Download Constitutional Pluralism: Challenges and Critiques in a Global Context and more Study notes Law in PDF only on Docsity!
Constitutionalism and Pluralism in Global Context
Neil Walker
1. Three Forms of Scepticism about Constitutional Pluralism
Constitutional pluralism divides opinion. Those features that make it attractive to some in a globally connected world also account for the scepticism it provokes in others. The allure of constitutional pluralism lies in its ambition to square two ideas – ‘constitutionalism’ and ‘pluralism’ - that are typically understood as quite distinct and presumptively incompatible, or at least as of limited compatibility. On the one hand, the idea of constitutionalism – of a legal code that supplies a legitimate foundation and framework for our common forms of political life – has been traditionally understood in unitary and hierarchical terms. That is to say, it is taken to refer to a single, bounded, and ultimately indivisible ‘unit’ - paradigmatically the state – and to do so in terms of an unbroken chain of authority and an encompassing legal ordering.^1 On the other hand, when we speak of pluralism, whether we are concerned with a ‘first order’ pluralism of social constituencies,^2 or of institutions,^3 or of values,^4 or of value sets and world-views,^5 or - of most direct immediate relevance – with a ‘second
(^1) See e.g. D. Grimm, “The Constitution in the Process of Denationalization”, (2005) 12 Constellations (^447) Constitutionalism in and beyond the State” in J. L. Dunoff and J.P. Trachtman (eds); M. Kumm, “The Cosmopolitan Turn in Constitutionalism: On the Relationship between Ruling the World? Constitutionalism, International Law, and Global Governance (^2) See e.g. R. A. Dahl, “The Concept of Power” (1957) 2 Behavioural Science (Cambridge: CUP, 2009) 258-325. 201- (^3) See e.g. V. Bader, “Religious Diversity And Democratic Institutional Pluralism (2003) 31 Political Theory (^4) See e.g. I. Berlin,: 265 - 294. Four Essays on Liberalism (Oxford: OUP, 1969) (^5) See e.g. J. Rawls, Political Liberalism ( New York, Columbia University Press, 1996); R. Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise (London: Routledge, 1999).
order’ pluralism of legal and political systems as a whole, the emphasis is always upon multiplicity and diversity and upon the non-hierarchical terms of the recognition and accommodation of that multiplicity and diversity. In crude terms, the constitutional pluralist seeks to retain from constitutionalism the idea of a single authorizing register for the political domain as a whole while at the same time retaining from pluralism a sense of the rich and irreducible diversity of that political domain. For the advocate of constitutional pluralism, moreover, the attraction is a matter both of fact and of value - of the force of circumstance as well as of preference. The fact that the constitutional landscape today - in our post-Westphalian age where globalizing economic, cultural, communicative, political and legal influences have both spread and diluted public power - is no longer organised into mutually exclusive nation state domains but instead occupies much overlapping transnational space, cannot help but alter our understanding of constitutional ordering. It means that, at least as the constitutional pluralist views the world, it becomes increasingly difficult if not impossible not to conceive of the environment of constitutionalism in non-unitary terms – as a place of heterarchically interlocking legal and political systems.^6 The dimension of value lies in viewing this changing landscape not as a threat to the maintenance of the traditional template of constitutionalism but as a welcome opportunity to integrate what in conventional constitutional wisdom tend to be treated as contrasting and even opposing modalities of normative thought. The constitutional pluralist, in short, seeks to make a virtue out of necessity For the sceptic, on the other hand, any such sense of opportunity can only be the product of wishful thinking. Rather than achieving the reconciliation of opposites,
(^6) On the descriptive dimension of constitutional pluralism, see N. Walker, “The Idea of Constitutional Pluralism” (2002) 65 Modern Law Review 317.
