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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.51 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.52 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;53 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'54
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,55 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.56 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.57
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',58 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,59 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,60 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,61 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. 62
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.63 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).64 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'65 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,66 or through strategic bargaining
or competition between sites,67 or even,
if less likely, through an open dialogue.68 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, compromise69 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,70
and the potential advantage of mutually and generally beneficial institutional
specialisation.71
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,72 or Ackerman narrate
its history and sketch its potential in civic republican terms,73 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.74 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.
51 Cf, L.Ferrajoli, "Beyond Sovereignty and Citizenship: a global constitutionalism" in R. Bellamy (ed) Constitutionalism, Democracy and Sovereignty: American and European Perspectives, (Aldershot, Avebury, 1996) pp.151-160.
52 Niklas Luhmann, for example, comments that `the structural coupling between law and politics via constitutions has no correspondence on the level of world society' Das Recht der Gesellschaft (Frankfurt, Suhrkamp, 1993)); quoted in G. Teubner, supra note 31, p.6.
53 Cf , J. Hutchinson, Modern Nationalism, (London, Fantana, 1994); A. S. Milward, The European Rescue of the Nation-State, (London, Routledge, 1992).
54 For a thoughtful exploration of this and other positions, see C.M.G. Himsworth, "In a State no Longer: The End of Constitutionalism?" [1996] Public Law, pp.639-660.
55 b Cf, J.H.H. Weiler, The Constitution of Europe, (Cambridge, CUP, 1999) ch.2.
56 Cf, A.G. Toth, "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, 1998) pp.227-252). Arguably, the idea of constitutionalism is doubly distorted and doubly diluted in this type of analysis; the incipient `meta-meta' constitutional sites of flexibility being evaluated in accordance with the values associated with the metaconstitutional site of the uniform EU, but still using the language of plain constitutionalism
57 This is arguably true even of much of the best work in the field, including work based on explicitly pluralist assumptions about European legal authority; see, for example, the `mixed commonwealth' thesis introduced by Neil MacCormick in "Democracy, Subsidiarity and Citizenship in the `European Commonwealth'", (1997) 16 Law and Philosophy, pp.331-356 ( a revised version of which may be found in N. MacCormick, Questioning Sovereignty, (Oxford, OUP, 1999) ch.9) and subsequently endorsed and developed by Richard Bellamy and Dario Castiglione in "Building the Union: The nature of Sovereignty in the Political Architecture of Europe", (1997) 16 Law and Philosophy, pp.421-445. Although the institutional versatility of the mixed commonwealth matches its polyarchic power structure, in my view the use of an undifferentiated language of constitutionalism to refer to every level and centre of power militates against an examination of the often difficult relational dynamics between different authority sites ( see text below) and, in the final analysis, encourages the retention of an inappropriately (and perhaps complacently) holistic vision of the overall `constitutional order'.
58 Cf, D.M. Curtin, Postnational Democracy, (Universiteit Utrecht, 1997); J. Shaw, "Postnational Constitutionalism in the European Union", (1999) 6 Journal of European Public Policy, pp.579-597; J. Shaw, present volume. This work is in fact amongst the most sensitive to the reflexive reworking of national constitutionalism in the age of non-state public law,. Yet the `postnational' label ( as with similar terms such as `post-sovereign') is somewhat confusing and misleading, suggesting that state constitutionalism has been eclipsed or transcended rather than, as is the case, continuing to provide one pole of an ongoing relationship between different types of institutional site.
59 A point which Bruno de Witte helpfully reminded me of.
60 Putting to one side the more typical case, considered in the text below, where one site is instrumental in authorising or influencing another site, there may be circumstances in which one site is influenced or inspired by the example of another without there being any active engagement or transaction between sites. For example, it is arguable that the development of a formal procedure for referring `devolution issues' which arise in lower courts to higher domestic courts for preliminary resolution under Schedule 6 of the Scotland Act 1998, a technique not otherwise practised in UK domestic law, is influenced by the European Court of Justice's well-known preliminary reference procedure for important questions of EU law ; Art. 234 (ex Art. 177) TEU.
