a response to the growing inade-
quacy of the holistic state model in the face of the emergence of collective action
and coordination problems that simply do not coincide with the political boundaries
of the state. The new world even of the familiar and deeply embedded category of
state constitutionalism, it follows, is not the same as the old. The new state constitu-
tionalism may remain holistic in the sense that in each of the four framing registers
it continues to emphasise the importance of the integrity of the whole and the
interdependence of its parts, but this holism is qualified to the extent that it can no
longer aspire to an all-embracing quality. Rather, state constitutionalism becomes an
‘open’ or ‘relational’ constitutionalism,28 concerned to engage in accordance with a
necessarily non-holistic logic with the very hybrid polities and non-holistic spheres
of governance that have been the focus of our attention, and with which the norms,
institutions, demoi, and societal ‘objects’ of the state constitutional order overlap. In
short, by their emergence the non-holistic constitutional forms serve to indicate, and
through their regulatory penetration they serve to reinforce the inadequacy of the
very model of holistic state constitutionalism with which, ironically enough, they
are often unfavourably compared. And to the extent that there remains a point of
comparison between old and new constitutional constellations, it is a matter of more
or less emphasis upon a now heavily qualified state constitutional holism rather than
a stark either/or choice between holism and its opposite.
In the second place, there is the question of (meta-)political morality and
prudence. Such important differences of emphasis as do remain between more or

28
See, eg Walker, above n 9.
 Beyond the Holistic Constitution?  305
less holistic constellations, and the choices associated with these, are not necessarily
beyond evaluation in terms that we find constitutionally meaningful. Rather, we
remain capable of articulating at least some elements of the common language that
would allow us to assess the relative merits and demerits of the holistic and non-
holistic approaches to meta-politics, and to do so in such a way that suggests that the
more holistic solution is not always the better or more ‘constitutionally’ appropriate.
Holistic constitutionalism, even in qualified form, can lay claim to many politi-
cal virtues; to the formal equality and calculability dividends that may accrue to
a legal order with a single all-embracing centre, to reliable juridical transmission
of the (democratically formed) political will, to coordinated and mutually vigilant
forms of institutional balance, to popular collective self-determination, and to a
sense of societal solidarity necessary to make that collective self-determination effec-
tive. But such a model also demonstrates instability at either edge of its precarious
accomplishment. On the one side, just because of its all-embracing reach and its
exhaustion of the available mechanism of political infl uence and restraint, holistic
constitutionalism is peculiarly prone to capture by powerful special interests and
ideologies in any or all of its framing registers. On the other side, the same propen-
sity to stretch across and absorb the entirety of the political sphere may mean that
holistic constitutionalism attracts certain disabling tendencies, including a tendency
towards inter-institutional stasis and gridlock and towards a thinly spread culture of
common commitment. That is to say, comprehensive self-containment of the politi-
cal sphere may always have been the major strength of holistic constitutionalism,
but it also speaks to its irreducible vulnerability and ineradicable sources of danger.
This double-edged concern illustrates and so points us towards certain perennial
preoccupations over the best mode of accommodation between certain contrasting
but balancing virtues associated with the identification and pursuit of the common
interest in constitutional arrangements—between attachment and detachment,
the special and the general, the particular and the universal, the passionate and
the constraining. Holism in the container of the state seeks ever more regulatory
distance and abstraction (in substance, in structure, and in pedigree) and ever more
investment in a broader scheme of political commitments as a guide to and means
of avoiding concentration of power in particular institutions, all the while courting
the opposite dangers of more expansive forms of political partiality or the dilution
of the capacity for the effective mobilisation of political authority.
These moral and prudential concerns are not foreign to the new non-holistic
constitutionalism. Rather, it is simply that its institutional logic is such that these
concerns present themselves in inverse form. The problem for non-holistic constitu-
tionalism is neither the corruption and capture nor the impotence of the regulatory
whole, but precisely the same dangers of oversteering and understeering under the
opposite condition of the absence of any such regulatory whole. And the key design
puzzle in addressing these dangers of oversteering and understeering concerns the
appropriate mode of articulation of the internal and external elements within the
legal and politico-institutional structure (in the first two framing layers), bearing
in mind the fundamental irreducibility of the ‘constituency’ and ‘own society’ of
the relevant community of practice to some integrated and generic notion of the
306  Neil Walker
public (in the third and fourth framing layers). It is quite understandable, then, that
so much of contemporary transnational ‘constitutional’ thinking is concerned to
develop ‘substantive’ and ‘structural’ rules in a manner that seeks to compensate or
substitute both for the myopically self-interested tendencies (oversteering) and for
the absence of effective leverage over external factors of infl uence (understeering)
that accompany the lack of embedding of narrow self-regulatory spheres in a wider,
holistic constitutional framework. So, for example, we find an increasing emphasis
on the language of universal human rights,29 on the widespread franchising of
general regulatory standards,30 and on the promulgation and internalisation of codes
of corporate responsibility31 as ways of correcting for the sectoral self-interest of
particular transnational societal actors, but also of encouraging or facilitating the
greater mutual coherence of their regimes. On the structural side, too, we see a
number of trends that have the same double purpose and effect of addressing the
dangers of oversteering and understeering. This can be observed, for instance, in
attempts to develop new forms of general discipline as well as to trace new ways of
joining up connected regulatory concerns through initiatives such as the elaboration
of general principles of Global Administrative Law,32 the replication and refinement
of New Modes of Governance,33 and the ‘rolling out’ of local or sector-specific forms
of democratic experimentation and problem solving.34
In all of this, admittedly, the similarities and continuities in the meta-political
concern with the common interest in the organisation and regulation of collective
decision making between past and present—and so between more or less holistic
constitutional constellations—operate at a high level of abstraction, require careful
translation, and certainly do not admit of any easy general conclusions. Still, there is
something resiliently recognisable at stake between old and new understandings of
these deep questions of regulation which may merit our continued use of constitu-
tional language as an analytical and evaluative tool for both.
This brings us, finally, to a third consideration, namely the practical question of
the use-value of constitutionalism. It is one thing to argue on the rarified level of
theoretical observation that we can trace a connection between the old and the new,

29
See, eg Petersmann, above n 5.
30
See, eg H. Schepel, The Constitution of Private Governance: Product Standards in the
Regulation of Integrating Markets (Oxford: Hart, 2005).
31
See, eg D. J. McBarnet, ‘Corporate Social Responsibility: Beyond Law, through Law, for
Law. The New Corporate Accountability’, in D. McBarnet, A. Voiculescu, and T. Campbell
(eds), The New Corporate Accountability: Corporate Social Responsibility and the Law (Cambridge,
Cambridge University Press, 2007), ch 1.
32
See, eg B. Kingsbury, N. Krisch, and R. B. Stewart, ‘The Emergence of Global
Administrative Law’ (2005) 68 (3) Law & Contemporary Problems 15–61; Krisch in this volume.
33
See, eg G. de Burca and J. Scott (eds), Law and New Governance in the EU and the US
(Oxford: Hart, 2006).
34
See, eg C. F. Sabel and J. Zeitlin, ‘Learning from Difference: The New Architecture of
Experimentalist Governance in the EU’ (2008) 14 European Law Journal 271–327.
 Beyond the Holistic Constitution?  307
and to remind ourselves that in terms of viable political possibilities the difference
is no longer one of kind but of degree. If, however, below that rarified theoretical
level, there is little actual use of constitutionalism as a common vernacular extend-
ing across the two contexts, and if what use there is has instead the divisive and
mutually alienating consequences discussed in our opening section, then what
is gained by retaining the constitutional idea for the emerging realm of transna-
tional societal actors? This note of scepticism is deeply underscored, moreover, if
we consider the key underlying reason for the scarcity of an inclusive use-language
of constitutionalism in the post-state holistic regulatory context. This has to do
with the lack of the additional, inclusively reflexive ‘fifth layer’ of constitutionalism
within the non-holistic picture, namely the ‘frame of frames’ or ‘holism or holisms’.
Absent the coincidence of the other four frames, not only, as already noted, is it
objectively the case that constitutionalism is deprived of the single anchorage of a
convergence of sites and frames of common interest. At the intersubjective level,
too, participants will lack the common ‘we’ perspective and point of commitment
from which to address all questions of the common interest. Instead, we are bound
to accept in a post-holistic context that questions of the common interest in collec-
tive decision making are simply not questions that, at the deepest level of political
self-interrogation, we can envisage all interested constituencies affected addressing
comprehensively in common.
Does this not, at last, provide the decisive argument against the value of retain-
ing the language of constitutionalism in the non-holistic context? I would contend
that it does not. The explicit adoption of constitutional language in non-holistic
settings may remain largely restricted to theoretical and other elite discourse. But
the trend, however hesitant and uneven, is towards wider use, and, as the example of
the intermediate cases of the EU, WTO, etc show, there do exist recent precedents
for largely theoretical discourses of post-state constitutionalism gradually to ‘catch
on’ at deeper social and political levels. Much more important is what the resilience
and resurgence of constitutional language, however patchy on the ground, might
signify. Even—indeed especially—where, as compared to the holistic constitutional
tradition, the central issues of non-holistic forms of regulation present them-
selves in such different ways and are offered a quite distinctive range of regulatory
solutions, constitutional language retains a crucial longstop function as a kind of
‘placeholder’35 for certain abiding concerns we have. These concerns are, quite
simply, that unless we can address the meta-political framing of politics in a manner
that remains wedded to ideas of the common interest, however difficult this may be
to conceive and however far we have travelled from our most familiar and perhaps
most conducive framework for such a task, something of great and irreplaceable
value will have been lost from our resources of common living.

35
The reference is to Martti Koskenniemi, who has made a similar point about the
contemporary fate of international law (see M. Koskenniemi, ‘The Fate of Public
International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1–30, 30).
308  Neil Walker
There is one final irony here. It is precisely because the language of
constitutionalism, considered as a normative technology, finds it ever more complex
and difficult to address the problems of communal living it poses in and for a
post-state world, that it becomes all the more important to retain the language of
constitutionalism, considered as a symbolic legacy, as an insistent reminder of what
and how much is at stake. The day that constitutionalism’s inability to provide stock
answers to its abiding questions becomes a settled reason no longer even to ask these
questions, is the day that constitutionalism, and the vital spirit of meta-political
inquiry that it conveys, will indeed have entered the twilight zone.
  15 
The Morphogenesis of Constitutionalism
Riccardo Prandini

We are living through a new constitutional era, and we are overwhelmed by strange
constitutional–constituent experiences. It is not a time of exceptional politics, as
exists during the founding episodes of modern constitutions. It does not represent a
demise of constitutionalism, since there is no such unique real thing to be demised.
And it does not represent a transmutation because nothing is really mutating: there
is only an emerging new form. We are facing a living and latent process of morpho-
genesis which reframes the very idea of constitution in a way which is more adequate
to world society. This is a peculiar phase, which is taking place apparently without
popular mobilisations and with difficulties in finding either the constituent powers
or the real legal processes of constitutionalisation, and often without clear polities
which are to be constituted.
In this chapter I argue that it is possible and necessary to talk about processes of
constitutional morphogenesis. Morphogenesis is a socio-cultural cycle, whereby a
given institutional and cultural structure (at T0, here ‘the modern constitution’) gives
rise—through cultural and structural interactions activated by societal actors—to
new forms (morphogenesis) or which maintains the old ones (morphostasis). This
process is contingent upon a plurality of variables, with nothing to be taken for
granted.1 My hypothesis is that at the centre of this process there are two connected
problems: the recognition of a real polity, and its self-governance framed in a
constitutional way.

i. framing the constitutional frame

We need to identify the generative mechanisms that give rise to new and pluralistic
forms of civil (non-state) constitution, that is, to discover their morphogenetic logic.
This morphogenetic renewal comes from three main causes.
1. Substantively, nation states remain the most significant hosts to constitutional
discourses, institutions, and structures. Only by starting from the state is it possible
to elaborate a new discourse. We need both historical continuity and discontinuity.

1
See M. Archer, Realist Social Theory: The Morphogenetic Approach (Cambridge: Cambridge
University Press, 1995).
310  Riccardo Prandini
On the one hand, as the history of constitutionalism shows, there is nothing really
essential in the relationship between constitutionalism and statehood. On the other
hand, state constitutions have become, for different reasons, the real examples of
what we mean in a modern sense by constitution.2 Today, as a new morphoge-
netic cycle begins, the claims and the advocates of ‘societal constitutionalism’ often
originate from contexts of constituted (non-state/non-modern) polities, which
gradually try to elaborate a discourse concerning a new ‘good working order’.
Constitution, constitutionalism, and constitutionalisation should be conceived as
processes in time, which can vary from a minimum level of institutionalisation to
a maximum one.
2. Sociologically, we need to generalise and re-specify the modern constitutional
frame. Generalising means separating and abstracting the core concepts of constitu-
tionalism from historical contingencies, and in particular from the modern political
system and the state apparatus. Re-specifying means that the generalised elements
of constitution must be connected with different global social subsystems, with their
specific operations, structures, media, codes, and programmes.
3. Temporally, generalisation and re-specification are conceptual operations
concerned with the elaboration of a general theory of societal differentiation/
evolution. When a social system is pressed by internal and external stresses and
strains it has to rearrange itself to cope with the new environmental—whether
material, technological, human, cultural, or natural—situation. In this process of
active and creative adaptation the system must upgrade its structures and processes
by: generating new resources; differentiating new goals and sub-institutions;
integrating them inside the new generalised system; and generalising its identity.3
For analytical purposes, I propose to freeze the morphogenetic process at a
precise historical moment. As Norbert Elias has shown, during the sixteenth and
seventeenth centuries the decentralised, plural, autonomous, localised, commu-
nal, and diverse socio-political powers of the medieval Respublica Christiana were
slowly concentrated into a revolutionary institution: the national and absolutist
state.4 Public powers—the ability of making collectively binding decisions—were
encaged in a new social subsystem and this gave rise to the modern idea of sover-
eignty, thickly connected with territoriality and nationality. After the transitional
semantic of Raison d’Etat, arcana imperii, etc, and with the development of notions
of public administration, rule of law, democracy, citizenship, and welfare, political
power was reframed and limited, with the objective of guaranteeing the multiple
processes of social internal differentiation against swamping tendencies. In this
process of societal differentiation, constitutions and constitutional discourses
were created to structurally couple the political (state) subsystem and the law of

2
See H. Mohnhaupt and D. Grimm, Zur Geschichte des Begriffs von der Antike bis zur Gegenwart
(Berlin: Duncker & Humblot, 2002).
3
T. Parsons, The System of Modern Societies (Englewood Cliffs, NJ: Prentice-Hall, 1971); N.
Luhmann, Die Gesellschaft der Gesellschaft (Frankfurt am Main: Suhrkamp, 1997).
4
N. Elias, Über den Prozeß der Zivilisation (Frankfurt am Main: Suhrkamp, 1977).
 The Morphogenesis of Constitutionalism  311
(regional) society (see Fig. 15.1). Having abandoned the ancient solutions of jus
eminens and lois fondamentales, the political subsystem had to solve the problem
of arbitrariness of decision making and the legal system had to confront the issue
of its foundation: the problem of the validity of law. Both subsystems became
auto-referential, that is, they operated without any external foundation, whether
of natural law, traditional legacies, customs, social stratification, or the will of
God. As the fundamental juridical ordering of a (regional) polity, the constitution
represented a new legal–political order, and performed the role of distinguishing
auto-referentiality from etero-referentiality within the political system. With its
functions of constituting the polity (inventing ‘we the people’ and transforming
legally the pouvoir constituent into the nation), defining its goals and expectations
(the so-called constitutional principle), attributing, separating, and limiting the
power inside state institutions (no longer absolute and indivisible, but separable
powers and ruled by law) and regulating procedures (distinguishing primary and
secondary rules, and establishing procedural, jurisdictional, and accountability
rules), the modern constitution represented a new frame for ordering territorially
organised societies.5
As many scholars have emphasised, from a historical point of view constitutions
emerge as a counterpart to the emergence of autonomous spheres of action typical
for modern societies. As soon as expansionist tendencies arise within the political
system, threatening to ruin the process of social differentiation itself, social confl icts
emerge, as a consequence of which fundamental rights, as social counter-institutions,
are institutionalised precisely where social differentiation was threatened by its
own self-destructive tendencies. One effect of this structural coupling is to restrain
both legal and political processes’ abilities of mutual infl uence. The possibility of
one system being swamped by the other is addressed, their respective autonomies

Political subsystem of the different ‘regional’ Legal subsystem of society

and modern societies

Concentration of powers Development of positive law

inside the nation-state

Who can take collectively binding decisions? Who can decide what is law?
Constitution
in the nation
state
Problem of arbitrariness of power Problem of the validation of law

Constituting power Constituted power

We the people
Legitimate sovereignty

Figure 15.1
The modern structural coupling between the political and legal systems.

