loughlin - constitutional theory

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25 OXJLST 183 FOR EDUCATIONAL USE ONLY Page 1

25 Oxford J. Legal Stud. 183

(Cite as: 25 Oxford J. Legal Stud. 183)

Oxford Journal of Legal StudiesSummer, 2005

Article*183 CONSTITUTIONAL THEORY: A 25TH ANNIVERSARY ESSAYMartin Loughlin [FNd1]

1. Introduction

Constitutional theory has recently been undergoing a remarkable revival.For most of the 20th century the subject had been in decline, as the attentionof scholars turned away from the constitutional forms and towards the socialand economic tasks of government and after 1989, once liberal democracyhad apparently been accepted as the only legitimate constitutional framework,

it appeared to be on its last legs. The entire modern project of devisingimaginative schemes for conceiving the ways in which people form a politicalunity organized through a governing framework was reaching its terminus. Allthat remained was a set of technical questions driven by the need to ensureeffective co-ordination between the established rule-making, rule-executingand rule-interpreting agencies of the state.

In such circumstances, the aim of this article cannot be simply to offer asketch of the main themes in constitutional theory during the last 25 years ofpublication of the Journal; it must also proffer an explanation for the subject'srecent revival. My argument will be that the turning point for constitutional

theory comes only during the 1990s, and is driven by evident limitations in thesolutions posited by the application of liberal political philosophy toconstitutional questions. Many of the difficulties flow from tensions inherentwithin liberal thought, such as between freedom and belonging and betweeneconomic and political conceptions of liberalism. Others are more deep-seatedand go to the fundamentals of liberal convictions about the nature of thestate. But before turning to these questions, the subject of the inquiry must bespecified. What are constitutions? What does it mean to theorize aboutconstitutions?

*184 2. What Constitution?

It is generally accepted today that a constitution is a formal framework offundamental law that establishes and regulates the activity of governing astate. This is an essentially modern understanding, a product of Enlightenmentthought. It was most clearly expressed by Thomas Paine, who argued that aconstitution must have a 'real' and not simply an 'ideal' existence, and that

2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.


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'whenever it cannot be produced in visible form, there is none'. His basic pointwas that a constitution 'is a thing antecedent to a government, and agovernment is only the creature of a constitution'. [FN1] Paine was here

articulating the convictions of late 18th century constitution-makers who hadtaken the innovative step of arguing that societies are capable of 'establishinggood government from reflection and choice' rather than being 'foreverdestined to depend for their political constitutions on accident and force'.[FN2]

Since many today would regard Paine's argument as being self-evidentlycorrect, the radical nature of his claim might be highlighted. Compare Paine'sviews to those of the French counter-revolutionary thinker, Joseph de Maistre.Referring to the above passage from Paine's 'evil book on the rights of man',Maistre suggested that 'it would be difficult to get more errors into fewer

lines'. [FN3] He maintained that the belief that 'a constitution can be made asa watchmaker makes a watch' was one of the greatest errors of theEnlightenment, not least because 'the constitution of a nation is never theproduct of deliberation'. [FN4] Maistre believed that so-called constitutionalreform never establishes anything new but only declares existing rights, andhence that a country's constitution cannot be known from its written laws'because these laws are made at different periods only to lay down forgottenor contested rights, and because there is always a host of things which are notwritten'. [FN5]

The contrast between Paine and Maistre reveals two senses of the term

constitution. A constitution can be viewed not only as a text, but also as anexpression of a political way of being. And in this latter sense, constitutionscan no more be made than language is made, since constitutions evolve fromthe way of life of certain groups that come to conceive of themselves as 'apeople' or 'nation'. Although Maistre's political views were controversial,especially since he tied his constitutional thought to the belief in divine powerand an objective sense of the good, it is not essential to embrace thattheology to feel the force of his argument. Hegel, after all, expressed a similarconviction when claiming that 'what is ... called "making" a constitution is ... athing that has never happened in *185 history' since a constitution 'onlydevelops from the national spirit'. [FN6] My argument will be not only that

both conceptions must be kept in mind, but that the central questions ofconstitutional theory are generated from the tension between them.

I will later examine the ways in which this tension is played out. At thisstage, it need only be noted that the two conceptions reflect contrastingidioms of modern political thought, which become condensed into the forms of



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moral universalism and historical particularism. These distinct ways ofordering knowledge draw on the metaphors of mechanism (checks andbalances) and evolutionism (the 'living' constitution) respectively, and also on

the imagery of closed and open systems, to produce what might be called'moral Newtonian' and 'political Darwinian' styles of constitutional reasoning.[FN7] The differences can be sketched by drawing a series of linkedantinomies: reason versus tradition, form versus substance, mechanismversus organism, and individual autonomy versus collective identity.Rationalism, formalism and individualism are linked, and constitutionaltheories in this mode tend to deploy an analytical method to describe theconstitution of the state through the use of mechanical metaphor. And thosewho take a cultural, experiential and holistic approach use a historical methodand organic metaphors to elaborate the idea of a constitution as the collectiveidentity of a people. One aim of constitutional theory should be to highlight the

ways in which such figurative language shapes the way we think aboutconstitutions.

3. Which Theory?

Given the tensions between these two conceptions of constitution, andespecially given the way they are underwritten in language forms, it seemsunlikely that constitutional theory can be limited to the search for clarity in theuse of constitutional concepts,[FN8] or to an attempt to explain constitutionalarrangements through scientific analysis. [FN9] Although these approachesoffer insight into the nature and function of constitutional arrangements,

language intended to clarify is capable of having the opposite effect. And weshould note that these approaches focus on constituted power, and this is onlyone aspect of constitutional discourse. But neither can the questions ofconstitutional theory be gathered up within the normative schemes ofcontemporary political philosophy. Such schemes generally inquire into theideal character of political phenomena and although they may explicateconcepts of central importance to constitutional discourse, their ideal aspectrenders them of limited utility to constitutional*186 theory.[FN10]Constitutional theory does not involve an inquiry into ideal forms, sinceotherwise it would be completely absorbed into political philosophy. Ifconstitutional theory is to form a distinct inquiry, it must aim to identify the

character of actually existing constitutional arrangements.

Since the distinction between governors and governed lies at the core ofthese arrangements, constitutional theory should be able to offer an accountof the nature of this relationship. But the activity of governing must beexamined as we find it: ubiquitous, ambiguous, contentious, and shot through



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with the power of discretionary action. The temptation--prevalent in much ofnormative political philosophy--to resolve these complexities by defining alimited scope for government, positing a specific role, or assuming that the

activity can be bounded by clear rules is to be resisted. Constitutional theorymust acknowledge the singular nature of the activity that lies at the heart ofall political constitutions, and that activity 'as originally identified should notbe changed, dissolved, reduced to something else, understood in other termsor explained away'. [FN11]

Although constitutional theory is therefore to be treated as a specificengagement, the nature of the exercise must not be misconstrued. The term'constitutional' does not signify a particular method of understanding,analogous, for example, to sociological theory. Rather, 'constitutional' standsas an explicandum, the identification of that which is to be theorized. In the

first instance, theorizing about constitutions simply requires that we stop,stand back, and reflect on the postulates of the practices adopted in devisingimaginative schemes through which we might make some sense of the state,understood as a political unity of a people. By doing so, it might be possible toidentify a system of postulates, that is, a set of concepts--power, authority,liberties, rights, office, law, democracy, responsibility, accountability,citizenship--that are related to one another in such a way that they form arelatively coherent arrangement. [FN12] Such systems constitute a set ofbeliefs, and the job of the theorist is to stipulate those beliefs with a view tobeing able to offer an explanation of character of the practice. [FN13]

Constitutional theory thus occupies what may be called a 'conditionalplatform of understanding, the conditions being in some way supplied by the"fact" to be understood'. [FN14] This is analogous to what Charles Taylorrecognized to be a hermeneutical exercise in understanding. [FN15] And giventhat the activity *187 rests on a set of beliefs about how we sustain a world ofgoverning, we should not be surprised to see that this engagement often takesthe form of what Rousseau called 'a civil religion'. [FN16]

4. Liberal Philosophy and Constitutional TheoryLiberal political philosophy stands in an ambiguous relationship to

constitutional theory. The reason for this is that so much of recent liberal

philosophy has been promoted on the back of an ideal character: that of therational individual actor. Building on this assumption, liberals have producednormative theories of immense analytical rigour. But this postulate--thefoundation of their strength as normative theory--is also the source of theirweakness as constitutional theory. This has not stopped attempts being madeto use these varieties of liberal philosophy to colonize the ground of



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constitutional theory. The most challenging liberal constitutional theories donot, however, rest on the figure of the atomistic individual. Rather, they tendto operate with a particular conception of the relationship between state and

society: liberal constitutional theories tend to express a belief that, whilesociety is natural, the state is artificial.

