So flexibility poses a great challenge to law, and not one we can wish
away by making law redundant. Flexibility asks new and difficult questions of
law, but does so in conditions where it also threatens law's legitimacy and
technical capacity. How should law respond to this challenge? My answer is, for
the moment, highly schematic. It is also by no means exclusively concerned with
the particular problems of flexibility. Rather, as we shall see, it involves
excavating a deep seam of difficulties, with issues of flexibility situated at
the rock face.
This excavation involves developing a new way of framing non-domestic law of the public sphere, a new legal discourse which I will call metaconstitutionalism. Semantically, the prefix `meta' stands in relation to the activity denoted by the concept prefixed as `a higher science of the same nature but dealing with ulterior problems.' 24 Metaconstitutionalism relates to constitutionalism, therefore, as metaphysics does to physics or as metaethics does to ethics. Metaconstitutional rules - or norms or axioms - are rules about constitutional rules. Their subject-matter is ultimately the same but they claim within their own authoritative terms a higher or deeper constitutional authority than constitutional rules.
In the definition of key terms, one further refinement is required. Legal philosophy is already familiar with what might be labelled state-centred, or domestic metaconstitutionalism .25 This refers to the internally generated and agreed rules and assumptions about what is to count as the constitution and as fundamental law within a state, whether, to take two examples, this metaconstitutional background is conceived of in terms of the Hartian rule of recognition or of the Kelsenian grundnorm. We are not here concerned with this local form of excavation but, instead, with cosmopolitan metaconstitutionalism. This refers to a type of legal discourse which has the same general object of reference as constitutional law, namely the fundamental framework of public authority, but which, unlike constitutional law, is not nested in the state and does not look to the state as its fundamental source of validity. Rather, metaconstitutional discourse, notwithstanding the often inconsistent and competing claims made on behalf of the state through its traditional constitutional discourse and representations of sovereignty,26 always claims a higher or deeper normative authority. The nature of its claims are reflected in the way in which it characterises its relationship with state law. It may purport to authorise, instruct, influence, supplement or supplant state law, or any combination of these. Whatever the case, in no circumstances does it concede the normative superiority of state law. Metaconstitutionalism always conceives of its own authority as original and irreducible.
Why does cosmopolitan metaconstitutionalism provide a useful way of thinking about contemporary non-domestic public law in general and about flexibility and the emerging multi-dimensional configuration of legal authority in particular? Before we can address that question, we must fill out the conceptual bare bones of cosmopolitan metaconstitutionalism as follows. First, we examine the conditions which have made possible, indeed inevitable, the emergence of a type of law which may be conceptualised in metaconstitutional terms. Secondly, we catalogue the various forms taken by metaconstitutional law, and investigate the relationship between these forms.
Metaconstitutional discourse becomes possible with the passing of the
Westphalian one-dimensional global order of sovereign states. State sovereignty
in this context conveys the double sense of internal sovereignty - the
idea of the exclusive and unrivalled legal authority of the state within a
particular territorial space, and external sovereignty - the idea of the
state as the only significant legally recognised player on the stage of global
decision-making.27 In such a world order
there was no scope for the development of metaconstitutional law.
Constitutional law simpliciter was the primary structure in the legal
architecture of the international order, precisely because
constitutional law was a product of the state and the state was internally and
externally unrivalled as a source of authority. Under this framework - and
despite the views of the early Kelsen28 and
of others of an idealist or liberal internationalist persuasion - international
law occupied a secondary position within the global legal architecture.
Internally, it did not challenge the authority of the state as master of its
own polity. Externally, granted, international law did `regulate' relations
between states, but only in the voluntarist sense29 that it was the product of agreement between
states as formally free and equal parties. International law was not and is not
the ultimate regulator of states, but rather their regulatory tool.30
In the post-Westphalian world, as state sovereignty loses its hegemony in the face of the challenge of globalization, so too its two legal handmaidens - constitutional law and international law - are no longer adequate or sufficient to fill the regulatory space available in the sphere of public authority. For some commentators, notably modern systems theorists such as Teubner,31 the most significant upshot of this has been the development of legal innovations at the social peripheries rather than in the political centre, and taking the form of new types of state-transcending regulation in those discrete sectors of civil society served, for example, by commercial law (lex mercatoria), environmental law and even international sports law. But while such developments are significant, they are not at the expense of public frameworks of governance. Rather, there have been, and continue to take place, significant institutional developments in the public as well as the private sphere. Enter metaconstitutional law.
Metaconstitutional law comes in a wide variety of forms which cannot be
easily distinguished nor neatly classified. Nevertheless, we may identify five
main types, which are ordered below in terms of their level of abstraction from
the constitutional state.
