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Introduction to the material study of global constitutional law

Published online by Cambridge University Press:  07 March 2019

MARCO GOLDONI
MARCO GOLDONI*
Affiliation:
5–9 The Square, University Avenue, Glasgow Law School, Glasgow G12 8QQ
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*Email: [email protected]
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Abstract:

The article addresses the question of how to study global constitutional law by suggesting a material methodology. Drawing from previous studies of the notion of the material constitution, both from materialist and institutionalist types (Marx, Mortati, Poulantzas), the article proposes to look at the development of global constitutional law, in its many instantiations, in terms of its relation with the state. Accounts of the autonomy of global constitutional law are requalified in terms of relative autonomy. More specifically, global constitutional law is conceived as a legal construction functional to the transformation of the contemporary state. From the perspective of the material study of constitutional law, the state is still deemed to be the main unit of analysis, but, at the same time, state-centred accounts based on an exceptionalist understanding of sovereignty are rejected as reductive and, at times, inaccurate.

Keywords

constitutional sociologyglobal constitutional lawmaterial constitutionpolitical economy of constitutionalismsovereignty
Type
Special Issue: The Ideologies of Global Constitutionalism
Information
Global Constitutionalism , Volume 8 , Issue 1 , March 2019 , pp. 71 - 93
Copyright
Copyright © Cambridge University Press 2019 

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References

1 For the purposes of this article I will take into account all those strands that have taken up the challenge of the globalisation of constitutional norms and principles, from global constitutionalism to the constitutionalisation of international law, despite, it goes without saying, crucial differences among these positions. Forms of supranational law (such as the EU or the Council of Europe) are also taken into consideration. For an overview of the debate see Schwöbel, C, ‘Situating the Debate on Global Constitutionalism’ (2010) 8 International Journal of Constitutional Law 611.Google Scholar

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5 Ibid.

6 Ibid.

7 Ibid.

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19 Paul Laband, Hans Kelsen, Carré de Malberg, and Vittorio Emanuele Orlando, can be deemed to be the most representative authors.

20 Loughlin (n 14) 5.

21 It would be predictable to trace back this type of material analysis to the influential (in particular in the Italian context) of Gramsci’s notion of hegemony. This is noted among others by Volpe, G, Il costituzionalismo del Novecento (Laterza, Roma-Bari, 2000) 122–7.Google Scholar As known, Gramsci strongly believed that the only way for obtaining a remarkable constitutional change was dependent on the rise of a ‘new prince’ (a revival of Machiavelli’s point made in The Prince) which in his view ought to be the political party. This resonates with a peculiar Italian tradition of political and constitutional thought, recently highlighted as ‘Italian Thought’ by Esposito, Roberto, A Philosophy for Europe (Polity, Cambridge, 2016) 220–3.Google Scholar

22 A fair question, at this point, concerns the possibility of a populist constitutional order as populism is usually revolving around one simple set of differentiation and specification: the elite vs the people. The realism of the material study of the constitution invites a cautious attitude towards populism in constitutional law. For an analysis see Werner-Müller, J, What Is Populism? (Penguin, London, 2016);CrossRefGoogle Scholar P Blokker, ‘Populism as a Constitutional Project’ (forthcoming in International Journal of Constitutional Law).

23 More on this point will be said in the last section.

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26 E.g., Wilfredo Pareto and Gaetano Mosca.

27 There is no space here to develop further this point, but the material constitution does not create an autonomous political field. In the last section it will be outlined why this is the main difference with other state-based approaches such as political jurisprudence.

28 On the selective character of the material constitutional order (but framed in a different language), see Jessop, B, The State (Polity Press, Cambridge, 2016).Google Scholar

29 It seems that this is the level engaged by Mark Tushnet in his contribution to this special issue: ‘The Globalisation of Constitutional Law as a Neo-Liberal Project’.

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33 Kumm (n 30) 214 (original emphasis).

34 Ibid.

35 It is not by accident that three of these principles are the rule of law, democracy and human rights.

36 Teubner, G, Constitutional Fragments (Oxford University Press, Oxford, 2011).Google Scholar

37 See the critical discussion of this term by M Loughlin, ‘What is Constitutionalisation?’ in Loughlin and Dobner (n 30) 69–72.

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41 Teubner, Constitutional Fragments (n 36) Ch 1.

42 Thornhill, C, A Sociology of Transnational Constitutions (Cambridge University Press, Cambridge, 2016).CrossRefGoogle Scholar

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46 Though it should be made clear that this implies observing global and supranational developments from the point of view of the state.