As constitutional theory, this assumption is contentious. It marks a furtherstage in the break that has been effected between ancient and modernconstitutional thought. It rejects the Aristotelian conviction that 'man is bynature a political animal', [FN17] and distances itself from the imagery--expressed in the idea of 'the body politic' or the state--of the corporate natureof socio-political existence. In liberal thought, society is viewed as an organismoperating through some evolutionary dynamic--an 'invisible hand'. But thestate is no longer conceived to be an organic totality (the polis). Instead, the

state--or, for liberals, 'the government'--is simply a mechanism, a piece ofmachinery devised to deal with society's collective action problems. [FN18]Sovereignty and society are no longer envisaged as having been borntogether: instead, government is assumed to have been established by'society' for the purpose of meeting certain limited objectives. [FN19]

If, as I am suggesting, the state is a fundamental entity in constitutionaltheory, then the triumph of this liberal conviction is likely to presage the deathof constitutional theory. Once the exercise of imagining the formation of thepolitical unity of a people is abandoned or transcended, then constitutionaltheory--and with it also the autonomy of the political--is at an end. Modern

constitutional theory has evolved from an intrinsic dynamic between the two*188conceptions of constitution--between constituent power and constitutedpower. State and society remain inseparable and if one is exalted at theexpense of the other that dynamic is spent. For this reason, pace the liberalconviction, there can be no such thing as an ideal best state: a constitutioncan only be assessed within a particular socio-political context.

These broad claims about liberal philosophy may be illustrated with regardto the pioneering work of John Rawls. In A Theory of Justice, Rawls followedearlier liberal theories in drawing on the image of a state of nature (for Rawls,the original position) for the purpose of justifying the claim that, although free

and equal, individuals should rationally agree to live under conditions ofinequality. He achieves this not only by giving priority to the right over thegood (equal liberty over equality), but also by assuming that social andeconomic inequalities should be treated simply to be facts of life. [FN20] Bymaking these assumptions, Rawls is able severely to circumscribe the powersof government: if, as he claims, 'justice denies that the loss of freedom for



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some is made right by a greater good shared by others', [FN21] thengovernment is unlikely to possess any significant redistributive power.

Although A Theory of Justice discusses constitutional arrangements, it doesnot amount to a constitutional theory. [FN22] The activity of governingreceives no serious consideration and, significantly, Rawls argues that '[w]emay think of the political process as a machine which makes social decisionswhen the views of representatives and their constituents are fed into it'.[FN23] Rather, the book presents a version of social contract theory whichanalyses justice from the perspective of the rational, self-interested individualfor whom all goods can be traded. It is therefore best understood as anapplication of a general theory of rational choice to the question of socialjustice. [FN24] A Theory of Justice epitomizes the way in which the concerns ofeconomic analysis, analytical jurisprudence and moral philosophy have

recently been blended to form an abstract, technical, liberal and rationalisticpublic philosophy. [FN25]

During the last 25 years, however, Rawls re-orientated the thrust of hiswork. Acknowledging the existence of 'a special domain of the political',[FN26] he shifted his attention to 'the political conception of a constitutionalregime', [FN27] directly addressed the issue of political conflict, and mounteda sustained defence of liberal democracy. In Political Liberalism, Rawlspromoted the idea of a 'reasonable pluralism' built on an 'overlappingconsensus' between conflicting political doctrines. Abandoning the stance ofthe self-interested actor and drawing a *189 distinction between the

reasonable and the rational, he argued that it was necessary to distinguishbetween reasonable and unreasonable comprehensive doctrines, the latter ofwhich pose particular dangers to constitutional democracy. Since a societymay contain 'unreasonable and irrational, and even mad, comprehensivedoctrines', he suggested that the challenge for liberalism is 'to contain themso that they do not undermine the unity and justice of society'. [FN28]

Containment is to be achieved by defending a form of liberalconstitutionalism founded on equal rights, equality of opportunity and publicreason. The last concept provides the key to his constitutional analysis. Publicreason specifies 'the basic moral and political values that are to determine a

constitutional democratic government's relation to its citizens and theirrelation to one another'. [FN29] It thus seems to be a variant of political right,droit politique. [FN30] But Rawls promotes a specific conception of publicreason. This reason is dualist in form: 'it distinguishes constituent power fromordinary power as well as the higher law of the people from the ordinary law oflegislative bodies'. [FN31] Notwithstanding his acknowledgement of the



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significance of constituent power, however, he argues that public reason isdemonstrably not the expression of a democratic will: 'Parliamentarysupremacy is rejected'. [FN32] In an illustration of the way that many jurists

encase constituent power in an institutional form, Rawls argues that publicreason is directed mainly to officials, and that it applies 'in a special way to thejudiciary and above all to a supreme court in a constitutional democracy withjudicial review'. [FN33] Public reason is the 'higher law' that, he claims,amounts to 'the expression of the people's constituent power'. [FN34] Strippedto its essentials, public reason is 'the reason of its supreme court'. [FN35]

By focusing on the issues of containment and stability, Rawls reminds us ofthe battles that still had to be waged during the 1990s over the forms ofgovernment to be established in post-communist states, post-Apartheid SouthAfrica and other states making the transition from authoritarian regimes.

[FN36] Historically, state unity had been achieved essentially by requiringagreement on a comprehensive political doctrine, and intolerance to othersbecame a condition of *190 maintaining that stability (cuius regio, eiusreligio). The political question for liberalism was whether 'there may exist overtime a stable and just society of free and equal citizens profoundly divided byreasonable religious, philosophical, and moral doctrines'. [FN37] The modernclash, Rawls contends, is 'between salvationist, creedal, and expansionistreligions' that incorporate 'a transcendental element not admitting ofcompromise'. [FN38] The choice is thus between 'mortal conflict' and 'equalliberty of conscience and freedom of thought'. [FN39] Only on the basis of thelatter, he claims, is political justice possible: 'Political liberalism starts by

taking to heart the absolute depth of that irreconcilable latent conflict'. [FN40]

Rawls is undoubtedly right to identify the tension between competing ideasof the good and the need to develop some institutional framework for handlingdifferences as lying at the heart of constitutional theory. But his solution--which ends up as a defence of liberalism over democracy [FN41]-- remainscontentious. To assume that an even-handed procedural framework can beestablished in the political sphere while insulating the power vested inproperty (the structure of inequality in the socio-economic world) from politicaldebate would appear to be either nave or disingenuous. [FN42] It is preciselybecause such questions remain part of the basic political relationship that the

structure of constituted power must ultimately remain uncertain andconditional. Yet this is what Rawls refuses to concede. Despite paying lip-service to the constituent power of the people, he absorbs it entirely into theframework of constituted power [FN43] and insists on inscribing liberalprinciples into basic political institutions in order to guarantee 'a stableconstitutional consensus'. These liberal principles, he claims, 'meet the urgent



