The title of this varied collection of sixteen impressive essays prompts two questions. Which constitutionalism? The essays show what a wide range of conceptions shelter under the concept of ‘constitutionalism’. What kind of twilight? Does it presage total obliteration of the idea, a conceptual Götterdämmerung, or is it the harbinger of peaceful sleep before a new dawn?
The editors' premise (p. xi) is that constitutionalism is properly concerned with national, democratic self-determination, and is under strain from both national and supranational pressures. Martin Loughlin (chapter 3) suggests that constitutionalism originated within states as a republican ideal of political decision-making through representative processes and institutions, but that it was refashioned in the second half of the twentieth century in the form of legal restrictions on, rather than political shaping of, the exercise of public power. Across much of the world, a legalistic conception of constitutions has triumphed over political, republican models. In a similar descriptive vein, Mattias Kumm (p. 213) claims that the heart of constitutionalism is this: ‘Legitimate public authority is circumscribed and has to justify itself before a higher law. In order to be legitimate, an exercise of public authority has to be derived from and shown to be compatible with that higher law.’ He does retain, however, some link to political constitutionalism: he considers that the higher law is a ‘result of a deliberate collective choice of free and equal individuals’ (italics in original).
Another pressure on political constitutionalism at national level is identified by Tanja A. Börzel (chapter 4), looking at modes of governance rather than directly at constitutions, governments' increasing delegation to and partnership with other public or private institutions (governance with or without, rather than by, the state) make it hard to secure effective, parliamentary accountability or control; responsibilities lie concurrently at different levels or in private hands. If, as Sonja Puntscher Riekmann (chapter 6) thinks, representation of the people is at the heart of constitutionalism, weakening parliamentary influence also weakens constitutionalism. Governance with or without the state also threatens legal constitutionalism, as Dieter Grimm (chapter 1) concludes: if the boundary between public and private spheres becomes blurred, so does the scope of the constitution, and the result is as dangerous for the representation principle as for legal constitutionalism.
Developments in the supranational and international realms also put pressure on representative constitutionalism in states. As Niko Krisch notes (p. 245), as public power ‘has moved beyond national governments into a plurality of international and transnational sites, we are struggling to find the analytical and normative instruments to come to terms with the resulting new order’, or what Neil Walker has called a ‘global disorder of normative orders’ (‘Beyond boundary disputes and basic grids: mapping the global disorder of normative orders’ (2008) 6 International Journal of Constitutional Law 373–396). It is under further pressure from within. In these circumstances, according to Mattias Kumm (chapter 10), in EU constitutional law hierarchical rules— such as whether EU law or national law has constitutional supremacy—'have been replaced by a complex form of principled interface-management. Common principles of constitutionalism, and not an ultimate rule of national or European or UN constitutional supremacy, provide the ultimate norms for guiding European constitutional practices' (p. 218). Governance with or without the state and interface management are concerned at heart not with how or what decisions are made but with who makes them.
In this context, one might expect the representation principle to have a significant role in constitutionalism. Yet representation is a complex notion, particularly when applied to multi-level governance. In multi-national organisations like the UN, states are represented in the General Assembly but not, in most cases, in the far more powerful Security Council. Even members of the Council are not equal; only five members have a veto. Such an arrangement at national level would cause eyebrows to be raised. This was not a grave problem for international law until people started to ask questions about its legitimacy, but then it gave rise to existential angst and a critique based on its supposed fragmentation and a shortage of common, constitutional values in the operation of international institutions. (See for example Mario Prost, The Concept of Unity in Public International Law (Oxford: Hart Publishing, 2012), pp. 1–14.) It is not surprising that Loughlin argues that, at supra-national level, constitutionalism has become a normative doctrine of which equality and liberalism are more important than representation.
One response to this is, like Kumm, to seek to legitimise supranational and international arrangements by claiming that they reflect common constitutional principles. Kumm criticises national lawyers who ‘inappropriately delegitimise transnational legal and political practices by failing to acknowledge their constitutional status and the claims to legitimate authority that come with it’ (p. 206). But it is far from clear that the UN, for example, regards itself, or that most states regard it, as having to justify its practices by reference to Kumm's ‘higher law’. Alexander Somek (chapter 13) provocatively comments (p. 269), ‘The most ludicrous form of re-description is the application of constitutional vocabulary to international law.’