5
Here I connect the substantive-historical argumentation of Neil Walker, with
re-elaboration of the Parson’s AGIL Scheme, as developed by Luhmann (see Walker in this
volume; Parsons, Luhmann, above n 3).
312  Riccardo Prandini
enabled, and mutual irritation concentrated upon narrowly delimited and openly
institutionalised paths of infl uence.6
While Luhmann and Teubner have underlined the ‘control–integrative’ func-
tion of the constitution, I believe that the conceptual horizon might be expanded.
In fact, constitutions perform four main functions: they (1) establish a legitimacy
principle for political power, (2) regulate the conditions for the real exercise of
powers (ie they establish the basic legal norms which comprehensively regulate
the social and political life of a polity and usually impose special impediments
over unwarranted transformations), (3) institute the boundaries between the
political system and the other subsystems (eg civil society), and (4) determine the
ultimate goals of the polity. This modern territorial-state configuration framed
the international world, and during the twentieth century exported the idea
and the institutions of constitutionalism around the world. Constitutionalism
became the most infl uential frame of reference for a legitimate regulatory frame-
work of any national political community.

ii. the boundless demands of normative

expectations and regulation
Why is a new morphogenetic cycle emerging?
The reasons for a new morphogenetic cycle are plural, and they originate from an
extraordinary growth in the need to govern, regulate, regularise, and institution-
alise the poly-contextuality of social relations.7 It results from increasing demands
of different governance regimes to coordinate communications and actions to
achieve collective goals through collaboration. This boundless demand of ‘good
governance’ is a strict corollary of growing systemic contingencies, and it gives
rise to a plurality of forms of ‘living law’. The state—conceived as the unitary
representation of the political system in the territorially bounded society—and its
law-making procedures no longer supply adequate responses to these tremendous
demands. In a ‘generalised anywhere’—the so-called ‘atopic’ society, a society
without an institutional centre—new levels and structures of decision-making
capacity and an unrestrainable expansion of positive and negative externalities drive
new demands for governance as well as new kinds of regulatory institutions and
normative instruments associated with its supply. Decisional powers and control-
ling powers grow together in an unplanned way, requiring enhanced structures of
global governance and accountability similar to the previous constitutionalisation
of the absolutist state.

6
C. Joerges, I.-J. Sand, and G. Teubner (eds), Transnational Governance and Constitutionalism
(Oxford: Hart, 2004).
7
G. Teubner and A. Fischer-Lescano, Regime-Kollisionen: Zur Fragmentierung des Weltrechts
(Frankfurt am Main: Suhrkamp, 2006).
 The Morphogenesis of Constitutionalism  313
National governments mostly conduct business as usual: the much announced
death of the nation state is premature. At the same time, states are not well equipped
to supply the normative ordering needed for the development and steering of a
world society. Furthermore, it seems improbable that the world will soon switch
into a global political community/polity, not even in the cosmopolitan way that
Rawls and Habermas have suggested.8
In the last phase of the twentieth century, globalisation took off and most of the
underpinning conditions of state sovereignty began to change. The modern system
of international relations, based on the traditional idea of discrete-territorial politi-
cal societies maintaining absolute internal sovereignty, is being transformed into a
‘multi-level, concatenated network of diverse forces, resources, actors and interests’
within a globalising world containing ‘many forms of authority, many shades of
legitimacy, diverse aspects of accountability and complex arrangements of partial
or divisible sovereignty’.9 This does not mean that states will lose all their powers: it
could even enhance their infl uences in new spheres of action. The problem is that
in the age of globalisation social evolution develops through the global extensions
of the internal functional differentiation of modern societies beyond the nation
states. This world society assumes peculiar forms of self-differentiation: not spatial/
regional, but functional. It is differentiated in discrete subsystems: economic, legal,
health, art, sport, scientific, etc. And, fuelled by the new media of communications
and diff usion, most of these systems are becoming global.
For Luhmann, only the political and legal subsystems can be differentiated in a
territorial-state form, because they need territorial boundaries. Within their borders,
state politics and law can define and regulate relevant parts of the autonomy of all
the other (national) subsystems. But the very existence of those boundaries indi-
cates that the global diff usion of truth, pandemics, health risks, terrorism, educa-
tion, finance, personal relationships, migration, news, information, or negative
externalities cannot be controlled, regulated, or addressed by the state. At the same
time, we must distinguish between three different observational operations: function
as the observation of the whole system, performance as the observation from other
subsystems, and reflection as self-observation. This is necessary in order to distinguish
between, on the one hand, the (historical) concept of state as a particular form of
reflection (ie auto-observation) on the national political system and, on the other
hand, the function of a political system responsible for collective binding decisions.
We must also draw a distinction between law as legislation and law as a pluralistic
normative process inside the society. The conflation of these two different forms
of observation produces only the hypertrophy of the conscience d’état and of the
legislative-positive law.

8
P. Niesen and B. Herborth (eds), Anarchie der kommunikativen Freiheit (Frankfurt am Main:
Suhrkamp, 2007).
9
J. Agnew, ‘Sovereignty Regimes: Territoriality and State Authority in Contemporary World
Politics’ (2005) 92 Annals of the Association of American Geographers 437–61, at 439.
314  Riccardo Prandini
This means that we should speak of a variety of global governance regimes
(or self-governance of lateral global subsystems) which are not embedded in
the boundary of national territoriality, and that enact processes of collectively
binding decision making outside the legislative procedures. In other words,
there is no world government, nor global political parties, global elections, or
global parliaments; there exists only governance regimes for the global economy
(WTO), the world health system (WHO), labour interests (ILO), sport (IOC),
etc. Most of these new institutions were created through treaties or agreements
between nation states, but have developed autonomously and have bolstered their
infl uence, legitimacy, and expertise by including non-state actors. Global gover-
nance does not evolve as a unitary political regime. In the words of Keohane and
Nye, ‘what we find is not world government, but the existence of regimes of
norms, rules and institutions that govern a surprisingly large number of issues
in world politics’.10 We see the emergence of new regimes as specific forms of
governance, that is, as ‘norms, rules and procedures agreed to in order to regulate
an issue-area’.11

The cognitive turn of decision-making processes in the knowledge society

According to Helmut Willke, the problem is ‘governing the knowledge society’,
that is, a society that comprises a lateral global system.12 His basic idea is that
the preconditions for sound governance have changed and keep changing with
the dynamics of the ongoing transformation from industrial societies to knowledge
societies. In this morphogenetic process, the preconditions for decision making
are shifting from normative to cognitive foundations. Knowledge is becoming the
most important factor of production, surpassing the traditional factors of land,
labour, and capital. The most important good today is expertise, that is, hyper-
specialised knowledge needed to sustain and legitimate decision making. Politics
is not enough! Parliaments are not competent! Politicians are not experts! So what
follows?
This cognitive turn is linked to the erosion of the core principles of state
government: authority, legitimacy, and accountability. Each of these political
elements generalises itself, escapes the boundaries of nation states, and re-specifies
itself in lateral global subsystems. In Willke’s words:
Global governance consists in large part in creating governance regimes
for global contexts by establishing organizations (institutions), structures,
processes and rule systems that have the capabilities to provide intelligent

10
R. Keohane and J. Nye , ‘Introduction’, in D. Held and J. Donahue (eds), Governance in a
Globalizing World (Washington, DC: Brookings Press, 2000), 1–27, at 16.
11
E. Haas, ‘Why Collaborate? Issue-linkage and International Regimes’ (1980) 32 World
Politics 357–405, at 380.
12
H. Willke, Smart Governance: Governing the Global Knowledge Society (Frankfurt am Main:
Campus, 2007).
 The Morphogenesis of Constitutionalism  315
decisions for highly complex and concatenated problems. Accordingly, a core
element of global governance is to create and manage specific organizations
as global institutions and cornerstones of global context: the WTO for the
global economic system, the WHO for the global health system, the Basel
Committee for the global financial system, the World Bank and the IFM
for the global developmental context, etc. the crucial resource of all theses
institutions is knowledge.13
It is important to define the differences between state and non-state political elements.
These can be explained by reference to the principles of authority, legitimacy, and
accountability. First, state authority is defined by formal rules of inclusion, participa-
tion, and representation into a territorial system. There are, however, at least four
kinds of authority beyond nation-state arrangements: supranational, private, techni-
cal, and popular (global public opinion). The authority of expertise is quite different
from state-based authority. Its rules derive from the standard set by knowledge, epis-
temic, scientific, and practical communities. This knowledge is no longer elaborated
within the nation state and its political structures: it develops in private or quasi-
public organisations and by the other actors in the area of rule making, arbitration,
dispute settlement, standard setting, and organisation of societal sectors.
Second, for modern states the rules of formal legal legitimacy were popular
participation, representation, the majority principle, and party competition.
Nowadays, new forms of legitimacy are building on this legacy and are begin-
ning to delineate derivatives of formal legitimacy. The most important are
knowledge-based legitimacies. State structures of course seek to base their deci-
sions on expert knowledge. But it is increasingly evident that territorial nation
states are unable to cope with new global problems; they are unable to develop
within their structures the specialised knowledge needed to solve transnational
problems.14
Various forms of non-state governance, based on new forms of authority,
accountability, and derivatives of legitimacy, are needed to complement the work
of state institutions in complex and deterritorialised policy arenas in global society.
It is sufficiently clear that there does not exist a global level of law-making, only
pluralistic processes of juridification. Global law regimes are based on derivatives
of legitimacy and diverse foci of authority, such as lex mercatoria, lex constructionis,

13
Ibid 42.
14
Ibid 48: ‘A few of the global institutions, particularly WTO, WHO, WB, G-30, FSF or BIS
and its Basel Committee, make exemplary use of existing expertise and in addition produce
relevant knowledge with impressive speed and quality ... the familiar regulatory competition
evolves into a pervasive matrix of cooperation and competition among national and trans-
national policy networks. National democratic political systems, in spite of their unique
legitimacy, lose their status of autonomous players with unquestioned sovereignty. Instead
they become mutually dependent parts of a complex supra-structure of multi-level political
decision-making, ranging from the local to the global level.’
316  Riccardo Prandini
or lex digitalis.15 These are ‘living laws’ based only on legitimacy acquired through
expertise, reputation, fairness, and problem-solving capacity and which depend
on mutual voluntary commitment, compliance, and consensus over deliberative
fairness. These regimes—which included norms, rules, standards, regulations, and
operating procedures such as audit and accounting regulations—are forms of self-
organisation of functional arenas of the world society. They apparently lack the
core elements of a full-fledged territorial society: the political system with its state
sovereignty (the capacity of a public body to act as the final and indivisible seat of
authority) and popular sovereignty (the people considered as subjects and objects of
the law).
The collectivities—the people—addressed by global law are not defined within
state boundaries, but only functionally and operationally. They are communities
of choice, of practices and of interests, in which membership is not ascribed but
achieved. Some global institutions have acquired reputations as intermediate appel-
late bodies, such as the International Court of Arbitration or the Appellate Body of
the WTO, but they lack an executive branch for enforcement based on the legiti-
mate monopoly of the use of force. Instead, they rely on powers of persuasion,
deliberation, expertise, fair procedures, and impartiality. The relevance of these
global regimes is so vast that we can now ask: ‘what public task (and collective
goods) will the democracies of this century be able to organize and implement on
the basis of territories, and territorially limited collectives?’16 Put another way: we
are witnessing a new beginning in the morphogenetic cycle, and we can see retro-
spectively that the state monopoly of political governance is simply a relevant but
historical incident of an ongoing process. And, as Anne-Marie Slaughter empha-
sises, we face for the first time a trilemma of social governance in the form of ‘the
need to exercise authority at the global level without centralized power but with
government officials feeling a responsibility to multiple constituencies rather than
to private pressure groups’.17

iii. beyond the global process of juridification

Inside the morphogenetic cycle
Fig. 15.2 shows the four-phased process of ‘simple’ juridification–normativisation.
On the left side of the figure, where a new cycle begins opening the box of the estab-
lished normative system, we find pressures towards innovation. This phase derives from
the irritations (communications, actions, confl icts, claims, changes in institutions,
etc) coming from both (1) internal (the different subsystems of society) and (2) exter-
nal (individual consciences, bodies, human and ecological nature, etc) environments

15
S. Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, NJ:
Princeton University Press, 2007).
16
Willke, above n 12, 95–6.
17
A.-M. Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004), 257.
 The Morphogenesis of Constitutionalism  317
of the normative system. Irritations are new and unexpected normative claims
coming from the outside of the normative subsystem of the global society. They
are not yet normative events, since they first need to be transformed/translated
as normative elements by some mechanism, that is, by the plural ‘processes of
juridification’ developed by the society.
This translation takes place in the upper and central side of Fig. 15.2, where we
find the ‘processes of conditional opening’ of the normative system. It opens itself
to the innovations, but only translates them into its peculiar language. Here we find
the mechanism of the selection and recoding of normative innovations. Law-making—
and norm making—takes place outside the modern sources of national and inter-
national law: in agreements between global players, in private market regulation
by multinational concerns, in internal regulations of international organisations,
interorganisational negotiating systems, and through worldwide standardisation
processes that come about partly in markets and partly in processes of negotiation
among organisations. Regulations and norms are produced by new semi-public,
quasi-private, or private actors which respond to the needs of a global society.18 In
the space between states and private entities, self-regulating authorities have multi-
plied, blurring the distinction between the public sphere of sovereignty and the
private domain of particular interests. And legal norms are not only produced within
confl ict regulation processes by national and international official courts but also
within non-political, social, dispute-settling bodies; international organisations; arbi-
tration and mediation schemes; ethical committees; and treaty systems. The ‘living
laws’ developing new jurisgenerative processes and the demands of governance
regimes are socially selected and recoded where and when an urgent need of
normative expectations and social arbitration emerges and where real competencies
to reconstruct normativity develop.
On the right side of the figure, we can observe the third phase of the cycle. It
is related to the ‘closing’ and the ‘internal integration’ of the previously ‘irritated’
and then selected normative expectations. In this phase selected innovations are
accepted, retained in normative-legal documents, and socially institutionalised.
The mechanisms for this institutionalisation concern the reconstruction of law
and its methods, the creation of fictive hetero-references, overruling, dogmatic
and doctrinal innovative interpretations, and the so-called ‘democratic iterations’.
These three phases of the new morphogenetic cycle are included inside what I call
the sphere of ‘living law’, the endlessly normative social elaborations which try to
respond to the huge and dramatic needs of ‘juridification’ across the world society.
In order to develop and maintain itself, this ‘living law’ needs to relate to a cultural
pattern, a sort of identity scheme, which retains the function to record and inter-
pret the whole morphogenetic cycle. It is the locus of ‘latent pattern maintenance’,
where the latent meanings of the new laws are elaborated, becoming ‘living’ and
(if necessary) positive laws. Here the normative system combines with the cultural
symbolic environment (the ‘ultimate reality’ in the Weberian sense), that is, the

18
See Sassen, above n 15.
318  Riccardo Prandini

T0 2) Processes of conditional opening T1

Goals (Selection)
Pressures to select innovative normative communication
Jus generative processes; Normative private ‘governance’ regimes; New contractual worlds

1) Processes of innovations (opening) 3) Processes of normative closure

Means (Variation) Retention (Integration)
Pressures toward variations and changing Pressure to institutionalisation
Unexpected normative communications and claims Reconstruction of law and its methodology
Processes of societal differentiation Fictive hetero-references, new forms of dogma
Crisis of the modern national-state and of its legislation Procedural normative threshold
Democratic iterations

‘Living Law’

T4
4) Processes of conditional closure
Latent pattern maintenance (Recording and Interpretation)
Cosmopolitan norms
Vertical effect of fundamental rights (relationship with the environment, natural and human)
Attribution and creation of new juridical subjectivities, political or not
Transcendence formula (Justice into law)

T3 ‘Latent law’ T2
T1 to T4 : Processes of normative morphogenesis: from variations, to selections, retentions, recording, and interpretations.

