Harvard Law School

Jean Monnet Chair

Seminar and Workshop on Advanced Issues in Law and Policy
of the European Union, NAFTA and the WTO

Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper 12/99

Neil Walker

Flexibility within a Metaconstitutional 
Frame: Reflections on the future 
of legal authority in Europe

Harvard Law School    Cambridge, MA 02138

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No part of this paper may be reproduced in any form
Without permission of the author.

ISSN 1087-2221
© Neil Walker
Printed in the United States of America in 2000
Harvard Law School
Cambridge, MA 02138
USA

Flexibility within a Metaconstitutional  Frame:  Reflections on the future of legal authority in Europe*

Neil Walker

Abstract

The point of departure of this paper is an attempt to make sense of the growth of flexibility within and around the EU as a new stage in the development of cosmopolitan public law. A new conceptual framework is suggested under the label of cosmopolitan metaconstitutionalism. Metaconstitutionalism is a type of legal discourse which has the same object of reference as constitutional law, but which, unlike constitutional law, is not nested in the state and does not look to the state as its fundamental source of validity. Rather, metaconstitutional law, notwithstanding the often competing claims made on behalf of the state through its traditional constitutional discourse and representations of sovereignty, always claims a higher or deeper normative authority, purporting variously to authorise, instruct, influence, supplement or supplant state law. Metaconstitutional law belongs to a post-Westphalian world - a world in which the state is no longer the unrivalled unit of political authority and in which state constitutional law and traditional international law, the juridical supports of the Westphalian system,  are no longer the dominant forms of public law. Metaconstitutional law comes in many forms, including, in its most developed forms,  the ‘meta-state’ law of the EU itself, and, at the ‘meta-meta’ level, the legal relationships  between states and meta-states, and between these and the other emergent polities - Schengen, Euroland, Council of Europe, GATT/WTO etc., - associated with the new pattern of  flexibility and multi-dimensionality in public law. The paper concludes by examining  the spectrum of possible relationships between different constitutional and metaconstitutional sites and addressing  how the legitimacy of public law might be sustained or recovered  within this rapidly changing  configuration of authority.  

TABLE OF CONTENTS

                                                                                                 PAGES

1. INTRODUCTION 						3-4

2. LAW AND FLEXIBILITY					4-11

3. BUILDING A METACONSTITUTIONAL FRAME		11-21

4. THE VALUE OF METACONSTITUTIONALISM		22-36	

5. BIBLIOGRAPHY							37-44

Flexibility within a Metaconstitutional  Frame:  Reflections on the future of legal authority in Europe*