First, there is legal discourse which seeks to reshape the traditional intra-constitutional law sphere of the structural relations between different groups within the state - whether defined by nation, ethnicity, territory, religion, language or other cleavage - in a manner which goes beyond those forms of legal `identity politics',32 such as claims to mutual respect, to multicultural citizenship or to distinct political institutions, which can be accommodated within the existing framework of state authority. Instead, it proceeds to question and challenge the constitutional integrity of the state itself through secessionist or quasi-secessionist claims. For the most part this is a counterfactual legal discourse. Unlike the forms of metaconstitutionalism considered below - and so, incidentally, making it the most complex metaconstitutional discourse to characterise - it is not anchored within an institutional site or sites which can make a plausible current claim to possess fundamental law-making authority. On the other hand, this form of metaconstitutionalism may be sustained and supported through its relationship to these other, more state-removed metaconstitutional sites which do possess plausible claims to fundamental legal authority.33 Yet as long as the integrity and internal distribution of authority of the state which it challenges remains intact, then, ex hypothesi, secessionist or quasi-secessionist discourse can be no more than aspirational. That does not mean, however, that it is merely a form of constitutional law-in-waiting. It is metaconstitutional in the sense that while its ultimate purpose may be the creation of a new state, and thus a new constitutional order, the process by which the transformation is sought addresses matters of fundamental political authority through arguments - historical, ethical or pragmatic34 - which refuse to defer to the existing state constitutional order as a definitive and irreducible `power map',35 and in so doing necessarily poses a challenge to the general claim of constitutional law to ultimate authority. 36
This type of counterfactual metaconstitutionalism may also have an indirect impact upon existing state constitutional law. In the moulding of primary constitutional discourse, political prudence may demand or dialogic openness may encourage the taking into account of secessionist or quasi-secessionist discourse, and often with consequences which escape the intention s of those who make the accommodation. The fluid narrative of constitutional reform in the multinational state of the UK is an apt current example. British constitution-builders should bear in mind that institutions to which they have recently applied the official constitutional imprimatur, such as devolved assemblies and local referenda, may have a meaning and a role within alternative metaconstitutional discourses. So, for instance, the new Scottish Parliament is on one view the cement of the Union, on another a stepping-stone to independence.37 The referendum which preceded it is on one view a healthy exercise in local democracy within an increasingly federalist constitutional pattern, on another a prefigurative assertion of the popular sovereignty of the Scottish people. And if, as, for example, has often been the case in processes of decolonization, the structural transformation from old to new polity develops critical momentum, metaconstitutional discourse may become more than the catalyst for constitutional shadow-boxing. It may become the form of communication between rival plausible claims to constitutional authority. 38
In some cases, the interlocking of constitutional order and metaconstitutional possibility can be even closer. Exceptionally, metaconstitutional reflection upon the challenge to the integrity of a state may be provided for, or at least made possible, within the constitutional procedures of the state itself . So, for example, the reference procedure of the Canadian Supreme Court has recently allowed it to think what for a constitutional court is normally unthinkable - namely whether the unilateral secession of Quebec, and the consequent fragmentation of the Canadian state, is legally competent.39 Moreover, the court felt equipped to address this question both as a matter of domestic constitutional law, the logic of which predictably quickly disposed of the unthinkable in accordance with the unambiguous direction of the constitutional text, but also as a matter of international law, where the answer, although not structurally pre-ordained, turned out, for that national court at least, to be the same. Nevertheless, this kind of state-centred metaconstitutional reflexivity is not doomed merely to reinforce the status quo ante, as demonstrated by the court's strongly argued opinion that, while there was no right to secede, the federal and other provincial governments were under a legal duty to engage with Quebec in bona fide negotiations over the terms of its possible secession.
A second type of metaconstitutional discourse seeks to shape and instruct the traditional intra-state constitutional law sphere of the basic rights and duties of the individual vis-à-vis the state. The paradigm case here is `international' human rights law.40 Mainly through Treaty law promulgated at both regional and local level, but backed by peremptory norms of international law (ius cogens) and the more general framework of international customary law, this area of law expanded exponentially in the wake of the Second World War. It is a movement which has challenged the premise of untrammelled state sovereignty which prevented the traditional framework of international law from addressing individuals as well as states themselves as the subjects, rather than the mere objects, of its legal rules. As well as the development of a substantive state-transcendent human rights jurisprudence,41 this form of metaconstitutionalism has been increasingly underscored by a constellation of non-state courts and tribunals within which such rights may be vindicated. The brightest star in this constellation is undoubtedly the European Court of Human Rights,42 but it is joined by an array of permanent and ad hoc tribunals at regional and global level, with the new International Criminal Court a key development at the global level.43
A third type of metaconstitutional discourse shapes relations between states in ways which supplement and modify the internal constitutional structure of those states. The current metaconstitutional conversation between Britain and Ireland provides a good example.44 Under the 1998 Belfast Agreement, constitutional amendments were required in both jurisdictions to recognise more fully the principle of popular consent in shaping the future status of Northern Ireland.45 More pertinent to the development of sites of metaconstitutional authority, the Agreement also provides for a new permanent institutional complex embracing both East-West structures (British-Irish Council and British-Irish Intergovernmental Conference)46 and a North-South Ministerial Council47 as a means to endorse and to stabilise an element of power-sharing between the two states.