Figure 15.2

stored and maintained cultural symbols that represent the coherent memory of the
social system. Not everything is acceptable in a particular (normative) world, so long
as the system wants to maintain its internal coherence. Who (or what) decides on
the maintenance of normative communications is properly hosted in this locus of
cultural elaboration and interpretation.19 It is here that the normative system, often
through the production of confl icts, finds its ultimate transcendence and breaks its
closure. The best example of this latent pattern of normativity is provided by the
elaboration of new human or ecological rights. It is here that, as Seyla Benhabib
argues, the emergence of international human rights regimes is intended to protect
the individual in a global civil society and to articulate public standards of norm
justifications.20

Constitutionalisation as a specific sub-process of the global normative morphogenesis

Constitutionalisation is not simply juridification or normative regulation: it is a
very different social process. It is a specific and important part of the process of
proliferation of diverse, overlapping, and interconnected legal orders at subna-
tional, supranational, international, and private levels. Why is this problem of
new constitutional morphogenesis emerging? The starting point (T0) of the
morphogenetic cycle concerns the constitution as the elaboration of a social–political

19
L. Boltanski and L. Thévenot, On Justification: Economies of Worth (Princeton, NJ:
Princeton University Press, 2006).
20
S. Benhabib, Another Cosmopolitanism (Oxford: Oxford University Press, 2006).
 The Morphogenesis of Constitutionalism  319
vision and a frame of normative order in terms of which the state polity identified
and regulated itself qua sovereign. Its function was not only to internally regulate
the state, its relationships with the other social subsystems and with its environment
(through individual rights), but also to define and constitute the polity itself. In the
modern age, there is no politics without a constitutional frame and no constitutional
law without a political form. The modern constitution is a contingent arrangement
which is useful to define and design a specific polity (a collective self hood, an imag-
ined historical community) and to govern it, bypassing the paradoxes generated by
the arbitrariness of power and the validity of law. It is a mechanism which enables
the recognition, coordination, assimilation, and self-legitimacy of the legal–political
system. If this is true, than we have to answer two fundamental questions. First,
are states and their governments the basic units of contemporary political analy-
sis, or must we abandon the idea that the sole centres of constitutional authorities
are states? Second, what are the differences between a process of constitutionalisa-
tion and a mere process of self-regulation or juridification? I define the first question
as the ‘problem of the polity’ and the second as ‘the problem of self-governance’.
The two problems are interconnected and represent the elements of what I call the
‘relation of constitution’ (Fig. 15.3).
To constitute means literally to give shape and form to something.21 The logic of
the ‘relation of constitution’ is: an X constitutes a Y at time T and only under certain
conditions. Constitution does not mean identity of X and Y. If an X, for example

EXTERNAL PRESENT
- Political–institutional
- Realisation of political capacity COLLECTIVE AND COMMON
LEGITIMATING POWER - Transmission of political will GOODS
- Establishing principles and goals of the polity public responsibilities
VALIDATING SELF-GOVERNANCE - Structure of the state
- Public purpose of the institution

EXTERNAL FUTURE
INTERNAL PRESENT
- Legal order - Law
- Establishing and legitimating the state powers and their exercises. - Societal–popular.
- Procedural and organisational rules to grant a use of public power - Sense of intergenerational solidarity.
adapt to the principle of preventing abuses, affirming the rule of law - Citizenship and social inclusion–integration
and separating the powers. Decision-making procedures, representational - Establishing the boundaries between
rules, internal review, and accountability rules. state powers and the autonomy of
the different social spheres.

Relation of Constitution: linking the two axes of the

problem, substantive and structural.

Horizontal axis: the problem of self-governance. The Individual-human rights (catalogues)

structural axis, regulative dimensions (inside and on the
boundaries of the system), validating the governance INTERNAL FUTURE
regime and its procedures. Example: constitutionalisation
- We the people CONSTITUTING
of the global economic lateral system.
- Collective self-determination A POLITY AND ITS
- Collective self-identification SOCIO-POLITICAL LEGACY
Vertical axis: the problem of the polity. The substantive
axis, significance dimensions (inside and on the
boundaries of the system), legitimating the decision-
making process and limiting its dangerous externalities
for the outside. Example: recognition and validation of
new ‘peoples’ and human rights.

Figure 15.3

21
L. Rudder Baker, The Metaphysics of Everyday Life: An Essay in Practical Realism (Cambridge:
Cambridge University Press, 2007).
320  Riccardo Prandini
a group of individuals or of institutions, that in time T, within and under specific
conditions, constitute a new polity Y and supply self-governance, then X and Y are
not the same thing: Y is not a mere aggregation of X. If a Y is emerging, then new
ontological powers, objects, and identities are generated. In particular, if we take
into consideration a newly constituted polity, we face a new social object, usually
inscripted in a normative document or in another form of ‘recording’. To constitute
a polity—not merely to institute it—means ordering the relations of its members
through a self-governing normative order, and to recognise/validate it by way of a
peculiar collective identity. The problem of the polity is connected to the issue of
the arbitrariness of power (who can take legitimate collectively binding decisions?),
and represents the substantive and vertical axis of the problem, linking the constitu-
tion of a ‘we’ with its goals. The problem of self-governance concerns the validity
and recognition of law (and of the other normative regimes) and represents the
structural and horizontal axis of the problem, linking the legal regulation of the
polity with its internal integration.22 The ‘relation of constitution’ couples these two
axes, linking a specific way of self-governance (the fundamental law) to a recognised-
validated polity (the sovereign people). If this does not happen, ‘simple’ juridification
or mere self-governance occurs.
We might stop here, affirming with Neil Walker that in ‘societal constitutionalism’
the idea of a ‘holistic constitution’ is lacking in each of the four register-elements.23
In a sense this is perfectly true, but only if we continue to take as our paradigmatic
example a modern ‘holistic’ definition of the situation: (1) holistic legal order, (2)
holistic political institution, (3) holistic societal reference, and (4) holistic popular
we-ness. Those who affirm that if we remain inside the modern constitutional frame
we can only encourage a proliferation of compensative devices for the four regis-
ters both substantively and structurally, are right. Specifically, on the substantive axis
we see a franchising of universal human rights and standards of public behaviour
and corporate responsibility, and on the structural axis we observe franchising of
new modes of governance, the rolling out of democratic experimentalism, and the
development of quasi-universal principles. But here we can differentiate two differ-
ent meanings of societal constitutionalism: a ‘defensive’ one, where the objective
is to protect the human beings—not constituted in a new global polity—from the
newly emergent, non-state powers; and a ‘pro-active’ one, where the accountability,
legitimacy, and regulation of the public exercise of power by transnational elites can
be demanded by their own functional (and non-state) constituencies.

The vertical axis: generalising and re-specifying the polity

Who are this new ‘we’ that constitutionalise themselves? In order to answer this
question we must again generalise and re-specify the concept of the polity for
coping with the new cultures and identities which are emerging outside modern
nation-state political sites.

22
P. Donati, Teoria relazionale della società (Milan: Franc Angeli, 1991).
23
Walker in this volume.
 The Morphogenesis of Constitutionalism  321
A new polity (not simply a group, or a lobby, or fl uid collective movement)
starts to constitutionalise itself when it begins to elaborate, in a reflexive way, two
connected political issues. First, it seeks to define the we-ness, that is, the identity
and the membership of the actors united in the new polity. ‘We the people’ is the
relevant example only within a state democratic frame. At stake here is something
more fundamental: the idea that a constitution pertains to a particular societal
formation, self-understood, self-identified, and self-integrated as such. Here is the
locus of the pouvoir constituant that might express itself not in a revolutionary way
but, for example, through democratic iterations of specific functional/subsystemic
constituencies. Second, it seeks to define the common goals, goods, and mission
of the system, and seeks to select the key organs and representatives charged to
announce, prescribe, and preserve that political character necessary to make collec-
tively binding decisions. Here we find not a democratic procedure of representation,
but expert groups legitimating through acknowledgement of their expertise and
problem-solving capacity.
We see these two reflexive elaborations by observing the morphogenesis of a
corporate agent into a corporate actor. By corporate agent I mean a group of people
who objectively share a specific position in the society (from the point of view of
particular ‘goods’, ‘rights’, ‘status’, etc). A corporate agent, always in the plural
meaning, is not aware that it is sharing this position with other people (ie representa-
tives): it is an agent an sich. A corporate actor, by contrast, is a group of people (or
representatives) that not only objectively share something with others but are aware
of sharing it: they are a collectivity für sich. In a specific sense, a corporate actor is
constituted by the self-consciousness to belong to a ‘we’. It is constituted by and of a
group of individuals which come to think about themselves as a ‘we’, so that every
member can act and reflect by reference to this membership: for example, a member
of the WTO, WHO, Basel Committee, or Amnesty International. They belong to
a collective identity that is a collective self hood and not only a collective sameness.
Sameness responds to ‘What am I?’ Self hood to ‘Who am I?’
The collective self hood of a corporate actor is reflexive in a twofold sense.
First, the members of a group consider themselves as a unity that intends to
act collectively. Second, the act is undertaken for the sake of the collectivity.
This collectivity is simultaneously the object and subject of an act, specifically
a subject and the author of the laws. This new identity-constituted corporate
actor has to elaborate and institutionalise its own goals and mission and the insti-
tutional authority to legitimate (inside the system) binding decisions. A polity
is a structure with: the capacity to mobilise persons and resources for specific
purposes, a peculiar degree of institutionalisation, specific goals, and a represen-
tation of collective identity.
It is useful to address the problem of polity by reference to the work of James
Tully.24 For Tully, the issue is whether or not modern constitutions can recognise
the cultural diversity—the strange multiplicity—of their constituencies. In the

24
J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge
University Press, 1995).
322  Riccardo Prandini
world society, there is a dramatic movement of intercultural voices, organised or
not, represented or not, aiming to be constitutionally recognised: nationalist move-
ments, supranational associations, intercultural voices, feminist movements, and
indigenous people excluded by the present constitution. These politics of cultural
recognition constitute the third phase of anti-imperialism promoted by peoples and
cultures who have been excluded by the movements of decolonialisation and consti-
tutional state building. The leitmotif of this new form of constitutional discourse
is the aspiration of these ‘agents’ to self-rule (and so to become a corporate ‘actor’)
in accordance with one’s own customs and ways of life. Modern constitutionalism
developed around two main forms of recognitions: the equality of independent, self-
governing nation states and the equality of individual citizens. But today most of the
new polities do not seek to build independent nation states in order to gain indepen-
dence and self-government. They seek self-rule and recognition within, across, and
beyond existing nation states through which they try to mediate two fundamental
public goods: freedom and belonging.
The polities of these different and incomparable cultures are not nation states, and
contemporary demands for cultural recognition are not of this inclusive type. The
modern concepts of people, popular sovereignty, citizenship, unity, equality, and democ-
racy, alongside the modern institutions of parliament, voting, courts, bureaucracy,
police, and dissent, all presuppose the uniformity of a nation state with a centralised
and unitary system of legal and political institutions. What the liberal, national, and
communitarian constitutional modern traditions share is the idea of a culturally
homogeneous and sovereign people establishing a constitution through a form of criti-
cal negotiation. By a self-conscious agreement, people give rise to a constitution that
‘constitutes’ the political association. The constitution lays down the fundamental laws
which establish the form of government, the rights and duties of citizens, the represen-
tative and institutional relation between government and governed, and an amending
formula. But today the process of constitutionalisation is more similar to the ancient
constitutions, ie processes that do not need a positive and singular act of foundation,
but an assemblage of laws, institutions, and customs, derived from certain fixed prin-
ciples of reason, directed to certain fixed objects for the public good.
Facing the problem of multiplicity ‘inside’ a singular nation-state constitution, the
argumentation of Tully is synthesised by the formula, audi alteram partem: that is, be
able to understand the multiple narratives (not only national) through which citizens
participate in and identify with their (political) associations. Constitutions are chains
‘of continual intercultural negotiations and agreements in accordance with conven-
tions of mutual recognition, continuity and consent’.25 This new ‘intercultural’
constitutionalism is incompatible not only with the idea of exclusive integrity of the
nation (it is compatible with it only if with ‘nation’ we mean the aspiration to belong
to a group of people that governs itself by its own laws and ways) but also with indi-
vidual freedom conceived in the modern liberal term (it is compatible if it respects
the secure belief that what one has to say and do in politics and life is worthwhile)

25
Ibid 184.
 The Morphogenesis of Constitutionalism  323
and also with the creation of undemocratic enclaves based on the modern idea of
sovereignty, ie a single locus of political power that is absolute.
We have to abstract from the argument of Tully and reflect on the substantive/
vertical axis of constitutionalisation. First, in a world society, processes of
constitutionalisation will occur specifically when and where there will be a real
demand for elaborating, articulating, and empowering areas of social auton-
omy, and sheltering them against the swamping tendencies of powerful social
systems. We can foresee the prevalence of the control-integrative function of the
constitution, with its corollary of the development of new human rights and cosmo-
politan norms. But, as Tully has shown, there will be also a dramatic demand for
self-rule and recognition by new and emerging (identity- or interest-based) poli-
ties in the global scale. Second, we will probably witness a sort of de facto process
of constitutionalisation where the ‘we’ will originate indirectly from the need of
governance. But with the cultural dialogue going global, we can also expect new
and active constituent powers, represented by activists of an emergent global civil
society or by the ‘citizen’ of new and unexpected societal subsystems. Finally, civil
constitutions will probably not be produced by some sort of big bang, the spec-
tacular revolutionary act of the constituent assembly, nor will these global regimes
have a single original text embodied as a codification in a special constitutional
document. On the contrary, civil constitutions will grow through evolutionary
processes of long duration.

