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 guarantor
of its relevance. So what is to become of constitutionalism in the contemporary
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 constitutionalism
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 explicitly,
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
Beyond the Holistic Constitution? Neil Walker.
© Oxford University Press 2010. Published 2010 by Oxford University Press.
292 Neil Walker
of constitutionalism cultivated such little common ground.1
There is scant crossfertilisation
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 constitutionalism
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 superficial
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 commitment
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 influence 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 assertion
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 international
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. FischerLescano,
‘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 perspective
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 nominalism,
and just as impervious to counter-suggestion. Whereas nominalism holds to
or simply assumes the solipsistic idea that all meaning is constructed without extralinguistic
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 formation,
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 formations
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 particular
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 constitutional
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 something
of value may be retained and adapted from the state tradition when we relocate
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 constitutional
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 perspective
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 constitutionalism
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 politics
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?), jurisdictional
(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 appropriate
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 engagement
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 discriminate
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 constitutional
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 particular.
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 situated
‘constitutional’ practice that have operated separately or in different combinations
in the past. These layers are juridical, politico-institutional, popular, and societal.16
Synchronically, state constitutionalism operates in terms of its own particular formulation
of these layers and of their relationship with one another. Constitutionalism in
(state) practice behaves, in other words, as a ‘cluster concept’,17
associated simultaneously
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.
Tobeginwith,thejuridicalframereferstoanideaof self-containedlegalorder,complete
with rules of self-production, self-organisation, self-extension, self-interpretation, selfamendment,
and self-discipline, all of which combine to affirm the autonomous existence
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 political
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 constitution
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 ‘political
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 politicoinstitutional
levels, the constitutional order (sometimes in conjunction with selfstyled
‘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 government
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 different
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 recognised
function presuppose and are themselves supported and rendered more effective
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 substantive
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 positively,
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 constitution
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 maintenance
from control by the institutions affected by these norms, and the openness
of the same rules to broader forms of public influence 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 sectorspecific
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 constitutionalism’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 democratically
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 practice.
Once the supporters of the project were no longer satisfied with the documentary
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 politicoinstitutional
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 holistic
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 transnational
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 metapolitical
end of regulating our common affairs in accordance with considerations of
the common interest can survive the erosion of the state-originated holistic constitutional
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 framework
for their co-articulation. Internally, structural rules may be found in autonomous
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 embeddedness
associated with state constitutionalism is lost insofar as there is no sense of
an integrated and generic ‘public’ context which stands beyond the special institution
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
Itfollowsfromthisthatnoneof theconnectingelements—the‘holismof 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 functions
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 constitution.
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 transnational
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 diffuse 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 investment
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.
Inthefirstplace,thereisthequestionof theviabilityof otherpossibleconstitutional
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 comparator
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 incarnation.
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 transnational
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 inadequacy
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 constitutionalism
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 nonholistic
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 political
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 effective.
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 influence 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 propensity
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 political
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 constitutionalism
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 influence (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 constitutional
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 extending
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 transnational
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 collective
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 retaining
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 themselves
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.