1. Introduction

	Amidst all the talk - constructive and critical - about the emergence of a more flexible  conception of  the European order,  a key question threatens to disappear from sight.  Is flexibility aptly  viewed as a discrete and technical legal matter? Or is it a broad descriptor, with only an incidental legal dimension,  for the more fragmented, multi-layered order of governance in Europe and beyond which is emerging from the complex mix of economic, cultural,  political and  technological processes  involved  in ‘globalization’? Or, thirdly,  is flexibility best conceived of in plural terms, as possessing both a particular legal dimension and a broader significance?   Many writers appear unmoved by this question, their answers, at best, only implicit in their general approach. The danger is that  it is simply assumed by some that the legal dimension is axiomatic, and by others that it is  a mere reflection of a larger process. 	The absence of a more thorough reflection on conceptual foundations  is unfortunate, as it is a basic premise of this paper that neither the discrete nor the subsumed approach is a wholly adequate answer to the question of the legal significance of flexibility. Instead, the third, more subtle, answer is favoured. There  is, indeed,  a distinct legal dimension to flexibility which is not merely epiphenomenal of  broader social forces, yet legal flexibility  remains intimately and inexorably related to these broader processes. 
	In grasping  law’s quality as a ‘semi-autonomous social field’   in this connection, we can appreciate that law  both influences and has been influenced by  flexibility and  gain some measure of the terms of this reciprocal influence.  Only in this way, it is submitted, can we understand the enormity of the challenge posed by flexibility to our conventions of European legal order and the great demands and opportunities involved in rethinking  these conventions.  This in turn provides a platform for the main part of our discussion, which concerns the development of a language adequate to the task of reconceptualization.
2. Law and Flexibility  
	 As I have argued more fully elsewhere, the present pattern of differentiated integration in the EU is  not the outcome of a teleological process.  Instead, it is the provisional conclusion of a complex mix of strategic politics, sectoral politics and geopolitics.  Strategically, the evolving forms and models of flexibility within the EU may be viewed as a contest between, on the one hand, those states and other political actors who favour flexibility as a way of maintaining the momentum of integration against the  caution of  nationalist sceptics and, on the other,  those same sceptics  who favour flexibility as a way  of endorsing a less monolithic - and so ultimately less powerful EU. In other words, flexibility is not an end in itself, but an ubiquitous device which can serve quite different - even diametrically opposed - end-games.  Sectoral politics further complicates the picture, in that political actors located at various different political levels, and often with quite different overall strategic visions as to the balance of power between states and supranational polities, may argue for or against flexible initiatives and arrangements in a discrete policy  sector  because of their  particular ambitions and preferences in that sector.  Finally, the geopolitical context is important in that it introduces  various external factors to compound  the internal pressures towards differentiation.  In the realigning  international order which has succeeded Cold War bipolarity, other  European  and global organisations and  the new wave of EU candidate states make for a more elaborate network of overlapping polities of which  the complexly differentiated EU framework  is but one seamless component.
	Flexibility, therefore, is a ‘non-project’.  It is not the product of a single fixed or even evolving vision. Rather it has unfolded in  a sequence of strategic negotiations and gambits, of policy-driven initiatives within discrete sectors, and of accommodations of new geopolitical forces. Its composition is marked not by design, certainty and consensus, but by contingency, ambiguity and disagreement.
	  In turn, the complex and unplanned legal order of flexibility gives rise to at least  four  sets of  governance problems. There is, first,  the specifically legal question of delineating the boundaries between legal orders and putative legal orders  and of finding appropriate bridging mechanisms between these legal orders.  This is difficult enough in a two-dimensional juridical space;  regarding  the paradigmatic ‘EC’ relationship between two kinds of fixed polities, each making sovereign claims -  member states on the one hand and the supranational order on the other. It is all the more difficult in the multi-dimensional juridical space which is beginning to characterise the highly complex world of differentiated integration, with  the fixed polities of  the two-dimensional universe of legal sovereigns co-existing with and in actual or potential competition with  other ‘Europes’ which are emerging from (e.g., Schengen, the Eurozone) or overlap   with  (e.g. Council of Europe) the fixed and uniform ‘second-dimensional’ supranational order - each with different jurisdictional scope and depth and  claiming different degrees of legal autonomy.  The legal boundary disputes and sovereign power struggles associated with a two-dimensional configuration are compounded under a multi-dimensional configuration simply because there is more border territory to fight over and more existing or aspirant centres of power to enter the fight.
	There are also broader problems of  political efficacy, democratic accountability and social legitimacy associated with the multi-dimensional configuration of authority which flexibility entails . As regards political efficacy, problems of trust, mutual understanding and technical co-ordination between political institutions are exacerbated to the extent that these institutions are domiciled in different political systems.  Democratic accountability, too, is posed new challenges in a crowded institutional context, where popular affinity is contested or diluted and lines of responsibility are blurred. These problems of legal authority, political efficacy and democratic accountability also threaten the popular legitimacy of a multi-dimensional order,  as does the absence of a discourse of authority and belonging which marks out the non-project of multi-dimensionality as an identifiable and  defensible political construct  in the same way as nationalism and supranationalism  and their associated cultural and constitutional discourses mark out one-dimensional and two-dimensional orders.
	If we look at the governance problems of flexibility in the light of its diverse roots,  we gain a sense of  how law is  both profoundly affected by  the onset of flexibility  yet remains capable of significantly influencing its future  course. On the one hand, flexibility challenges both the technical capacity of law to address problems of inter-systemic  co-ordination, together with associated problems of political efficacy and democratic accountability,  and also its symbolic capacity as an independent source of power and as a means of constructing an authoritative image and discourse  of the political  order and cultural community  it seeks to represent. The fragmentation of legal orders problematizes what previously was taken for granted - the unassailable authority of any particular order, and so poses new  technical challenges  to find acceptable and mutually validated forms of communication and co-ordination between systems. Equally, the new flexible configuration of  authority, because it is not a planned  or  consensual development, offers  little scope for the construction of a  grand constitutional image  and discourse  to undergird its identity and bolster its legitimacy.  Further, the technical and symbolic deficiencies may be mutually corrosive. Where there is no unified order and so mechanically identifiable  intra-systemic technique available, how, without begging the question, do we identify  an acceptable  constituency and method to construct an authoritative version of the new political order? Equally, where there is  no legitimating trans-systemic canopy, how do we arrive at acceptable technical solutions to co-ordinate the legal, institutional and democratic orders of the different and contested systems?
	On the other hand, the very circumstances that challenge and dilute the problem-solving capacity and symbolic authority of law guarantee that it remains a precious currency.   The problems of co-ordination and legitimacy of  the new flexible order are on such a  scale that law, with its traditionally vast regulatory potential, will inevitably continue to be invoked as a means of  containing and resolving crises.  Moreover, as a deeply-layered and richly-resourced  repository of  traditional and cultural meanings, the legal form retains a ‘legitimacy credit’ and a versatility  even in the face of  new and apparently discontinuous contexts of  political organisation and regulation. 
	 To assert the indispensability and resilience of law  is not, it should be emphasised,  to commit the lego-centric error of viewing  law as the only or  predominant  guarantor of the new order. Fertilised by the rich soil of strategic, sectoral and geopolitical considerations, economic or security-based or other pragmatic discourses of justification may become prominent,  and so a legal crisis does  not necessarily portend a crisis of the entire order. Just as constitutions in state polities evolve  conventions and customs to smooth over crises, or contrive  abeyances and leave silences to avoid them, so this may also be true of a more fragmented legal order. Yet there are limits to this. Custom, convention, soft law and various other para-legal forms are lent shape and coherence by the formal legal order. Bargaining in the shadow and in the interstices of a legal framework depends, finally, upon the resilience, relevance and threshold legitimacy of the legal framework.
	The Treaty of Amsterdam is instructive of  the dual role of law - as both victim of upheaval and restabilising influence - in circumstances of incipient multi-dimensionality. In its treatment of flexibility,  Amsterdam  is both instrumental and reflexive.  It both adds to the unplanned architectural sprawl of  flexibility,  particularly in documenting the latest compromises over  Schengen and the Third Pillar,  and begins to reflect upon, learn from and impose a certain design and a certain set of ordering principles upon the flexible arrangements already in place or newly provided for, particularly in respect of so-called ‘enhanced co-operation’. This dualism  - which fits a broader pattern of  retrospective or incremental constitutionalization  within the EU Treaty framework  - suggests  how law, and in particular the ideal of legal uniformity within the EU,  can  simultaneously exhibit both   vulnerability to wider political forces and an independent capacity to make a positive difference to the  prospects of the European polity. The vulnerability of the legal form is exposed where  the Treaty-makers, qua  bearers of sectoral, national-strategic and other partial interests, have influenced negotiations in the IGC in the direction of further ad hoc flexibility in Justice and Home Affairs,  with  attendant problems of boundary maintenance and co-ordination, political efficacy, democratic accountability and social legitimacy. But where the Treaty-makers, qua guardians of the integrity of the European legal order, reflexively develop general principles of enhanced co-operation, there law reasserts itself as  an active agent engaging - even pre-empting - some of  the governance problems associated with incipient multi-dimensionality.  
	If the schizophrenic approach of the law-makers to the EU’s  claims to sovereign authority reflects the contested legitimacy  of the European order within a multi-dimensional framework,  Amsterdam also demonstrates how the introduction of flexible premises into a legal order can undermine its technical puzzle-solving capacity  in a fundamental manner.  Capacities which we take for granted within a unitary framework  are lost or fail to be generated in a more fragmented legal environment. For instance, Amsterdam fails to provide  a settled rule of adjudication in favour of the EU’s  supreme court, the ECJ lacking comprehensive or even uniform jurisdiction in the  Third Pillar.  If this example seems to flow naturally from the  concerns of the treaty-makers to preserve national claims, then even where a greater  loyalty  towards the  European order prevails, the accommodation of flexible premises can undermine  technical capacity. For instance, the basic intra-systemic assumption  that competing principles can be balanced  on  a common scale  in the resolution of a particular dispute is confounded  in the formulation of the terms of enhanced co-operation under the general enabling clause of the Amsterdam Treaty.  Where a determination falls to be made whether a particular flexible initiative should go ahead under that clause, how are we to  weigh the value of the principle of non-interference by participating states either with the acquis communautaire  or with ‘the competences, rights, obligations and interests’ of the non-participating states, on the one hand,  against the value of the competing  principle  of non-prejudice by non-participating states of the implementation of closer co-operation by participating states on the other?  There is not one but two answers,  depending upon the perspective of which of the two groups - participating or non-participating states -  is privileged in assessing costs and benefits, and  there is no objective way within a fragmenting legal order of adjudicating between these two perspectives.   