The horizontal axis: generalising and re-specifying the normative order

In this section I will try to answer the second question: the problem of ‘self-
governance’. What does it take for procedural norms, or a rule-guided practice of
social cooperation, to be recognised as constitutional? Here we find the structural
coupling between the juridical and the societal frames. In the first frame we are
confronted with all the legal devices that shape a constitution: rule of self-produc-
tion, self-organisation, self-extension, self-interpretation, self-amendment, self-
enforcement, self-discipline, etc, including the rules that specify the terms of an
order’s internal stratification and those who posit its sovereignty over any external
claim to priority. In the second we face the problem of defining the differences,
boundaries, and powers between the political–institutional frame and the civil
society, including the problem of flexible citizenship and membership.
It will be not predictable whether the new processes of civil constitutionalisation
will be identical with the modern one, but the basic point remains the structural
coupling between the law (of the different lateral subsystems) and their analytically
political representations. Auto-constitutional regimes are defined by their duplica-
tion of reflexivity. Secondary rule making in law is combined with fundamental
rationality principles in an autonomous social sphere. In different globalised subsys-
tems we can find several emerging elements of a constitution: provisions on the
establishment and exercise of decision making (organisational and procedural rules)
on the one hand; the definition of individual freedoms, belonging, and societal
autonomies (fundamental rights) on the other.
324  Riccardo Prandini
We can observe these emerging elements with the aid of the concept of societal
contitutionalism elaborated by David Sciulli.26 Sciulli is not concerned directly with
the problems of democratic political form, the constitutional liberal concerns of
separation of powers and human rights. His reflections represent a strong criticism
of the idea that non-authoritarian social change is possible only by means of institu-
tions and practices peculiar to Western democracy. Sciulli is searching for a ‘social
infrastructure’—a collegial form of organisation—capable of supporting a non-
authoritarian social development. These collegial formations, that can be found
everywhere and not only in Western societies, are not democratic in any formal way.
So, the basic argument is that not every non-democratic collegial organisation is
immediately authoritarian and that the best defence against authoritarianism is not
only what we call constitutional liberal-democracy.
For Sciulli, a modern constitutional state may be relatively egalitarian and yet
become everyday more manipulative. He sees a risky drift towards authoritarianism
within the institutional setting of modern societies. It manifests itself in four thrusts:
(1) fragmentation of logics of action, with the compartmentalisation of separate
social spheres; (2) dominance of instrumental calculation across all the different
domains; (3) comprehensive replacement of informal coordination with bureau-
cratic organisation; and (4) increasing confinement in the ‘iron cage of servitude
to the future’, especially in social spheres. This drift has the nature of a dilemma
because every conscious attempt to achieve control over the drift gets caught up
in this logic. More freedom brings more authoritarian social control. More instru-
mental action leads to more substantive tendencies to control this action, but this
in turn leads to more interpretative confl ict. Market ‘mock’ competition is not
able to ensure the balance between actors’ subjective interests, as with the formal
constitution. Every internal normative restraint (whether substantive, as in group
competition, religious proscriptions, or division of powers; or procedural, as with
elections and rational–legal enforcement) is impeded, because of its internality to
the process of rationalisation itself.
To control this drift, the different actors of a complex society must develop and
institutionalise a certain kind of norm, external to the logic of the drift itself, that
is, a ‘non-rational’ normative restraint. Sciulli’s seeks to find, within an existing civil
society, the external procedural restraints on the inadvertent exercises of power. He
locates them in a normative standard of ‘reasoned social action’ recognised even by
competing actors: heterogeneous actors and competing groups are possibly inte-
grated rather than demonstrably controlled within any complex social unit when the
shared social duties, being sanctioned within it, can at least be recognised and under-
stood by them in common. This normative threshold indicates the violation of the
arbitrariness of power’s exercise. It is, from Lon Fuller’s perspective, a threshold of
law’s interpretability. Sciulli shows this empirically through the institutionalisation
of various forms of professional conduct, centring on deliberative bodies, research

26
D. Sciulli, Theory of Societal Constitutionalism (Cambridge: Cambridge University Press,
1992).
 The Morphogenesis of Constitutionalism  325
divisions of corporations, professional associations, universities, etc. These collegial
formations are deliberative and professional bodies, wherein heterogeneous actors
and competing groups maintain the threshold of interpretability of shared social
duties. The sharing of these norms establishes a sort of new and specific polity.
In Corporate Power in Civil Society, Sciulli tries to develop an application of the
societal constitutionalism to what he calls the American Corporate Judiciary (ACJ),
in particular the State Courts of Delaware, California, and New York, which moni-
tors how managers govern publicly traded corporations. For Sciulli the problem for
those who remain within the constitutional liberal-social-democratic legacy is that
their concepts fail to address manifestations of social authoritarianism, ie purpose-
fully and inadvertently arbitrary exercises of collective power by powerful ‘private’
actors within civil society. They have difficulty in extending their concepts from
the individual’s relationship to the state to the individual’s relationship to powerful
organisations within civil society. They are only able to discuss arbitrary government
and not other forms of arbitrary exercises of collective power.27
In this sense, the role of the ACJ is to define and limit how corporations may
conduct themselves in civil society. In the market-driven culture, the problem of
how managers govern the companies is left to competition and self-regulation. The
limitations can be only economic, instrumental, and pecuniary in their sanctions.
From this point of view there is no problem with the basic institutional design of
a democratic society. The real problem is that the companies are the single most
significant set of intermediary associations in American society and they have a
huge impact not only on their members (or shareholders) but also on the lives of
the stakeholders and of other citizens, what Sciulli call ‘institutional externalities
of corporate power’. Companies are embedded in society and their institutional
settings are part of the society’s structural design. The institutional design of a
democratic society extends normative mediations of power from government to
major intermediary associations in civil society. These associations (and other sites
of professional practice, such as hospitals, universities, museums, governmental
agencies) mediate the state’s power and broaden individuals’ loyalties beyond their
families and primary groups. But the state cannot monopolise collective power in
civil society. From the perspective of corporations, this means that they are able
to exercise collective power in abusive ways. By monitoring corporate governance
with an eye to institutional design, Delaware courts perform what Parsons called a
pattern-maintenance (fiduciary) function for the entire society. So ‘it is not an exag-
geration to say that Delaware’s Chancery Court and Supreme Court together func-
tion as the constitutional court of the United States for all intermediary associations,
for all powerful private bodies in American civil society’.28 Courts do not intervene in
the productive functions of corporations, but only in the private governments of the
corporations, deciding and evaluating their legitimacy, equality, and basic fairness.

27
D. Sciulli, Corporate Power in Civil Society: An Application of Societal Constitutionalism (New
York: New York University Press, 2001).
28
Ibid 15.
326  Riccardo Prandini
The Delaware court remains concerned that certain changes in corporate gover-
nance can jeopardise a democratic society and undermine its own legitimacy as the
country’s constitutional court for intermediary associations. Sciulli emphasises that:
Corporate law, like most law, is primarily about the rule-oriented structuring
of social power, and it is specifically about the rules that structure the
organization of economic power … the powers and restrictions of corporate
law are formulated with a view toward achieving a set of rules for incorpo-
rated business that conduce to the public advantage. In the words of Professor
Melvin Eisenberg, ‘corporate law is constitutional law’ in this fundamental
sense.29
As constitutional law for powerful private persons, corporate law identifies the
rights corporate officers exercise within structured situations in civil society and the
duties corporate officers must bear when advancing either the corporate entity’s
collective interest or their own positional interests. But corporate law also identi-
fies social norms and institutional arrangements to which corporate officers are
expected to exhibit fidelity as they otherwise exercise their business judgement in
‘private’ domains. This reduces corporate officers’ positional powers and freedom
of contract in civil society and prevents one-sided exercises of collective power in
structured situations.
This example shows very well that processes of constitutionalisation occur exactly
when and where in the social sphere (not only in the political sphere) there emerges
a social need to guarantee the chances of articulating, enhancing, and empowering
areas of autonomy (social differentiation) for societal reflection and institutionalising
them against swamping tendencies.30 This is a clear example of defensive constitu-
tionalism, without a real self-authorising polity, based on the spread of cosmopolitan
norms. We can observe the same process in different functional subsystems. These
processes confirm the idea that societal constitutionalism is for the moment powered
by the attempts—on the horizontal axis of the ‘relation of constitution’—to limit
and to make accountable the anonymous matrix of social powers which threatens
human rights. But if we want to conceptualise a fully fledged, new societal constitu-
tionalism, it is also necessary to identify new democratic and constitutional experi-
ments on the vertical axis, where non-predictable non-state polities will probably
emerge.

29
Ibid 25.
30
G. Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional
Theory?’, in Joerges, Sand, and Teubner, above n 6, 3–28.
  16 
Fragmented Foundations
Societal Constitutionalism beyond the Nation State

Gunther Teubner

i. the new constitutional question

Horizontal effects of constitutional rights
The question of the ‘horizontal’ effects of fundamental rights, ie the question whether
they impose obligations not only on public bodies but also directly on ‘private govern-
ments’, acquires much more dramatic dimensions in the transnational sphere than it
ever possessed in the nation-state context. The issue becomes particularly controver-
sial where infringements of human rights by transnational corporations are alleged. I
shall single out a few glaring cases: environmental pollution and inhuman treatment
of local population groups, eg by Shell in Nigeria; the chemical catastrophe in Bhopal;
disgraceful working conditions in ‘sweatshops’ in Asia and Latin America; the policy
of excessive pricing of pharmaceuticals in the South African Aids drama; child labour
attributed to IKEA and Nike; allegations against Adidas of having footballs produced
by forced labour in China; the use of highly poisonous pesticides in banana plantations;
‘disappearances’ of unionised workers; environmental damage caused by big construc-
tion projects. The list could easily be extended. The scandalous events fill volumes.
What converts the legal question—the horizontal effects of fundamental rights—
into a burning political issue is the ongoing privatisation of government. Legal
doctrines of horizontal effects usually dodge the tricky question of whether private
actors are directly bound by fundamental rights provisions. A host of doctrines,
according to which fundamental rights only have ‘indirect’ effects in the private
sphere, have been devised.1 Simplifying grossly, there are two main constructions,
albeit with numerous variants. Under the state action doctrine, private actors
are in principle excluded from the binding effect of fundamental rights unless

1
For a comparative view, see D. Friedman and D. Barak-Erez (eds), Human Rights in Private
Law (Oxford: Hart, 2001); G. W. Anderson, ‘Social Democracy and the Limits of Rights
Constitutionalism’ (2004) 17 The Canadian Journal of Law & Jurisprudence 31–59; P. Alston
(ed), Non-state Actors and Human Rights (Oxford: Oxford University Press, 2005); A. Clapham,
Human Rights Obligations of Non-state Actors (Oxford: Oxford University Press, 2006).
328  Gunther Teubner
some element of state action can be identified in their behaviour. This might be
the case either because state bodies are to some degree involved or because the
private actor fulfils more or less broadly understood ‘public’ functions. Alternatively,
under the doctrine of the structural effect of fundamental rights, those rights are to
be respected across the whole legal system, including private law provisions enacted
by the state. However, the limitation of the effect of fundamental rights to the legal
system implies that private actors themselves are not subject to any fundamental
rights obligations.
Globalisation makes this puzzle even more difficult to solve. In the transnational
sphere, the question whether private actors are bound by fundamental rights is
much more acute than in the context of the nation state. Here, the otherwise omni-
present state and its national law are almost absent so that the state action doctrine
and the theory of the structural effect of fundamental rights can be applied in only
very few situations. At the same time, transnational private actors, especially trans-
national corporations, intensively regulate whole areas of life through their own
private governance regimes. Thus, the question whether they are directly bound by
fundamental rights can no longer be evaded.

Societal constitutionalism
The more general legal theoretical question of the problem sketched out above is:
how is constitutional theory to respond to the challenges arising from these two
major trends of privatisation and globalisation? This is what today’s ‘constitutional
question’ ought to be. Today’s constitutionalism moves beyond the nation state. It
does so in a double sense: constitutionalism moves into the transnational context
and into the private sector.2 While the old constitutions of the nation states were
simultaneously liberating the dynamics of democratic politics and disciplining
repressive political power by law, the point today is to liberate and to discipline quite
different social dynamics—and to do this on a global scale. Is constitutional theory
able to generalise the ideas it developed for the nation state and to re-specify them
for today’s problems? In other words, can we make the tradition of nation-state
constitutionalism fruitful and redesign it in order to cope with the phenomena of
privatisation and globalisation?3
Contemporary constitutional theory is still state centred. This is a real obstacle
épistémologique. It makes constitutional theory badly equipped to deal with private
government on a transnational scale. The alternative to be developed is constitu-
tionalism without the state. For constitutional theorists, this amounts to breaking a

2
For the sociological theory of societal constitutionalism, see P. Selznick, Law, Society and
Industrial Justice (New York: Russell Sage, 1969); D. Sciulli, Theory of Societal Constitutionalism
(Cambridge: Cambridge University Press, 1992); Prandini in this volume.
3
For a more detailed account, see G. Teubner, ‘Societal Constitutionalism: Alternatives
to State-Centred Constitutional theory?’, in C. Joerges, I.-J. Sand, and G. Teubner (eds),
Constitutionalism and Transnational Governance (Oxford: Hart, 2004), 3–28.
 Fragmented Foundations  329
taboo.4 For them, a constitution without a state is at best a utopia—a poor one, to
be sure. But this formula is not an abstract normative demand for remote, uncertain
futures. Instead, it is an assertion of a real trend that can be observed on a worldwide
scale.
My thesis, in short, is that we are witnessing the emergence of a multiplicity of
civil constitutions beyond the nation state. But the constitution of world society is
not to be conceived exclusively within the representative institutions of international
politics, and neither can it take place in a unitary global constitution overlying all
areas of society. It is emerging incrementally in the constitutionalisation of a multi-
plicity of autonomous subsystems of world society.5

ii. fragmented globalisation

This emerging societal constitutionalism can be grasped only if one appreciates the
polycentric form of globalisation. And one is able to arrive at such an understanding
only if one gives up five widespread assumptions of social and legal theory in
order to replace them with somewhat unusual ideas.6 These five assumptions are
considered in turn.

