Theorising Across Disciplines
Elgar Studies in Legal Theory
Edited by Roger Cotterrell and Maksymilian Del Mar
Chapter 5: The antinomies of constitutional authority
This chapter revisits the question of the nature of a post-state or cosmopolitan constitutionalism, and of its merits in comparison to state-centred constitutionalism, by reference to a number of deep-rooted antinomies within constitutional thought and practice. The first concerns the structural dimension of constitutionalism, in particular the tension between constitutionalism as an integrated achievement, its features embedded in the specific polity so as to form an indivisible whole, and constitutionalism as a disaggregable achievement, capable of abstraction from the particular polity and, in its abstract form, separable into various generic attributes. The second concerns the ethical dimension of constitutionalism; more specifically the tension between a particular and polity-centred and a universal and polity-transcending understanding of constitutional principles and doctrines. The third concerns the functional dimension of constitutionalism, and in particular the tension between gubernaculum and jurisidictio – between an emphasis upon governing capacity and an emphasis upon constraining public power. The fourth and last antinomy concerns the socio-cultural dimension of constitutionalism, and in particular the tension between constitutionalism as investment in an already established political way of being, and constitutionalism as a blueprint for progress – a future-oriented project of political community. State constitutionalism has sought, with greater or less success, to find a balance between these various contending forces. Post-national constitutionalism, in contrast, tends to gloss over the antinomic structure of constitutionalism and to take a one-sided approach within each dimension, emphasizing abstraction and disaggregation, universalism, jurisdictio and projection against their more culturally grounded alternatives. How prevalent and unavoidable is this tendency, and with what consequences for the legitimacy of transnational constitutional claims?
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