that perspective for the unresolved heterarchical configuration or the open-ended jurisdictional extension of a constitutionalism decoupled from a singular legal and political order. In the second place, and conversely, traces of constitutionalism beyond the state may be viewed not as an extension and mutation that will ultimately take the form of a new and encompassing unity, but, just as in the classic age of the Westphalian state system, as a series of separate reductions. On this view, constitutional pluralism turns out to be nothing more than constitutional plurality. That is to say, the flip-side of the structural tendency of constitutional framing to provide the bounded and hierarchically ordered legal space of the state may be that if anything is to escape such a space but still be considered as properly ‘constitutional’ in character, it can only do so on the basis of its belonging to a quite distinct and unconnected bounded and hierarchically ordered constitutional entity. For if constitutional norms operate according to a singular and hierarchical regulatory logic, then there is simply no conceptual scope for any heterarchical legal relations that operate between distinct constitutional singularities its own properly and distinctly constitutional character, or at least not from the perspective of these constitutional singularities themselves. In other words, if we seek to distinguish the overlapping and interlocking of constitutional orders from mere constitutional plurality or diversity on the basis that it involves a commitment to the common recognition and accommodation – and to that extent the integrity - of the diverse parts notwithstanding their diversity, then the exhaustiveness of each of the different constitutional orders in their own terms means that we lack a constitutional code that operates independently of the overlapping and interlocking constitutional orders in which any such
Politics” (2007) 70the Framing of Civil Society” (2003) 9 Modern Law Review European Law Journal 1; E. Christodoulidis, “Constitutional Irresolution: Law and 401.
transversal integrity can be registered.^10 Whether we are dealing with the new type of relations between the constitutional orders of states and that of the supranational EU, or between NAFTA and the states of North America, or the UN and the states of the world, or amongst the various emergent non- state polities, or whether we revert our gaze to the ‘old-fashioned’ terms of exchange between different states themselves, therefore, on this view the idea of constitutional relations between distinct constitutional orders is simply incoherent. In the third place, if and to the extent that it is nevertheless possible to think of relations between different legal entities as pluralist in quality, and not simply collapsing into either the monolithic discipline of constitutional singularity or the mutual indifference of constitutional plurality, then this may be precisely because the entities in question do not possess or claim just such a constitutional character. If we want to conceive of different legal entities within the increasingly fragmented global archipelago as connected in ways which remain legally meaningful without these legal relations resulting in such entities being ultimately subsumed within a single legal order, the development of the requisite legal imaginary may only be possible if
(^10) There are in fact two closely related if apparently quite distinct versions of this concern or criticism. One - closely associated with a certain type of approach which remains presumptively sympathetic toconstitutional pluralism - raises the prospect that there is simply nothing left to say in constitutional, or indeed in any kind of legal terms, about the relations between constitutional orders which are eachalready conceived of in a bounded manner. Here, the danger is that constitutional pluralism is left conceptually barren. This so-called radical pluralist approach is further considered in Section 2 of thetext below. A second criticism, presumptively unsympathetic to constitutional pluralism, holds that an acceptance of the pluralist scenario is likely to lead not to a conceptual void in the law, and so to adomain of non-law, but to a situation of overabundance. For if constitutional pluralism simply alerts us to a plurality of legal order unities, then rather than an absence of legal answers to difficult questions inareas of overlapping jurisdiction what we have, strictly speaking, are too many answers, each valid from its own systemic perspective. Which law happens to prevail in practice becomes a matter ofcircumstance rather than principle, and the law as a whole in the area of contested overlap may thus come to lack predictability or a coherent framework of justification. See e.g.Legacy of the Maastricht-Urteil and the Pluralist Movement” (2008) 14 European Law Journal J. Baquero Cruz, “The 389; P. Eletheriadis, “Pluralism and Integrity” (2010) 23 Ratio Juris (forthcoming).
reliance on the European context, and for all the difficulties posed by the broader transnational regulatory environment, there remain today good arguments for pursuing the project of adapting the language and mindset of constitutionalism to meet the pluralist imperatives of broader global conditions.