Rationality confl icts in a polycentric global society

A first assumption that must be given up is that globalisation of law is prima-
rily a result of the internationalisation of the economy. The alternative to such
an economy-led form of globalisation is ‘polycentric globalisation’.7 The primary

4
D. Grimm, ‘The Constitution in the Process of Denationalization’ (2005) 12 Constellations
447–63.
5
Authors who come close to this position are H. Brunkhorst, R. Prandini, U. K. Preuss,
and N. Walker (in this volume); N. Walker, ‘The Idea of Constitutional Pluralism’ (2002)
65 Modern Law Review 317–59; C. Walter, ‘Constitutionalizing (Inter)national Governance:
Possibilities for and Limits to the Development of an International Constitutional Law’
(2001) 44 German Yearbook of International Law 170–201, at 188 et seq; G. P. Calliess and
P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private
Law, Sonderforschungsbereich 597 (Bremen: Staatlichkeit im Wandel, 2007); K.-H.
Ladeur and L. Viellechner, ‘Die transnationale Expansion staatlicher Grundrechte: Zur
Konstitutionalisierung globales Privatrechtsregimes’ (2008) 46 Archiv des Völkerrechts 42–73;
H. Schepel, The Constitution of Private Governance: Product Standards in the Regulation of
Integrating Markets (Oxford: Hart Publishing, 2005); M. Amstutz, A. Abegg, and V. Karavas,
Soziales Vertragsrecht: Eine rechtsevolutorische Studie (Basel: Helbing & Lichtenhahn, 2006).
6
For a more elaborate discussion, see A. Fischer-Lescano and G. Teubner, ‘Regime-
Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25
Michigan Journal of International Law 999–1045.
7
D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance
(Cambridge: Polity Press, 1995), 62. See also J. W. Meyer et al, ‘World Society and the
Nation-State’ (1997) 103 American Journal of Sociology 144–81; A. Schütz, ‘The Twilight of
the Global Polis: On Losing Paradigms, Environing Systems, and Observing World Society’,
330  Gunther Teubner
driver of this development is the functional differentiation of society. Each of
several autonomous functional subsystems of society escapes its territorial confines
and constitutes itself globally. This process is not confined to economic markets
alone; it also encompasses science, culture, technology, health, the military, trans-
port, tourism and sport, as well as, albeit in a somewhat retarded manner, politics,
law, and welfare. Today, each of these subsystems operates autonomously at the
global level.
What is of particular interest now is what might be called the external relations of
these global villages. These relations are anything but harmonious. If anywhere, it is
here that the notion of a ‘clash of cultures’ is appropriate. Through their own opera-
tive closure, global functional systems create a sphere for themselves in which they
are free to intensify their own rationality without regard to other social systems or to
their natural or human environment. In his pioneering analysis Karl Marx has shown
the destructive potential of a globalised economic rationality. Max Weber went
beyond that and deployed the concept of ‘modern polytheism’. He identified the
destructive potential within other areas of life and analysed the threatening ration-
ality confl icts which arise. In the meantime, the human and ecological risks posed
by highly specialised global systems, such as science and technology, have become
apparent to a broader public.8 Where countries of the southern hemisphere are
considered, it is clear that real dangers are posed by the confl icts between economic,
political, scientific, and technological rationality spheres that instigate the ‘clash of
rationalities’. According to Niklas Luhmann’s central thesis, the underlying cause
for these risks is to be found in the rationality maximisation engaged in by different
global functional systems, which cloaks an enormous potential for the endangering
of people, nature, and society.9
In this light, the alleged violations of human rights by transnational enterprises
are not only confl icts between individual rights—between the property rights of the
firms and the human rights of the people. Rather, they represent collisions of institu-
tionalised rationalities. They are embodied in the different policies of transnational
organisations. Such problems are caused by the fragmented and operationally closed
functional systems of a global society, which, in their expansionist fervour, create the
most pressing problems of global society.

in G. Teubner (ed), Global Law without A State (Aldershot: Dartmouth Gower, 1997), 257–93;
B. de S. Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation
(Evanston, Ill.: Northwestern University Press, 2003); K. Günther and S. Randeria, Recht,
Kultur und Gesellschaft im Prozeß der Globalisierung (Bad Homburg: Reimers, 2001), at 28
et seq; N. Luhmann, ‘Der Staat des politischen Systems: Geschichte und Stellung in der
Weltgesellschaft’, in U. Beck (ed), Perspektiven der Weltgesellschaft (Frankfurt: Suhrkamp,
1998), 345.
8
See especially U. Beck, Risk Society (London: Sage, 1992).
9
N. Luhmann, Die Gesellschaft der Gesellschaft (Frankfurt am Main: Suhrkamp, 1997), at 1088
et seq.
 Fragmented Foundations  331
Transnational regulatory regimes
Secondly, we must give up the idea that legal systems only exist at the level of the
nation state. Law has now established itself globally as a unitary functional system
of the world society. Despite its unity at the global level, law must reckon with a
multitude of internal contradictions. Thus, legal unity within global law is redirected
away from normative consistency towards operative ‘inter-legality’.10
A new internal differentiation of law has taken place. This new differentiation
within law is the result of the drastic impact of social differentiation upon law. For
centuries, law had followed the political logic of nation states and was manifest in
the multitude of national legal orders. Each of them had its own territorial jurisdic-
tion. In the last fifty years, however, in a rapidly accelerating expansion, transnational
regulatory regimes, most prominent among them the World Trade Organization,
established themselves as autonomous legal orders at the global level. In contrast
to common assumptions, the emergence of global legal regimes does not entail the
integration or convergence of legal orders. Rather, societal fragmentation impacts
upon law in a manner such that political regulation of differentiated societal spheres
requires the parcelling out of issue-specific policy arenas which juridify themselves.
Consequently, the traditional differentiation, in line with the political principle of
territoriality, into relatively autonomous national legal orders is overlain by a prin-
ciple of sectoral differentiation: the differentiation of global law into transnational
legal regimes, which defines the external reach of their jurisdiction along issue-
specific rather than territorial boundaries.

Transnational ‘private’ regimes

But this is still not sufficient to furnish us with a comprehensive understanding of legal
globalisation. No light has yet been shed upon the equally rapid quantitative growth of
non-statal ‘private’ legal regimes. Only these regimes give birth to ‘global law without
the State’, which is primarily responsible for the multidimensionality of global legal
pluralism.11 A full understanding of this multidimensional legal pluralism can be obtained
only if one gives up the third assumption in social and legal theory: that law derives its
validity exclusively from processes of law-making initiated by the state, that law, to qualify
as such, must either be derived from its well-known internal sources or from officially
sanctioned international sources. Thus, we must extend our concept of law to encompass
norms operating beyond the legal sources of the nation state and international law.
‘Transnational communities’, or autonomous fragments of society, such as the
globalised economy, science, technology, the mass media, medicine, education, and
transport, are developing a strong ‘norm hunger’, an enormous demand for regulatory

10
B. de S. Santos, ‘State Transformation, Legal Pluralism and Community Justice: An
Introduction’ (1992) 1 Social and Legal Studies 131–42; M. Amstutz, ‘Vertragskollisionen:
Fragmente für eine Lehre von der Vertragsverbindung’, in M. Amstutz (ed), Festschrift für
Heinz Rey (Zürich: Schulthess, 2003), 161–76.
11
On the discussion of legal pluralism, see P. S. Berman, ‘The Globalization of Jurisdiction’
(2002) 151 University of Pennsylvania Law Review 311–545, at 325 et seq.
332  Gunther Teubner
norms, which cannot be satisfied by national or international institutions. Instead,
they satisfy their demand through a direct recourse to law. Increasingly, global private
regimes are creating their own substantive law. They make use of their own sources of
law, which lie outside the spheres of national law-making and international treaties.12
Today, the most prominent private legal regimes are the lex mercatoria of the
international economy and the lex digitalis of the Internet.13 To these, however, we
must add numerous private or private–public instances of regulation and confl ict
resolution which create autonomous law with a claim to global validity.14 These
postnational formations are organised around principles of finance, recruitment,
coordination, communication, and reproduction that are fundamentally postna-
tional and not just multinational or international. Among them are multinational
enterprises building their own internal legal order but also transnational regimes
which regulate social issues worldwide. These private regimes clash frequently with
the legal rules of nation states and other transnational regimes.

Constitutionalism in transnational regimes

The fragmentation of global society and its impact on law have ramifications for
constitutional theory. At the global level, the locus of constitutionalisation is shifting
away from the system of international relations to different social sectors, which are
establishing civil constitutions of their own. According to the concept of constitu-
tional pluralism, it is appropriate to speak of the ‘constitution’ of collective bodies
outside the confines of the nation state when the following conditions, specified by
Neil Walker, have been met:
(i) the development of an explicit constitutional discourse and constitutional
self-consciousness;
(ii) a claim to foundational legal authority, or sovereignty, where sovereignty is
not viewed as absolute;
(iii) the delineation of a sphere of competences;
(iv) the existence of an organ internal to the polity with interpretative autonomy
as regards the meaning and the scope of the competences;
(v) the existence of an institutional structure to govern the polity;
(vi) rights and obligations of citizenship, understood in a broad sense;
(vii) specification of the terms of representation of the citizens in the polity.15

12
G. Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’, in G. Teubner (ed),
Global Law without a State (Aldershot: Dartmouth, 1997), 3–28.
13
For the lex mercatoria, see A. Stone Sweet, ‘The New Lex Mercatoria and Transnational
Governance’ (2006) 13 Journal of European Public Policy 627–46. On the lex digitalis,
H. H. Perritt, ‘Dispute Resolution in Cyberspace: Demand for New Forms of ADR’ (2000)
15 Ohio State Journal on Dispute Resolution 675–703, at 691 et seq.
14
Berman, above n 11, at 369 et seq.
15
N. Walker, ‘The EU and the WTO: Constitutionalism in a New Key’, in G. de Burca and
J. Scott (eds), The EU and the WTO: Legal and Constitutional Issues (Oxford: Hart, 2001), 31–57, at 33.
 Fragmented Foundations  333
‘Polity’ in this context should not be understood in the narrow sense of
institutionalised politics. The term also refers to non-political institutions of civil
society, of the economy, of science, education, health, art, or sports—of all those
social sites where constitutionalising takes place.16 Thus, self-contained regimes
fortify themselves as auto-constitutional regimes. The defining feature of self-
contained regimes is not simply that they create highly specialised primary rules, ie
substantive rules in special fields of law, but that they also produce their own proce-
dural norms on law-making, law recognition, and legal sanctions: so-called secondary
rules.17 However, such reflexive norm building does not yet amount to constitutional
norm building in the strict sense. Secondary rules become constitutional rules only
when they develop closer parallels to the norms of political constitutions. Politi-
cal constitutions do not simply contain higher legal norms. Instead, they establish a
structural coupling between the reflexive mechanisms of law and those of politics.18
Accordingly, the defining feature of auto-constitutional regimes is the existence of
a linkage between legal reflexive processes and reflexive processes of other social
spheres. Reflexive in this context means the application of specific processes to them-
selves, the norming of norms, the application of political principles to the political
process itself, epistemology as the theorising of theories, etc.
Auto-constitutional regimes are defined by their duplication of reflexivity. Second-
ary rule making in law is combined with defining fundamental rationality principles
in an autonomous social sphere. Societal constitutions establish a structural coupling
between secondary rule making in law and reflexive mechanisms in the other social
sector. A non-statal, non-political, civil society-led constitutionalisation thus occurs
to the degree that reflexive social processes, which determine social rationalities
through their self-application, are juridified in such a way that they are linked with
reflexive legal processes. Understood in this way, it makes sense to speak of the exist-
ence of constitutional elements—in the strict sense of the term—within economic
regimes, within the academic system, and within digital regimes of the Internet.
Here, in such diverse contexts, we find typical elements of a constitution: provisions
on the establishment and exercise of decision making (organisational and proce-
dural rules) on the one hand and definitions of individual freedoms and societal
autonomies (fundamental rights) on the other.19

16
This is accentuated by Sciulli, above n 2; H. Brunkhorst, Solidarity: From Civic Friendship to
a Global Legal Community (Cambridge, Mass.: MIT Press, 2005).
17
B. Simma, ‘Self-Contained Regimes’ (1985) 16 Netherlands Yearbook of International Law
111–36; M. Koskenniemi, Outline of the Chairman of the ILC Study Group on Fragmentation
of International Law: The Function and Scope of the Lex Specialis Rule and the Question of
‘Self-contained Regimes’ (2003), <http://www.un.org/law/ilc/sessions/55/fragmentation_
outline.pdf>.
18
N. Luhmann, ‘Verfassung als evolutionäre Errungenschaft’ (1990) 9 Rechtshistorisches
Journal 176–220.
19
A. Fischer-Lescano, ‘Globalverfassung: Verfassung der Weltgesellschaft’ (2002) 88 Archiv
für Rechts- und Sozialphilosophie 349–78.
334  Gunther Teubner
Importantly, societal constitution making intensifies confl icts between legal
regimes, even confl icts between their fundamental rights concepts, since it fortifies
the independence of the legal regime from other distinct legal regimes through
reflexive mechanisms.

Collisions of regime constitutions

What does this mean for the idea of a unified world constitution? The ultimate
assumption to give up is the hope for a unified global constitution, harboured, inter
alia, by political philosophers like Jürgen Habermas: Lasciate ogni speranza. Any aspi-
ration to the constitutional unity of global law is surely a chimera. The reason is that
global society is a ‘society without an apex or a centre’.20 Following the decentring
of politics, there is no authority in sight that is in a position to undertake the consti-
tutionalisation of societal fragments.
After the collapse of legal hierarchies, the only realistic option is to develop
heterarchical forms of law whose sole function is to create loose relations between
the constitutional fragments. Collisions between the diverse regime constitu-
tions might be coped with by a selective process of networking that normatively
strengthens already existing factual networks between the regime constitutions:
the linkage of regime constitutions with autonomous social sectors and, more
importantly in this context, the linkage of regime constitutions with one another.
Recent developments of network theory may hence become relevant for inter-
national constitutional law. This theory has identified the paradoxical logic of
action in networks, the unitas multiplex of heterarchical configurations. As ‘highly
improbable contexts of reproduction of heterogeneous elements’,21 networks
are counter-institutions of autonomous systems. Combining different logics of
actions, they mediate between autonomous function systems, formal organisa-
tions, and, particularly relevant for our purposes, between autonomous regimes.
Three guiding principles for the decentralised networking of legal regimes may be
identified in the abstract:
(i) Simple normative compatibility instead of hierarchical unity of law.
(ii) Constitution making in transnational regimes and nation states through
mutual irritation, observation, and reflexivity of these autonomous legal
orders.
(iii) Decentralised modes of coping with confl icts of regime constitutions as a
legal method.22

20
N. Luhmann, Politcal Theory in the Welfare State (Berlin: De Gruyter, 1990).
21
D. Baecker, Organisation und Gesellschaft (Witten-Herdecke: Universität, 2002), at 14.
22
For the European context, see C. Joerges, ‘The Impact of European Integration on Private
Law: Reductionist Perceptions, True Confl icts and a New Constitutional Perspective’ (1997)
3 European Law Journal 378–406.
 Fragmented Foundations  335

iii. constitutional rights in

transnational private regimes
Fundamental rights as limitations of the politics of the nation state
What are the consequences of societal constitutionalism for fundamental rights?23
Apart from procedural rules on decision making, fundamental rights are the most
important components of constitutions. In their specific modern sense, fundamental
rights emerge with the autonomisation of a multiplicity of separate communicative
worlds: of different ‘matrices’. Historically first, and visible everywhere since
Machiavelli, the matrix of politics becomes autonomous. It becomes detached from
the strong moral-religious-economic ties of the old European society, and extends
political power without any immanent restraints. With its operative closure and its
structural autonomy the political system develops expansive, indeed downright impe-
rialist tendencies. Centralised power for legitimate collective decisions has an inherent
tendency to expand into society beyond any limit.24 It liberates highly destructive force.
The political matrix’s expansion marches in two divergent directions. First,
it crosses the boundaries to other social sectors. Their response is to invoke their
communicative autonomy against politics’ intervention. This is the hour of birth of
fundamental rights: fundamental rights demarcate from politics areas of autonomy
attributed either to social institutions or to persons as social constructs.25 In both
cases, fundamental rights set boundaries to the totalising tendencies of the politi-
cal matrix within society. Second, in its endeavours to control the human mind and
body, politics expands with particular verve across the boundaries of society. Their
protests are translated socially into political struggles of the oppressed against their
oppressors, and finally end up, through historical compromises, in political guaran-
tees of the self-limitation of politics vis-à-vis individuals. Unlike the aforementioned
institutional and personal fundamental rights, these political guarantees are human
rights in the strict sense.