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political requirement to fix, once and for all, the content of certain basicpolitical rights and liberties, and to assign them a special priority. Doing thistakes those guarantees off the political agenda and puts them beyond the

calculus of social interests, thereby establishing clearly and firmly the rules ofpolitical contest'. [FN44]

By seeking permanently to fix a specific constitutional settlement, Rawls isnot establishing a neutral framework: he is asserting the claim of politicalliberalism *191 as a comprehensive doctrine. [FN45] By acknowledging theneed to promote a political culture (rather than simply treating the politicalsystem as a mechanism), [FN46] Political Liberalism comes much closer to theconcerns of constitutional theory. But Rawls treats this culture as given ratherthan as having evolved through history. And the contentious nature of hisclaim is illustrated by the fact that there appears to be no room for either

Maistre's fundamentalist Catholicism or Paine's radical democracy in theRawlsian constitutional frame. [FN47] Political liberalism effectively assumesthe status of a civil religion. [FN48]

5. The Rejuvenation of Constitutional TheoryFar from explicating the moral foundations of some universally acceptable

system of constitutional democracy, Rawls' analysis--an exemplary account ofliberal constitutional theory--raises many questions. Does only one model ofconstitutionalism (entrenched fundamental law enforced by an independentsupreme court) exist? How can the apparent tension between liberal anddemocratic values be resolved? What, if anything, remains of constituent

power once a constitutional framework has been adopted? If the objective ofrights entrenchment is to advance liberty, is government able in times ofemergency to suspend those rights for the purpose of maintaining the systemof liberty? Is a formally neutral liberal constitution able adequately to deal withclaims of historic injustice? What is the prospect for extending liberalconstitutional principles universally, and with what consequences?

Many of these questions have recently emerged as matters of controversy.In this account, I am able only to offer a sketch some of the issues they poseand I do so by focusing on four main tension points: between liberalism anddemocracy, norm and exception, identity and difference, community and

cosmopolis. Underpinning this account will be the argument that these issuescan be adequately addressed only when the tensions between the twoconceptions of a constitution are acknowledged, and constitutional discourserecognized as taking a dialectical form.

*192 A. Liberalism and Democracy



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The political theory of constitutionalism--founded on separation of power,rule of law, and entrenchment of basic rights--has acquired an unprecedented

status over the last 25 years. This has resulted in a more intense interactionbetween law and politics, and an enhancement in the political power oflawyers in general and the judiciary in particular. As a consequence,techniques of constitutional control have become the subject of sophisticatedanalysis, modes of constitutional review have emerged as the object ofresearch investigation, and theories of constitutional adjudication now form amajor academic industry. But is this trajectory taking us closer to some idealof the rule of law, or does it lead simply to the consolidation of the rule oflawyers?

Many of the controversies surrounding this question concern the

relationship between liberalism and democracy. Today, the liberal aim ofpromoting respect for individual rights is commonly regarded as havingestablished itself alongside democracy as a second source of constitutionallegitimacy. But how are these two values related? There are serious issues atstake: if liberty takes priority, then basic rights impose limitations on thesovereign power of the democratic legislature, and if democratic valuesprevail then rights protection cannot easily be guaranteed. We therefore needto appreciate the ways in which two values conflict, and be clear about whichshould prevail. Or can the two principles somehow be reconciled?

Modern philosophers had grappled with this question with limited degrees

of success. Rousseau, for example, sought to dissolve the tension by devisingthe concept of 'the general will', which expressed the outcome of thedemocratic process in an abstract and universal form, and Kant tried tosubordinate legislation (democracy) to morality (right). [FN49] Neither seemedespecially convincing. During the 1990s, however, Habermas posited asolution in the form of a 'co-originality thesis'. [FN50] His thesis is that sinceone cannot be realized without the other and since neither sets limits on theother, the principles of liberty and democracy should be treated as beingequally original. Habermas' argument is that private and public autonomy areinterdependent and that this interdependence rests on the complementarity ofreason (morality) and will (positive law) and on an internal (i.e. conceptual)

relation between the rule of law and democracy. [FN51]

Since a concept cannot define itself, it is not difficult to demonstrate that abasic law is a necessary condition of democracy and that, although appearingas *193 constraints, these rules amount to enabling conditions. [FN52] Butsuch rules concern rights of expression and participation and do not of



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necessity extend to rights that guarantee private autonomy. The challengehas been to show that the entire corpus of basic rights, and not merelypolitical rights, are constitutive of the democratic project. Here, Habermas

deploys discourse theory to make the case that rights to individual autonomyprovide the foundations that enable individuals to become moral beings (i.e.authors of their own laws) and that only a community of moral beings mayassert the claims of democracy. He concludes that 'the rule of law is inscribedin political self-legislation, just as the categorical imperative ... is inscribed inmoral self-legislation' and just as 'the morally acting individual binds her will tothe idea of justice, the reasonable self-binding of the political sovereign meansthat the latter binds itself to legitimate law'. [FN53]

The co-originality thesis attempts to resolve the paradox of constitutionaldemocracy through an exercise in conceptual clarification. It is able to

succeed, however, only by invoking discourse theory, a normative theory ofcommunicative competence that uses the image of an ideal speech situation,and thus operates as a variant of social contract theory. Consequently,although potent as normative philosophy, the thesis is less compelling asconstitutional theory. The main difficulty lies in the fact that modernconstitutions are drafted at particular moments in history and those subject toconstitutional rules generally have not taken part in the making of them. Thisconcern led Paine--otherwise a strong promoter of modern constitutionalframeworks--to argue that 'every generation must be as free to act for itself, inall cases, as the ages and generations which preceded it'. [FN54] For Paine,the entrenchment of constitutional rights amounted to an attempt to govern

the living by 'the manuscript assumed authority of the dead'. [FN55]

Habermas tries to avoid this criticism by arguing that descendants mustimagine they 'are "in the same boat" as their forbears'. [FN56] But thismanoeuvre only exacerbates his difficulties since, for it to work, this 'boat'must stand as a metaphor for the state, understood as the political unity of apeople. Habermas must therefore follow those like Maistre who recognizedthat the political identity of a people precedes the establishment of a formalconstitution. The problem then is that democracy would appear not to berationally constructed through the adoption of a text (reason), but to be theproduct of a way of living of a people (culture). Habermas has recently claimed

that the authority of modern constitutional democracy can be promotedthrough the concept of 'constitutional patriotism', a rational commitment to an'abstract foundation' uncoupled from 'its *194 historical identification with a ...political culture'. [FN57] But this constitutional patriotism would now seem tobe underpinned by a thick political culture.



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Habermas' attempt to devise a principled relation between liberty anddemocracy is therefore suggestive, but ultimately is unable to dissolve thebasic tension. This should not be surprising, however, since the tension--

between autonomous reason and collective culture--is precisely what givesmeaning to modern constitutional discourse. [FN58] This is an ineradicablerelation. Consequently, many liberal constitutional jurists who began by boldlyasserting the transcendental claims of law are now quietly acknowledgingthat, being bound up in this tension, law is in reality a technique that operatespragmatically within specific political contexts. [FN59] But what has yet to befully acknowledged is that constitutional interpretation is a singular type ofjuristic reasoning whose dynamic comes from the tension betweenconstitutional texts and a sense of the political identity of a people.Constitutional reasoning is, in short, a special form of political discourse. Andthis means that constitutional lawyers--Tocqueville's bulwarks [FN60]-- have

specific political responsibilities that they may not be well equipped todischarge properly.