- Constitutional Pluralism in Europe
The idea of constitutional pluralism derived a lot of its initial focus and momentum from the circumstances of high-profile constitutional clashes over the implications of Europe’s supranational arrangements. The key sites of these clashes were the supreme or constitutional courts of the member states. Faced with issues such as the compatibility of new instruments of supranational authority with national standards of human rights,^12 the reconciliation of a Treaty-by-Treaty expansion of overall supranational jurisdiction into areas of public policy traditionally associated with the nation state with the basic idea of national democratic control,^13 the tension between accession to a mature transnational polity and a minimum sense of sovereign self- determination,^14 or the extent to which transnational security concerns may encroach on core national responsibilities in criminal justice,^15 national courts have in a prolonged series of high profile cases been required to adjudicate on the basic source
(^12) See e.g. Internationae Handelsgesellschaft mbH v. Einfuhr- und Vorratstelle fur Getreide und Futtermittel (^13) See e.g. (^) Brunner v. European Union Treaty [1974] 2 CMLR 540 [1994] 1 CMLR 57. This landmark case concerned the constitutionality of the Maastricht Treaty, but every subsequent European Treaty, including theabortive Constitutional Treaty and the Lisbon Treaty which succeeded it, has likewise given rise to litigation in national constitutional or supreme courts. For reflection on the decisions of the Germanand other top courts prior to ratification of the Lisbon Treaty, see, for example, the special issue of the German Law Journal (2009) Vol. 10 No. 8. available athttp://www.germanlawjournal.com/index.php?pageID=2&vol=10&no= (^14) See e.g. Polish member of the European Union (Accession Treaty) K18/04, 11 th (^) M<ay 2005. see more generally, W. Sadurski “Solange Chapter 3; Constitutional Courts in Central Europe – democracy– European Union” (2008) 14 European Law Journal 1-35. (^15) See e.g. the various decisions on the legality of the European arrest warrant, discussed in Cruz, n above.
and conditions of final constitutional authority in contexts where the states and the EU palpably possessed overlapping competence. And in so doing, these national courts have tended to affirm or to develop conceptions of constitutionalism which, in stressing or assuming the autochthonous quality of state constitutional authority and the national distinctiveness of its content, have been prepared to countenance the claims to authority emanating from the judicial organs of the EU only on their own nationally conditional terms and not on the absolute terms set or assumed by the EU itself As an account of these cases and of their context of emergence and reception, constitutional pluralism has an immediate plausibility. If we take the three core challenges in turn, to each the European case has offered a strong prima facie answer. In the first place, the European example is one where, whatever fears may be expressed in different quarters about the overweening ‘constitutional’ ambitions either of the member states or of the EU itself, the diversely-sourced and wide-ranging invocation of the language and logic of constitutionalism in the face of legal and political contestation shows no realistic prospect of being resolved in terms of a newly minted, widely accepted and broadly effective constitutional unity. The relevant organs of the EU remain implacable in their own claims to self-standing authority, but equally, the relevant constitutional organs of the 27 member states continue to make plausible and robust claims to their own original and final constitutional authority for all matters within their national purview, including the jointly designed supranational edifice.^16
(^16) In an earlier article I coined the term ‘epistemic pluralism’ to emphasize the fact that ‘descriptive pluralism’ in the European context had a deep, hermeneutic quality. That is to say, pluralism isappropriate here not just as an external description of the constitutional landscape, but is corroborated and reinforced by the deepest role self-understanding of the key actors themselves; see N. Walker n6above.
for communication between different constitutional orders are comparably favourable in supranational Europe. In the third place, the argument that it is possible to conceive of constitutional relations between the two levels of constitutional order – state and supranational – cannot easily be defeated by the objection that the European level does not bring ‘true’ constitutional credentials to the table. For sure, the precise constitutional status of the EU is heavily contested, in particular the qualities in which and the degree to which the constitutionalism of the EU resembles that of the state. Indeed, much of the political debate surrounding the eventual failure in 2007 of the EU’s first explicit experiment in documentary constitutionalism concerned this very question.^19 Alongside deep disputation of the detailed constitutional credentials of the EU, however, there has in recent years grown up a consensus that the EU does nonetheless possess a constitutional character of sorts.^20 In legal terms, with its doctrines of primacy and direct effect and its overall development of an autonomous legal order, and in institutional terms, with its dense and complex governance architecture of Commission, Council, European Council, Parliament and Court, the EU appears to have a material constitution that is closely analogous to and often draws heavily from the state tradition. It may lack many of the background factors normally associated with a ‘thicker’ “foundational” Constitutionalism and with a self-conscious political baptism^21 but few today would deny it certain ‘thinner’ but still highly familiar constitutional credentials.^22 Importantly, then, the sheer constitutional familiarity of
(^19) See e.g., N. Walker, “Reframing EU Constitutionalism” in Dunoff and Trachtman (eds) Ruling the World? (^20) On some of the reasons for this, see Walker 149-77. ibid , 149-50. (^2122) Which, of course, a successful documentary constitutional process would have sought to provide. understand and augment the relations between the different levels with the EU is by reference to aAlthough some who would not deny these credentials would still argue that the best way to pluralist perspective which excludes the language of constitutionalism. See, e.g. M. Avbelj, presentvolume.