Multiplication of expansive social systems

This model of fundamental rights, which is oriented towards politics and the state,
works only as long as the state can be equated with society, or at least, be regarded as
society’s organisational form, and politics as its hierarchical coordination. However,
insofar as other highly specialised communicative media—money, knowledge, law,
medicine, technology—gain autonomy, this model loses its plausibility. At this
point, the horizontal effects of fundamental and human rights become relevant.

23
For a more detailed analysis, see: G. Teubner, ‘The Anonymous Matrix: Human Rights
Violations by “Private” Transnational Actors’ (2006) 69 Modern Law Review 327–46.
24
N. Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie (Berlin:
Duncker & Humblot, 1965), 24.
25
On the transformation of individual to institutional fundamental rights, see K.-H. Ladeur,
Kritik der Abwägung in der Grundrechtsdogmatik (Tübingen: Mohr & Siebeck, 2004), at 77.
336  Gunther Teubner
Fragmentation of society multiplies the boundary zones between autonomised
communicative matrices and human beings. The new ‘territories’ each have
boundaries of their own on their human environment. Here, new dangers arise for
the integrity of body and mind and for the autonomy of institutional communicative
spheres.
Thus, fundamental rights cannot be limited to the relation between state and indi-
vidual. Specific endangerment of individual and institutional integrity by a commu-
nicative matrix arises not just from politics, but in principle from all social sectors
that have expansive tendencies.26 For the matrix of the economy, Marx clarified this
particularly through such concepts as alienation, autonomy of capital, commodifica-
tion of the world, exploitation of man by man. Today we see—most clearly in the
writings of Foucault, Agamben, Legendre27—similar threats to individual and insti-
tutional integrity from the matrices of the natural sciences, psychology, the social
sciences, technology, medicine, the press, radio, and television. The cruel experi-
ments carried out on people by Dr Mengele in the concentration camps should
not only be seen as an expression of a sadistic personality or as an enslavement of
science through the totalitarian Nazi-policy. Recent research on the involvement of
prestigious science institutions reveal that the experiments are also to be regarded
as the product of the expansionistic tendencies of the natural sciences to seize
every opportunity to accumulate knowledge unless they are restrained by external
controls.28
By now, it should have become clear why it makes no sense to talk about the
‘horizontal effect’ of those fundamental rights which are enshrined in the political
constitution. There is no transfer from the state guarantees of individual freedoms
into ‘horizontal’ relations between private actors. Something else is needed instead.
What is necessary is to develop new types of guarantees that limit the destructive
potential of communication outside the sphere of institutionalised politics.

The anonymous matrix

If violations of fundamental rights stem from the totalising tendencies of partial
rationalities, there is no longer any point in seeing the horizontal effect of funda-
mental rights as if the rights of private actors have to be weighed up against each
other. The imagery of ‘horizontality’ unacceptably takes the sting out of the whole
human-rights issue, as if the sole point of the protection of human rights were that
individuals threaten other individuals.

26
U. K. Preuss, ‘The Guarantee of Rights: Horizontal Rights’, in M. Troper (ed), Traité
International de Droit Constitutionnel, Tome III: Suprématie de la Constitution (2009: forthcoming).
27
M. Foucault, Discipline and Punish: The Birth of the Prison (London: Penguin Books, 1991);
G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, Calif.: Stanford Uiversity
Press, 1998), at 15 et seq; P. Legendre, Lecons VIII: Le crime du caporal Lortie. Traité sur le père
(Paris: Fayard, 1989).
28
See H.-W. Schmuhl, Grenzüberschreitungen: Das Kaiser-Wilhelm-Institut für Anthropologie,
menschliche Erblehre und Eugenik 1927 bis 1945 (Göttingen: Wallstein, 2005).
 Fragmented Foundations  337
Violation of the integrity of individuals by other individuals raises a completely
different set of issues that arose long before the radical fragmentation of society in
our day. It must systematically be separated from the fundamental rights question as
such. In the European tradition, the confl ict between individuals has been dealt with
by attributing ‘subjective rights’ to persons. The theory of subjective rights in the
Kantian tradition demarcates ideally the citizens’ spheres of arbitrary freedom from
each other in such a way that the law can take a generalisable form. This idea has been
most clearly developed in classical law of tort, in which violations of subjective rights
are central. But ‘fundamental rights’ as here proposed differ from ‘subjective rights’ in
private law. They are not concerned with mutual endangerment of private individu-
als, ie intersubjective relations, but address concerns about the dangers to individual
and institutional integrity that are created by anonymous communicative matrices.
Criminal law concepts of macro-criminality and criminal responsibility of formal
organisations come closer to the issue.29 They affect violations of norms that
emanate not from human beings, but from impersonal social processes. But these
concepts are still too narrow, because they are confined to the dangers stemming
from ‘collective actors’ (states, political parties, business firms, groups of companies,
associations) and miss the dangers stemming from the ‘anonymous matrix’, that
is, from autonomised communicative processes (institutions, functional systems,
networks) that are not personified as collectives. To treat the horizontal effect of
fundamental rights in terms of subjective rights between individual persons would
just end up being addressed in the law of tort with its focus on interpersonal rela-
tions. As a consequence, we would be forced to apply the concrete state-oriented
fundamental rights wholesale to the most varied interpersonal relations, with disas-
trous consequences for elective freedoms in private life. Here lies the rational core of
the excessive protests of private lawyers against the intrusion of fundamental rights
into private law—though these complaints are in turn exaggerated and overlook the
real issues.30
Both the ‘old’ political and the ‘new’ polycontextural human-rights questions
should be understood with respect to people being threatened not by their fellows,
but by anonymous communicative processes. These processes must in the first place
be identified. Michel Foucault has seen them most clearly, radically depersonalising
the phenomenon of power and identifying today’s micro-power relations in society’s
capillaries in the discourses/practices of ‘disciplines’.31
We can now summarise the outcome of our abstract considerations. The human-
rights question in the strict sense must today be seen as endangerment of individual

29
See, eg H. Jäger, Makrokriminalität: Studien zur Kriminologie kollektiver Gewalt (Frankfurt am
Main: Suhrkamp, 1989).
30
D. Medicus, ‘Der Grundsatz der Verhältnismäßigkeit im Privatrecht’ (1992) 192 Archiv
für die civilistische Praxis 35–70; W. Zöllner, ‘Regelungsspielräume im Schuldvertragsrecht:
Bemerkungen zur Grundrechtsanwendung im Privatrecht und zu den sogenannten
Ungleichgewichtslagen’ (1996) 196 Archiv für die civilistische Praxis 1–36.
31
Foucault, above n 27, at 135 et seq.
338  Gunther Teubner
and institutional integrity by a multiplicity of anonymous and today globalised
communicative processes. The fragmentation of world society into autonomous
subsystems creates new boundaries between subsystem and human being and
between the various subsystems. The expansive tendencies of the subsystems aim
in both directions.32 It now becomes clear how a new ‘equation’ has to replace the
old ‘equation’ of the horizontal effect. The old one was based on a relation between
two private actors—private perpetrator and private victim of the infringement. On
one side of the new equation is no longer a private actor as the fundamental-rights
violator, but the anonymous matrix of an autonomised communicative medium.
On the other side is no longer simply the compact individual. Instead, the protection
of the individual splits up into three main dimensions:
(i) Institutional rights protecting the autonomy of social discourses—the
autonomy of art, of science, of religion—against their subjugation by the
totalising tendencies of the communicative matrix.
(ii) Personal rights protecting the autonomy of communications, attributed not
to institutions, but to the social artefacts called ‘persons’.
(iii) Human rights as negative bounds on societal communication, where the
integrity of individuals’ body and mind is endangered by a communicative
matrix.

Justiciability?
How can the law describe these boundary confl icts when, after all, it has only the
language of ‘rights’ of ‘persons’ available?33 Can it, in this impoverished rights talk,
in any way reconstruct the difference between interpersonal confl ict and the confl ict
between the communicative matrix and the integrity of individuals? Here we reach
the limits of legal doctrine, and the limits of court proceedings. In litigation, there
must always be a plaintiff suing a defendant for infringing his rights. In this frame-
work of mandatory binarisation as person-versus-person confl ict, can fundamental
rights ever be asserted against the structural violence of anonymous social processes?
The only way this can happen is to use individual suits against private actors to
thematise confl icts in which human rights of individuals are asserted against struc-
tural violence of the matrix. In more traditional terms, the institutional confl ict that
is really meant has to take place within individual forms of action. We are already
familiar with something similar from existing institutional theories of fundamental
rights, which recognise as their bearers not only persons, but also institutions.34

32
In more detail, see A. Fischer-Lescano and G. Teubner, Regime-Kollisionen: Zur
Fragmentierung des globalen Rechts (Frankfurt: Suhrkamp, 2006), ch 1.
33
M. A. Glendon, ‘Rights Talk: The Impoverishment of Political Discourse’, in D. E. Eberly
(ed), The Essential Civil Society Reader (Oxford: Rowman Littlefield, 2000), 305–16.
34
For the impersonal concept of fundamental rights, see H. Ridder, Die soziale Ordnung
des Grundgesetzes (Opladen: Westdeutscher Verlag, 1975); K.-H. Ladeur, ‘Helmut Ridders
Konzeption der Meinungs- und Pressefreiheit in der Demokratie’ (1999) 32 Kritische Justiz
281–300.
 Fragmented Foundations  339
Whoever enforces individual freedom of expression simultaneously protects the
integrity of the political process.
Is this distinction justiciable? Can person-versus-person confl ict be separated from
communication-versus-individual confl ict? Translated into the language of law, this
becomes a problem of attribution. Whodunnit? Under what conditions can the
concrete violation of integrity be attributed not to persons, but to collective actors,
or to anonymous communication processes? If this attribution could be achieved,
the genuine problematic of human rights would have been formulated even in the
impoverished rights talk of the law.
In an extreme simplification, the ‘horizontal’ human-rights problematic can
perhaps be described in more familiar legal categories as follows: the problem of
human rights in private law arises only where the endangerment of body–mind
integrity comes from social ‘institutions’ (and not just from individual actors). In
principle, institutions include private formal organisations and private regulatory
systems. The most important examples here would be business firms, private asso-
ciations, hospitals, schools, and universities, as formal organisations on the one
hand; and general terms of trade, private standardisation, and similar rule-setting
mechanisms as private regulatory systems on the other. We must of course be clear
that the term ‘institution’ represents only imperfectly the chains of communicative
acts that endanger the integrity of mind and body, and does not completely grasp
the expansive phenomenon that is really intended. This is the reason why we use
the metaphor of the anonymous ‘matrix’ instead. But for lawyers, who are orien-
tated towards rules and persons, ‘institution’ has the advantage of being defined as a
bundle of norms and at the same time being able to be personified. The concept of
the institution could accordingly re-specify fundamental rights in social sectors. The
outcome would then be a formula of ‘third-party effect’ which could seem plausible
also to a black-letter lawyer. It would regard horizontal effect no longer as balancing
between the fundamental rights of individual bearers, but instead as the protection
of human rights and rights of discourses vis-à-vis expansive social institutions.

Individual and institutional dimensions

Let us return to human rights violation by the transnational corporation. We can
now see directions in which human rights might develop. It should be clear how
inadequate it is in court proceedings to weigh up an individual’s fundamental rights
against the transnational corporation’s individual rights. The matter is not one of
‘corporate social responsibility’, with a single corporate actor infringing the funda-
mental rights. A human right can become a reality only if the ‘horizontal’ effect of
fundamental rights is reformulated from interpersonal confl icts to confl icts between
a social system and its environment.
In the dimension of institutional rights, the confl ict needs to be set in its social
context, which requires us to observe that the confl ict is due to a clash of incompatible
logics of action. The critical confl ict arises in the contradiction between norms of
different social rationalities. The point is not, then, to impose controls on particular
firms, but to develop abstract and general rules on incompatibilities between different
social sectors, and to prepare the confl icting transnational regimes to respond to
340  Gunther Teubner
destructive confl icts between incompatible logics of action by building concerns of
the other into the norms of their own rationality. Since there is no paramount court
for the confl ict, it can only be solved from the viewpoint of one of the confl icting
regimes. But the competing logic of action, ie the normative principles of the one
sector, has to be brought into the other’s own context as a limitation.

Where the law ends

This sketch of legal ways to react to the confl ict shows how inappropriate the
optimism is that the human-rights problem can be solved using the resources of law.
Can one discourse do justice to the other? This is a problem the dilemmas of which
have been analysed by François Lyotard.35 But it is at least a problem within society,
one that Niklas Luhmann sought to respond to with the concept of justice as socially
adequate complexity.36 The situation is even more dramatic with human rights in
the strict sense, located at the boundary between communication and the individual
human being. All the groping attempts to juridify human rights cannot hide the fact
that, in a strict sense, this is an impossible project. How can society ever ‘do justice’
to real people if people are not its parts but stand outside communication: if society
cannot communicate with them but at most about them, indeed not even reach
them but merely either irritate or destroy them? In the light of grossly inhuman
social practices, the justice of human rights is a burning issue, but one which has no
prospect of resolution. This has to be said in all rigour.
If a positive concept of justice in the relation between society and human being is
definitively impossible, then what is left, if we are not to succumb to post-structuralist
quietism, is only second best. In the law, we have to accept that the problem of the
integrity of body and mind can only be experienced through the inadequate sensors
of irritation, reconstruction, and re-entry. The deep dimension of confl icts between
communication on the one hand and mind and body on the other can at best be
surmised at by law. And the only signpost left is the legal prohibition, through which
a self-limitation of communication seems possible. This programme of justice is
ultimately doomed to fail, and cannot console itself with Jacques Derrida’s words
that it is ‘to come, à venir’.37 It has to face up to its being in principle impossible.
The justice of human rights can, then, at best be formulated negatively. It is aimed
at removing unjust situations, not creating just ones. It is only the counter-principle

35
J.-F. Lyotard, The Differend: Phrases in Dispute (Manchester: Manchester University Press,
1987).
36
N. Luhmann, Rechtssystem und Rechtsdogmatik (Stuttgart: Kohlhammer, 1974);
N. Luhmann, ‘Gerechtigkeit in den Rechtssystemen der modernen Gesellschaft’, in N.
Luhmann (ed), Ausdifferenzierung des Rechts: Beiträge zur Rechtssoziologie und Rechtstheorie
(Frankfurt am Main: Suhrkamp, 1981), 374–418; N. Luhmann, Law as a Social System (Oxford:
Oxford University Press, 2004), at 214 et seq.
37
J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’ (1990) 11 Cardozo Law
Review 919–1046, at 969.
 Fragmented Foundations  341
to communicative violations of body and soul, a protest against inhumanities of
communication, without it ever being possible to say positively what the conditions
of ‘humanly just’ communication might be.38
Nor do the emancipatory programmes of modernity à la Habermas help any
further. No information comes from criteria of democratic involvement of indi-
viduals in social processes, since only persons take part, not bodies or minds. From
this viewpoint one can only be amazed at the naivety of participatory romanticism.
Democratic procedures are no test of a society’s human rights justice. Equally unin-
formative are universalisation theories that proceed transcendentally via a priori
characteristics or via a posteriori universalisation of expressed needs. What do such
philosophical abstractions have to do with actual human individuals? The same
applies to economic theories of individual preferences aggregated through market
mechanisms.
Only the self-observation of mind–body—introspection, suffering, pain—can
judge whether communication infringes human rights. If these self-observations,
however distorted, gain entry to communication, then there is some chance of
humanly just self-limitation of communication. The decisive thing is the ‘moment’:
the simultaneity of consciousness and communication, the cry that expresses pain.
Hence we observe the closeness of justice to spontaneous indignation, unrest,
protest, and its remoteness from philosophical, political, and legal discourses.