3. Building a Metaconstitutional Frame	

	So flexibility poses a great challenge to law, and not one we can wish away  by making law redundant. Flexibility asks new and difficult questions of law, but does so in conditions where it also threatens law’s legitimacy and technical  capacity. How should law respond to this challenge? My answer is, for the moment,  highly schematic. It is also by no means exclusively concerned with the particular problems of flexibility.  Rather, as we shall see, it involves excavating a deep seam of difficulties, with issues of flexibility situated at the rock face.
	This excavation involves developing a  new way of framing non-domestic law of the public sphere, a new legal discourse which I will call metaconstitutionalism. Semantically, the prefix ‘meta’ stands in relation to the activity denoted by the concept prefixed as ‘a higher science of the same nature but dealing with ulterior problems.’   Metaconstitutionalism relates to constitutionalism, therefore, as  metaphysics does to physics or as metaethics does to ethics. Metaconstitutional rules - or norms or axioms - are rules about constitutional rules. Their  subject-matter is ultimately the same  but they  claim within their own authoritative terms  a higher or deeper constitutional authority than constitutional rules.
	In the definition of key terms, one further refinement is required.  Legal philosophy is already familiar with what might be labelled  state-centred, or domestic  metaconstitutionalism . This refers to the  internally generated and agreed rules and assumptions about what is to count as the  constitution and as fundamental law within a state, whether, to take two examples,  this metaconstitutional background is conceived of in terms of  the Hartian rule of recognition or of the Kelsenian grundnorm.  We are not here  concerned with this local form of excavation but, instead, with cosmopolitan metaconstitutionalism. This  refers to a type of legal discourse which has the same general object of reference as constitutional law, namely the fundamental  framework of public authority, but which, unlike constitutional law,  is not nested in the state and does not look to the state as its  fundamental source of  validity.  Rather, metaconstitutional discourse, notwithstanding the often inconsistent and competing claims made on behalf of the state through  its traditional constitutional discourse and representations of sovereignty, always claims a higher or deeper normative authority. The nature of its claims are reflected in the way in which it characterises its relationship with state law. It may purport to authorise, instruct, influence, supplement or supplant state law, or any combination of these. Whatever the case, in no circumstances does it concede the normative superiority of state law. Metaconstitutionalism always conceives of its own authority as original and irreducible.
	Why  does cosmopolitan metaconstitutionalism provide a useful way of thinking  about contemporary non-domestic public law in general and about flexibility and the emerging multi-dimensional configuration of legal authority in particular? Before we can address that question, we must fill out the conceptual bare bones of cosmopolitan metaconstitutionalism as follows. First, we  examine the conditions which have made  possible, indeed inevitable,  the emergence of a type  of law which may be conceptualised in metaconstitutional terms. Secondly, we catalogue  the various forms taken by metaconstitutional law, and investigate  the relationship between these forms. 
A.  context of emergence
Metaconstitutional discourse becomes possible with the passing of the Westphalian one-dimensional global order of sovereign states. State sovereignty in this context conveys the double sense of internal sovereignty - the idea of the exclusive and unrivalled legal authority of the state within a particular territorial space, and external sovereignty - the idea of the state as the only significant legally recognised player on the stage of global decision-making. In such a world order there was no scope for the development of metaconstitutional law. Constitutional law simpliciter was the primary structure in the legal architecture of the international order, precisely because constitutional law was a product of the state and the state was internally and externally unrivalled as a source of authority. Under this framework - and despite the views of the early Kelsen and of others of an idealist or liberal internationalist persuasion - international law occupied a secondary position within the global legal architecture. Internally, it did not challenge the authority of the state as master of its own polity. Externally, granted, international law did ‘regulate’ relations between states, but only in the voluntarist sense that it was the product of agreement between states as formally free and equal parties. International law was not and is not the ultimate regulator of states, but rather their regulatory tool. 
	In the post-Westphalian world, as state sovereignty loses its hegemony in the face of the challenge of globalization, so too its two legal handmaidens - constitutional law and international law - are no longer adequate or sufficient to fill the regulatory space available in the sphere of public authority. For some commentators, notably modern systems theorists such as Teubner, the most significant upshot of this has been the development of legal innovations at the social peripheries rather than in the  political centre, and taking the form of new types of state-transcending  regulation in those discrete sectors of  civil society served, for example, by  commercial law (lex mercatoria), environmental law and even international sports law. But while such developments are significant,  they are not at the expense of  public frameworks of  governance. Rather, there have been, and continue to take place, significant institutional developments in the public as well as the private sphere. Enter metaconstitutional law.
B.  The forms of metaconstitutionalism 
	Metaconstitutional law comes in a wide variety of forms which cannot be easily distinguished nor neatly classified.  Nevertheless, we may identify five main types, which are ordered below in terms of their level of abstraction from the constitutional state.
	First, there is  legal discourse  which seeks to reshape the  traditional intra-constitutional law sphere of the structural relations between different groups within the state - whether defined by nation, ethnicity, territory, religion, language or  other cleavage - in a manner which goes beyond those forms of  legal ‘identity politics’, such as  claims to mutual respect, to multicultural citizenship or to distinct political institutions, which can be accommodated within the existing framework of state authority.  Instead, it proceeds to  question and challenge the constitutional integrity of the state itself through secessionist or quasi-secessionist claims. For the  most part this is a counterfactual legal discourse. Unlike  the forms of metaconstitutionalism considered below - and so, incidentally, making it the most complex metaconstitutional discourse to characterise -  it is  not anchored within an institutional site or sites which can make a plausible current claim to possess fundamental  law-making authority.  On the other hand,  this form of metaconstitutionalism may be sustained and supported through its relationship to  these other, more state-removed metaconstitutional sites which do possess  plausible claims to fundamental legal authority. Yet as long as the integrity and internal distribution of authority of the state which it challenges remains intact, then, ex hypothesi,  secessionist or quasi-secessionist discourse  can be no more than aspirational.  That does not mean, however, that it is merely a form of constitutional law-in-waiting. It is metaconstitutional in the sense that while its ultimate purpose may be the creation of a new state, and thus a new constitutional order, the process by which the transformation is sought addresses matters of fundamental political authority through  arguments -  historical, ethical or pragmatic - which  refuse  to defer to the existing state constitutional order as a definitive and irreducible ‘power map’, and in so doing necessarily poses a challenge to the general claim of constitutional law to ultimate authority. 