the European set-up has diverted attention from what might be regarded as a key question. The emphasis have very much been on what kind of constitution Europe can have – and in particular how close to the state template – rather than whether it can have a constitution at all. In other words, for the most part the focus has been on which of various diverse or graduated conceptions of constitutionalism is appropriate rather than on the threshold applicability of very constitutional concept.^23 These various factors come together to provide a kind of regional comfort zone for the ideas of constitutional pluralism. The co-existence of a number of sites of undeniably significant legal authority making overlapping and inconsistent claims over the nature, scope and implications of their various jurisdictions, and the fact that these different sites are broadly understood by actors and observers alike as ‘constitutional’ in quality, provides a ready set of answers to the first and third challenges. The second challenge – concerning the prospect of properly constitutional relations between and across constitutional units - is the most acute one. And, as it raises the question of the normative dividend of constitutional pluralism, it is also, as already noted, the one that has excited most discussion within the field. On the one hand, there are those, often labelled radical pluralists, for whom nothing strictly constitutional can be said about the relations between different constitutional entities, although the fact that they are constitutional entities suggests that these relations may be conducted in terms which trade on common sensibilities or a shared understanding of the strategic context of interaction.^24 On the other hand, there are those who try to complete the process of constitutional alchemy, whether by reference
(^23) On the distinction between a concept and its various conceptions , see, e.g., R. Dworkin, "The Jurisprudence of Richard Nixon", (1972) 18(8) (^24) See in particular, N. MacCormick, “Beyond the Sovereign State” (1993) 56 The New York Review of Books Modern Law Review , 27-35 1- 18; though he later modified his view, reintroducing public international law as theregulate relations between the national and the supranational levels. See his Questioning Sovereignty tertium quid to (Oxford: OUP, 1999) ch 7. See also Walker n6 above
3. Constitutional Pluralism Beyond Europe If we look at the prospect for the constitutionalisation of transnational sites and relations beyond the EU, the challenges set out above are posed much more sharply and insistently. Faced with the proliferation of global institutions around the permanent framework of the United Nations, of global and regional human rights charters and standard–setting bodies, of new forms of regional economic organisation beyond Europe, of functionally specialist regimes of global public authority in matters such as crime, labour relations and environmental protection, and of private and hybrid public-private forms of self-regulation and administrative capacity in other areas of specialist practical and epistemic authority from global cyberspace to international sport, constitutional pluralism finds itself in a less obviously receptive environment.^29 So much so, indeed, that much of the broader literature on the global legal configuration implicitly or explicitly rejects the ideas of constitutional pluralism, while those approaches which seek to keep faith with constitutional pluralism and adapt it to the global scene struggle to justify their approach and occupy a less confident and secure position within the debate than they do in the European context. Let us again look at each of the three sceptical challenges in turn in order to illustrate these points. If we begin with the question of the tendency of constitutionalism to embrace all normative phenomena within a singular logic and encompassing framework, this might seem the least likely ground of challenge to the appropriateness of constitutional pluralism within the wider transnational context. After all, are the most
To be fair, however, Maduro himself has stressed more than most the need to look beyond the courts tobroader institutional structures in order to understand pluralism in the round. See in particular, Maduro, n27 above. (^29) See, for example, N. Walker, “Beyond boundary disputes and basic grids; Mapping the global disorder of normative orders” (2008) 6Rosenfeld, “Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism” (2008) 6 International Journal of Constitutional Law 373-96; M. International Journal of Constitutional Law 415-456.