61 Thus the German Constitutional Court in the Brunner case, in challenging the final authority of the EU treaty framework as interpreted by the ECJ, also implicitly challenged the integrity of the preliminary reference procedure as a key bridging mechanism transmitting the authority of the treaties and the Court to domestic law. See references to note 49 supra.
62 To take another, but earlier example, from the German Constitutional Court, the development of its approach between the two Solange cases, from a commitment to intervene to protect fundamental national rights in a Community context to an arms-length approach which would normally defer to European jurisdiction, reveals the success of a competitive strategy to persuade the European Court of Justice to take national constitutional rights seriously: Internationale Handelsgesellschaft (Solange I) [1974] 2 CMLR 540; Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 265. See also references to note 49, supra.
63 Cf D. Archibugi, D. Held and M. Kohler (eds), Reimagining Political Community: studies in cosmopolitan democracy, (Cambridge, Polity, 1998).
64 Cf N. Walker, "European Constitutionalism and European Integration", [1996] Public Law pp.266-290; R.S. Kay, "Substance and Structure as Constitutional Protections: Centennial Comparisons", [1989) Public Law, pp.428-439.
65 A. Weale, "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, 1995) pp.103-120, 115.
66 For example, the combination, first, of the rule of national law of many of the signatories to the European Convention of Human Rights that the Convention, in accordance with a monist conception of international law, should be automatically received into national law , and, secondly, of general domestic acceptance of the compulsory jurisdiction of the European Court of Human Rights creates an authoritative relationship in favour of the Council of Europe site.
67 See the Solange cases, discussed at note 62 supra. Consider also the possible consequences of the strategic rivalry presently developing between two metaconstitutional sites, the Council of Europe and the EU, over the protection of rights, and the landmark decision of the ECJ in Opinion 2/94 Re the Accession of the Community to the European Human Rights Convention [1996] 2 CMLR 265; cf P. Beaumont, "The European Community Cannot Accede to the European Convention on Human Rights", (1997) 1 Edinburgh Law Review, pp.235-249.
68 Thus the African Charter on Human and Peoples' Rights entered into force in 1986, differs from the other regional human rights instrument in that it does not possess a court authorised to settle disputes between states and to rule on individual grievances. Instead, it relies more heavily on dialogic methods - reconciliation and consensus - as a way of settling disputes. However, at least at this early stage of its development, it is also commonly regarded as the least effective of the instruments in securing universal regional standards; cf , Steiner and Alston, supra note 40, pp.689-705; S. Davidson, Human Rights (Buckingham, Open University Press, 1993) ch.7.
69 On the virtues of compromise, see M. Benjamin, Splitting the Difference: Compromise and bIntegrity in Ethics and Politics, (Lawrence, University of Kansas Press, 1990).
70 For example, the so-called democratic deficit of the European Union is in some measure due to the reluctance of national institutions to allow their EU level counterparts the same democratic respectability. This may be spiced with a degree of bad faith, as it is often those nationalist least inclined to allow supranational institutions democratic respectability who are then most critical of its absence; cf Walker, note 64, esp. pp. 278-279.
71 For example, it is part of MacCormick's argument for a mixed commonwealth that some institutional sites are better suited to one form of governance (in particular, the European Commission and Council to oligarchy) and some to another (in particular, institutions of the nation state to democracy). Insofar as it is to the strategic advantage of both sites to sustain this division, then arguable this balance of mutual advantage sustains a reasonable equilibrium between the two forms of governance ; supra note 57 esp. p.342-347.
72 See, for example, R. Dworkin, Law's Empire, (London, Fontana, 1986).
73 See, for example, B. Ackerman, We the People: Foundations, (Cambridge Mass., Harvard, 1991).
74 Arguably, the history of Schengen, one of the key putative polities of the flexible era, has been of an entity which seeks to justify its growing authority by reference not to a matching transparency, accountability and popular mandate, but instead to the gravity and urgency of its internal security mission - a rhetoric which threatens not only do marginalise but even to reject as inappropriate the broader `constitutional' virtues; Cf M. Anderson, M. den Boer, P. Cullen, W. Gilmore, C. Raab and N. Walker, Policing the European Union (Oxford, Clarendon, 1995).
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