	This type of  counterfactual metaconstitutionalism may also have an indirect impact upon existing state constitutional law. In the moulding of  primary constitutional discourse, political prudence may demand or dialogic openness may encourage the taking into account of secessionist or quasi-secessionist discourse, and often with consequences which escape the intention s of those who make the accommodation. The fluid  narrative of constitutional reform in  the multinational  state of the UK is an apt current example. British constitution-builders should  bear in mind that institutions to which they have recently applied  the  official constitutional imprimatur, such as devolved assemblies and local referenda, may have a meaning and a role within alternative metaconstitutional discourses. So, for instance,  the new Scottish Parliament is on one view the cement of the Union, on another a stepping-stone  to independence. The referendum which preceded it is on one view  a healthy exercise in local democracy within an increasingly federalist constitutional pattern,  on another  a prefigurative assertion of the popular sovereignty of the Scottish people. And if, as, for example,  has often been the case in processes of decolonization, the structural transformation from old to new polity develops critical momentum, metaconstitutional discourse may become more than the catalyst  for constitutional shadow-boxing. It may become the form of communication between rival plausible claims to constitutional authority.  
	In some  cases, the interlocking of constitutional order and metaconstitutional possibility can be even closer. Exceptionally, metaconstitutional reflection upon  the challenge to the integrity of  a state may be provided for, or at least made possible, within  the constitutional procedures of the state itself . So, for example, the reference procedure of the Canadian Supreme Court has recently allowed it to think what for a constitutional court is normally  unthinkable - namely whether the unilateral secession of Quebec, and  the consequent  fragmentation of the Canadian state, is legally competent. Moreover, the court felt equipped to address this question both as a matter of domestic constitutional law, the logic of which predictably quickly disposed of the unthinkable in accordance with the unambiguous direction of the constitutional text, but also as a matter of international law, where the answer, although not  structurally pre-ordained, turned out, for that national court at least,  to be the same. Nevertheless, this kind of state-centred metaconstitutional  reflexivity is not doomed merely to reinforce the status quo ante, as demonstrated  by the court’s strongly argued opinion that, while there was no right to secede, the federal and other provincial governments were under a  legal duty to engage with Quebec in bona fide negotiations over the terms  of its possible secession.
	A second type of metaconstitutional discourse seeks to  shape and instruct  the traditional intra-state constitutional law sphere of the basic rights and duties of the individual vis-à-vis the state. The paradigm case here is ‘international’ human rights law. Mainly  through  Treaty law promulgated at both regional and local level, but backed by peremptory norms of international law (ius cogens) and the more general framework of  international customary law, this area of law expanded exponentially in the wake of the  Second World War. It is a movement which has challenged the premise of untrammelled state sovereignty which prevented the traditional framework of international law  from addressing  individuals as well as states themselves as the subjects, rather than the mere objects,  of  its legal rules. As well as the development of a substantive state-transcendent human rights jurisprudence, this form of metaconstitutionalism has been increasingly underscored by a constellation of non-state courts and tribunals within which such rights may  be vindicated. The brightest star in this constellation is undoubtedly the European Court of Human Rights, but it is  joined by an array of permanent and ad hoc tribunals at regional and global level, with the new International Criminal Court  a key development at the global level. 
	A third type of metaconstitutional discourse   shapes relations between states in ways which supplement and modify the internal constitutional structure  of those states. The current metaconstitutional conversation between Britain and Ireland provides a good example. Under the 1998 Belfast Agreement,  constitutional amendments were required in both jurisdictions  to recognise more fully the principle of popular consent in  shaping the future status of Northern Ireland.  More pertinent to the development of sites of metaconstitutional authority, the Agreement also provides for a new permanent institutional complex embracing both East-West structures (British-Irish Council and  British-Irish Intergovernmental  Conference) and a North-South Ministerial Council as a means to endorse and to stabilise an element of power-sharing between the two states.
	This  type of arrangement shades into a fourth type of metaconstitutional authority, which in addressing relations between states develops  an institutional structure with  sufficient depth and scope of authority to constitute a non-state polity. Of course, the extent to which an institutional structure constitutes a separate polity is a matter of degree. Clearly the Good Friday structures, for now at least, fall short, but the GATT/WTO structure and the North American Free Trade Association, to take but two  examples, are less clear-cut cases, as also are some of the  regional international organisations. At the other end of the spectrum  is the supranational legal framework of the EU. Originally conceived of as a means to regulate certain fundamental economic relations between states and designed  with the orthodox tools international law, the EU  gradually developed its own claim to sovereign authority within a limited sphere. Indeed, as the EU has attracted  a complexity of institutional structure and a range of legal competences which begins to rival those of the state, then it has come to represent a particularly developed form of metaconstitutional law; such an organisation becomes, so to speak, a meta-state.
	Fifthly, and at the highest level of abstraction from paradigmatic intra-state constitutional law, metaconstitutionalism embraces  a further set of relations between polities - both  states and  non-state polities ( including meta-states) - in the more complex multi-dimensional configuration of authority which characterises  the post-Westphalian order.  At this ‘meta-meta’  level  we are concerned, in the first place,  with the relations between EU and its member states, in particular with the  judicial conversation  between constitutional courts and the political conversations in successive  IGCs and in the EU institutions through which these relations are negotiated. Then, at  an even higher level of abstraction, the issues of flexibility and fragmentation which provided our initial focus come finally into view.  Here we are concerned with relations between different non-state polities; that is,  between the EU meta-state and the other emergent  polities of our fragmented order, whether conceived  within the EU (e.g. Schengen, Euroland) or beyond (e.g Council of Europe, GATT/WTO). And, finally, to relocate  these relations in their proper three-dimensional context, we are also concerned with the multi-tiered relations amongst the sites of authority located both at these different meta-tiers and also at the state tier. 

