Jean Monnet Center at NYU School of Law


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.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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