47 On this distinction I follow Romano, S, The Legal Order (Routledge, London, 2017).Google Scholar On Romano’s thought see Loughlin, M, Political Jurisprudence (Oxford University Press, Oxford, 2017) Ch 7.Google Scholar A different question is whether there are non-state original constitutional orders, a question on which Romano would agree (canon law, for example). See also the brilliant analysis by Cover, R,‘Nomos and Narrative’ (1983) 94 Harvard Law Review 4.Google Scholar

48 I follow here the arguments made first by Lapavitsas, C, Profiting Without Producing (Verso, London, 2010);Google Scholar Streeck, W, Buying Time (Verso, London, 2015);Google Scholar see also Negri, A, ‘On the Constitution and Financial Capital’ (2015) 32(7-8) Theory, Culture and Society 25;CrossRefGoogle Scholar Vogl, J, The Ascendancy of Finance (Polity, Cambridge, 2017).Google Scholar

49 Streeck (n 48) Ch 2.

50 This reading had been already suggested, in a seminar article, published originally in 1973, now collected in Poulantzas, N, The Poulantzas Reader (Verso, London, 2008) 220–57.Google Scholar

51 Harvey, D, The Limits to Capital (Verso, London, 2006) 296.Google Scholar

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53 On the problematic change of the constitutional nature of labour-related arrangements and problem of uploading these to the global realm see the brilliant pages by Dukes, R, The Labour Constitution (Oxford University Press, Oxford, 2015) Ch 7.Google Scholar

54 Echoes of this position are present in the otherwise extremely brilliant reconstruction by Streeck, Buying Time (n 48).

55 This is the limit of an analysis which is otherwise extremely insightful, as the one provided by Ackerman, B, We the People: Transformations (Harvard University Press, Cambridge, MA, 1998).Google Scholar Ackerman would not agree that his theory of informal constitutional transformation can be read with material lenses, but at least the third constitutional moment (the New Deal) is a classic reconstruction of the constitutional relevance of the material constitution. However, given that Ackerman does not address the material dimension in explicit terms (and he prefers to adopt an Arendtian reading of modern constitutionalism), he has to postulate that each constitutional moment represents an expansion of the inclusionary capacity of the constitutional order (abolition of slavery, constitutionalisation of labour, civil rights redemption, etc).

56 Thornhill, A Sociology of Transnational Constitutions (n 42) Ch 2.

57 For negative evaluation of the expansion of judicial power see Hirschl, R, Towards Juristocracy (Harvard University Press, Cambridge, MA, 2004).Google Scholar A classic study of how to govern though judicial power is A Stone Sweet, Governing by Judges (Oxford University Press, Oxford, 2000).

58 For example, Dieter Grimm notes that the international and the global level (unlike the EU) do not have the range of powers and organisational density to be able to qualify as constitutional. In other words, they do not have the capacity of forming political and constitutional unity. At the global level ‘there are some isolated institutions with limited tasks, most of them single-issue organisations and with correspondingly limited powers. They are not only unconnected, but sometimes even pursue goals that are not in harmony with each other, such as economic interests on the one hand and humanitarian interests on the other. Rather than forming a global system of international public power they are islands within an ocean of traditional international relations.’ D Grimm, ‘The Achievement of Constitutionalism and Its Prospects in a Changed World’ in Dobner and Loughlin, The Twilight of Constitutionalism (n 30) 18.

59 I refer here to the works of three representative authors from different jurisdictions: Kahn, P, Putting Liberalism in Its Place (Princeton University Press, Princeton, NJ, 2004);Google Scholar Kahn, P, Political Theology (Columbia University Press, New York, NY, 2011);Google Scholar Loughlin, M, Foundations of Public Law (Oxford University Press, Oxford, 2010);Google Scholar Loughlin, M, Political Jurisprudence (Oxford University Press, Oxford, 2017);Google Scholar Grimm, D, Sovereignty (Columbia University Press, New York, NY, 2017).Google Scholar

60 Kahn, P, ‘The Question of Sovereignty’ (2004) 40(2) Stanford Journal of International Law 259.Google Scholar

61 See, e.g., for historical analysis, Tuck, R, The Sleeping Sovereign (Cambridge University Press, Cambridge, 2015);CrossRefGoogle Scholar for a reconstruction of this distinction in Rousseau’s thought: Loughlin, Foundations of Public Law (n 59) 158–61.

62 Loughlin, M, ‘Constitutional Imagination’ (2015) 78 Modern Law Review 1.CrossRefGoogle Scholar

63 Cf. Scott, J, Seeing like a State (Yale University Press, New Haven, CT, 1988).Google Scholar

64 For the modification of the concept of sovereignty, see Walker, N (ed), Sovereignty in Transition (Hart, Oxford, 2003);Google Scholar cf Kalmo, H and Skinner, Q (eds), Sovereignty in Fragments (Cambridge University Press, Cambridge, 2010).CrossRefGoogle Scholar

65 E.g., Benton, L, A Search for Sovereignty (Cambridge University Press, Cambridge, 2010).Google Scholar Sociologically, this point has been made with great emphasis by Sassen, S, Territory, Authority, Rights (Princeton University Press, Princeton, NJ, 2006).Google Scholar

66 It should be noted that Loughlin is rather attentive to the act of governing of sovereign states but he does not attribute to it a constitutive role: Loughlin, The Idea of Public Law (n 14) Ch 3.

67 Bickerton, C, European Integration (Oxford University Press, Oxford, 2012).CrossRefGoogle Scholar Another analysis conducted along these lines (though without the same material undertones) is put forward by Somek, A, The Cosmopolitan Constitution (Oxford University Press, Oxford, 2014).CrossRefGoogle Scholar

68 Mezzadra, S and Neilsen, B, Border as Method (Duke University Press, Durham, NC, 2013) 218–20.Google Scholar