B. Norm and Exception

From the discussion on liberty and democracy we see that law can beconceived both to be a tool of power and also as being constitutive of power.These differing conceptions yield a distinction, often overlooked in juristicanalysis, between 'rule by law' and 'the rule of law'. To say that governmentshould govern only through the instrumentality of law is one thing; to say thatgovernment should be conceived to be entirely a creature of law is another.

Much of the juristic analysis relating to the concept of the rule of law focuseson the formal properties of law as a set of general, stable, prospective andcoherent rules of conduct. [FN61] But the significance of such analysis variesaccording to the conception of law to *195 which it is being applied. Andwriters are seldom clear about the conception being invoked.

For constitutional theory, the critical aspect is not that of formal analysis.Rather, it concerns a strategic question, orientated to the constitutiveconception of law and specifically focused on the extent to which, andconditions under which, political power is capable of being institutionalized.[FN62] The liberal ideal is that of total institutionalization and the realization of

'the normative state'. This aims at the elimination of the figure of thesovereign so that there will be no ultimate lawgiver, but only the rule of rules.Once we move from normative construct to actual practice, however, thingsget tough. The problem presents itself in an acute form when liberaldemocracies face threats to the stability of their systems. Rawls explicitlyacknowledges the need to contain these threats. The critical issue is: to what



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extent should the system of constitutional protections--the institutionalizedprinciples of liberty and equality--be suspended for the purpose ofsafeguarding the security of the regime? And, equally importantly, who is to

make the decision on the existence and nature of that emergency?

Invoking the maxims of salus populi suprema lex esto and 'necessity knowsno law', the ancients often relied on the practice of commissarial (orconstitutional) dictatorship, that is, the suspension of constitutional rule for thepurpose of defending against a threat and seeking to bring about therestoration of constitutional order. [FN63] Most modern constitutional regimesmake formal provision for suspension of constitutional guarantees in anemergency, [FN64] though the danger--especially when the constitution isdrafted on normativist assumptions [FN65]--is that constitutional dictatorshipmay descend into sovereign dictatorship. [FN66] But deciding to make no

constitutional adjustment in times of perceived threat carries its own dangers,not least that government will respond by subterfuge, leading to a widening ofthe gap between constitutional norms and governmental action, andundermining respect for constitutional ordering itself.

This question-that of the relationship between norm and exception--hasbecome especially acute since the declaration of the 'war on terror' after the*196 attacks of 11 September, 2001. Despite juristic support for the position,[FN67] doing nothing was apparently not an option: 'if pedantic respect forcivil liberties requires government paralysis', Ackerman commented, 'noserious politician will hesitate before sacrificing rights to the war against

terrorism'. [FN68] Ackerman argued that, in order to avoid a cycle ofrepression, liberals must be prepared to adopt 'a more hard-headed doctrine,one that allows short-term emergency measures'. [FN69] The difficulty with hissolution, as he himself recognized, is that 'the longer people live under theshadow of the emergency, the more likely they are to recognize the utopiannature of the [normativist] model and to demand that the legal systemaccommodate the necessities of the situation'. [FN70] That is, the exceptionmay eventually become the norm. [FN71] In order to avoid this possibility,Gross has proposed an 'extra-legal measures' approach in which normal orderis maintained, save that the executive can take extraordinary measuresprovided they assume responsibility for this extra-legal action, offer their

reasons, and place themselves at the mercy of the nation and the state toauthorize ex post facto the action taken. But this is hardly uncontroversial,especially since, as Dyzenhaus pointedly notes, ex post authorization wasprecisely the method used by Hitler in 1934 to justify his purge of the SA onthe 'Night of the Long Knives'. [FN72]



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The issue of the exception is of pivotal importance in constitutional theory,and it is one for which there can be no legal-institutional solution. Maintainingthe norm in exceptional times will invariably lead to an undermining of the

authority of the norm. Legislating for a limited state of exception carries theprospect that those restrictions--being incapable of clear definition--eventuallybecome transmuted into the norm. And leaving the decision on the necessaryaction to the discretion of government to be ratified retrospectively throwsinto the spotlight the precise issue--the vital importance of authoritativeleadership--that liberal constitutionalism seeks to suppress. In the state ofexception, the separation between legislative, executive and judicial--thenorm--disintegrates, and Schmitt's provocative claim that 'sovereign is he whodecides on the exception' can no longer be ignored. [FN73]

*197 When Dicey wrote that there exists a state of exception in which 'for

the sake of legality itself the rules of law must be broken' he put this finger onthe key issue. [FN74] What this ineffable statement suggests is that the stateof exception, although beyond (positive) law, remains of juristic significance.Trying to face this issue directly, Agamben has argued that the state ofexception is 'neither external nor internal to the juridical order, and theproblem of defining it concerns precisely a threshold, or a zone of indifference,where inside and outside do not exclude each other but rather blur with eachother'. [FN75] Schmitt is more concise and to the point: in the state ofexception 'the state remains, whereas the law recedes'. [FN76]

Once the state is understood to be an expression of the political unity of a

people, we are able to identify the key juristic question. Positive constitutionallaw--the norm--owes its existence to the 'material' constitution and this way oflife, which has a juridical aspect as droit politique, provides an anchoragepermitting us to identify the role and limits of the exception. Whatdistinguishes the emergency suspension of constitutional guarantees byliberal democratic states from the mode of operation of the Nazi regime is notthe form that these emergency powers take, though this can have significanteffects. [FN77] Ultimately, it depends on the workings of the materialconstitution. [FN78]

C. Identity and Difference

Consideration of the norm/exception dichotomy causes us to reflect furtheron the idea of the political unity of a people. This is a modern notion,originating in the contractarian theories of political philosophers who foundedgovernmental authority on the consent of 'the people'. In such writing, themultitude is transformed into a people, who then deliberate and agree a



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constitution. This type of exercise therefore presupposes a people that exist asa unity prior to the establishment of the formal constitution. This unity--anation or demos--is what is meant by 'the state'.

*198 From this perspective, modern constitutionalism forms part of thestate-building project. Even in the late 16th century, we find Bodin arguingthat 'hard it is for high and stately buildings long to stand, except they beupholden and staid by the most strong shores, and rest upon the most surefoundations'. [FN79] In addition to erecting an institutional frame thatobjectified governing arrangements (the formal constitution), the foundationswere bolstered by the production of exemplary stories about the character andhistory of a people. This policy, which promoted homogenization (by, forexample, eliminating minority languages within the state) and a sense ofcorporate identity, has become known as nationalism.

Although 'nation' is a political concept that stands in an ambiguous relationto an ethnos, it is clear that the identity of a people was built on difference:inclusion was rooted in exclusion and, as the modern and ostensibly universalnarrative of constitutionalism got under way, equality founded on inequality.[FN80] The evolution of modern constitutionalism was therefore directly linkedto the processes of 'civilization', and its character was thrown into relief bysuch colonial practices as treating conquered land as terra nullius andotherwise suppressing the political claims of indigenous peoples. [FN81]Modern constitutional development can therefore be understood as a quest forinclusion.

While this has mainly involved the struggle to extend civil and politicalrights to all, attention has recent turned to the need to acknowledgedifference within identity. This presents particular difficulties for liberalism,especially when the claim for recognition is made against a background ofhistoric subjugation. Treating certain claimants equally today may not result intreating them justly, especially if such equal treatment operates 'within theimperial conventions and institutions that have been constructed to exclude,dominate, assimilate or exterminate them'. [FN82] The quest for inclusionaryjustice in the context of a legacy of slavery or the suppression of indigenouspopulations or other minority groups may thus require affirmative action by

government or the conferral of special powers, rights or immunities notextended to the general body of citizens. [FN83] Equal respect might requiredifferential treatment.

