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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.' 24 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 .25 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,26 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.
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.27 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 Kelsen28 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 sense29 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.30
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,31 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.
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',32 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.33 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 pragmatic34 - which
refuse to defer to the existing state constitutional order as a definitive and
irreducible `power map',35 and in so doing
necessarily poses a challenge to the general claim of constitutional law
to ultimate authority. 36
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.37 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. 38
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.39
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.40 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,41 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,42 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.43
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.44 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.45 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)46 and a
North-South Ministerial Council47 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.48 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
courts49 and the political conversations in
successive IGCs50 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.
24 The Shorter Oxford English Dictionary.
25 Cf, R.S. Kay, "Preconstitutional Rules", (1981) 42 Ohio State Law Journal, pp.187-205; L.Alexander, "Introduction" in L. Alexander (ed) Constitutionalism: philosophical foundations (Cambridge, CUP, 1998) pp.1-15. See also note 36 infra.
26 On sovereignty as a means of representing a unity of political power within a polity, see H.Lindahl, "The Purposiveness of Law: Two Concepts of Representation in the European Union", (1998) 17 Law and Philosophy, pp.481-507
27 Cf, Walker, supra note 5, pp.356-360.
28 For the early view, see H. Kelsen, Introduction to the Problems of Legal Theory, (Oxford, Clarendon, 1992, tr. B. and S. Paulson) p.120. For a later recognition of the possibility an alternative state-centred monistic order, see H. Kelsen, The Pure Theory of Law, (Berkely and Los Angelos, University of California Press, 1967), pp.333-339. For a stimulating discussion, cf, C. Richmond, "Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law", (1997) 16 Law and Philosophy, pp.377-420, esp. p.410 et seq.
29 On voluntarism, or consensualism, as the dominant theory of international law, see O. Schachter, International Law in Theory and Practice, ( Dordrecht, M. Nijhoff, 1991) ch.5.
30 Thus under international law, the parties to a treaty may revoke or change it at any time, and may even disregard treaty provisions which establish a special procedure to be followed: see Vienna Convention on the Law of Treaties (1968)
31 G. Teubner, "`Global Bukowina': Legal Pluralism in the World Society" in G. Teubner (ed) Global Law Without a State, (Aldershot, Dartmouth, 1997) pp.3-30.
32 Cf, J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, (Cambridge, CUP, 1995); "Identity Politics and Freedom: The Challenge of Reimagining Belonging in Multicultural and Multinational Communities", paper to Conference on Reimagining Belonging, Aaalborg, May 1999.
33 Think, for example, of the way in which minority national movements may be protected by international human rights regimes, or , in the context of the EU, may be sustained and legitimated by the representational or resource-allocation possibilities of association with or membership of the supranational organisation. Cf M. Keating, supra, note 3.
34 See, for example, the rich mix of arguments used on behalf of the secessionist case in the Quebec Secession Reference; Reference by the Governor of Canada pursuant to s53 of the Supreme Court Act, concerning the secession of Quebec from Canada [1998] 2 SCR 217. Cf M.D.Walters, "Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom", (1999) 62 Modern Law Review pp.370-395.
35 I.D. Duchacek, Power Maps: comparative politics of constitutions (Santa Barbara and Oxford, Clio Press, 1973)
36 It should also be noted that insofar as these arguments are the sorts of jurisprudential arguments used to justify the constitutional identity of states (as opposed to constitutional discourse proper, which presupposes the constitutional identity of the state), although in this case it is an alternative vision of constitutional statehood that it is sought to justify, such arguments are of the same order as those found within domestic or state-centred metaconstitutionalism. In this first form of cosmopolitan metaconstitutionalism, therefore, there is a distinct overlap with state-centred metaconstitutionalism. See note 25 supra.
37 Cf Scotland Act 1998; See also C.M.G.Himsworth and C.R. Munro, The Scotland Act 1998, (Greens, Edinburgh, 1999); N. Walker, "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, 1998) pp.61-88.
38 As, for example, in the classic exchange between the Rhodesian High Court and the UK-based Judicial Committee of the Privy Council over the validity of Rhodesia's unilateral declaration of independence. The Rhodesian court held it to be valid, while the court of the original imperial power took the opposite view; Madzimbamuto v. Lardner-Burke [1968] 2 S.A. 284; [1969] A.C. 645; cf G. Marshall, Constitutional Theory, (Oxford, Clarendon, 1971) pp.64-72.
39 Quebec Secession Reference, supra note 34; see also Walters, supra note 34.
40 Cf , H.J. Steiner and P. Alston, International Human Rights in Context; Law, Politics, Morals, (Oxford, OUP, 1996).
41 This jurisprudence is increasingly influential in national courts even of those states, such as the UK, which retain a basically dualist approach to international law, and so for the most part remain reluctant to endorse international law as domestic law without domestic legislative instruction. A landmark decision in this regard is R. v. Bow Street Metropolitan Stipendiary Magistrate, ex Parte Pinochet Ugarte (Amnesty International intervening (No.3) (1999), in which the House of Lords, drawing upon both domestic law and customary international law, held that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the UK in respect of the international crime of torture; cf H. Fox, "The Pinochet Case No.3", (1999) 48 International and Comparative Law Quarterly, pp.687-702
42 Cf, B. Dickson (ed), Human Rights and the European Convention, (London, Sweet & Maxwell, 1997).
43 Rome Statute of the International Criminal Court, July 17, 1998, A/CONF. 183/9. 37 ILM 999.
44 Agreement reached in the Multi-Party Negotiations, Cm 3883, (London, HMSO, 1998); cf B. O'Leary, The British-Irish Agreement: Power-Sharing Plus, (London, Constitution Unit, 1998); B. Hadfield, "The Belfast Agreement, Sovereignty and the State of the Union", [1998] Public Law, pp.599-616; D. O'Donnell, "Constitutional Background to and Aspects of the Good Friday Agreement - A Republic of Ireland Perspective, (1999) 50 Northern Ireland Legal Quarterly, pp.76-89.
45 Constitutional Issues, Annexes A and B.
48 Cf, B. Laffan, Integration and Co-operation in Europe, (London, Routledge, 1992).
49 The most significant recent contribution to this conversation was that of the German Constitutional Court in Brunner v. The European Union Treaty [1994} 1 CMLR 57: Cf , M. Everson, "Beyond the Bundesverfassungsgericht: On the Necessary Cunning of Constitutional Reasoning", (1998) 4 European Law Journal, pp.389-410; A. Stone Sweet, "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, 1998) pp.303-330; B. de Witte, "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, 1999), pp.177-213.
50 On the IGC negotiations prior to the Treaty of Amsterdam, see G. de Burca, "The Quest for Legitimacy in the European Union", (1996) 59 Modern Law Review, 349.
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