4. The value of metaconstitutionalism
	We are now in a better position to explore the value of cosmopolitan metaconstitutionalism as a framework for thinking about the various forms of  non-domestic public law, and, in particular, the flexible arrangements associated with the EU. 
	Thus far, the case for treating metaconstitutional legal  discourse as a meaningful unity has been implicit and  limited  A stipulative definition has provided a broad umbrella. This has been linked to a multi-factorial historical movement away from  the constitutional state as the exclusive  or primary unit of political authority.  Yet this is a negative form of cohesiveness. It merely asserts that metaconstitutional rules are those rules other than constitutional rules that operate in the area of the primary legal constitution of public authority once, but no longer,  exclusively or predominantly occupied by constitutional rules.  And , arguably, the  sense that the coherence of metaconstitutionalism is a negative coherence is reinforced when  the sheer range of categories of rules  which we have attempted to fit into the metaconstitutional category is considered. What is more, most of the types of legal rules and processes referred to under the aegis of metaconstitutionalism are already  recognised under other familiar categories. Thus, some of what we have discussed can, in terms of an only modestly revisionist institutional analysis,  be fitted into the familiar paradigm of  international law, or, in the case of the non-state polities, the newer but now well-established paradigm of supranational law.  Alternatively, much of the range of law discussed can be broken down into equally recognisable functional categories - human rights law,  currency law, the law of free movement, trade law etc.
	Yet none of this argues against the development of a new framework of analysis. Granted,  much of the legal discourse discussed can be described under well-established taxonomies, although arguably even this is not true of the ‘meta-meta’ level of legal communication between polities with overlapping and contested jurisdictions within a multi-dimensional order. Yet none of these categorisations and the discourses which they frame exhaust the significance of the legal phenomena that they describe, as the very fact that  they are amenable both to an institutional and to a functional analysis would suggest. In particular, the institutional categorisation - constitutional, international, supranational - is fundamentally positivist in character, suggesting that the salient distinguishing features of legal rules or sets of legal rules are these  discrete sources and  jurisdiction.  Arguably, however, such a conception is most appropriate to a world in which sources and jurisdiction in general, and these ones in particular, are clearly delineated and stable over time, as in the established Westphalian order, and that where precisely this is brought into question the  need for some additional conceptual tools becomes urgent.
	This point is underscored if we acknowledge that  our  conceptual inheritance bears at least some responsibility  for the rather inflexible  tramlines within which contemporary debate about the adaptability  of  constitutional values to the non-state sphere takes place. Many commentators who have viewed, often with considerable perspicacity, the drift away from the constitutional state as the centre of legal authority seem to have lacked the language to advance the debate, whether in explanatory or normative terms, in a way which captures what is happening and what might happen  other  than by reference to what has ceased to happen.  In one variant, for example,  the liberal internationalist  tradition of Kant and Bentham - the loss of constitutional discourse from the state can only be redeemed by its relocation writ large at the level of the constitution of world society in the form of hegemonic international institutions. The flipside of this constitutional idealism  is, of course, the pessimism associated with  the assessment of this project as unfeasibly utopian or as undesirably imperialist.  In turn, this negative assessment of the prospects for global governance   may be linked to one of two attitudes: to an ostrich-like refusal  to view the ebbing of state constitutionalism as anything other than a temporary blip on a horizon still dominated by the Westphalian order; or to a profound fatalism, which acknowledges   both the depth of the challenge to the state and the vulnerability of a constitutionalism adrift from its state anchor, and so fears the prospect of ‘the end of constitutionalism’ in any shape or guise.  
	  More pertinently for present purposes, a similar rigidity of view tends to affect those who focus  instead on the  intermediate, non-state polities which have emerged, such as the EU. Notwithstanding  the early and sustained ‘constitutionalizing’ efforts of the Court of Justice, for a long time many commentators continued to regard the language of constitutionalism as untranslatable into the terms of the European polity. Instead the European polity was seen as sui generis, its supranational legal order equally  unique. Increasingly, however, attempts have been mounted  to view the European polity  through the prism  of constitutionalism, but again this tends to take the form of a direct translation from the paradigm of the state. In its more rigorous versions, this tends to involve an institutionally specific comparative evaluation. So the ECJ is analysed as  a constitutional court; the member state-EU tiering as a ‘federal’ or ‘confederal’ division; the Council, Commission and Parliament as the functional equivalent of the  traditional organs of the state-centred constitutional democracy.  In its less rigorous versions, it is simply assumed that the language of constitutionalism, notwithstanding its statist origins, can without distortion or loss of relevance be translated to the supranational  polity  and to its  quite different institutional carapace and context of legitimisation.  Similarly, and from an even more state-removed  starting-point, there has been a marked tendency to analyse the trends towards flexibility and multi-dimensionality in terms of an outmoded  constitutionalism.  In turn, these various assumptions and preconceptions  surrounding the EU constitutionalism debate  creates parallel poles to those which frame the world governance debate. There is a tendency to treat  the language of constitutionalism  dichotomously - either it translates fully to the higher level or not at all. Of course, many commentators recognise in principle that the answer is more subtle, more nuanced than this, but they are still often trapped within a register  of debate which forces them at best to see the legal authority framework of the EU as more-or-less  like the constitutional authority framework of the state.
	The  language of metaconstitutionalism may help to overcome these rigidities and limitations. It does not merely gesture towards  the uncharted seas beyond the constitutional state. It also offers a set of co-ordinates to plot the navigation of those seas, and in so doing offers new  conceptual, explanatory and  normative insights. Conceptually, the language of metaconstitutionalism presents  a way to acknowledge a number of  important truths simultaneously, and in balance. First, unlike some forms of  liberal internationalism - and more emphatically than the  new ‘postnational constitutionalism’, it acknowledges the lasting importance of the constitutional state, as the entity to which  metaconstitutional discourse is ultimately directed and from which it is ultimately derived. Secondly, unlike state revivalism and myopic state constitutionalism, it acknowledges the depth, scale and durability of the challenge to the authority of  the constitutional state, as evident in the claims of normative superiority implicit in the metaconstitutional  discourse emanating from the growing range of metaconstitutional sites. Thirdly it acknowledges both the  continuities and the discontinuities  between the public law discourses of  the state sphere and the non-state sphere. On the one hand, it offers a clear statement that there is an internal  relationship between the two discourses; that metaconstitutionalism seeks to address at one or more removes the problems of public authority originating within and still much centred around  state constitutionalism. On the other hand, its eschewal of the language of constitutionalism simpliciter announces  its insistence  that the state-constitution coupling is necessary and exclusive rather than empirical and contingent, and that the discourse of the non-state  public law sphere is ultimately of a different  order from the discourse of the state  public law sphere. Let us now begin to address how  these conceptual credits  might be cashed in explanatory and  normative currency.
	 In explanatory terms, our classification of the various forms of metaconstitutionalism  illustrates that, historically,  non-state public law emerges from state public law. There is a  self-generating dynamic at work between constitutional and metaconstitutional sites, and between metaconstitutional sites at different levels, with the more rarefied categories of metaconstitutionalism, including the development of meta-states and juridical relations between polities  within a multi-dimensional configuration,  predicated upon the less rarefied categories, including structural relations between states, direct relations between international organisations and state citizens, transformative metaconstitutional rhetoric within states, and, of course, state constitutionalism itself.
	This structural progression from constitutional to metaconstitutional sites provides the enabling context for a  similarly patterned discursive continuity.  State constitutionalism, and, indeed, its external complement, the traditional Westphalian framework of international jurisprudence,  provide a substantial reservoir of ideas and techniques  to draw upon in the discursive elaboration of metaconstitutional sites, and, similarly, the more abstracted metaconstitutional sites may draw from the less abstracted. Moreover, the flow is not merely one way, and not just because of the normative authority claims of metaconstitutional sites. Since, despite their different starting points, constitutional and metaconstitutional sites co-exist at the same historical juncture, there is ample scope  for constitutional sites to learn new tricks from metaconstitutional sites, or to rediscover old ones.
	A more detailed analysis of the sources and dynamics of the discursive relationship between constitutional and metaconstitutional sites shows  that it is structured by their respective authority claims but not limited thereto. As we have noted, metaconstitutional authority sites are distinguished by their  claims to ultimate  authority, and thus also, where that authority claim  overlaps  with the claim of a constitutional site or a lower metaconstitutional site,  to a normative superiority  over those other sites. Yet in the  post-Westphaliam world of public law pluralism, where the sovereign claim of the metaconstitutional authority is challenged by the authority claim made at the other site, then if the bridging mechanisms between sites developed to prevent or resolve conflict are insufficient or are themselves challenged, there is no independent mechanism to ensure that the claim of the higher metaconstitutional authority will ultimately  prevail.  In turn, this encourages an associated  type of relation between sites which is not determined by authoritative norms but in which  the authoritative resources of each site are used as strategic counters by  the representatives of these sites as they  bargain and compete in  pursuit of their different interests.  