*199 Many states that today have adopted liberal democratic constitutionsare experiencing group conflicts over a broad range of economic, political and



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cultural matters ranging from land claims to regional autonomy,representation to immigration policy, and language rights to symbols ofnational identity. Kymlicka even suggests that finding answers to the

constitutional questions that these clashes raise presents 'the greatestchallenge facing democracies today'. [FN84] Although these struggles forrecognition of suppressed collective identities seek in various ways todisaggregate the homogenous political concept of the nation, we candistinguish between those that can become individuated as a matter of citizenrights and those that retain an intrinsically collective aspect.

In the former category, can be placed the claims of members of religious,ethnic or other cultural groups to be accorded a special civic status. ShouldSikh men be exempt from the legal requirement to wear motorcycle helmets?Should Muslim girls be permitted to wear the hijab in school? In general, what

status should be granted to conscientious objection to civil obligation? Heretoo might be placed the feminist claim not merely to formal equality but to theneed to recognize difference. [FN85] In these situations, a tension existsbetween equal rights and the right to difference based on a claim ofauthenticity, [FN86] and the division lies between an assertion of formalequality and a communitarian claim that formal liberalism may be 'aparticularism masquerading as the universal'. [FN87] Such clashes remind usthat 'it is just as absurd to fancy that a philosophy can transcend itscontemporary world as it is to fancy that an individual can overleap his ownage'. [FN88] The conflicts appear susceptible to diffusion only by resorting togeneral notions of prudence--that is, understanding, deliberation, and

accommodation. [FN89]

The latter category, however, raises singular questions for constitutionalthought. These are illustrated by current controversies concerning the statusof aboriginal land claims in Australia, Canada and New Zealand, [FN90] orlanguage rights in Quebec, [FN91] or even assertions to internal self-government in the celtic regions of the United Kingdom. [FN92] The commondenominator is a demand for constitutional recognition of cultural identity inways that undermine liberal equality: that is, whether special treatment fordistinct groups offends the *200 principle of equal treatment, or freedom ofexpression is undermined by policies of language protection designed to

support a culture, or whether equality of representation is eroded bypragmatic (asymmetric) federal arrangements. But the issue is not simply oneof equality of rights; it also involves a more basic constitutional claim ofwhether the group--Maori, Inuit, Qubcois, Scot--is also a nation that iscompetent to assert its own claims to sovereignty. [FN93]



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Questions of cultural recognition challenge, in various ways, the modernconstitutional discourse of a sovereign people that establishes a constitutionon the foundation of universal equality. When these questions are brought to

the fore, the modern idea of a constitution as a foundational agreement tendsto be displaced, and we are obliged to fall back on the older understanding ofconstitutions as 'chains of continual intercultural negotiations andagreements'. [FN94] But the emerging politics of recognition does more thanforce us to reconsider the relationship between the two conceptions ofconstitution. It also brings to the fore those issues of power and dominationthat are inscribed in the ways in which particular groups come to establishthemselves as a nation-state, and thus subverts some of the more self-servingstories of peoplehood on which constitutional discourse is founded.

D. Community and Cosmopolis

Recent debates on identity/difference offer a specific illustration of a morediffuse sense amongst citizens that the gap between community and the legal-institutional arrangements of government is both large and growing.Contemporary government now appears remote, complex, bureaucratic, andnot easily susceptible to popular influence. This trend is reinforced by recenteconomic transformations that have released the power of capital from theboundary controls of nation-states, since if governments are to retain somesemblance of control over the economic welfare of their citizens, co-ordinatedaction at the supra-national level would appear to be essential.

Contemporary pressures on government therefore suggest that theconditions of legitimacy and effectiveness are pulling in opposing directions:citizens are responding to a feeling of government remoteness by retreating toa simple primordialism, while government is becoming enmeshed in functionalsystems operating above the level of the nation-state. The challenge forconstitutional thought arises precisely because modern constitutionalstructures and practices have evolved on the basis of a determinate territorialunit whose sovereign authority is now being questioned. The modern nation-state is not strictly a community; *201 rather, it is a nation comprised ofseveral communities united in allegiance to a distinctive governing apparatus.And, as Balibar argues, the space between communitarianism and

cosmopolitanism within which the nation-state is situated can appearparadoxical, since 'the mode in which the nation institutes belonging andengenders a form of identification through the universal ... hides profoundantinomies'. [FN95]

One consequence of the bringing to consciousness of these antinomies has



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been the emergence of more pluralistic modes of constitutional discourse, asthe language of constitutionalism is extended beyond the nation-state form.[FN96] But some writers are claiming that those antinomies can now be

resolved by realizing the universal potential inherent in the claim of equalliberty: if one believes in equality, why does the argument stop at the bordersof particular nation-states? [FN97] This stance is most clearly manifest inthose who, picking up on Kant's writing, [FN98] now extend his argumentbeyond the idea of a universal moral law to that of a moral and legaluniversalism, and promote the claims of a cosmopolitan polity. [FN99] Forothers, the inclusionary/exclusionary dynamic cannot be eliminated withouteradicating the political itself, and therefore the basis on which constitutionaldiscourse has evolved. The era of economic globalization, they argue, isresulting in the emergence of a new form of liberal imperialism, in which theclaim to sovereign authority need no longer be tied to territorial control and

the exclusions are now hidden beneath the banner of democracy and rights.[FN100]

The constitutional arguments surrounding these questions have come tofocus primarily on the question of Europe. The recent pace of Europeanintegration has generated considerable speculation about the constitutionalcharacter of the EU project. And, once again, this brings to a head the tensionbetween the two senses of constitution. Those promoting the need for aEuropean constitution thus claim that, as a consequence of modernization, thelinks between community and state are now being severed and that politicalidentity, being no longer based in the cultures of particular historic

communities, must come to rest on a common allegiance to the universalprinciples of liberty and equal citizenship expressed in the foundation of theEuropean Union. [FN101]

This is, of course, the claim of 'constitutional patriotism' which Habermashas been promoting. [FN102] In relation to the European question, Habermasargues that 'the constitutional question does not provide the key to the mainproblem we have *202 to solve' since 'the challenge before us is not to inventanything but to conserve the great democratic achievements of the Europeannation-state, beyond its own limits'. [FN103] Given the nature and structure ofthe EU, the obstacles may be more serious than he seems prepared to

acknowledge. [FN104] But even if he is right and constitutionalization does notrequire significant innovation, Habermas remains aware of the scale of thechallenge, recognizing that 'the decisive question is whether the civil societyand the political public sphere of increasingly large regimes can foster theconsciousness of an obligatory cosmopolitan solidarity'. [FN105] Since it canbe accepted that Europe is integrating economically, socially, and



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administratively, and that it is necessary to evoke a common European cultureto sustain the project, the disagreement between civic nationalists and thoseespousing a constitutional patriotism seems ultimately to rest on one key

issue: the degree of faith that can sensibly be placed in a formal constitution'sability to act as a catalyst that could generate the type of pan-European publicculture needed to sustain constitutional order.

6. ConclusionThis survey has been underpinned by a more general argument about the

nature of constitutional theory. My argument has been that once the twoconceptions of constitution are highlighted, the basis for recognizing thatconstitutional discourse has a dialectical character is revealed. The normativeschemes of formal constitutional frameworks, with their claims to equality,liberty and rule-bounded authority, tend to be presented in a universalized

form that of necessity must be qualified or given specific meaning wheneverset to work within the political ways of being of actually existing states. 'But itis precisely in these clashes between what is absolutely right and whatarbitrariness makes pass as right', argues Hegel, 'that there lies the need forstudying the fundamentals of [constitutional] right'. [FN106] Constitutionalclaims may have an emancipatory dimension, but whenever they are appliedsome part of that ideal is inevitably butchered.

