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Beyond the Holistic Constitution?

33 Pages Posted: 24 Apr 2009  

Neil Walker

University of Edinburgh, School of Law

Date Written: April 23, 2009

Abstract

This paper considers whether, why and to what extent we should conceive of transnational regulation in constitutional terms. It distinguishes between two different candidates for transnational constitutional status. On the one hand, there are various actual or potential 'holistic' transnational constitutions, such as the EU and the WTO. These constitutional orders resembe that of the state to the extent that they involve the framing of a distinct 'body politic'. This 'body politic' may be thinner or thicker, depending on the number and richness of the framing layers involved (legal order, politico-institutional complex, popular self-authorization, distinct society or demos), but the idea of the constitution as a constituent dimension and expression of a broadly encompassing, internally coherent and externally bounded polity is present in all cases. On the other hand, there are also today various international societal actors and functional spheres (e.g internet regulation, sport regulation) that on one view possess their own 'societal constitutions'. Unlike holistic forms of regulation, however, these areas tend to combine very narrow forms of self-regulation with diverse forms of external regulation. The idea of a discrete framing is not present even in legal or institutional terms, still less in popular or social terms. Nevertheless, the paper argues, there may be good normative reasons for continuing to use the language and mindset of constitutionalism in these contexts.

Keywords: societal, constitutionalism, holistic, transnational, polity, regulation

Suggested Citation

Walker, Neil, Beyond the Holistic Constitution? (April 23, 2009). U. of Edinburgh School of Law Working Paper No. 2009/16. Available at SSRN: https://ssrn.com/abstract=1393867 or http://dx.doi.org/10.2139/ssrn.1393867

Neil Walker (Contact Author)

University of Edinburgh, School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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