obvious features of the global legal landscape not precisely those that are “disorderly”?^30 Rather than as a coherent whole, do we not think of the global legal configuration as fragmentary,^31 as “polycontextual”,^32 as embracing a “strange multiplicity”,^33 as part of the diverse and sometimes impenetrable “mystery of global governance”?^34 And should we not, therefore, expect constitutionalism conceived of in a global key to match and reflect this underlying deep diversity, thereby adopting a sensibility that is pluralism-friendly? In some influential quarters of transnational constitutional thinking, however, just the opposite is the case. For some who want to take constitutionalism to the global level, it is precisely as a reaction against and in response to these underlying tendencies toward fragmentation. Constitutionalism is embraced just because it is believed to have the capacity to re-impose order, to re-establish hierarchy, to articulate and apply a comprehensible redesign. This steering ambition comes in different variants. In one version, the singular model of transnational constitutionalism is institutionally located in the United Nations, its Charter functioning as an ersatz written Constitution for the post-war world order.^35 In other versions, the basis of constitutional order is lexical rather than institutional. In particular, there are a number of strains of the so-called constitutionalisation of international law, in which ‘international law’ itself is protected and projected as a single juristic category.^36 Typically under this approach some types of international rules such as customary international law, ius cogens , human rights law, ‘world order’ treaties and obligations erga omnes are deemed to have a special facility to organise
(^3031) Walker, n29 above. 32 Koskenniemi, n9 above.G. Teubner, “Constitutionalising Polycontextuality” (2010) 73 Modern Law Review (forthcoming). (^3334) J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: CUP, 2005) 35 Kennedy, n9 above.See e.g. Fassbender, n7 above. (^36) See e.g. De Wet, n8 above.
discourse to fill the vacuum. On the other hand, if constitutionalism’s ambition is to put its own claim to final authority beyond question, then the inherent disputability of any and all “global metaprinciples of legal authority”^39 which underscores the unsettled quality of the transnational legal sphere means that constitutionalism in this singular mode cannot achieve its own ambition. What is more, just because of the underlying lack of settlement or of agreed general grounds for the justification of postnational constellation, any such singular constitutional discourse deserves to fail in its presumption of unassailable authority. In summary, there is a monistic strain in transnational constitutionalism which, for all the comparative (to the state tradition) modesty of its remit, is fated to fall short in its bid to place its own authority beyond question, and justifiably so. Yet it is an active, and indeed growing, dimension of the discourse on transnational constitutionalism, one which implicitly or explicitly sets itself at odds with the various strains of constitutional pluralism, and one, therefore, which contributes to the overall hostility of the regulatory environment to the very idea of constitutional pluralism. This monistic strain, it follows, should be carefully distinguished precisely from those other explicitly constitutional conceptions of the global transnational order that seek to emphasize the diversity of transnational sites of authority. In these cases, the second and opposite challenge – namely the reconciliation of plurality in terms which remain at all constitutionally meaningful - comes into play, although, as we shall see, the first challenge continues to lurk in the near background. Those who stress the variety of the constitutional register at the global level, in turn, can be further divided fall into different sub-categories. On the one side, there are those for whom pluralism, including a pluralism of constitutional sites and
(^39) Walker n29 above, 386.