In the article, I have tried to show that constitutional theory has beenrejuvenated mainly because of perceived limitations in the more universalclaims of modern constitutionalism. The fundamentals of constitutional right

are to be located within the tensions that exist between such aspects ofconstitutional practice as liberalism and democracy, norm and exception,identity and difference, and community and cosmopolis. And althoughidentification of the character of these fundamentals might appear to offerlittle by way of instruction on the best way forward, it should at least enhanceour understanding of the complexities of the current situation.

[FNd1]. Professor of Public Law, London School of Economics and PoliticalScience. For comments on an earlier draft, I should like to thank DamianChalmers, Neil Duxbury, David Dyzenhaus, Conor Gearty, Tom Hickman,Thomas Poole, Mohammed Rasekh and Neil Walker.

[FN1]. T. Paine, 'Rights of Man' in his Rights of Man, Common Sense and otherPolitical Writings [1791], M. Philp (ed.) (Oxford: Oxford University Press, 1995),83-331, 1 at 122.

[FN2]. J. Madison, A. Hamilton and J. Jay, The Federalist Papers [1788], I.



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Kramnick (ed.) (London: Penguin, 1987), 87.

[FN3]. J. de Maistre, 'Study on Sovereignty' [1794-5] in Jack Lively (ed.), The

Works of Joseph de Maistre (New York: Macmillan, 1965), 93-129 at 107.

[FN4]. Ibid 103.

[FN5]. Ibid 103-4.

[FN6]. G. W. F. Hegel, The Philosophy of Mind [1830], W. Wallace (trans.)(Oxford: Clarendon Press, 1971), .540.

[FN7]. See M. Landau, 'On the use of metaphor in political analysis' in hisPolitical Theory and Political Science: Studies in the Methodology of Political

Inquiry (New Jersey: Humanities Press, 1979), ch 3.

[FN8]. See, e.g. G. Marshall, Constitutional Theory (Oxford: Clarendon Press,1971) which analyses the meaning of such concepts as 'state', 'sovereignty','equality under the law' etc.

[FN9]. See, e.g. R. Hardin, Liberalism, Constitutionalism, and Democracy(Oxford: Oxford University Press, 1999).

[FN10]. Note, e.g. J. Rawls, A Theory of Justice (Oxford: Oxford UniversityPress, 1972), 227: 'our discussion is part of a theory of justice and must not be

mistaken for a theory of the political system. We are in a way describing anideal arrangement'.

[FN11]. M. Oakeshott, 'What is political theory?' [1973] in his What is History?And other essays L. O'Sullivan (ed.) (Exeter: Imprint Academic, 2004), 391-402, 397.

[FN12]. See further M. Loughlin, 'Theory and Values in Public Law: AnInterpretation' 2005 PL 46-64, at 62-64.

[FN13]. Viewed in this light, the classical text of constitutional theory is G. W.

F. Hegel, Philosophy of Right [1821], T. M. Knox (trans.) (Oxford: OxfordUniversity Press, 1952). Hegel argues that the task of constitutional theory is'the apprehension of the present and the actual, not the erection of a beyond,supposed to exist, God knows where, or rather which exists, and we canperfectly well say where, namely in the error of a one-sided, empty,ratiocination' (ibid at 10).



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[FN14]. Oakeshott, above n 11 at 400.

[FN15]. C. Taylor, 'Interpretation and the Sciences of Man' in his PhilosophicalPapers, vol. 2 (Cambridge: Cambridge University Press, 1985), ch 1.

[FN16]. J-J Rousseau, The Social Contract [1762], M. Cranston (trans.)(Harmondsworth: Penguin, 1968), iv. 8.

[FN17]. The Politics, Bk.I.ii (italics supplied).

[FN18]. The implications of this analysis for legal, political and constitutionalthought are clearly drawn in F. A. Hayek, Law, Legislation and Liberty: vol. 1Rules and Order (London: Routledge and Kegan Paul, 1973).

[FN19]. This is the essential distinction to be drawn between the political (andjuristic) theories of Hobbes and Locke. For thought-provoking account of howthe social becomes ubiquitous see: M. Foucault, Society Must be Defended(London: Penguin, 2003).

[FN20]. See Rawls, above n 10 at 7. cf. S. S. Wolin, Politics and Vision:Continuity and Innovation in Western Political Thought (Princeton: PrincetonUniversity Press, expanded edn. 2004), 532-34.

[FN21]. Rawls, above n 10 at 3-4.

[FN22]. Ibid at 227.

[FN23]. Ibid at 196 (italics supplied).

[FN24]. Ibid at 16.

[FN25]. See Wolin, above n 20 at 530.

[FN26]. J. Rawls, Political Liberalism (New York: Columbia University Press,rev.edn. 1996), 137.

[FN27]. Ibid at xx.

[FN28]. Ibid at xviii-xix.

[FN29]. Rawls, 'The Idea of Public Reason Revisited' in his The Law of Peoples



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(Cambridge, Mass.: Harvard University Press, 1999), 131 at 132.

[FN30]. Cf. M. Loughlin, The Idea of Public Law (Oxford: Oxford University

Press, 2003), esp. ch 8.

[FN31]. Rawls, above n 26 at 233. cf. B. Ackerman, We the People:Foundations (Cambridge, Mass.: Belknap Press, 1991), ch 1.

[FN32]. Rawls, above n 26 at 233



[FN35]. Ibid.

[FN36]. Rawls' work also helps to explain why the Weimar republic, a classiccase of the failure of a liberal democratic constitution to sustain itself in theface of intense political conflict, has recently become the object of extensiveinvestigation. See, e.g. P. C. Caldwell, Popular Sovereignty and the Crisis ofGerman Constitutional Law: The Theory and Practice of WeimarConstitutionalism (Duke University Press, 1997); J. P. McCormick, CarlSchmitt's Critique of Liberalism (Cambridge: Cambridge University Press,1997); D. Dyzenhaus, Legality and Legitimacy: Schmitt, Kelsen, and Heller inWeimar (Oxford: Oxford University Press, 1999); E. Kennedy, Constitutional

Failure: Carl Schmitt in Weimar (Durham, N.C.: Duke University Press, 2004).

[FN37]. Rawls, above n 26 at xxvii.

[FN38]. Ibid at xxvii-xxviii.

[FN39]. Ibid at xxviii.

[FN40]. Ibid.

[FN41]. See, e.g. J. Habermas, 'Reconciliation through the public use of reason'

in his The Inclusion of the Other: Studies in Political Theory (Cambridge: PolityPress, 1999), 49-73 at 71 (arguing that Rawls gives priority to constitutionalprotection of the private sphere and this 'not only contradicts the republicanintuition that popular sovereignty and human rights are nourished by thesame root' but 'also conflicts with historical experience').



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[FN42]. Rawls maintains that rights to personal property needed for personalindependence and self-respect are part of basic liberties but that widerconceptions--rights to acquisition and to control natural resources and the

means of production--are not (since they are not necessary for thedevelopment of moral powers): above n 26 at 298. Such property rights mustdepend 'upon the traditions and social institutions of a country and itsparticular problems and historical circumstances' (ibid at 338). But does thisnot mean that it must ultimately be subject to 'public reason', which is not thereason of democracy but of the supreme court?

[FN43]. Cf. A. Negri, Insurgencies: Constituent Power and the Modern State, M.Boscagli (trans.) (Minneapolis: University of Minnesota Press, 1999), ch 4.

[FN44]. Rawls, above n 26 at 161 (italics supplied).

