by Petra Dobner and Martin Louglin (eds). Oxford: Oxford University Press, 2010. 360pp. Hardback. £55.00/$110.00. ISBN: 9780199585007.
Reviewed by Clifford A Bates, Jr., American Studies Center, Warsaw University. Email: c.a.bates [at] uw.edu.pl.
This volume is one of those books European scholars now feel compelled to do after every conference or research gathering. Usually it is an attempt to justify the expense of such gatherings to university or national grant-giving bodies by the production of some published artifact of the event so those money-giving bodies can see some tangible thing that they can point to as proof that said money was well spent producing something. This particular volume is a product of one such endeavor. It was a product of a study group of a German "Advanced Study" center gathering a number of scholars from different social science disciplines to reflect on and think about the subject of 'constitutions beyond the nation-state.'
One does not truly expect that the essays in this volume to really be anything more than the various perspectives and thoughts of the various scholars in the various fields of constitutional studies (law, political science, sociology, public administration, international relations, etc.) on the possibilities the current world and regional environments pose for the very idea of constitutions and constitutionalism. Given the setting of the meeting, Berlin, one of the largest political capitals in Central Europe, that this volume so focuses on the possibility of constitutionalism beyond the realm of the nation-state is a telling bit of evidence of the continuing preoccupation of European elites of a politics that transcends the limits of traditional political environment of nation-states. We can take the very desire to talk about this issue still is a product of the climate that still lingers over Europe over the near-decade failure to produce a European Constitution for the enlarged European Union. The need for the European Constitution was seen as a necessity to insure that the EU was understood more than an instrument of political integration rather than merely economic integration. The very fact that the EU was more than merely an economic organization unifying the member states pointed to a possibility of politics and governance beyond the constraints of the traditional nation-states. Yet what this meant is very much a point of dispute and the fact of that dispute is rather reflected in the various positions taken among the papers in this volume.
The volume's core idea that there are possible constitutions that transcend the only existing political body currently recognized as a political body -- the sovereign nation state. The various scholars in this volume all seem to be dealing with the assumption that the forces of globalization have created a new environment where the traditional international system of nation-states are faced with problems that challenge their very sovereign powers and threaten their [*105] ability to do what they are supposed to do. The new consensus is that the reality of gloablization renders the traditional understanding of sovereignty problematic at best and in serious need of rethinking, or at least re-tooling. What is suggested is that to ensure that the new global environment becomes one governed by more than economics and ensures the survival of politics, there is a need to construct or at least envision an evolution in the concept of constitutionalism, one that will allow it to transcend the frame of states. But such a ‘political’ frame would require something beyond a merely economic instrument but a system that can make possible post-nation-state system of inter-state governmentality. A truly political frame which would insure the survival of the political dimension cannot be simply reduced to one of discussing mere economic distributions of social goods. The desire to escape the trend of reduction of politics into economics is one of the core issues faced by the current political reality shaped by the forces of globalization.
The volume is divided into six sections. The first considers the issue whether the concept of constitutionalism can survive the gradual erosion of the state that globalization affords. The three essays in this part address the different positions -- the first essay sketches the history and accomplishments of constitutionalism and its fundamental inter-connectedness to the modern state, the second essay asks the question whether global constitutionalism is possible, and the third essay offers skepticism of the possibilities of global constitutionalism. The second part looks at the question of Europe, and it too has three essays in it. These essays examine the question of constitutionalism in light of issues arising out of the question EU governability. The third section moves from the issue of EU to the question of whether can there be constitutionalism without democracy. The three essays in the third section look at this question from different perspectives. Only in the last of these three essays is a case proposed suggesting a possibility of governing a global society only via a radical conceptual rethinking of the “dualistic and representational” nature of the current framework of constitutionalism.
The fourth part of this volume is composed of two essays that look at the interconnectivity of constitutional law and public international law. These two essays take countering positions on the issue – the first showing how one could expand global governance via constitutionalism, whereas the second is much more skeptical of any attempt to divorce constitutionalism and its current state-centric character, suggesting any expansion of the concept of constitutionalism to allow for global governance would mean the emptying out of the concept.
The fifth section, whose two essays focus on global administrative law, seems to be out of place in this volume. Global administrative law is held to be a substitute for constitutionalism, one that helps escape from the problems and contradictions that current conceptualizations of constitutionalism must address to seriously guide global governance. These two essays look at various ways global administrative law can be looked at as a means out of the problem of constitutionalism the volume so far has been addressing. The first [*106] suggests global administrative law offers a more practical and promising alternative to the concept of constitutionalism as an effective model for global governance; the second essay, although not rejecting the argument of the previous essay nevertheless suggests that the previous essay privileged the legal form over ‘administrative rationality,’ and goes on to suggest that global administrative law and its focus on the administration rather than legal form may provide the means for the triumph of the state, albeit the state as administration, over both law and politics.
The sixth and last part of this volume offers three examinations of how law and constitutionalism respond to the pressure of globalization via change of focus from the state to society. Each of the final three essays provide different takes on how the focus on what is referred to as ‘societal constitutionalism’ can be developed in the face of the pressures of globalization. The first essay in this final section while readdressing many of the issues bought up in the first part of this volume also addresses the question of how the concept of constitutionalism can still remain a viable and important concept in light of the eroding of the state. The second essay in this section goes in a different direction and argues that what is happening is a kind of ‘morphogenesis’ – the creation of a new form of governing concepts. The author of this essay focuses on the character of politics and the political form against legal and administrative forms and it this light sees the concept of ‘societal constitutionalism’ to offer new ways by which politics will play out in the global future. The last essay of both this section and the volume is an empirical study of different ways the constitutional form seems to be transitioning “beyond the nation-state” in light of what the author refers to as an ever increasing trait of privatizing government. This final essay look at the various responses to the challenges of retaining forms of governance that are both responsive to and representative of those whom they are governing.
The essays in this volume look at the challenges of constitutional governance and the survival (or the eventual or inevitable emptying out) of the concept of constitutionalism in the face of ever increasing character of globalization. The essays in this volume were all generally top rate individual performances, effectively and powerfully dealing with the volume’s theme – the twilight of the constitutional form. The overall portrait given by this volume is that the fate of the constitutional form is neither simply doomed nor secured in the future where the forces of globalization are ever more fully at play.
© Copyright 2011 by the author, Clifford A Bates, Jr.