Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development. (..) The declining years of the 20th century have been described as the 'Weltstunde des Verfassungsstaates' - the global hour of the constitutional state. (cf post-Communist states, Germany after reunification, European Union, South Africa, UN, European Human Rights, etc). (..) In this very same historical 'hour', the very ideas of constitutionality have also been subject to a perhaps unprecedented range and intensity of attack. (..) Five critiques of modern constitutionalism: 1 state-centredness, 2 constitutional fetishism (Ideological exploitation), 3 normative bias (tendency to favour certain interests and values over other), 4 ideological exploitation (propensity of many to clothe their interests, ideas or aspirations in constitutional garb), 5 general inadequacy (debased conceptual currency). (..) gradual escape of political power and authority from the state (..) we confront forms of power and social organisation which escape the template of the state into more local, private or transnational domains (..) There is no conceivable way within our present epistemic framework of thinking about large-scale institutional change without considering the role that law might have to play in that process of change. (..) Sources of conflicts in constitutional polities (simple and too crude taxonomy): interest-driven conflicts, ideological conflicts, identity conflicts. (..) James Tully: the three most authoritative traditions of language and interpretation in the modern constitutional canon are liberalism, communitarianism and nationalism. (..) Building on the hidden constitutional traditions, he postulates that it is possible to forge an 'inter-cultural dialogue in which the culturally diverse citizens of contemporary societies negotiate agreements on their forms of association over time in accordance with the three conventions of mutual recognition, consent and cultural continuity'. (..) Ideological - many would view the possibility of ideological manipulation as an acceptable price for a state to pay for a serious investment in constitutional morality. (..) Various brands and shades of 'Euroscepticism' have engaged in a symbolic practice of 'constitutional denial' (..) the opposing claim of 'constitutional affirmation' can be viewed as ideologically motivated in the same way. (..) As one of the hidden injuries of ideological manipulation, constitutional novelty and experimentation and the gradual development of a new sense of constitutional possibilities may simply be strangled at birth. (..) What criteria would a revised concept of constitutionalism have to meet? (..) spacial criteria: 1 the state as a significant host to constitutional discourse - the state - however modified and however diminished - continues to be a player in the emerging multi-dimensional, multi-level order. 2 be open to the discovery of meaningful constitutional discourse and processes in non-state sites and processes. (..) temporal criteria: 3 a requirement of historical continuity. 4 a requirement of discursive continuity. (..) normative criteria: 5 a requirement of inclusive normative coherence. 6 a requirement of external coherence. (..) constitutionalism must be capable of generating forms of explanatory knowledge and normative guidance which are relevant to other discourses of regulation and political imagination, notably those preferred by the explicit and implicit critics of constitutionalism. (..) constitutional pluralism as the best way of meeting these six challenges and fulfilling the criteria they set (..) it is EU law which poses the most pressing paradigm- challenging test to what we might call constitutional monism (sc the sole centres or units of constitutional authorities are states). (..) Constitutional pluralism: constitutional claims exist alongside the continuing claims of states. (..) three different dimensions to this pluralist claim. 1 an explanatory claim (identifiy multiple sites of constitutional discourse and authority), 2 a normative claim (mutual recognition and respect between national and supranational authorities), 3 epistemic pluralism (knowing and ordering distinct constitutional sites - EU and member states - as distinct constitutional sites) (..) There is no unitary template in terms of which constitutional status is either achieved or not achieved, but rather a set of loosely and variously coupled factors which serve both as criteria in terms of which forms of constitutionalism can be distinguished and as indices in terms of which modes and degrees of constitutionalisation can be identified and measured. (..) constitutionalism in a plural order is necessarily conceived of not only as a property of polities and political processes but as a medium through which they interconnect (..) conceptual: The notions of constitution and constitutionalism are unarguably bound up with,the mutual articulation of law and politics. (..) constitutional law and discourse should be understood as one of the polity's key defining and constitutive features. (..) constitutional law was historically located in the Westphalian order as an internal and intrinsic characteristic of a polity. (..) the idea of a polity, or political community, is not bound to or exhausted by the idea of the modem national state. (..) there are two basic constitutive criteria, concerning the founding dynamic of the constitutional phenomenon: 1 the development of an explicit constitutional discourse, 2 the claim to foundational legal authority, or sovereignty. (..) there are three governance criteria, concerning the scope