38
For an elaboration, see G. Teubner, ‘Self-subversive Justice: Contingency or
Transcendence Formula of Law?’ (2009) 72 Modern Law Review 1–23.
 Index

Note: The entry 181n13 refers to note 13 on Austria 87, 110, 113, 115, 117, 122–3
page 181. autonomy, urban 24

absolutism 7–8, 145, 310 Badura, Peter 221

constitutionalism and 10, 23–4, 34–7, 48 Barr, Michael 257–8
emergence of state 6, 11–12 Bartolini, Stefano 104
Adams, John 57 Basel Committee on Banking Supervision
Adidas 327 247n6, 257–8, 259–60, 315, 321
administrative law, global 240, 245–6, Belgium 173, 226
265–6, 306 Benhabib, Seyla 318
accountability 256, 260–1 Berlin, Isaiah 92
administration without sovereignty 286–7 Berman, Harold J. 180, 190
competing descriptions 269–71 Bernstorff, Jochen von 196
counterfactual social facts 267–9, 270, Bhopal 327
272–3, 275, 276–7, 280 Bluntschli, Johann Caspar 184
exaltation of common law 283–5 Bodin, Jean 6, 23, 28, 29, 33–4, 35, 145
globalisation’s gute Polizey 273–5 Bogdandy, Armin von 131, 132, 150–1
indeterminate jurisdiction 281–3 Bull, Hedley 25
internship to partnership 279–80 Burke, Edmund 48–9, 52, 106
legal relationship 276–8
paradigm shift 271–3 Cassirer, Ernst 195
sources, indeterminate 285 central and eastern Europe 60
constitutional ambition 251–5, 265 child labour 327
legitimacy of global governance, precarious Chimni, B.S. 257
246–51, 254 China 45–6, 327
legitimising administrative steering 261–4 Cicero 173
limited ambition of 255–8, 265–6 citizenship 153, 162
limitations of 259–61 constitutional membership
administrative planning law 190 future of 177–8
Africa 185 use of term 163–4
Agamben, G. 336 dual 168–9
AIDS 327 duties and rights of 170–1
Aleinikoff, Thomas A. 163 European Union 126, 132
American Bar Association 142 federal 177
American Corporate Judiciary (ACJ) 325–6 future of constitutional membership 177–8
American Revolution 3, 5, 8, 9, 10, 47, 90, 212, membership and belonging 167–9
240, 252 people, citizens, nationality 162–5
Amnesty International 321 republican constitutionalism 171–7
anti-discrimination norms 189–90 without the constitution: theories of 165–7
Aquinas, Thomas 29 civil war: minimum standards of humanity
arbitration 22, 316 and justice 228
Arendt, Hannah 181n13, 191 class 180, 182–3, 193–5, 213
Aristotle 90, 106 Codex Alimentarius Commission 246, 257,
Asia 327 279, 302
Augsburg Peace Treaty 1555 27, 144 Comité International Olympique (CIO)
Austin, John 29–30 301, 314
344  Index
commerce 159–60, 183, 191–2, 301, 332 ECJ: interpretation of EU law 83, 93, 99,
common/collective/global goods 77, 230, 239 100–19
companies 42, 306 Global Administrative Law (GAL)
American Corporate Judiciary 256, 260
(ACJ) 325–6 liberal constitutionalism 55, 56, 57–9
transnational 327–8, 330, 339–40 criminal courts, international 14, 45–6, 228
compensatory constitutionalism 202, 224 criminal law 337
competition law 282 crisis, financial 127–8
European Union 82–3, 94, 97, 125 cuius regio, eius religio, principle of 27
constitution: use of term see statehood and customary law 285
constitutionalism Czech Republic 123, 136
constitutional membership 162
duties and rights of citizenship 170–1 de Wet, Erika 67, 152–4
future of 177–8 Delors, Jacques 103
membership and belonging 167–9 democracy/democratic legitimacy 38, 90–2,
people, citizens, nationality 162–5 106–8, 191, 254
republican constitutionalism 171–7 constitutionalism 8, 9–10, 175–6, 294
use of term 163–4 changed conditions 16
without the constitution: theories of citizenship 163
citizenship 165–7 constitutional revolution 179–84
constitutionalisation 44–7, 59–62, 68–9, 201, emergence of world society 184–7
221, 224–5, 251 radical reformism 195–8
constitutionalism 55–9 transformations of world society 191–5
constitutions 47–9 twentieth century 187–91
characteristics of modern 49–53 counterfactual social facts 269
civil society and government 53–5 deliberative 134
domestic 62–3, 68–9 democratic statism and 210, 211
European Union 18, 65–6, 122 diversity 152
legalisation of public power 19 domestic democracy, legitimacy of 152–4
process beyond state 4, 16–17 European Union 17–18, 21, 98, 217, 218
supranational 19, 22, 63–8, 69, 239 constituting supranational power:
see also global constitutionalism; societal survival of democracy 131–6
constitutionalism judge-made law 104, 106–9, 112–17
contract 6–7, 29, 42, 143 participatory 132, 134, 135, 136
freedom of property and 8 representative 120–5, 128–31, 134–7
incomplete 102–3 republican and liberal legitimating
social 7–8, 40, 48, 50–1, 53, 54, 90, 116, 146 discourses 90–6, 106–7, 111–17
Convention on the Law of the Sea 45 Global Administrative Law (GAL) 257, 258,
corporations 42 260, 262
American Corporate Judiciary (ACJ) 325–6 international organisations 19, 20, 21–2,
corporate social responsibility 306, 339 246, 281
transnational 327–8, 330, 339–40 judicial review 104
Cottier, Thomas 67 participatory 315, 341
Council of Europe 15 European Union 132, 134, 135, 136
counter-terrorism: listing procedure 229 representative 8, 91, 92, 196–7, 315
counterfactual social facts 267–9, 270, 272–3, European Union 120–5, 128–31, 134–7
275, 276–7, 280 transnational constitutionalism 141–2
courts 7, 133, 205, 269, 325, 338–9 democratic blind spot in 148–54
constitutional 3, 15, 93, 104–6 democratising 154–60
Germany 136, 208, 215–17, 233, 234 outlook 160–1
counterfactual social facts 269 state, democracy and constitution 143–7
enforcement and international 22, 316 transnational regulatory institutions 249–51
international criminal 14, 45–6, 228 Universal Declaration of Human Rights 160
judiciary, role of 50 democratic statism 201–4, 219
constitutional courts 104–5 core elements of modern constitutionalism
constitutionalisation 61, 62, 63, 68 212–14
 Index  345
democracy and 210, 211 civil society: partnership principle 79
nationalist deep structure of 210–12 comitology 80, 84
proper domain of constitutionalism 204–6 Commission 79, 82–4, 97, 102, 121, 129, 130
voluntarist and positivist structure of 206–10 competition regime 82–3, 94, 97
Denmark 103 consensus requirements 93
Derrida, Jacques 340 emergencies 128
developing countries 257–8, 259 legislative initiative 93, 94, 99, 100
development banks 263 power to prosecute 99, 101, 103, 110
Dewey, John 195 regulation 94
discrimination 189–90 Community Method 83–4, 99
domestic constitutionalism shaping global competition law 82–3, 94, 97, 125
governance 247–9 Constitutional Treaty, failed 18, 65, 87, 122–4,
dual citizenship 168–9 132, 237–8, 240n70, 252
dualism and representation, critique of 195–7 constitutionalisation 18, 65–6, 122
Dyzenhaus, David 263, 264 constitutionalism 17–18, 124, 203, 209, 214–15,
218, 307
ecological rights 318 parliamentarianism: representation
economics, constitutional 223 and 120–37
education 217, 253 Council 93, 99, 100, 129, 130
Elias, Norbert 310 government with the state 83, 84, 87
England 24, 37, 90, 172 government without the state 79, 80, 81
environmental problems 250, 253, 327 internal market 103
equality/inequality 179–80, 181, 183–4, 188, qualified majority voting (QMV) 81, 83,
191, 194 84, 93, 99, 100, 121
anti-discrimination norms 189–90 democratic legitimacy 17–18, 21, 98, 217, 218
Kant: republican constitution 155 constituting supranational power:
essentialism 294 survival of democracy 131–6
ethnicity 213 judge-made law 104, 106–9, 112–17
European Court of Human Rights participatory 132, 134, 135, 136
(ECtHR) 15 representative 120–5, 128–31, 134–7
European Court of Justice (ECJ) 94, 99, 121 republican and liberal legitimating
domestic constitutional law and EU law 207, discourses 90–6, 106–7, 111–17
215–18 European Central Bank (ECB) 82, 83, 94,
governance with the state 82, 83, 84 99, 100
interpretation of EU law 83, 93, 99, 100–19 European Council 79–80, 118–19, 123–4,
legitimacy, EU 94, 129–130 129, 130
interpretation of EU law 99, 100–19 European Social Fund 79
justifiability, limits of 109–11 financial crisis 127–8
justifications 108–9 governance 73–5
liberal undermining of republican by the state 76–7, 78
legitimacy 111–17 concept of 75–6
needed: political balance 117–19 constitutional challenge 86–8
mutual recognition 103, 109 problem-solving gap 75, 85–6
non-political policy making 100–6 with the state 74, 78, 82–5
proportionality test 114–15 state and 75–8
subsidiarity, infringement of 135 without the state 74, 77–82
teleological interpretation 105n55 legitimacy 85, 86, 89, 92–5
treaties: constitution of EU 17, 124, 237 democratic see above
constitutionalisation 66 legitimating member state compliance
ultra vires legislation 15, 217 98–106
European Union 4, 15, 22, 39, 46, 156, 201, liberal undermining of republican
211, 270 legitimacy 111–17
acquis, near-irreversibility of 94, 100, 119n110 limits of justifiability and ECJ 109–11
aim 121, 125 in multi-level polities 96–8
Citizens’ Initiative 134, 135, 136 need for justification 106–9
citizenship 126, 132 needed: political balance 117–19
346  Index
European Union (cont.) modern constitution 37
practice conception of constitutionalism monarchy 34, 35
215–18 referendum 122, 237–8, 301
regulatory 94, 126 religious wars 28
republican and liberal discourses 90–6, Revolution 3, 5, 6, 8, 47, 90, 212, 240, 252
106–7, 111–17 state immunity 226
liberal-legal constitutionalisation 65–6 free trade/market 159–60, 183, 191–2
liberty, principle of 132 Fuller, Lon 324
mutual recognition 103, 109 fundamental rights 8, 9, 20, 23–4, 157, 311
national executives 129–30 Germany: Federal Constitutional Court
national and regional parliaments 88, 122–3, 216–17
128, 129, 130, 133, 135–7 globalised subsystems 323–4
Open Method of Coordination (OMC) horizontal effects of 327–8
79–80, 86 transnational private regimes 335–41
Parliament 88, 93, 121, 122, 123, 132–3, 137
Community Method 84, 99 game theory 101–3, 108
Council of Ministers 129 GATT 270
decentred and recentred 133–6 Germany 41, 87, 110–11, 117, 219, 227
emergencies 128 administrative law 259
non-political policy making 99 Constitution 53, 208, 215, 234
Second and Third Pillars 84 East 208, 209, 210
primacy of EU law 15, 39, 88, 121 Federal Constitutional Court (FCC) 136, 208,
domestic constitutional law 207, 215–18 215–17, 233, 234
legitimacy 100, 111–12 legitimacy in unitary federal state 96, 98
qualified majority voting (QMV) 81, 83, 84, Nuremberg Tribunal 46
93, 99, 100, 121 ‘ordinary’ law 222n4
regulatory state 94, 126 Global Administrative Law (GAL) 240, 245–6,
Single Currency 82, 86 265–6, 306
size and boundaries 127–8 accountability 256, 260–1
Social Dialogue 81 administration without sovereignty 286–7
Social and Regional Development Funds 79 competing descriptions 269–71
structural policy/funds 79, 83 counterfactual social facts 267–9, 270,
subsidiarity 135, 136, 137 272–3, 275, 276–7, 280
taxation 94, 111, 113–14 exaltation of common law 283–5
voluntary compliance: member states 74, globalisation’s gute Polizey 273–5
83, 119 indeterminate jurisdiction 281–3
vote, right to 176 internship to partnership 279–80
evolutionary concept of legal relationship 276–8
constitutionalisation 225 paradigm shift 271–3
extradition 217–18 sources, indeterminate 285
constitutional ambition 251–5, 265
Ferejohn, John 260 legitimacy of global governance, precarious
financial crisis 127–8 246–51, 254
Financial Stability Forum 259 legitimising administrative steering 261–4
Finland 110, 117 limited ambition of 255–8, 265–6
Fischer-Lescano, Andreas 282 limitations of 259–61
force, use of 157, 316 global/common/collective goods 77,
European Union 83 230, 239
nation states 6, 12, 14, 22, 26, 36 global constitutionalism 269, 334
forced labour 327 advocates of post-state constitutionalism
Foucault, Michel 190, 273, 336, 337 conceptual starting points 292–4
foundational constitutionalism 252–5 meta-politics 295–7
France 10, 24, 35 holistic constitutionalism 300–3
consensus-dependent pluralism 92 holistic method 297–300
Declaration of Rights 23, 30–1, 183–4 non-holistic method 303–8
difference, accommodation of 126 placeholding function 307–8
 Index  347
pre-democratic 194–5 civil suits for damages 227
radical reformism 195–8 severe violations of human rights 226–7
precarious legitimacy of global governance world order treaties 45
246–51, 254 world society 186, 188
societal fragments see societal humanitarian intervention 14, 228
constitutionalism
visions of 251–3 ideal types 10, 75, 84
holistic ambition and its problems 253–5 IKEA 327
see also constitutionalisation immigration/immigrants 164, 166
global public goods 251 immunity, state 205, 226–7
governance, global and transnational 150–2, imperialism 179, 184, 185
192–3, 205, 306 India 45–6, 327
precarious legitimacy of 246–51, 254 inequality/equality 179–80, 181, 183–4, 188,
governance in EU 73–5, 93 191, 194
by the state 76–7, 78 anti-discrimination norms 189–90
concept 75–6 Kant: republican constitution 155
constitutional challenge 86–8 internal affairs of states 13, 228
problem-solving gap 75, 85–6 international community, concept of 230, 231,
with the state 74, 78, 82–5 236, 239
without the state 74, 77–82 International Court of Arbitration 316
Greece 173, 227, 234 International Court of Justice (ICJ) 228
Grimm, D. 42, 149, 221–2, 269, 282 immunity
civil suits for damages 227
Habermas, Jürgen 53, 147, 157–8, 159, 181n13, 195, of foreign ministers 226–7
251, 253–4, 313, 334 International Criminal Court 45–6, 228
Hamilton, Alexander 56, 57–9 International Labour Organisation (ILO)
Harlow, Carol 260 19, 314
Harrington, James 173–4 international law 12–13, 148, 184–5, 190–1, 277