[FN45]. See, e.g. Rawls, above n 26 at 152: 'in affirming a political conceptionof justice we may eventually have to assert at least certain aspects of our owncomprehensive religious or philosophical doctrine (by no means necessarilyfully comprehensive). This will happen whenever someone insists, forexample, that certain questions are so fundamental that to insure their beingrightly settled justifies civil strife .... At this point we may have no alternativebut to deny this, or to imply its denial and hence to maintain the kind of thingswe had hoped to avoid.'

[FN46]. Ibid at 13-14.

[FN47]. See J. Rawls, 'The Priority of the Right and Ideas of the Good' in hisCollected Papers, S. Freeman ed (Cambridge, Mass: Harvard University Press,1999), 449-72. Maistre's fundamentalism is rejected as a religiouscomprehensive doctrine that belongs to the social but not the political world(at 462) and Paine's radical form of civic humanism is denounced as acomprehensive doctrine that holds that 'man is a social, even a politicalanimal, whose essential nature is most fully achieved in a democratic societyin which there is widespread and vigorous participation in political life' (at469).

[FN48]. See, e.g. Dyzenhaus, above n 36 at 231: 'Political liberalism is thuspolitical in the Schmittian sense. It asserts its truth against every challenge.But it is also political in just the contradictory way Schmitt thought liberalismhad to be. At the same time as it asserts its truth, at least when it is hardpressed by its enemies, it seeks to ban truth from politics, claiming that it isneutral between all positions. But this neutrality is one between fully



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privatised moralities, which is what liberalism aims to achieve.'

[FN49]. J-J.Rousseau, above n 16, esp. II.ii, II.iii.; I. Kant, 'Perpetual Peace: A

Philosophical Sketch' in his Political Writings, Hans Reiss (ed.) (Cambridge:Cambridge University Press, 2nd edn, 1991), 93-130, esp. 125.

[FN50]. See J. Habermas, Between Facts and Norms: Contributions to aDiscourse Theory of Law and Democracy (Cambridge: Polity Press, 1997), 127.Robert Fine has astutely observed that this work can be read as an extendedcommentary on Hegel's Philosophy of Right: see R. Fine, PhilosophicalInvestigations: Hegel, Marx, Arendt (London: Routledge, 2001), 20.

[FN51]. J. Habermas, 'On the Internal Relation between the Rule of Law andDemocracy' in The Inclusion of the Other, above n 41, ch 10.

[FN52]. This is an illustration of what has been called 'constraint theory'. See J.Elster, Ulysses Unbound: Studies in Rationality, Precommitment andConstraints (Cambridge: Cambridge University Press, 2000); S. Holmes,Passions and Constraint: On the Theory of Liberal Democracy (Chicago:University of Chicago Press, 1995), esp. ch 5.

[FN53]. J. Habermas, 'Constitutional democracy: a paradoxical union ofcontradictory principles?' (2001) 29 Political Theory 766-81 at 778-79.

[FN54]. Paine, above n 1 at 91.

[FN55]. Ibid at 92.

[FN56]. Habermas, above n 53 at 775.

[FN57]. J. Habermas, 'The Postnational Constellation and the Future ofDemocracy' in his The Postnational Constellation: Political Essays (Cambridge:Polity Press, 2001), 58-112 at 74.

[FN58]. Cf. Hegel, above n 13 (dialectic between abstract and concreteconceptions of right).

[FN59]. Cf. R. Dworkin's 'right answer' thesis in Taking Rights Seriously(Cambridge, Mass.: Harvard University Press, 1977) with his recent statementthat the thesis is to be understood within the frame of 'essentially contestedconcepts': Dworkin, 'Thirty years on' (2002) 115 Harv. L. Rev. 1655-87 at1686. Cf. similarly D. Beatty, Constitutional Law in Theory and Practice

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(Toronto: University of Toronto Press, 1995), asserting the universal claims ofrationality and proportionality, with his The Ultimate Rule of Law (Oxford:Oxford University Press, 2003), which promotes a more pragmatic

accommodation through proportionality. A related adjustment can be seen inT. R. S. Allan's movement from a historical to a normative claim, signalled in aswitch from definite to indefinite article in his monographs, Law, Liberty, andJustice: The Legal Foundations of British Constitutionalism (Oxford: ClarendonPress, 1993) and Constitutional Justice: A Liberal Theory of the Rule of Law(Oxford: Oxford University Press, 2001).

[FN60]. See A. de Tocqueville, Democracy in America [1835], H. Reeve (trans.)(New York: Vintage Books, 1990) vol.1, 278, who argues that one of the mostimportant functions of lawyers is 'to neutralize the vices inherent in populargovernment' by 'secretly oppos[ing] their aristocratic propensities to the

nation's democratic instincts, their superstitious attachment to what is old toits love of novelty, their narrow views to its immense designs, and theirhabitual procrastination to its ardent impatience'.

[FN61]. This juristic account is most clearly expressed in L. L. Fuller, TheMorality of Law (New Haven: Yale University Press, 2nd edn, 1969), ch 2. Itmight be noted that what from a citizen's perspective may be viewed as moralqualities of law, are from a governmental perspective prudential criteria.

[FN62]. See S. Holmes, 'Lineages of the Rule of Law' in J. M. Maravall and A.Przeworski (eds), Democracy and the Rule of Law (Cambridge: Cambridge

University Press, 2003), ch 1.

[FN63]. C. L. Rossiter, Constitutional Dictatorship: Crisis Government in theModern Democracies (Princeton: Princeton University Press, 1948); J. Ferejohnand P. Pasquino, 'The Law of the Exception: A Typology of Emergency Powers'(2004) 2 Int. J. of Constitutional Law 210-39.

[FN64]. Article 48 of the Weimar Constitution is perhaps the most well-documented of these: see, e.g. Caldwell, above n 36, esp. ch 6. cf. A. V. Dicey,Introduction to the Study of the Law of the Constitution (London: Macmillan,8th edn, 1915), ch 8. But note Dicey's comment (at 408): 'There are times of

tumult or invasion when for the sake of legality itself the rules of law must bebroken .... The Ministry must break the law and trust for the protection of anAct of Indemnity' (italics supplied).

[FN65]. Consider, e.g. Ackerman's important point that the American export ofa formal separation of powers to Latin American countries became a



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significant contributory factor in the transformation of liberal constitutionalforms into sovereign dictatorships: see B. Ackerman, 'The New Separation ofPowers' (1999-00) 113 Harv. Law Rev. 633-729 at 645-46.

[FN66]. This is, of course, precisely the route through which Hitler was able toconsolidate power. The promulgation of the Emergency Decree of 28 February1933 (the Reichstag fire decree) thus became, in effect, the constitutionalcharter of the Third Reich.

[FN67]. Ex p. Milligan 71 US 2 (1866) at 120-21, per Davis J: 'No doctrine,involving more pernicious consequences, was ever invented by the wit of manthan that any of its [sc. the constitution's] provisions can be suspended duringany of the great emergencies of government. Such a doctrine leads directly toanarchy or despotism ...'.

[FN68]. B. Ackerman, 'Don't Panic' London Review of Books, 7 February, 2002,15-16.

[FN69]. Ibid.

[FN70]. O. Gross, 'Chaos and Rules: Should Responses to Violent Crises Alwaysbe Constitutional?' (2003) 112 Yale LJ 1011-1134, at 1071-72.

[FN71]. Thus, Israel began life under a 'temporary' emergency regime in 1948,and this has remained in place ever since, and the Prevention of Terrorism

legislation introduced on a temporary basis in the UK in 1974 was periodicallyre-enacted and in 1989 made permanent: see Gross, ibid, 1091- 92. Gross alsonotes the danger of assimilation, using the illustration of Ireland which in 1984integrated its emergency provisions, in existence since 1939, into its ordinarycriminal legislation, signifying a shift from a 'due process' to 'crime control'model: ibid 1973-74.