	The absence of a final trans-systemic authority and a definitive framework for dispute-resolution also stimulates   the pursuit  of a type of relation between legal orders quite different from the hierarchical and authoritative or strategic.  Space opens up for a more heterarchical and dialogic approach, and this is positively  reinforced by the close functional interdependence of different constitutional and metaconstitutional sites and the significant overlap of their key officials. Lacking the comprehensive internal jurisdiction of the Westphalian states, the various levels of constitutional and metaconstitutional order within the post-Westphalian system have  governance projects which are  seamlessly connected, their institutions intermeshed and  their norms interlocked; so much so that, the most myopic visions apart, the  overall conception of political community imagined from these various sites tends to be multi-dimensional. So for example, the meta-state  (European) dimension remains  highly relevant to the normative vision and strategy developed by many of the most  nationalist Eurosceptic actors within the intra-state meta-constitutional debate about the future, or futures, of the various member state polities. Equally, the state dimension remains relevant even to most committed Eurofederalists in the debate over the future of the EU.  The overlap of key officials or official interest representation between  state, state oppositional, inter-state, meta-state and ‘meta-meta’ polity sites underlines the scope for reciprocity of perspective,  mutual accommodation and reflexive learning between these various sites and their legal orders.
	If we now reintroduce the two key normative features of legal discourse -technical capacity and authority - which are challenged by non-state public law in general and the rarefied atmosphere of flexibility and differentiated integration in particular,  we can see how a metaconstitutional frame highlights both the difficulties involved  and the opportunities presented.  The basic pattern of  structural and discursive continuity and progression  acknowledges the chronological primacy of constitutions and constitutionalism  over metaconstitutions and metaconstitutionalism, yet  that does not gainsay  the  normative  primacy of metaconstitutionalism in its own terms. Metaconstitutionalism may draw from the pre-existing tool-kit of constitutionalism and international law, but it must adapt these tools and techniques  to its own site-specific purposes and to its reciprocal efforts to exercise normative influence over constitutional sites, while at the same time discovering and asserting  the legitimate grounds for its own authority.  
	As regards technical capacity, we should   note that in the constitution of  public authority, whether at state or metaconstitutional  level, we are invariably confronted with three types of rules; with the  regulatory triptych of  polity generation (constitution-building), substance (content of prescriptive constitutional norms) and structure (institutional architecture). In each of these areas,  the intersection of the  different dynamics associated with relations  between sites - hierarchical and authoritative or strategic  on the one hand and heterarchical and dialogic on the other - affects how effectively technical capacity translates to the demands of a particular site. Yet the relationship between dynamic and outcome is complex. Dialogic relations between sites do not necessarily, or even generally, lead to indisputably positive outcomes in terms of  overall quality of governance, just as authoritative or strategic relations do not necessarily, or even generally, lead to indisputably negative outcomes. 
	At the level of polity generation, for example, where because of the fundamental identity-constituting nature of the rules there tends to be  no  determinative authoritative relationship between sites, relations may instead be strategically competitive or dialogic.  But the strategic relation, where attempts are made to bolster the relative legitimacy and authority of a particular site  over another , is as likely to lead to emulation of or improvement upon generation rules, say through the call for referenda or use of constitutional conventions as a form of ‘democratic baptism’ of a new polity,  as is the dialogic relation. And it is equally true that in both cases - strategic and dialogic - the concern with the relative merits or example of the other can lead to a narrow set of aspirations and limit the scope for absolute improvement. At the level of substantive rules,  whether the relationship between sites is authoritative, strategic or dialogic, similar difficulties and dilemmas apply and advantages present themselves. To take the example of human rights discourse, the transcendence of cultural particulars and the  universalization of standards may be promoted through  an authoritative relationship between sites, or through strategic bargaining or competition between sites,  or even, if less likely,  through an open dialogue. On the other hand, the price of an authoritative relationship, typically perceived as the best prospect for uniiversalism, might be the retention of  national margins of appreciation, textual qualifications, derogations and reservations, as in the European Convention of Human Rights, all of which features qualify universalism.  In any event, complicating the relationship between form of transaction and outcome still further, compromise and respect for cultural difference should not necessarily be seen as inferior to inflexible normative universals. Finally, at the level of structural rules also, none of the three types of relations -authoritative, strategic or dialogic - is obviously superior to the others. As noted earlier, metaconstitutional sites and constitutional sites in the post-Westphalian world tend to be incomplete sections of wider governance projects, and so their institutional designs should ideally complement one another in terms of desiderata such as democratic accountability and functional compatability. Yet each inter-site dynamic has its strengths and weaknesses. An authoritative relation has the advantage of  a distinct author, but the weakness of partial and perhaps partisan vision. A dialogic relation has the strength of a more inclusive  vision, but the disadvantage of weak steering capacity. A strategic relation has  the potential disadvantage of the defensive protection of vested interests and institutional reputations, and the potential advantage of  mutually and generally beneficial institutional specialisation.  
	What these arguments suggest is that in a  multi-dimensional configuration of European and global legal authority, there is no one  template of relations between metaconstitutional and constitutional sites which is or ought to be followed in all cases. Metaconstitutional technique may draw extensively upon the resources of constitutional sites, which in turn will be reflexively influenced  by metaconstitutional sites, but there is no one best way of metaconstitutional sites making  use of their technical legal resources. When we turn, however, to the issue of authority and legitimacy - and recall that technical capacity and legitimacy are closely interwoven, the circumstances in which new metaconstitutional sites are required to authorise themselves, in particular those sites which are emerging within the new flexible, multi-dimensional architecture, offer some hope for the renewal of legal authority.
	The paradigm form of the state constitution tends to be traditionally legitimated, difficult to amend or overhaul except through solemn and often formidable procedures, and protected by  a monistic conception of authority which assumes the exclusive jurisdiction of the state within a particular territorial space.  That is to say, the context in which state constitutions tend to be legitimated and sustained is highly self-referential. They pull themselves up by their own positivist bootstraps, drawing upon resilient  sources of symbolic capital and institutional strength. The Westphalian world order may be in transition, but its most significant institutional legacy, the state constitution, remains securely  embedded. Dworkin may lovingly reconstruct the American constitution as a liberal utopia, or Ackerman narrate its history and sketch  its potential in civic republican terms,  but  constitutional  practice has its own dynamic and little concern for such deep normative reflexivity.
	Metaconstitutional sites have none of these ‘advantages’. They lack tradition, well -defined  and well-respected rules of amendment, and live in the shadow of  a pluralist conception of authority which shares and  challenges their jurisdiction in every functional and territorial corner. Metaconstitutional sites  may be necessary institutional incidents of the post-Westphalian order, but they lack the ideological niche carved out by their more venerable state counterparts. Their legitimacy is much more precarious, and this is a double-edged sword. On the one hand, it may encourage the preservation of the practice of vicarious legitimisation of these nascent political forms through  national institutions, an option which in any case is favoured by proponents of Europe a la carte and other shallow intergovernmentalist versions of flexibility. And insofar as this approach is contested and the pressure towards a deeper flexibility is too  strong and multi-faceted to resist, the challenge of legitimacy may be avoided through  a more coercive and  oppressive mobilisation of power. On the other hand, these problems may also encourage  fuller and more open processes of  legitimisation in the fields of polity generation, substance  and structure, drawing upon the tool-kit of state-constitutionalism, and perhaps more than the largely self-referential  state constitutions themselves, on the rich discourse of political community associated with constitutionalism. The more precarious the legitimacy of a particular metaconstitutional site or context, the greater the danger of failure, but, equally,  the greater the opportunity for innovation. And, to return to the technical domain,  a more broadly legitimated  internal metaconstitutional structure, if delivered,  provides a more favourable context for relations with other constitutional sites and lower metaconstitutional sites, regardless of whether the dynamic is authoritative, strategic or dialogic. A more legitimate metaconstitutional order is likely to exert more effective authority, to exhibit more broadly-conceived strategic interests and engage in more challenging strategic competition or bargaining, and display a greater propensity to open intersystemic dialogue than  would  otherwise be the case.
	That is why, in conclusion,  the putative forms of flexibility growing within, emerging from or circulating around the body of the EU provide such an intriguing challenge to our frameworks of legal and political authority. If, as the resurgence of Euroscepticism after Maastricht indicated, the metaconstitutional order of the original  meta-state of the EU, about to embark  on its  fifth decade,  was beginning to show some of the self-referential complacency - the narrow legitimacy - of the Westphalian order of states from which it sprang, the new forms of flexibility promise a loud and intriguing wake-up call. They remind us that innovation in  political form and the reimagining and reconfiguration of  legal authority  is the norm rather than the exception in the more fluid post-Westphalian order. They demonstrate to us that the metaconstitutional logic of such innovation means that  existing legal sites should, ideally,  be the subject of constant challenge and constructive critique from new sites of putative legal authority. They suggest to us that, as ever, the crisis of legal authority can only be addressed through a process of internal renewal , but one which, in a post-Westphalian order, is achieved across and between institutional sites rather than within one. 