Hart, H.L.A. 41 administrative law, global 270–1, 272
Hegel, G.W.F. 54–5, 61–2, 180, 184 continuum: national law and 187, 191, 196
Heidegger, Martin 195 customary international law 285
Held, David 253 national constitutional law and 4, 13, 16, 19,
Hobbes, Thomas 40, 91, 145, 268 44–6, 204–5, 220, 241–2, 251–5, 286
holistic constitutionalism 297–300, 320 constitution: in and beyond the state
constitutionalism beyond the state 300–3 220–3
meta-politics 295–7 constitutional law beyond the state 223–9
non-holistic method 303–8 critique 232–7
politics of constitutional definition 291–5 democratic statism 201–14, 219
Holy Roman Empire 6, 219, 265 overview of constitutional thought
horizontal effects of constitutional rights 229–32
327–8 practice conception of constitutionalism
housing 253 201–4, 212–19
human rights 4, 160, 190, 302, 306 state of the art 237–41
citizenship 166 obligations erga omnes 44, 242
democratic statism 210 peremptory norms/jus cogens 14, 19, 44, 204,
European Court of Human Rights 15 227n31, 230–1, 239, 242
European Union 132, 218 priority of UN Charter 204–5
Habermas 157 sovereignty and 146
Hegel 184 Soviet Union 189
humanitarian intervention 14, 228 Wilson, Woodrow 189
international community, concept of 230 world order treaties 45
Kant 156, 160 International Monetary Fund (IMF) 19, 259
normative morphogenesis 318 International Olympic Committee (IOC)
societal constitutionalism 326, 327, 330, 335–41 301, 314
Soviet Union 189 International Standards Organisation (ISO)
state immunity 205 271, 302
348  Index
Internet 293, 301, 332 knowledge-based 314–16, 321
Iraq 210n16 practice conception of constitutionalism
Ireland 103, 122, 136 212–18
Italy 126, 227 under-inclusiveness 249, 254
unitary federal state 96, 98
Japan 46 Lenin, V.I. 188–9
Jefferson, Thomas 208 Leopold, King 185
judiciary, role of 50 liberal constitutionalism 57–9, 66, 68, 69
constitutional courts 104–5 citizenship 174, 176
constitutionalisation 61, 62, 63, 68 liberal and republican legitimating discourses:
European Court of Justice (ECJ) EU 90–6, 106–7, 111–17
interpretation of EU law 83, 93, 99, 100–19 limited government 8, 10, 12, 13, 23–4, 31, 42,
Global Administrative Law (GAL) 256, 260 48, 54, 55
liberal constitutionalism 55, 56, 57–9 lobbying 77, 82
jury duty 170, 176 Locke, John 145
Luhmann, Niklas 312, 313, 330, 340
Kant, Immanuel 91–2, 154–6, 158–60, 180, 184, Luxembourg 110–11, 117
187, 195 Lyotard, J.-F. 340
Kelsen, Hans 45, 146, 187, 189, 191, 195–7
Keohane, R. 314 Machiavelli, N. 172–3
Kirchheimer, Otto 147 Macpherson, C.B. 28–9
knowledge society 314–16 Madison, James 56–7, 58–9
Koskenniemi, Martti 280 Majone, Giandomenico 126
Krisch, Nico 281, 284 Marks, Susan 198
Marshall, Chief Justice 57, 58
Laski, Harold 146 Marshall, T.H. 170
Latin America 327 Martinsen, Dorte 114
League of Nations 157, 189 Marx, Karl 159, 196, 198, 330, 336
legal positivism 29–30, 231, 276, 283 Mayntz, Renate 75
Legendre, P. 336 medieval era 6, 7, 11, 23, 28
legitimacy 205–6, 222, 312 Mengele, Josef 336
administrative law, global 256, 257–8, 261–4 Merkl, Adolf 196
democratic see democracy/democratic meta-politics and constitutionalism 295–7
legitimacy see also holistic constitutionalism
democratic statism 205–10, 212–14 Middle East 45–6
European Union 85, 86, 89–95 Miller, Geoffrey 257–8
democratic see under democracy/ Moon 185
democratic legitimacy morphogenesis of constitutionalism 309
legitimating member state compliance beyond global process of juridification
98–106 constitutionalisation as specific sub-
liberal undermining of republican process 318–20
legitimacy 111–17 horizontal axis: the normative order 323–6
limits of justifiability and ECJ 109–11 inside morphogenetic cycle 316–18
in multi-level polities 96–8 vertical axis: the polity 320–3
need for justification 106–9 boundless demands of ‘good governance’
needed: political balance 117–19 312–16
non-political policy making 99, 100–6, 116 framing the constitutional frame 309–12
political modes of policy making 99–100, Murphy, W.F. 40
103, 116
practice conception of constitutionalism nation state see statehood and
215–18 constitutionalism
regulatory state 94, 126 nationalist deep structure: democratic statism
republican and liberal discourses 90–6, 210–12
106–7, 111–17 nationality 164, 165
global and transnational governance natural law(s) 8, 53–5, 196
246–51, 254 Christian 29
 Index  349
naturalisation laws 176 core elements of modern constitutionalism
Netherlands 24, 117 212–14
referendum 122, 237–8, 301 structure of constitutional pluralism 215–18
network theory 334 prisoners’ dilemma 101–3, 108
New Zealand 92 privatisation 60, 62, 68, 80, 149, 327–8
Nigeria 327 property 40, 42, 183, 189
Nike 327 concept of 26
Nuremberg Tribunal 46 freedom of contract and 8
public goods 250, 251, 322
OECD 247n4 public international law see international law
public-private partnerships/co-regulation
pacta sunt servanda 12, 105–6 17, 60, 74
Paine, Thomas 49–50, 51n10, 53–4, 61, 145 Pufendorf, S. von 219, 265
Pallis, Mark 258 purposive/teleological interpretation
parliamentarianism 24, 196–7 105n55, 207
European Union: constitutionalism and
representation 120–5 Quine, W.V.O. 195
accommodating difference and
constituting power 125–8 Rawls, John 179, 313
constituting supranational referenda 120, 122–3, 124, 134, 136, 237–8, 301
power 131–6 reformism, radical 195–8
trust and representation 128–31 transnational ruling class 191–5
European Union religion 27, 52, 145, 182, 192, 213
national and regional parliaments 88, fundamentalism 192
122–3, 128, 129, 130, 133, 135–7 law-as-command 30
Parliament 84, 88, 93, 99, 121, 122, 123, 128, Reformation 6, 7
129, 132–6, 137 representation and dualism, critique of 195–7
Parsons, Talcott 194 representative democracy 8, 91, 92, 196–7, 315
participatory democracy 315, 341 European Union 120–5, 128–31, 134–7
European Union 132, 134, 135, 136 republican constitutionalism 56–7, 58–9
patent law 160 citizenship 171–7
path dependence 131 republican and liberal legitimating discourses:
Peirce, Charles Sanders 280 EU 90–6, 106–7, 111–17
‘the people’ see citizenship Robespierre, M. 174
pesticides 327 Romans, ancient 11, 33, 90, 172, 173, 193
Peters, Anne 67, 68 Roosevelt, Franklin D. 189–90
Petersmann, Ernst-Ulrich 156–7 Rousseau, Jean-Jacques 36, 39, 51n12, 90, 92,
pharmaceutical drugs 327 146, 172–3, 174
pluralism rule of law 9, 44, 104, 154, 216, 252
constitutional 203–4, 215–18, 332–4 American and French Revolutions 240
legal 331–2 element of constitutionalism 10
Poggi, G. 27 EU constitutional principle 132, 156, 215
popular sovereignty 7, 8, 9–10, 16, 17–18, 49, Global Administrative Law (GAL) 260, 272
145–7, 294, 299 postnational governance 192–3
constitutive role of constitutions 41–2 promotion of 142, 158
contracts 50–1 republican discourse 173–4
multi-level constitutionalism 67 rule by law and 264
‘the people’ as validating source challenged Russia 188–9
203, 204, 207–10 Rwanda 14
territory 34–8, 39
Portugal 60, 179, 234 sanctions, trade 248
positive law 8, 9, 10, 29–30, 50, 58, 196, 209, Sartre, Jean-Paul 186
284, 313 Scharpf, Fritz W. 75, 251
practice conception of constitutionalism Schmidt, Vivien A. 107
201–4, 219 Schmitt, Carl 147, 219
constitution 214–15 Schochet, Gordon J. 59–60
350  Index
scientific and technical expertise 194–5 Charter of United Nations 4, 19, 64–5,
Sciulli, David 324–5 156–7, 194n82, 203, 209, 214, 218, 225, 239,
Searle, John R. 40 252–3, 255
self-defence 14 constitutive role 40–4
separation of powers 8, 9, 23–4, 31, 32, 55, defence of linguistic and conceptual use
293, 299 220–42
Shapiro, Martin 279 European Union 17–18, 124, 209, 214–15,
Shell 327 218, 237
Sieyes, E. 9 modern sense 7–11, 16, 37, 42, 49–55, 221–2
Skinner, Quentin 277 politics of constitutional definition 291–5
Slaughter, Anne-Marie 279, 316 constitutionalisation 44–7, 59–60, 201, 221,
Smith, Adam 159 224–5, 251
social contract 7–8, 40, 48, 50–1, 53, 54, 90, constitutionalism reconfigured 61–2
116, 146 domestic 62–3, 68–9
social inclusion/exclusion 179–80, 181, 188, 191 European Union 18, 65–6, 122
social movements 134 process beyond the state 4, 16–17
political- 234 supranational 19, 22, 63–8, 69, 239
societal constitutionalism 19–20, 223, 240–1, constitutionalism 3–5, 48, 55–6, 179–84
282–3, 293 European parliamentarianism:
fragmented globalisation 327–9 representation and 120–37
collisions of regime constitutions 334 liberal-legal 57–9, 66, 68, 69, 174, 176
constitutionalism in transnational republican-political 56–7, 58–9, 171–7
regimes 332–4 democratic statism 201–14, 219
rationality conflicts in a polycentric global diversity 254
world 329–30 holistic constitutionalism 297–300, 320
transnational ‘private’ regimes 331–2, constitutionalism beyond the state 300–3
335–41 meta-politics 295–7
transnational regulatory regimes 331 non-holistic method 303–8
holistic constitutional method 301–3 politics of constitutional definition 291–5
non-holistic constitutional method 303–8 internal/external boundary 12, 13, 14–15,
socio-cultural cycle see morphogenesis of 38, 149
constitutionalism legalisation of politics 5–7, 19
transnational private regimes 331–2 limited government 8, 10, 12, 13, 23–4, 31, 42,
constitutional rights in 335–41 48, 54, 55
sociologists 186 limits of domestic constitutionalism 247–9
Somek, Alexander 262–3 popular sovereignty 7, 8, 9–10, 16, 17–18, 49,
South Africa 60, 327 145–7, 294, 299
Soviet Union 188–9, 208 constitutive role of constitutions 41–2
Spain 60, 126, 179, 234 contracts 50–1
sport 301, 314, 330 multi-level constitutionalism 67
standards, international 248–9 ‘the people’ as validating source
state immunity 205, 226–7 challenged 203, 204, 207–10
statehood and constitutionalism 3–5, 23–5, territory 34–8, 39
309–12 public/private boundary 12, 13–14, 149, 299
achievement of constitutionalism 3, 5–11, territoriality 23–5, 331
19, 42 constitutionalisation 44–6
changed conditions: erosion of statehood constitutionalism and 11, 12, 13, 14–15,
3–4, 13–22, 304 30–5, 143–5, 149
democracy 8, 9–10, 16, 17–18, 19, 20, 21–2 constitutive role of constitutions 40–4
limited government 8, 10, 12, 13 legality and 29–30
preconditions of 11–13 people’s sovereignty 35–9, 145–7
rule of law 9–10 statehood and 26–9
constitution: use of term 5–6, 11, 19, 20, 47–8, Stewart, Richard 258
148, 214–15, 252 subsidiarity, principle of 253, 294
ancient sense: state as organic entity European Union 135, 136, 137
48–9, 52 suicide bombing 186
 Index  351
‘sweatshops’ 327 sovereign equality 25
Sweden 110, 115, 117 Universal Declaration of Human
Switzerland 92 Rights 160
world order treaties 45
taxation 170, 176 United States 40, 54, 133
European Union 94, 111, 113–14 administrative law 257, 259, 271
evasion 250 American Bar Association 142
technical and scientific expertise 194–5 American Revolution 3, 5, 8, 9, 10, 47, 90, 212,
teleological/purposive interpretation 240, 252
105n55, 207 consensus-dependent pluralism 92
territoriality 23–5, 331 constitutionalisation 62
constitutionalisation 44–6 constitutionalism 24–5, 34, 56, 145, 233
constitutionalism and 11, 12, 13, 14–15, 30–5, liberal 57–9
143–5, 149 republican-political 56–7, 58–9, 174
constitutive role of constitutions 40–4 societal 325–6
legality and 29–30 ‘We the People’ 208, 209n13
people’s sovereignty 35–9, 145–7 Declaration of Independence 179,
statehood and 26–9 180, 183–4
terrorism foreigners, arrest of 228
freezing of bank accounts 229 International Criminal Court 45–6
Teubner, Gunther 312 Roosevelt, Franklin D. 189–90
Third World 189 societal constitutionalism
Tocqueville, Alexis de 24, 32 American Corporate Judiciary 325–6
Tokyo Tribunal 46 Wilson, Woodrow 188–9
Tomuschat, Christian 149–50 World Wars 188
Tordesillas Treaty 1494 179 utilitarianism 127
tort 337
trade/commerce 159–60, 183, 191–2, 301, 332 Vattel, Emer de 8
trade sanctions 248 Venice 172
trade unions 327 Verdross, Alfred 191
transition states 60, 234 virtual space 144–5
transnational corporations 327–8, 330, 339–40 volenti non fit injuria 105–6
Troper, Michel 31 voluntary associations 32
Tully, James 321–3 vote, right to 170, 173, 176, 217
Turkey 127
Walker, Neil 320, 332
ultra posse nemo obligatur 106 Walzer, Michael 166
unions 327 war 12–13, 14
United Kingdom 8, 63n54, 103, 126 Weber, Max 26, 34–5, 330
British constitution 11 welfare state 183, 190
consensus-dependent pluralism 92 Westphalian Peace (1648 treaties of
England 24, 37, 90, 172 Osnabrück and Münster) 27, 144, 219
state immunity: severe violations of human Willke, Helmut 314–15
rights 226 Wilson, Woodrow 188–9
United Nations 14, 18–19, 189, 190, 201, 211 Wittgenstein, L. 195
Charter as ‘constitution’ 4, 19, 64–5, 156–7, Wood, Gordon S. 59
194n82, 203, 209, 214, 218, 225, 239, World Anti-Doping Agency 301
252–3, 255 World Bank 159, 246, 263, 264, 315
priority: norms of international World Health Organization (WHO) 271, 314,
law 204–5 315, 321
Commission on Human Rights (UNCHR) world society
157, 258 emergence of 184–7
constitutional holism 301 radical reform, agenda of 197–8
counter-terrorism: listing procedure 229 dualism and representation 195–7
Security Council 14–15, 157, 229, 246, 271, transformations of 191–5
272, 281 twentieth century 187–91
352  Index
World Trade Organization (WTO) 14 governance regime 314, 315
administration without sovereignty 275 multi-level systems 279–80, 281
Appellate Body 316 non-compliance with rules
autonomous legal order 331 of 248
collective identity 321 World Wars 187, 188, 190
constitutional claims 4, 19, 64, 156, 225, 226,
293, 301, 307 Yugoslavia, former 14, 228