Postnational Constitutionalism and Postnational Public Law: A Tale of Two Neologisms

Abstract

This paper examines how ideas of postnational constitutionalism and postnational public law have developed and will likely continue to develop in ways that are in some respects complementary and in other respects in tension. Both terms are neologisms - recently emergent concepts seeking to adapt legal-normative ideas suited to one (state) context to another (postnational) context. To subscribe to either, or to both, is already to take sides against a broad church of postnational sceptics, and instead to view the legal forms and vocabulary of statehood as a mobile resource and as an indispensable part of any answer to the question of the authority of the expanding domain of law beyond the state under conditions of globalisation. Yet beyond this basic threshold of agreement, postnational constitutionalists and postnational public lawyers tend to differ in emphasis. Whereas the former focus on the 'constitutive' or 'input' side of state-like law at the myriad new sites of postnational authority, the latter tend to concentrate on the 'throughput' or 'output' side of state-like law in postnational contexts. For the former, authority and legitimacy tend to be a function of particular pedigree and collective subjectivity, whereas for the latter authority and legitimacy tend to be a function of general ‘public’ norms and procedures and supposedly objective standards.These differences are motivated by normative preferences, and also by differing diagnoses of the postnational environment and different estimations of law's possibilities and limitations under these circumstances. Other approaches that try to reach beyond this normative and diagnostic division to combine or reconcile input and output, particular and general, subjective and objective, must do in appreciation of the fact that the basic opposition in question cannot be entirely eradicated. Rather, it reflects the deep and resilient ambivalence of the aspirational horizon associated with the age of political modernity - as relevant to the postnational phase as to the state-centred phase - in which the values of autonomy and equality within a constructed socio-political project have displaced earlier notions of conformity and status in accordance with a pre-given order of things. For under these modern conditions law must be concerned both to endorse and facilitate the collective pursuit of autonomy and equality and to protect the core individual expression of these values from collective encroachment.

Keywords: postnational, constitutionalism, public law, global administrative law, societal constitutionalism, constituent power, input legitimacy, throughput legitimacy, output legitimacy