This type of arrangement shades into a fourth type of metaconstitutional authority, which in addressing relations between states develops an institutional structure with sufficient depth and scope of authority to constitute a non-state polity. Of course, the extent to which an institutional structure constitutes a separate polity is a matter of degree. Clearly the Good Friday structures, for now at least, fall short, but the GATT/WTO structure and the North American Free Trade Association, to take but two examples, are less clear-cut cases, as also are some of the regional international organisations.48 At the other end of the spectrum is the supranational legal framework of the EU. Originally conceived of as a means to regulate certain fundamental economic relations between states and designed with the orthodox tools international law, the EU gradually developed its own claim to sovereign authority within a limited sphere. Indeed, as the EU has attracted a complexity of institutional structure and a range of legal competences which begins to rival those of the state, then it has come to represent a particularly developed form of metaconstitutional law; such an organisation becomes, so to speak, a meta-state.
Fifthly, and at the highest level of abstraction from paradigmatic intra-state constitutional law, metaconstitutionalism embraces a further set of relations between polities - both states and non-state polities ( including meta-states) - in the more complex multi-dimensional configuration of authority which characterises the post-Westphalian order. At this `meta-meta' level we are concerned, in the first place, with the relations between EU and its member states, in particular with the judicial conversation between constitutional courts49 and the political conversations in successive IGCs50 and in the EU institutions through which these relations are negotiated. Then, at an even higher level of abstraction, the issues of flexibility and fragmentation which provided our initial focus come finally into view. Here we are concerned with relations between different non-state polities; that is, between the EU meta-state and the other emergent polities of our fragmented order, whether conceived within the EU (e.g. Schengen, Euroland) or beyond (e.g Council of Europe, GATT/WTO). And, finally, to relocate these relations in their proper three-dimensional context, we are also concerned with the multi-tiered relations amongst the sites of authority located both at these different meta-tiers and also at the state tier.
24 The Shorter Oxford English Dictionary.
25 Cf, R.S. Kay, "Preconstitutional Rules", (1981) 42 Ohio State Law Journal, pp.187-205; L.Alexander, "Introduction" in L. Alexander (ed) Constitutionalism: philosophical foundations (Cambridge, CUP, 1998) pp.1-15. See also note 36 infra.
26 On sovereignty as a means of representing a unity of political power within a polity, see H.Lindahl, "The Purposiveness of Law: Two Concepts of Representation in the European Union", (1998) 17 Law and Philosophy, pp.481-507
27 Cf, Walker, supra note 5, pp.356-360.
28 For the early view, see H. Kelsen, Introduction to the Problems of Legal Theory, (Oxford, Clarendon, 1992, tr. B. and S. Paulson) p.120. For a later recognition of the possibility an alternative state-centred monistic order, see H. Kelsen, The Pure Theory of Law, (Berkely and Los Angelos, University of California Press, 1967), pp.333-339. For a stimulating discussion, cf, C. Richmond, "Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law", (1997) 16 Law and Philosophy, pp.377-420, esp. p.410 et seq.
29 On voluntarism, or consensualism, as the dominant theory of international law, see O. Schachter, International Law in Theory and Practice, ( Dordrecht, M. Nijhoff, 1991) ch.5.
30 Thus under international law, the parties to a treaty may revoke or change it at any time, and may even disregard treaty provisions which establish a special procedure to be followed: see Vienna Convention on the Law of Treaties (1968)
31 G. Teubner, "`Global Bukowina': Legal Pluralism in the World Society" in G. Teubner (ed) Global Law Without a State, (Aldershot, Dartmouth, 1997) pp.3-30.
32 Cf, J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, (Cambridge, CUP, 1995); "Identity Politics and Freedom: The Challenge of Reimagining Belonging in Multicultural and Multinational Communities", paper to Conference on Reimagining Belonging, Aaalborg, May 1999.
33 Think, for example, of the way in which minority national movements may be protected by international human rights regimes, or , in the context of the EU, may be sustained and legitimated by the representational or resource-allocation possibilities of association with or membership of the supranational organisation. Cf M. Keating, supra, note 3.