BIBLIOGRAPHY

B. Ackerman, (1991)  We the People: Foundations, (Cambridge Mass., Harvard).

L.Alexander, (1998) “Introduction” in L. Alexander (ed)  Constitutionalism: philosophical foundations (Cambridge, CUP) pp.1-15. 

M. Anderson, M. den Boer, P. Cullen, W. Gilmore, C. Raab and N. Walker, (1995) Policing the European Union (Oxford, Clarendon).  

D. Archibugi, D. Held and M. Kohler (eds) (1998) , Reimagining Political Community: studies in cosmopolitan democracy, (Cambridge, Polity).

P. Beaumont, (1997) “The European Community Cannot Accede to the European Convention on Human Rights”, 1 Edinburgh Law Review, pp.235-249.

P. Beaumont and N.Walker, (1999) “The Euro and European Legal Order,” in P.Beaumont and N.Walker (eds), Legal Framework of the Single European Currency, (Oxford, Hart) pp.169-194.

R. Bellamy and D. Castiglione, (1997)  “Building the Union: The nature of Sovereignty in the Political Architecture of Europe”,  16 Law and Philosophy,  pp.421-445.

M. Benjamin, (1990) Splitting the Difference: Compromise and Integrity in Ethics and Politics, (Lawrence, University of Kansas Press).

G. de Burca, (1996)  “The Quest for Legitimacy in the European Union”, (1996) 59 Modern Law Review.

R. Cotterrell, (1997)“Some Aspects of the Communication of Constitutional Authority”, in  D.Nelken (ed) Law as Communication, (Aldershot, Dartmouth).

D.M. Curtin, (1997) Postnational Democracy, (Universiteit Utrecht).

S. Davidson, (1993) Human Rights (Buckingham, Open University Press).

B. Dickson (ed), (1997) Human Rights and the European Convention, (London, Sweet & Maxwell).

R. Dworkin, (1986) Law’s Empire, (London, Fontana).

C.D. Ehlermann, (1998) “Differentiation, Flexibility, Closer Co-operation: The New Provisions of the Amsterdam Treaty”, 4 European Law Journal, pp.246-270.

M. Everson, (1998)  “Beyond the Bundesverfassungsgericht: On the Necessary Cunning of Constitutional Reasoning”, (1998) 4 European Law Journal, pp.389-410; 

S.Falk Moore, (1978) Law as Process: an anthropological approach (London, Routledge & Kegan Paul).