In short, trying to apply constitutional ideas beyond the state gives rise to difficulties. One of these is methodological. As Rainer Wahl (chapter 11) points out, to apply constitutional ideas to international organisations and networks, we have to treat them as being more or less like states, which ex hypothesi they are not. How can we decide which of the values developed in the context of states could or should be applied to supranational bodies? A further difficulty relates to the nature of the representation. In the EU and the Council of Europe, for example, member states are amply represented at the stage of treaty-making and policy-development, but, when technical specialists in the EU Council, the Court of Justice or the European Court of Human Rights interpret and implement the treaties and other forms of law, member states are sidelined. Legal technocrats can shape the institutions in line with the values which they consider to be important, particularly fundamental rights and freedoms, and member states are unable to do much about it without making a new treaty, which requires them to be unanimous. Fritz W. Scharpf (chapter 5) therefore sees the EU as ‘the extreme case of a polity conforming to liberal principles which, at the same time, lacks practically all republican credentials’ (p. 93), and Loughlin agrees (p. 66).
This, however, does not distinguish the EU from a state. In any state, a good deal of significant decision-making has to be done by technocrats in courts and other institutions which commonly lack republican credentials. Judicial independence of government is an ideal fully compatible with at least some forms of constitutionalism; places where government always approves of judges' decisions, are not places where we want to live: Tom Bingham, The Lives of the Law (Oxford 2012), p. 146. Furthermore, at the level of securing cooperation to make things happen, relationships come about between private and public actors in ways often outside the control of constitutions and laws, as Börzel and Somek both demonstrate.
Nevertheless, something curious is happening at supranational level. Descriptively, the problem is to decide what it is. Normatively, it is to decide what it should be. Some say that constitutionalism as it has been in the past cannot rise to an internationalist challenge, and a new concept is emerging. Riccardo Prandini (chapter 15) describes ‘a living and latent process of morphogenesis which reframes the very idea of constitutionalism in a way which is more adequate to world society’ (p. 309).
Perhaps common constitutional principles do not exist as social facts, but have to be assumed to exist in order to justify current practices. It seems that the product of Prandini's ‘morphogenesis’ may be symbolically rather than substantively important. It is probably not rooted in social fact. Somek argues that the ‘facts’ which are said to give legitimacy to constitutions are often counterfactual idealisations. (‘We the People’ is a prime example.) When we re-describe concepts to make them fit new circumstances, we often re-imagine foundational social facts in the light of our preferred ideals. This is not necessarily problematic: ‘idealisations are part of how the law itself perceives social realities in its own context of operation’ (p. 286). It does mean, however, that (p. 269) ‘systematically the law has to be inclined either to assimilate the ideal to reality or to construe reality as the expression of an ideal. Owing to the presence of counterfactual social facts, therefore, the law has a built-in tendency to self-obfuscation.’ This may prove problematic when (p. 286) idealisations ‘purport to see a legal relationship where in reality such a relation is absent. The law's most elementary idealisation does not apply then.’
Yet if, as is possible, actors internalise and feel committed to the symbolic meaning of a counter-factual, idealised re-description, it may have major effects in the real world. Idealisations are not limited in their potential for application. What may be limited is an individual actor's willingness to apply them. If constitutionalism (whatever it may mean) is good, Neil Walker is right to say (p. 308) that the more difficult we find it to respond to problems of cooperation in a non-state world through the normative instrument of the language of constitutionalism, the more important it becomes to retain the symbolic legacy of constitutionalism. ‘The day that constitutionalism's inability to provide stock answers to its abiding questions becomes a settled reason no longer even to ask these questions, is the day that constitutionalism and the vital spirit of meta-political inquiry that it conveys, will indeed have entered the twilight zone.’
Hear, hear! But that supposes that constitutionalism is, indeed, at heart a spirit of meta-political inquiry. The essays in the collection display no unanimity on that point. In the end, this fascinating, thought-provoking collection of essays does not answer the questions it poses. But in trying to do so, each individual essay casts clear light on the questions, revealing their multi-faceted, contested nature. The fact that we find no answers makes it worthwhile to go on thinking about the questions.
