OXFORD CONSTITUTIONAL THEORY Series Editors: Martin Loughlin, John P. McCormick, and Neil Walker The Twilight of Constitutionalism? 99780199585007-Loghlin.indb780199585007-Loghlin.indb i 11/22/2010/22/2010 55:40:22:40:22 AAMM OXFORD CONSTITUTIONAL THEORY Series Editors: Martin Loughlin, John P. McCormick, and Neil Walker One consequence of the increase in interest in constitutions and constitutional law in recent years is a growing innovative literature in constitutional theory. The aim of Oxford Constitutional Theory is to provide a showcase for the best of these theoretical refl ections and a forum for further innovation in the fi eld. The new series will seek to establish itself as the primary point of reference for scholarly work in the subject by commissioning diff erent types of study. The majority of the works published in the series will be monographs that advance new understandings of the subject. Well-conceived edited collections that bring a variety of perspectives and disciplinary approaches to bear on specifi c themes in constitutional thought will also be included. Further, in recognition of the fact that there is a great deal of pioneering literature originally written in languages other than English and with regard to non-anglophone constitutional traditions, the series will also seek to publish English language translations of leading monographs in constitutional theory. 99780199585007-Loghlin.indb780199585007-Loghlin.indb iiii 11/22/2010/22/2010 55:40:22:40:22 AAMM The Twilight of Constitutionalism? Edited by Petra Dobner and Martin Loughlin 1 99780199585007-Loghlin.indb780199585007-Loghlin.indb iiiiii 11/22/2010/22/2010 55:40:22:40:22 AAMM 1 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © The various contributors, 2010 The moral rights of the author have been asserted Database right Oxford University Press (makers) First published 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing-in-Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by MPS Limited, A Macmillan Company Printed in Great Britain on acid-free paper by MPG Books Group ISBN 978–0–19–958500–7 1 3 5 7 9 10 8 6 4 2 99780199585007-Loghlin.indb780199585007-Loghlin.indb iivv 11/22/2010/22/2010 55:40:23:40:23 AAMM Contents Acknowledgements vii Contributors ix Introduction xi PART I: CONSTITUTIONALISM AND THE EROSION OF STATEHOOD Chapter 1 Dieter Grimm, The Achievement of Constitutionalism and its Prospects in a Changed World 3 Chapter 2 Ulrich K. Preuss, Disconnecting Constitutions from Statehood: Is Global Constitutionalism a Viable Concept? 23 Chapter 3 Martin Loughlin, What is Constitutionalisation? 47 PART II: THE QUESTION OF EUROPE Chapter 4 Tanja A. Börzel, European Governance: Governing with or without the State? 73 Chapter 5 Fritz W. Scharpf, Legitimacy in the Multi-level European Polity 89 Chapter 6 Sonja Puntscher Riekmann, Constitutionalism and Representation: European Parliamentarism in the Treaty of Lisbon 120 PART III: CONSTITUTIONALISM WITHOUT DEMOCRACY? Chapter 7 Petra Dobner, More Law, Less Democracy? Democracy and Transnational Constitutionalism 141 Chapter 8 Marcus Llanque, On Constitutional Membership 162 Chapter 9 Hauke Brunkhorst, Constitutionalism and Democracy in the World Society 179 vi Contents PART IV: CONSTITUTIONAL LAW AND PUBLIC INTERNATIONAL LAW Chapter 10 Mattias Kumm, The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia 201 Chapter 11 Rainer Wahl, In Defence of ‘Constitution’ 220 PART V: GLOBAL ADMINISTRATIVE LAW: A VIABLE SUBSTITUTE? Chapter 12 Nico Krisch, Global Administrative Law and the Constitutional Ambition 245 Chapter 13 Alexander Somek, Administration without Sovereignty 267 PART VI: THE EMERGENCE OF SOCIETAL CONSTITUTIONALISM Chapter 14 Neil Walker, Beyond the Holistic Constitution? 