L.Ferrajoli, (1996) “Beyond Sovereignty and Citizenship: a global constitutionalism” in R. Bellamy (ed) Constitutionalism, Democracy and Sovereignty: American and European Perspectives, (Aldershot, Avebury) pp.151-160.

M.Foley, (1989) The Silence of Constitutions: Gaps, ‘abeyances’ and political temperament in the maintenance of government, (London, Routledge).

H. Fox, (1999) “The Pinochet Case No.3”,  48 International and Comparative Law Quarterly, pp.687-702.

G.Gaja, (1998) “How Flexible is Flexibility under the Amsterdam Treaty?”,  35 Common Market Law Review, pp.855-870.

B. Hadfield, (1998) “The Belfast Agreement, Sovereignty and the State of the Union”,  Public Law, pp.599-616.

D.Held, (1995) Democracy and the Global Order; from the modern state to cosmopolitan governance, (Cambridge, Polity).

D.Held, A. McGrew, D. Goldblatt and J. Perraton, (1999) Global Transformations, (Cambridge, Polity).

C.M.G. Himsworth,  (1996) “In a State no Longer: The End of Constitutionalism?” Public Law, pp.639-660.

C.M.G.Himsworth and C.R. Munro, (1999) The Scotland Act 1998, (Greens, Edinburgh).

J. Hutchinson, (1994) Modern Nationalism, (London, Fantana).

R.S. Kay,  (1981) “Preconstitutional Rules”,  42 Ohio State Law Journal, pp.187-205.

R.S. Kay,  (1989)“Substance and Structure as Constitutional Protections: Centennial Comparisons”, Public Law, pp.428-439.

M..Keating, (1999) “Asymmetrical Government. Multinational States in an integrating Europe”, Publius (Forthcoming)

H. Kelsen, (1992) Introduction to the Problems of Legal Theory, (Oxford, Clarendon,  tr. B. and S. Paulson) 

H. Kelsen, (1967) The Pure Theory of Law, (Berkely and Los Angelos, University of California Press).

H.Koltenberg, (1998) “Closer cooperation in the Treaty of Amsterdam”, 35 Common Market Law Review, pp. 833-854.

B. Laffan, (1992) Integration and Co-operation in Europe, (London, Routledge).

 H.Lindahl, (1998) “The Purposiveness of Law: Two Concepts of Representation in the European Union”, 17 Law and Philosophy, pp.481-507.

N. Luhmann (1993), Das Recht der Gesellschaft (Frankfurt, Suhrkamp).

N.  MacCormick, (1997) “Democracy, Subsidiarity and Citizenship in the ‘European Commonwealth’”, 16 Law and Philosophy, pp.331-356.

N. MacCormick, (1999)  Questioning Sovereignty, (Oxford, OUP).

G.Marks, L.Hooghe and K. Blank,  (1996) “European Integration since the 1980s: State-Centric Versus Multi-Level Governance”,  34 Journal of Common Market Studies, pp.341-378.

G. Marshall, (1971) Constitutional Theory, (Oxford, Clarendon).

A. S. Milward, (1992) The European Rescue of the Nation-State, (London, Routledge).

D. Nelken, (1982)  “Is There a Crisis in Law and Legal Ideology?  9 Journal of Law and Society, pp.177-190.

D. O’Donnell,  (1999) “Constitutional Background to and Aspects of the Good Friday Agreement - A Republic of Ireland Perspective, 50 Northern Ireland Legal Quarterly, pp.76-89.

B. O’Leary, (1998)The British-Irish Agreement: Power-Sharing Plus, (London, Constitution Unit,).

C. Richmond, (1997)  “Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law”, 16 Law and Philosophy, pp.377-420,

O. Schachter, (1991) International Law in Theory and Practice, ( Dordrecht, M. Nijhoff).

J. Shaw, (1999) “Postnational Constitutionalism in the European Union”,  6 Journal of European Public Policy, pp.579-597.

H.J. Steiner and P. Alston, (1996) International Human Rights in Context; Law, Politics, Morals, (Oxford, OUP).

A. Stone Sweet, (1998) “Constitutional Dialogues in the European Community”. in A-M. Slaughter, A Stone Sweet and J.H.H. Weiler (eds), The European Court and National Courts - Doctrine and Jurisprudence: Legal Change in its Social Context, (Oxford, Hart) pp.303-330.

G. Teubner, (1997) “‘Global Bukowina’: Legal Pluralism in the World Society” in G. Teubner (ed) Global Law Without a State, (Aldershot, Dartmouth)  pp.3-30.

A.G. Toth, (1998) “The Legal Effects of the Protocols Relating to the United Kingdom, Ireland and Denmark”, in T. Heukels, N. Blokker and M. Brus (eds) The European Union after Amsterdam: A Legal Analysis, (The Hague, Kluwer) pp.227-252.

 J. Tully, (1995)   Strange Multiplicity: Constitutionalism in an Age of Diversity, (Cambridge, CUP).

J. Tully (1999)   “Identity Politics and Freedom: The Challenge of Reimagining Belonging in Multicultural and Multinational Communities”, paper to Conference on Reimagining Belonging, Aaalborg, May. 

P. Tuytschaever, (1999) Differentiation in European Union Law, (Oxford, Hart).

 N. Walker, (1998)  “Constitutional Reform in a Cold Climate: Reflections on the White Paper and Referendum on Scotland’s Parliament”, in A. Tomkins (ed) Devolution and the British Constitution, (London, Key Haven) pp.61-88.

N. Walker, (1996) “European Constitutionalism and European Integration”,  Public Law pp.266-290.

N.Walker, (1998) “Justice and Home Affairs”, 47 International and Comparative Law Quarterly, pp.236-245.

N.Walker, (1998) “Sovereignty and Differentiated Integration in the European Union”,  4 European Law Journal, pp.355-388.

M.D.  Walters, (1999) Nationalism and the Pathologies of Legal Systems: Considering the Quebec  Secession Reference and its Lessons for the United Kingdom”,  62 Modern Law Review pp.370-395. 

A. Weale, (1995)  “Democratic Legitimacy and the Constitution of Europe”, in R. Bellamy, V. Bufacchi and D. Castiglione (eds), Democracy and Constitutional Culture in the Union of Europe (London, Lothian Foundation) pp.103-120.

J.H.H. Weiler, (1999) The Constitution of Europe, (Cambridge, CUP).

B. de Witte, (1999)“Direct Effect, Supremacy and the Nature of the Legal Order”, in P. Craig and G. de Burca (eds), The Evolution of EU Law, (Oxford, OUP), pp.177-213.