5 - Constitutionalising new governance

Summary

Introduction – what does it mean to ‘constitutionalise’ new governance?

If economists seek to resolve every pressing problem of public policy with a market-based solution, the response of the lawyer to most public problems is to ‘constitutionalise’ them away. From the great early social contract theories of Locke and Hobbes on, the Constitution has been seen as a vehicle to tame arbitrary forms of political power, and place them under popular control. It is the response of the cool-headed lawyer to a society that would otherwise be awash with irredeemable competition and conflict.

Given this natural impulse, it is little surprise that we, as lawyers, should seek to ‘constitutionalise’ new governance. As the last chapter has shown, processes like the present OMC SPSI face numerous deficits. They are overrun with unaccountable forms of executive power. They furthermore privilege forms of taken-for-granted knowledge that in fact shield important substantive political preferences. They have failed to promote decentralised forms of participation or ‘learning’, and even undermined those institutions, like courts and parliaments, that could act as an effective check on executive activities. The OMC seems a particularly apt target to be brought under the realm of ‘law’s empire’; the procedural safeguards and political controls that constitutionalism the world over has offered.