relations, is an unavoidable and irreversible consequence of the functional differentiation of world society. In a perspective closely associated with contemporary systems theory, the ever increasing autonomy of the globally ramified spheres of economy, ecology, science, education, health, sport, media, virtual communications etc, is postulated as both consequence and reinforcing cause of the decline of the role of the traditional politico-legal constitutionalism of the state as the effective container of the various specialist sub-systems within a particular territorial demarcation. 40 Yet the demise of a comprehensive mode of politico-legal constitutionalism – of a constitutionalism built around an idea of a self-contained community in which all matters of ‘public’ interest are contested and resolved in common, need not mean the end of constitutionalism tout court. Instead, in the systemic pluralist vision we are witnessing the development of new transnational forms of “societal constitutionalism.”^41 According to this new global dynamic the “self- constitutionalization”^42 of the various specialist functional sectors is no longer grounded in and reducible to the articulations either of state law or the orthodox treaty regimes of international law, or indeed of any other canonical legal form.^43 The new societal constitutions will continue to draw on these familiar juridical sources in their continuous processes of reflexive self-organisation, but the basic impulse towards self-constitutionalization and its governing logic is provided by the very character and domain concerns of the functional specialism itself; by the methods available within its special medium of practice – and to those actors implicated in that
(^40) See in particular the work of Gunther Teubner; e.g. n32 above; See also his “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; (^4142) Teubner, n40 above 43 Teubner, n32 above (^) Such as the common-law based lex mercatoria. See Teubner, n32 above
links these constitutionally justified specificities in constitutional terms is problematic. One part of the answer may depend on structural analogy. Arguably, a key ‘constitutive’ puzzle faced by the stakeholders of relatively autonomous global subsectors and by those who occupy their various external environments, namely how to balance the freedom of those most centrally concerned with and affected by a practice to govern that practice against the need to limit its expansion into other spheres and to curb its tendency to encroach on the autonomy of others sectors of social practice and their key stakeholders, is the functional equivalent under a globally differentiated order of the traditional state constitutionalist concern to safeguard the ‘internal sovereignty’ of ‘the people’ while ensuring that their ‘external sovereignty’ did not compromise the internal sovereignty of others.^48 A second part of the answer may, more straightforwardly, concern common transversal norms. In particular, proponents of a differentiated form of global constitutionalism may argue that basic human rights standards should prevail across different societal or institutional sectors regardless of these cleavages. Indeed, on this view, the very proliferation of such cleavages and the problems of achieving ‘thicker’ forms of democratic constitutionalism in consequence serve to underline the importance of the alternative protection provided by globally guaranteed human rights standards.^49 A third and final part of the answer might concern the relational dynamics themselves. If the global constitution is one of multiple and variable sectors, one in which the marginal connections and relations between sites of governance become central rather than peripheral, then perhaps there is some kind of underlying relational logic or, less passively, perhaps there can be developed terms and patterns of constitutional
(^4849) Ibid. See also Krisch, ‘The Case for Pluralism” n11 above. See e.g. Teubner, n32 above; Peters n44 above.
exchange between these various sectors which can be accounted for or justified in terms of some kind of defensible constitutional reason. At a minimum, does the fragmentation of the transnational constitutional order into a heterarchy of sites not permit and even encourage the development of some kind of framework of mutual recognition and contestation and of checks and balances between sites and their different claims to authority? And does the complex cross-polity institutionalization of a system of countervailing power not provide the basis from which pluralism can be transformed into a recognizable set of constitutional virtues?^50 Certainly, there is in the approach of the systemic constitutional pluralist some recognition of all such solutions. The claim to move beyond plurality to pluralism remains a precarious one, however. It stands in sustained tension with the sheer number, diversity, unpredictable emergence and uncontainable evolution of the islands of self-norming and institutional capacity in the new global constitutional archipelago. And it in response to this and in an attempt to fashion a more systematic and encompassing set of constitutional steering mechanisms that we find another more universalist strain within global constitutional pluralism. This thread of constitutional pluralist thought, closely associated with Mattias Kumm^51 and others,^52 adopts a different and more resolute approach to the tension between the two constitutional imperatives of the postnational constellation – the autonomy of the particular parts and the coherence of the whole. For Kumm, the modernist past remains the key to the future. The philosophical core of constitutionalism has not changed since the advent of modern constitutionalism through the medium of the maturing state system of late 18th
(^5051) See Krisch, n11 above “The Case for Pluralism”; see also Rosenfeld, n29 above 52 Kumm, n1 aboveSee in particular D. Halberstam, “Constitutional Heterarchy: the Centrality of Conflict in the European Union and the United States” in Dunoff and Trachtman (eds) Ruling the World? 326-55.