34 See, for example, the rich mix of arguments used on behalf of the secessionist case in the Quebec Secession Reference; Reference by the Governor of Canada pursuant to s53 of the Supreme Court Act, concerning the secession of Quebec from Canada  2 SCR 217. Cf M.D.Walters, "Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom", (1999) 62 Modern Law Review pp.370-395.
35 I.D. Duchacek, Power Maps: comparative politics of constitutions (Santa Barbara and Oxford, Clio Press, 1973)
36 It should also be noted that insofar as these arguments are the sorts of jurisprudential arguments used to justify the constitutional identity of states (as opposed to constitutional discourse proper, which presupposes the constitutional identity of the state), although in this case it is an alternative vision of constitutional statehood that it is sought to justify, such arguments are of the same order as those found within domestic or state-centred metaconstitutionalism. In this first form of cosmopolitan metaconstitutionalism, therefore, there is a distinct overlap with state-centred metaconstitutionalism. See note 25 supra.
37 Cf Scotland Act 1998; See also C.M.G.Himsworth and C.R. Munro, The Scotland Act 1998, (Greens, Edinburgh, 1999); N. Walker, "Constitutional Reform in a Cold Climate: Reflections on the White Paper and Referendum on Scotland's Parliament", in A. Tomkins (ed) Devolution and the British Constitution, (London, Key Haven, 1998) pp.61-88.
38 As, for example, in the classic exchange between the Rhodesian High Court and the UK-based Judicial Committee of the Privy Council over the validity of Rhodesia's unilateral declaration of independence. The Rhodesian court held it to be valid, while the court of the original imperial power took the opposite view; Madzimbamuto v. Lardner-Burke  2 S.A. 284;  A.C. 645; cf G. Marshall, Constitutional Theory, (Oxford, Clarendon, 1971) pp.64-72.
39 Quebec Secession Reference, supra note 34; see also Walters, supra note 34.
40 Cf , H.J. Steiner and P. Alston, International Human Rights in Context; Law, Politics, Morals, (Oxford, OUP, 1996).
41 This jurisprudence is increasingly influential in national courts even of those states, such as the UK, which retain a basically dualist approach to international law, and so for the most part remain reluctant to endorse international law as domestic law without domestic legislative instruction. A landmark decision in this regard is R. v. Bow Street Metropolitan Stipendiary Magistrate, ex Parte Pinochet Ugarte (Amnesty International intervening (No.3) (1999), in which the House of Lords, drawing upon both domestic law and customary international law, held that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the UK in respect of the international crime of torture; cf H. Fox, "The Pinochet Case No.3", (1999) 48 International and Comparative Law Quarterly, pp.687-702
42 Cf, B. Dickson (ed), Human Rights and the European Convention, (London, Sweet & Maxwell, 1997).
43 Rome Statute of the International Criminal Court, July 17, 1998, A/CONF. 183/9. 37 ILM 999.
44 Agreement reached in the Multi-Party Negotiations, Cm 3883, (London, HMSO, 1998); cf B. O'Leary, The British-Irish Agreement: Power-Sharing Plus, (London, Constitution Unit, 1998); B. Hadfield, "The Belfast Agreement, Sovereignty and the State of the Union",  Public Law, pp.599-616; D. O'Donnell, "Constitutional Background to and Aspects of the Good Friday Agreement - A Republic of Ireland Perspective, (1999) 50 Northern Ireland Legal Quarterly, pp.76-89.
45 Constitutional Issues, Annexes A and B.
46 Strand Three.
47 Strand Two.
48 Cf, B. Laffan, Integration and Co-operation in Europe, (London, Routledge, 1992).
49 The most significant recent contribution to this conversation was that of the German Constitutional Court in Brunner v. The European Union Treaty [1994} 1 CMLR 57: Cf , M. Everson, "Beyond the Bundesverfassungsgericht: On the Necessary Cunning of Constitutional Reasoning", (1998) 4 European Law Journal, pp.389-410; A. Stone Sweet, "Constitutional Dialogues in the European Community". in A-M. Slaughter, A Stone Sweet and J.H.H. Weiler (eds), The European Court and National Courts - Doctrine and Jurisprudence: Legal Change in its Social Context, (Oxford, Hart, 1998) pp.303-330; B. de Witte, "Direct Effect, Supremacy and the Nature of the Legal Order", in P. Craig and G. de Burca (eds), The Evolution of EU Law, (Oxford, OUP, 1999), pp.177-213.
50 On the IGC negotiations prior to the Treaty of Amsterdam, see G. de Burca, "The Quest for Legitimacy in the European Union", (1996) 59 Modern Law Review, 349.
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