291 Chapter 15 Riccardo Prandini, The Morphogenesis of Constitutionalism 309 Chapter 16 Gunther Teubner, Fragmented Foundations: Societal Constitutionalism beyond the Nation State 327 Index 343 Acknowledgements The origins of this book lie in a proposal by Dieter Grimm to convene a focus group at the Wissenschaftskolleg zu Berlin (the Berlin Institute of Advanced Study) for the academic year 2007–8 on the subject of constitutions beyond the nation state. The group consisted of Petra Dobner (Halle), Dieter Grimm (Berlin), Bogdan Iancu (Bucharest), Martin Loughlin (London), Fritz Scharpf (Cologne), Alexander Somek (Iowa), Gunther Teubner (Frankfurt), and Rainer Wahl (Freiburg). The group met weekly throughout the year to discuss this wide-ranging topic and in June 2008, towards the end of the session, convened a workshop to which leading scholars on various aspects of this theme were invited. The book is the product of those focus group discussions at the Wissenschaftskolleg and the workshop presentations. For support in this venture, we must fi rst thank Dieter Grimm for proposing the study and the Board of the Wissenschaftskolleg for accepting his request. We are also most grateful to Luca Guiliani, the Rector, and his dedicated staff at the Wissenschaftskolleg who provided a remarkably congenial environment in which the group were able to pursue their individual and collective projects. For fi nan- cial support for the end-of-session workshop, we wish to express our gratitude to the Otto und Martha Fischbeck-Stiftung. Finally, our thanks go to Christoph Möllers (Göttingen) and Christian Walter (Münster), who participated in the workshop proceedings but were unable to contribute to this resulting work. Petra Dobner (Berlin) Martin Loughlin (London) july 2009 99780199585007-Loghlin.indb780199585007-Loghlin.indb vviiii 11/22/2010/22/2010 55:40:24:40:24 AAMM 99780199585007-Loghlin.indb780199585007-Loghlin.indb vviiiiii 11/22/2010/22/2010 55:40:24:40:24 AAMM Contributors Tanja A. Börzel Professor of Political Science, Freie Universität Berlin, Germany Hauke Brunkhorst Professor of Sociology, University of Flensburg, Germany Petra Dobner Associate Professor of Political Science, Martin- Luther-University of Halle-Wittenberg, Germany Dieter Grimm Professor of Public Law, Humboldt University, Berlin; Permanent Fellow, Wissenschaftskolleg zu Berlin; former Justice, Federal Constitutional Court of Germany Nico Krisch Professor of International Law, Hertie School of Governance, Berlin, Germany Mattias Kumm Professor of Law, New York University, USA Marcus Llanque Professor of Political Theory, University of Augsburg, Germany Martin Loughlin Professor of Public Law, London School of Economics and Political Science, UK Riccardo Prandini Associate Professor in Sociology of Cultural and Communicative Processes, University of Bologna, Italy Ulrich K. Preuss Professor of Law and Politics, Hertie School of Governance, Berlin, Germany Sonja Puntscher Professor of Political Science, University of Salzburg, Riekmann Austria Fritz W. Scharpf Director emeritus, Max Planck Institute for the Study of Societies, Cologne, Germany Alexander Somek Charles E. Floete Chair in Law, University of Iowa, USA Gunther Teubner Professor of Private Law and Legal Sociology, J. W. Goethe University of Frankfurt, Germany 99780199585007-Loghlin.indb780199585007-Loghlin.indb iixx 11/22/2010/22/2010 55:40:24:40:24 AAMM x Contributors Rainer Wahl Professor of Public Law, University of Freiburg, Germany Neil Walker Regius Professor of Public Law, University of Edinburgh, UK 99780199585007-Loghlin.indb780199585007-Loghlin.indb x 11/22/2010/22/2010 55:40:24:40:24 AAMM Introduction Petra Dobner and Martin Loughlin The twilight of constitutionalism? Surely not. Constitutionalism is a modern phenomenon, a feature of political life over the last 250 or so years, but one which in recent decades has been enjoying a greater infl uence in public discourse than ever before. Under its infl uence, modern constitutions have established a set of governmental institutions that provide the necessary conditions for the realisation of a democratic Rechtsstaat. Such constitutions constrain politics by legal means, structure power relations comprehensively, help normatively to integrate societies, and off er a practical account of legitimate democratic rule within the state. While these achievements cannot be denied, the fact is that this period