[FN72]. D. Dyzenhaus, 'The State of Emergency in Legal Theory' in M. Hor, V.Ramraj and K. Roach (eds), Global anti-terrorism law and policy: regionalperspectives (Cambridge: Cambridge University Press, forthcoming 2005). Seealso Fuller, above n 61 at 54-55.

[FN73]. C. Schmitt, Political Theology: Four Chapters on the Concept ofSovereignty [1922] (Cambridge, Mass.: MIT Press, 1988), 5.

[FN74]. Dicey, above n 64.

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[FN75]. G. Agamben, State of Exception (Chicago: University of Chicago Press,2005), 23.

[FN76]. Schmitt, above n 73 at 12.

[FN77]. Consequently, the ruling of the House of Lords in A. v Secretary ofState for the Home Department [2004] UKHL 56 (holding that powers ofdetention against aliens was discriminatory) may lead to detention powersbeing extended more generally to citizens: Statement of Home Secretary'Measures to combat terrorism' HC Debs vol.430, cols. 305-9 (26 January,2005). The application of a principle of legal equality does not always promotemaximum liberty. See now the Prevention of Terrorism Act 2005.

[FN78]. It might be noted that there is a more general aspect of the norm-

exception dichotomy which here cannot properly be addressed. In essence it isthis: if the exception concerns the manner in which government takesnecessary discretionary action to promote the safety and welfare of the peoplein ways that fail to respect the separation of powers (the norm), to whatextent has modern government in reality established the conditions in whichthe exceptional state has been transformed into the norm? In other words, towhat extent has the normative constitution now been transformed into adignified facade behind which the efficient workings of executive government,blending legislative, executive and judicial power, carries on its administrativebusiness? See, e.g., O. Beaud, 'Constitution et constitutionalisme' in P.Reynaud and S. Rials (ed.), Dictionnaire de philosophie politique (Paris:

Presses universitaires de France, 1996), 117-26 (identifying a third--deformalized--type of constitutionalism concerned with promoting the socialconditions of existence of the people).

[FN79]. J. Bodin, The Six Bookes of a Commonweale [1576], R. Knolles (trans.)(Cambridge, Mass: Harvard University Press, 1962), iv.6.

[FN80]. See J. Habermas, 'On the Relation between the Nation, the Rule ofLaw, and Democracy' in Habermas, above n 41, 129-53; cf. J. S. Mill,'Considerations on Representative Government' [1861] in his Three Essays(Oxford: Oxford University Press, 1975), 144-423 at 382: 'Free institutions are

next to impossible in a country made up of different nationalities. Among apeople without fellow-feeling, especially if they read and speak differentlanguages, the united public opinion, necessary to the working ofrepresentative government, cannot exist'.

[FN81]. See J. Tully, Strange Multiplicity: Constitutionalism in an Age of



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Diversity (Cambridge: Cambridge University Press, 1995); D. Ivison, P. Pattonand W. Sanders (eds), Political Theory and the Rights of Indigenous Peoples(Cambridge: Cambridge University Press, 2000). Note also Schmitt's argument

that the establishment in 16th and 17th centuries of an Amity Line whichdistinguished between the European world and the 'new world' created a zoneof exception within which colonial wars were conducted, whilst limiting thepursuit European wars and thereby creating the conditions for thedevelopment of public international law: C. Schmitt, The Nomos of the Earth inthe International Law of the Jus Publicum Europaeum [1950] (New York: TelosPress, 2003).

[FN82]. Ibid at 97.

[FN83]. A subset of this general issue focuses on the politics of remembering

and forgetting in making the transition from authoritarian to liberal societies:see R. G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).

[FN84]. W. Kymlicka, Multicultural Citizenship: A Liberal Theory of MinorityRights (Oxford: Clarendon Press, 1995), 1.

[FN85]. See I. M. Young, Justice and the Politics of Difference (Princeton:Princeton University Press, 1990).

[FN86]. See B. Barry, Culture and Equality: An Egalitarian Critique ofMulticulturalism (Cambridge, Mass.: Harvard University Press, 2001); S.

Benhabib, The Claims of Culture: Equality and Diversity in the Global Era(Princeton: Princeton University Press, 2002); A. Gutmann, Identity inDemocracy (Princeton: Princeton University Press, 2003).

[FN87]. C. Taylor, 'The Politics of Recognition' in his Philosophical Arguments(Cambridge, Mass.: Harvard University Press, 1995), 225-56 at 237.

[FN88]. Hegel, above n 13 at 11.

[FN89]. See Benhabib, above n 86.

[FN90]. See, e.g. P. Havemann (ed.), Indigenous Peoples' Rights in Australia,Canada and New Zealand (Auckland: Oxford University Press, 1999).

[FN91]. See, e.g. K. McRoberts, Quebec: Social Change and Political Crisis(Toronto: McClelland & Stewart, 3rd edn, 1993).



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[FN92]. See, e.g. M. Keating, Plurinational Democracy: Stateless Nations in aPost-Sovereignty Era (Oxford: Oxford University Press, 2001); S. Tierney,Constitutional Law and National Pluralism (Oxford: Oxford University Press,

2004).

[FN93]. This point in turn raises the issue of whether a liberal state is requiredto offer a right of secession: see Patriation Reference (Reference reAmendment of the Constitution of Canada) [1981] 1 SCR 753; M. Weinstock,'Constitutionalizing the right to secede' (2001) 9 J. of Political Philosophy 182-203. cf. Habermas, above n 80 at 140-43.

[FN94]. Tully, above n 81 at 183-84. And compare Tully's use of Bill Reid'ssculpture, The spirit of Haida Gwaii, with Habermas' 'boat' metaphor: above n56.

[FN95]. . Balibar, We, the People of Europe? Reflections on TransnationalCitizenship (Princeton: Princeton University Press, 2004), 56.

[FN96]. See N. Walker, 'The Idea of Constitutional Pluralism' (2002) 65 MLR317-59.

[FN97]. cf. Hegel, above n 13, 227-28: 'the French Revolutionaries destroyedonce more the institutions which they had made themselves, since anyinstitution whatever is antagonistic to the abstract self-consciousness ofequality'.

[FN98]. Kant, above n 49; see M. Nussbaum, 'Kant and Stoic Cosmopolitanism'(1997) 5 J. of Political Philosophy 1.

[FN99]. D. Archibugi, D. Held and M. Klher (eds), Re-imagining PoliticalCommunity (Cambridge: Polity, 1998); P. Eleftheriades, 'Cosmopolitan law'(2003) 9 European LJ 241.

[FN100]. See, e.g. W. Rasch, Sovereignty and its Discontents: On the Primacyof Conflict and the Structure of the Political (London: Birkbeck Law Press,2004), esp. ch 8.

[FN101]. See, e.g. Treaty on European Union, Art. 6: 'The Union is founded onthe principles of liberty, democracy, respect for human rights and fundamentalfreedoms, and the rule of law, principles which are common to the MemberStates'.



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[FN102]. Habermas, above n 57.

[FN103]. J. Habermas, 'Why Europe needs a Constitution' (2001) 11 New Left

Review 5-26 at 6.

[FN104]. See U. K. Preuss, 'The Constitution of a European Democracy and theRole of the Nation State' (1999) 12 Ratio Juris 417-28.

[FN105]. 'Learning from Catastrophe? A Look Back at the Short TwentiethCentury' in Habermas, above n 57, 38-57 at 55.

[FN106]. Hegel, above n 13 at 224.

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loughlin - constitutional theory

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