and nature of governance capacity: 1 development of jurisdictional scope, 2 the claim to interpretive autonomy, 3 the constitution and regulation of an institutional structure to govern the polity. (..) there are two societal criteria concerning how the constitutional phenomenon articulates and legitimates its relationship with the social entities and processes to which it relates: 1 the specification of the status, conditions and incidents of membership of or association with the polity, 2 the manner in which and procedures by which the voice of the membership registers - the mechanisms, democratic or otherwise, by which their interests and aspirations are articulated and taken into account. (..) constitutional law and politics are mutually constitutive (..) the ideological dimension of constitutional politics - its role in the strategic assertion of institutional power and of the interests served by that power - is not the enemy of a normative discourse of responsible constitutionalism but its necessary accompaniment. (..) The idea of sovereignty or fundamental authority is perhaps the most state-centred. Sovereignty is 'will', where discourse is 'reason'. (..) sovereignty consists of a plausible claim to ultimate authority made on behalf of a particular polity. (..) In its traditional statist version, the claim to sovereignty or ultimate authority implies both autonomy and exclusivity. (..) in the emerging post-Westphalian order, it becomes possible to conceive of autonomy without exclusivity. (..) sovereignty too, like the other indices of constitutionalism, becomes more amenable to understanding as a graduated and tenuous property of normative order. (..) Under the new conditions, sovereignty may be viewed as an emergent and precarious characteristic of many post-state polities within a longer, open-ended time frame, as we have seen of the EU. (..) The first of the governance-centred criteria of constitutionalism and indices of constitutionalisation, then, is jurisdictional scope. (..) interpretive autonomy is always the dependent variable, tied to the jurisdictional claims of the constituent text of the polity in question (..) on a pluralist reading the assertion of rival plausible claims to have the last judicial word (..) confirms rather than denies the interpretive autonomy of each of the polities or putative polities in question. (..) interpretive autonomy remains a powerful index of constitutional maturity. (..) citizenship or membership and the sense of identification with the polity associated with its attendant system of rights and obligations, is key to the 'community' dimension. (..) a deeper dimension to citizenship: being able to think of oneself with some conviction as both a national and a European in constitutional terms. (..) the question of citizenship of the EU is necessarily linked to the question of its democratic credentials (pejorative: 'democratic deficit') (..) absence of a prior European political identity sufficiently grounded in ethnic or cultural homogeneity (..) another debate about representation: about the tension between general democratic voice and participation on the one hand and the special voice of functional representation and/or technocratic expertise on the other. (..) the post-Westphalian constitutional map contains a number of different phenomena, state, post-state-polity and non-polity, each with their own separate but related discourses (..) aspirational constitutional discourse (reshape the traditional intra-state constitutional sphere of the relations between different groups), (..) The paradigm case of the first 'state-encroaching' sub-type is human rights law (..) at the most extreme level of remove from traditional state constitutionalism, there are relations between state and post-state constitutional polities and processes (e.g. in EU and WTO) (..) Elsewhere I have characterised the internal logic and external or relational perspective of these new sites and processes as metaconstitutional. (..) if the post-Westphalian world is viewed in constitutional terms as a plurality of unities, as I have argued it should, then the pattern of deeper normative justification to which the metaconstitutional idea refers must track this plurality of unities. (..) Once the orderly pattern of mutually exclusive sovereign state authorities is broken, the development of new authoritative units from the interaction of existing units is structurally facilitated, and the map of constitutional authority becomes a complex and ever-shifting mosaic of the new and the old, the emergent and the mature, the relations between these new and old units as constitutionally significant (and transformative) as the units themselves. (..) just as the configuration of unities is not fixed, neither is the normative content of that which is represented by these unities. (..) Meta- constitutional justification suggests a continuous reflection on the legitimacy of authoritative decision-making (..) State constitutions tended - and still to some extent do - to be traditionally legitimated and difficult to amend or overhaul. (..) Post-state sites and processes in an increasingly diversified constitutional order lack tradition, and often, too, well-defined or broadly respected rules of amendment. (..) Fed by an open-ended dynamic, the 'agonistic' process of negotiation between and within different constitutional authorities is rich with possibilities of mutual learning both through regulatory competition and emulation in contexts of strategic rivalry and through open dialogue and cross-experimentation in more consensual contexts. |