The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia
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Description
The idea of a ‘postnational constellation’ conjures up a world in which globalisation, privatisation, and individualisation have changed the basic configuration of the legal and political world. The state has become disaggregated as regulatory authority has shifted towards transnational governance structures and devolved to subnational public authorities or private actors. There are a number of questions one might ask about these changes. Have they strengthened human rights and have they furthered peace, justice, and prosperity within and across societies? Or have they created new inequities and new dangers? The literature on these questions, either generally, or addressing specific policy issues, is endless. This chapter will leave all of them aside. The focus here is the more limited question of how these changes can best be described and assessed in constitutional terms. Specifically the question is: How are these changes affecting the tradition of modern constitutionalism? The constitutional literature addressing this issue can be roughly divided into two camps. According to the first—call them constitutional triumphalists—we are witnessing the triumph and radical expansion of constitutionalism. Not only has liberal democracy spread considerably after the end of the Cold War, but international legal practices have also gone through a process of constitutionalisation. More generally, during the last decade the idea of constitutionalism beyond the state has gained considerable ground, and it is no longer unconventional to refer to the EU or the UN in constitutional terms. According to the second camp—call them constitutionally concerned—we are witnessing a threat to and perhaps even the demise of constitutionalism. Since the end of the Cold War the capacity of national constitutions to serve as a framework for the self-governing practices of a national community has been significantly eroded. Constitutionalism is either in its twilight years: part of an era that has gone by (the nostalgic key, characteristic of European scholars) or something that needs to be regained and protected (the more assertive tone associated with ‘revisionist’ scholars writing on the law of foreign affairs in the US). An obvious way to resolve this dispute in favour of the first position is to suggest that constitutionalism is alive and well, and has simply transformed itself to address new challenges. Some degree of national constitutional self-government might have been lost, but that loss is only the result of the emergence of, at least in principle, desirable constitutionalised forms of transnational governance that compensate for the deficiencies of domestic constitutionalism. In the end, a position along these lines is, in my view, correct. But, as will become clear, that position is not as obvious or easy to adopt as many of those embracing the idea of constitutionalism beyond the state might believe. There are deep commitments, connected to ways of imagining the legal and political world and tied to conceptual structures that have played a central role in the tradition of modern constitutionalism, with which the idea of constitutionalism beyond the state is in tension. If it is plausible to talk of constitutionalism beyond the state, it can only be because some of these basic conceptual structures and the legal and political world that is imagined through them turn out to have been inappropriate and misguided. The stakes in this debate, then, are high. And the attempt to come to a facile resolution should be avoided. The point of this chapter is not primarily to resolve the issue, but to develop a deeper under- standing of what is at stake. To the constitutional triumphalists it sounds a note of caution: be aware of the historical depth and conceptual structure of the world that is left behind and the radical rethinking of the constitutional tradition—a genuine paradigm shift—that will have to come with it. That kind of constitutional transformation is only plausible in conjunction with a genuine revolution in the way law and politics are understood, a revolution no less deep conceptually than that brought about by the emergence of the Westphalian order. To the constitutional nostalgists it offers a challenge: it is not enough to simply repeat the old certainties with a sense of superiority, imagining constitutional triumphalists as Settembrinièsque, whiggish fools who rush in where wise men fear to tread. Those old certainties are themselves open to serious questioning and critical analysis and need to be assessed in light of an alternative constitutional paradigm that might just turn out to be persuasive.
Source Publication
The Twilight of Constitutionalism?
Source Editors/Authors
Petra Dobner, Martin Loughlin
Publication Date
2010
Recommended Citation
Kumm, Mattias, "The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia" (2010). Faculty Chapters. 1069.
https://gretchen.law.nyu.edu/fac-chapt/1069
